Becker v. Countrywide Home Loans, Inc. et al

Filing 41

PRETRIAL SCHEDULING ORDER signed by Magistrate Judge Kendall J. Newman on 10/14/16: All law and motion, except as to discovery-related matters, shall be completed by 9/28/2017. Designation of Expert Witnesses due by 5/4/2017. Discovery due by 8/3/2017. (Kaminski, H)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DENNLY R. BECKER No. 2:15-cv-2240-MCE-KJN PS 12 Plaintiff, 13 14 15 16 PRETRIAL SCHEDULING ORDER v. BANK OF NEW YORK MELLON AS TRUSTEE FOR THE BELLAVISTA MORTGAGE TRUST 2004-2 & NATIONSTAR MORTGAGE LLC, 17 18 Defendants. 19 20 READ THIS ORDER CAREFULLY. IT CONTAINS IMPORTANT DATES THAT 21 THE COURT WILL STRICTLY ENFORCE AND WITH WHICH ALL COUNSEL AND 22 PARTIES, INCLUDING PRO SE PARTIES, MUST COMPLY. FAILURE TO COMPLY 23 WITH THE TERMS OF THIS ORDER MAY RESULT IN THE IMPOSITION OF 24 MONETARY AND ALL OTHER APPROPRIATE SANCTIONS, INCLUDING DISMISSAL 25 OR AN ORDER OF JUDGMENT. 26 On October 13, 2016, the court conducted a status (pretrial scheduling) conference in this 27 matter. Plaintiff Dennly Becker appeared, representing himself, and attorney Megan Kelly 28 appeared telephonically on behalf of defendants Bank of New York Mellon as Trustee for the 1 1 Bellavista Mortgage Trust 2004-2 and Nationstar Mortgage LLC. After considering the parties’ 2 joint status report (ECF No. 35) and the parties’ representations at the status conference, the court 3 issues the following pretrial scheduling order. 4 NATURE OF THE CASE 5 The operative second amended complaint asserts a single claim for violation of California 6 Civil Code section 2943, alleging that defendants willfully failed to respond to plaintiff’s request 7 for a payoff demand statement in accordance with that statute. 8 9 Defendants deny any liability and assert various affirmative defenses. SERVICE OF PROCESS Defendants answered plaintiff’s second amended complaint. Thus, no further service is 10 11 permitted except with leave of court, good cause having been shown. 12 JOINDER OF PARTIES/AMENDMENT OF PLEADINGS 13 No further joinder of parties or amendments to pleadings will be permitted except with 14 leave of court, good cause having been shown. 15 JURISDICTION/VENUE 16 17 Jurisdiction and venue are undisputed, and are hereby found to be proper. INITIAL DISCLOSURES 18 The parties shall make initial disclosures pursuant to Federal Rule of Civil Procedure 19 26(a)(1) no later than November 3, 2016. 20 LAW AND MOTION 21 All law and motion, except as to discovery-related matters, shall be completed by 22 September 28, 2017. The word “completed” in this context means that all law and motion 23 matters must be heard by the above date. Counsel and/or parties proceeding without counsel1 are 24 cautioned to refer to the Local Rules regarding the requirements for noticing such motions on the 25 court’s regularly scheduled law and motion calendar, including, but not limited to, Local Rule 26 230. Judge Newman generally hears civil motions on Thursdays at 10:00 a.m. This paragraph 27 28 1 Any reference to “counsel” in this order includes parties appearing without counsel, otherwise referred to as appearing in propria persona or pro se. 2 1 does not preclude motions for continuances, temporary restraining orders, or other emergency 2 applications, for which the court may set a special briefing schedule, if appropriate. 3 The parties should keep in mind that the purpose of law and motion is to narrow and 4 refine the legal issues raised by the case and to dispose of by pretrial motion those issues that are 5 susceptible to resolution without trial. To accomplish that purpose, the parties need to identify 6 and fully research the issues presented by the case, and then examine those issues in light of the 7 evidence obtained through discovery. If it appears to counsel after examining the legal issues and 8 facts that an issue can be resolved by pretrial motion, counsel are to file the appropriate motion 9 consistent with the law and motion cutoff set forth above. 10 ALL PURELY LEGAL ISSUES ARE TO BE RESOLVED BY TIMELY PRETRIAL 11 MOTION. Counsel are reminded that motions in limine are procedural devices designed to 12 address the admissibility of evidence. COUNSEL ARE CAUTIONED THAT THE COURT 13 WILL LOOK WITH DISFAVOR UPON SUBSTANTIVE MOTIONS PRESENTED UNDER 14 THE GUISE OF MOTIONS IN LIMINE AT THE TIME OF TRIAL. 15 DISCOVERY 16 All discovery shall be completed by August 3, 2017. The word “completed” means that 17 all discovery shall have been conducted so that all depositions have been taken and any disputes 18 related to discovery shall have been resolved by appropriate order if necessary and, where 19 discovery has been ordered, the order has been complied with. Discovery motions must be 20 noticed on the undersigned’s law and motion calendar in accordance with the Local Rules and 21 must be heard not later than July 20, 2017. Judge Newman generally hears civil motions on 22 Thursdays at 10:00 a.m. 23 The parties are reminded that discovery-related motions must conform to the requirements 24 of the Federal Rules of Civil Procedure and this court’s Local Rules, including Local Rule 251. 