Freeman et al v. Wilshire Commercial Capital L.L.C.

Filing 67

ORDER signed by Senior Judge William B. Shubb on 9/18/17ORDERING the Discovery concerning the alleged capacity of defendant's Automatic Telephone Dialing System to make autodialed calls to Plaintiffs shall be continued to November 13, 2017; P laintiffs are ordered to produce their designated expert for deposition on October 12, 2017 in San Diego; With re to expert testimony intended solely for rebuttal, those experts shall be disclosed and reports produced in accordance with Federal Ru le of Civil Procedure 26(a)(2) on or before October 25, 2017; A hearing for motion regarding the alleged capacity of Defendant's Automatic Telephone Dialing System to make autodialed calls to Plaintiffs shall take place on January 16, 2018 at 1 :30 p.m. Any motion re the alleged capacity of defendant's Automatic Telephone Dialing System to make autodialed calls to Plaintiffs shall be filed by November 30, 2017, Opposition thereto shall be filed by December 18, 2017, and Reply to such O pposition shall be filed by January 4, 2018; Following the hearing on the motion re the capacity of Defendant's alleged Automatic Telephone Dialing System on January 16 2018 at 1:30 p.m., the Court will conduct a case management conference to reset the current Pretrial Conference date of January 29, 2018 and trial date of March 27, 2018. A Joint Status Report shall be filed no later than January 2, 2018. (Becknal, R)

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MOLINO & BERARDINO, A Professional Law Corporation
Anthony A. Molino, Esq. [SBN 156661] [e-mail]
Steven R. Berardino, Esq. [SBN 075820] [e-mail]
Michelle Cooper, Esq. [SBN 093668] [e-mail]
Benjamin J. Carter, Esq. [SBN 287462] [e-mail]
4751 Wilshire Boulevard, Suite 207
Los Angeles, California 90010-3838
Telephone [phone] Facsimile [phone]

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Attorneys for Defendant, WILSHIRE COMMERCIAL CAPITAL, LLC

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[Additional Counsel on Following Sheet.]
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA

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FREEMAN and VALECEA DIGGS,
) CASE NO.: 2:15-CV-01428-WBS-AC
individually and on behalf of all others ) [CLASS ACTION]
similarly situated,
)
) STIPULATION AND (PROPOSED)
Plaintiffs,
) ORDER EXTENDING THE TIME
v.
) SET FORTH IN THE PRETRIAL
) SCHEDULING ORDER OF JUNE
WILSHIRE COMMERCIAL
) 28, 2017 (DOCUMENT #65), AS
CAPITAL, LLC a California limited
) AMENDED SEPTEMBER 22, 2016
liability company dba WILSHIRE
) (DOCUMENT #38), AS AMENDED
CONSUMER CREDIT,
) BY FEBRUARY 9, 2017 ORDER
) (DOCUMENT #54), AS AMENDED
Defendant.
) BY APRIL 24, 2017 ORDER
) (DOCUMENT #62), FOR THE
) BRIEFING SCHEDULE ON
) MOTION ON ALLEGED
) CAPACITY OF DEFENDANT’S
) AUTOMATIC TELEPHONE
) DIALING SYSTEM, AND EXPERT
) DESIGNATION DATES,
)
) Courtroom: 5
) Assigned to: Judge William B. Shubb
) Complaint filed: July 6, 2015
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STIPULATION EXTENDING TIME AND HEARING DATES

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KEMNITZER, BARRON, & KRIEG, LLP
BRYAN KEMNITZER, Esq. Bar No. 066401
ELLIOT CONN, Esq.
Bar No. 279920
th
445 Bush St., 6 Floor
San Francisco, CA 94108
Telephone: [phone]
Facsimile: [phone]
Scott D. Owens, Esq.
admitted pro hac vice
Scott D. Owens, P.A.
3800 S. Ocean Drive, Suite 235
Hollywood, FL 33019
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs, Verina Freeman, Valecea Diggs, and the potential class.

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STIPULATION EXTENDING TIME AND HEARING DATES

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COMES NOW THE PARTIES TO THE ABOVE-REFERENCED
ACTION AND RECITE AND STIPULATE AS FOLLOWS:

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I.

INTRODUCTION AND GOOD REASON FOR EXTENSION

By way of this stipulation, the Parties jointly request an extension of time to
complete discovery regarding the alleged capacity of Defendant’s Automated

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Telephone Dialing System (“ATDS”) and to disclose rebuttal expert reports
regarding the alleged ATDS. Plaintiffs have disclosed their expert and he has

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produced a report; however, Plaintiffs’ designated expert, Mr. Jeffrey A. Hansen, due
to medical reasons, including a recent surgery, has been unable to sit for a deposition

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regarding his current findings, and will not be able to do so until after the rebuttal
expert disclosure/report deadline. Defendant will need to depose Plaintiffs’ expert,
currently scheduled for October 12, 2017, and have the transcript reviewed by its

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expert before filing the motion on the ATDS system, and before filing the rebuttal

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expert report. The Parties stipulate to the following schedule and request an order

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from the Court setting the following:
 November 10, 2017: Discovery cut-off for discovery concerning the capacity
of Defendant’s alleged ATDS;

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 October 25, 2017: Deadline for the Parties to disclose rebuttal experts and
produce rebuttal expert reports;

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 November 30, 2017: Deadline to file any motion regarding the capacity of
Defendant’s alleged Automatic Telephone Dialing;
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 December 18, 2017: Deadline to file any opposition to the motion on
capacity;

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 January 4, 2018: Deadline to file reply to motion on capacity;

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 January 15, 2018: Hearing date for any motion regarding the capacity of

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Defendant’s alleged Automatic Telephone Dialing System;
 January 15, 2018: Following the hearing on the motion regarding the capacity
of Defendant’s alleged Automatic Telephone Dialing System, the Court will

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conduct a case management conference to set further dates on calendar with

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regard to class certification and trial.