25 Additionally, the parties are required to meet and confer in good faith in an attempt to resolve 26 their discovery disputes informally and without court intervention prior to filing a discovery 27 motion. Such meet and confer shall take place in person, or at a minimum, via a telephonic 28 conference. The mere exchange of letters or e-mails alone is not sufficient. As part of their joint 3 1 statement related to a discovery motion submitted pursuant to Local Rule 251, the parties shall 2 also specifically outline: (a) what meet-and-confer efforts were undertaken; (b) when and where 3 such discussions took place; (c) who was present; and (d) how the parties’ disputes were 4 narrowed as a result of such discussions. Failure to comply with these requirements may result in 5 summary denial of a discovery motion. 6 Additionally, the court strongly encourages the use of informal telephonic discovery 7 conferences with the court in lieu of formal discovery motion practice. The procedures and 8 conditions for requesting and conducting such an informal telephonic discovery conference are 9 outlined in Judge Newman’s “Order re Informal Telephonic Conferences re Discovery Disputes,” 10 posted on the court’s website at 11 judges/5046/. Additionally, subject to the court’s availability, the court will also rule on disputes 12 encountered at oral depositions, so as to avoid such depositions from breaking down. In the 13 course of the deposition, the parties may contact Judge Newman’s courtroom deputy clerk at 14 (916) 930-4187 to inquire regarding Judge Newman’s availability. However, the parties are 15 cautioned that these informal procedures are not to be abused, and the court may impose 16 appropriate sanctions on an offending party or parties, even in the course of informal discovery 17 conferences. 18 EXPERT DISCLOSURES 19 The parties shall disclose any expert witnesses in accordance with the specifications of 20 Federal Rule of Civil Procedure 26(a)(2) no later than May 4, 2017. Any rebuttal expert 21 disclosures shall be made in accordance with the specifications of Federal Rule of Civil 22 Procedure 26(a)(2) no later than June 1, 2017. Expert disclosures shall be filed with the court 23 and served upon all other parties. 24 An expert witness not timely disclosed will not be permitted to testify unless the party 25 offering the witness demonstrates that: (a) the necessity of the witness could not have been 26 reasonably anticipated at the time that the expert disclosures were due; (b) the court and opposing 27 counsel were promptly notified upon discovery of the witness; and (c) the witness was promptly 28 proffered for deposition. Failure to provide the information required by Federal Rule of Civil 4 1 Procedure 26(a)(2) along with the expert disclosures may lead to preclusion of the expert’s 2 testimony or other appropriate sanctions. 3 FINAL PRETRIAL CONFERENCE/TRIAL SETTING 4 The final pretrial conference and trial will take place before the assigned district judge, the 5 Hon. Morrison C. England. The court declines to set final pretrial conference and trial dates at 6 this juncture. Instead, those dates will be scheduled by Judge England upon the filing of the 7 parties’ Joint Notice of Trial Readiness. 8 The parties are ordered to file a Joint Notice of Trial Readiness not later than thirty (30) 9 days after receiving the court’s ruling(s) on the last filed dispositive motion(s). If the parties do 10 not intend to file dispositive motions, the parties are ordered to file a Joint Notice of Trial 11 Readiness not later than thirty (30) days after the close of discovery and the notice must include 12 statements of intent to forgo the filing of dispositive motions. 13 The parties are to set forth in their Notice of Trial Readiness the appropriateness of special 14 procedures, whether this case is related to any other case(s) on file in the Eastern District of 15 California, the prospect for settlement, the estimated trial length, any request for a jury, and the 16 parties’ availability for trial. After review of the parties’ Joint Notice of Trial Readiness, Judge 17 England will issue an order that sets forth dates for a final pretrial conference and trial. 18 SETTLEMENT CONFERENCE 19 As discussed with the parties at the status conference, the parties shall promptly meet and 20 confer regarding whether a settlement conference before another magistrate judge would be 21 beneficial at this juncture. If the parties so conclude, they shall file an appropriate stipulation and 22 proposed order requesting the scheduling of a settlement conference. 23 MISCELLANEOUS PROVISIONS 24 The parties are reminded that pursuant to Federal Rule of Civil Procedure 16(b)(4), this 25 order shall not be modified except by leave of court upon a showing of “good cause.” See 26 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1992). Mere agreement by the 27 parties pursuant to a stipulation does not constitute good cause. Nor does the unavailability of 28 witnesses or counsel, except in extraordinary circumstances, constitute good cause. 5 1 2 IT IS SO ORDERED. Dated: October 14, 2016 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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