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 The parties are also amenable to scheduling a Case Management Conference
at the Court’s convenience to discuss the case in more detail.

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II.

STATUS OF DISCOVERY

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The Court’s June 28, 2017 Amended Scheduling Order (Dkt. 65) required the

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Parties to make any motion regarding the alleged auto dialer capacity of Defendant’s

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Telephone Dialing System to make autodialed calls to Plaintiffs to be filed by

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October 6, 2017 with a hearing date of November 13, 2017.

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The Parties have cooperated with discovery in anticipation of this motion, and
have professionally resolved any issues that have arisen. Plaintiffs have consulted
their expert, and he is available on October 12, 2017 for a deposition. Once the

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Plaintiff’s expert’s deposition, is complete, Defendant will be able to designate a

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STIPULATION EXTENDING TIME AND HEARING DATES

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rebuttal expert, and the parties will be able to brief the issue of capacity.

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III.

PRIOR EXTENSIONS

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Given the technical complexity of the issues in this case, and a medical

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necessity pertaining to Plaintiff’s designated expert, this is the Parties’ fourth request
for an extension for discovery and briefing regarding Defendant’s alleged ATDS

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used to call the named Plaintiffs. The Court issued the pretrial schedule in this matter

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on September 22, 2016 (Dkt. 38); and granted a first extension on February 9, 2017

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(Dkt. 54); second extension.

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NOW THEREFORE THE PARTIES STIPULATE:

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The Parties have stipulated to an extension of the deadlines and hearing dates

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and request that the Court modify its scheduling order as follows:
1.

Discovery concerning the alleged capacity of defendant’s Automatic

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Telephone Dialing System to make autodialed calls to Plaintiffs shall be continued to

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November 10, 2017.

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2.

Plaintiffs will produce their designated expert for deposition during on

October 12, 2017 in San Diego.
3.

With regard to expert testimony intended solely for rebuttal, those experts shall

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be disclosed and reports produced in accordance with Federal Rule of Civil

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Procedure 26(a)(2) on or before October 25, 2017.

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4.

A hearing for motion regarding the alleged capacity of Defendant’s

Automatic Telephone Dialing System to make autodialed calls to Plaintiffs shall
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STIPULATION EXTENDING TIME AND HEARING DATES

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take place on January 15, 2018 at 1:30 p.m. Any motion regarding the alleged

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capacity of defendant’s Automatic Telephone Dialing System to make autodialed

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calls to Plaintiffs shall be filed by November 30, 2017, Opposition thereto shall be
filed by December 18, 2017, and Reply to such Opposition shall be filed by
January 4, 2018.

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5.

On January 15, 2018, following the hearing on the motion regarding the

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capacity of Defendant’s alleged Automatic Telephone Dialing System, the Court

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will conduct a case management conference to set further dates on calendar.
So Stipulated.

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Dated: September 18, 2017

MOLINO & BERARDINO, APLC
s/Benjamin J. Carter
Steven R. Berardino, Esq.
Benjamin J. Carter, Esq.
Attorneys for Defendant,
Wilshire Commercial Capital
E-Mails: [e-mail]
[e-mail]

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Dated: September 18, 2017

KEMNITZER BARRON & KRIEG, PC
s/Bryan Kemnitzer
Bryan Kemnitzer, Esq.
Elliot J. Conn, Esq.
Attorney for Plaintiffs,
Verina Freeman and Valecea Diggs
E-Mail: [e-mail]
[e-mail]

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STIPULATION EXTENDING TIME AND HEARING DATES

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Good cause carrying and based upon the stipulation of the parties the Court’s
September 22, 2016 scheduling order, amended by February 9, 2017 scheduling

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order, further amended by the April 24, 2017 order, and further amended by the June
28, 2017 order, is modified as follows:
1.

Discovery concerning the alleged capacity of defendant’s Automatic

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Telephone Dialing System to make autodialed calls to Plaintiffs shall be continued to

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November 13, 2017.

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2.

Plaintiffs are ordered to produce their designated expert for deposition

on October 12, 2017 in San Diego.

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3.

With regard to expert testimony intended solely for rebuttal, those

experts shall be disclosed and reports produced in accordance with Federal Rule of
Civil Procedure 26(a)(2) on or before October 25, 2017.

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4.

A hearing for motion regarding the alleged capacity of Defendant’s

Automatic Telephone Dialing System to make autodialed calls to Plaintiffs shall

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take place on January 16, 2018 at 1:30 p.m. Any motion regarding the alleged
capacity of defendant’s Automatic Telephone Dialing System to make autodialed
calls to Plaintiffs shall be filed by November 30, 2017, Opposition thereto shall be

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filed by December 18, 2017, and Reply to such Opposition shall be filed by

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January 4, 2018.

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5.

Following the hearing on the motion regarding the capacity of

Defendant’s alleged Automatic Telephone Dialing System on January 16 2018 at
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1:30 p.m., the Court will conduct a case management conference to reset the

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current Pretrial Conference date of January 29, 2018 and trial date of March 27,

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2018. A Joint Status Report shall be filed no later than January 2, 2018.
IT IS SO ORDERED.
Dated: September 18, 2017

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STIPULATION EXTENDING TIME AND HEARING DATES