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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DENNLY R. BECKER

No. 2:15-cv-2240-MCE-KJN PS

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Plaintiff,

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PRETRIAL SCHEDULING ORDER
v.
BANK OF NEW YORK MELLON AS
TRUSTEE FOR THE BELLAVISTA
MORTGAGE TRUST 2004-2 &
NATIONSTAR MORTGAGE LLC,

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Defendants.

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READ THIS ORDER CAREFULLY. IT CONTAINS IMPORTANT DATES THAT

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THE COURT WILL STRICTLY ENFORCE AND WITH WHICH ALL COUNSEL AND

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PARTIES, INCLUDING PRO SE PARTIES, MUST COMPLY. FAILURE TO COMPLY

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WITH THE TERMS OF THIS ORDER MAY RESULT IN THE IMPOSITION OF

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MONETARY AND ALL OTHER APPROPRIATE SANCTIONS, INCLUDING DISMISSAL

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OR AN ORDER OF JUDGMENT.

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On October 13, 2016, the court conducted a status (pretrial scheduling) conference in this

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matter. Plaintiff Dennly Becker appeared, representing himself, and attorney Megan Kelly

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appeared telephonically on behalf of defendants Bank of New York Mellon as Trustee for the
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Bellavista Mortgage Trust 2004-2 and Nationstar Mortgage LLC. After considering the parties’

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joint status report (ECF No. 35) and the parties’ representations at the status conference, the court

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issues the following pretrial scheduling order.

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NATURE OF THE CASE

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The operative second amended complaint asserts a single claim for violation of California

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Civil Code section 2943, alleging that defendants willfully failed to respond to plaintiff’s request

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for a payoff demand statement in accordance with that statute.

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Defendants deny any liability and assert various affirmative defenses.
SERVICE OF PROCESS
Defendants answered plaintiff’s second amended complaint. Thus, no further service is

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permitted except with leave of court, good cause having been shown.

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JOINDER OF PARTIES/AMENDMENT OF PLEADINGS

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No further joinder of parties or amendments to pleadings will be permitted except with

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leave of court, good cause having been shown.

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JURISDICTION/VENUE

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Jurisdiction and venue are undisputed, and are hereby found to be proper.
INITIAL DISCLOSURES

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The parties shall make initial disclosures pursuant to Federal Rule of Civil Procedure

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26(a)(1) no later than November 3, 2016.

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LAW AND MOTION

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All law and motion, except as to discovery-related matters, shall be completed by

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September 28, 2017. The word “completed” in this context means that all law and motion

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matters must be heard by the above date. Counsel and/or parties proceeding without counsel1 are

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cautioned to refer to the Local Rules regarding the requirements for noticing such motions on the

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court’s regularly scheduled law and motion calendar, including, but not limited to, Local Rule

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230. Judge Newman generally hears civil motions on Thursdays at 10:00 a.m. This paragraph

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Any reference to “counsel” in this order includes parties appearing without counsel, otherwise
referred to as appearing in propria persona or pro se.
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does not preclude motions for continuances, temporary restraining orders, or other emergency

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applications, for which the court may set a special briefing schedule, if appropriate.

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The parties should keep in mind that the purpose of law and motion is to narrow and

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refine the legal issues raised by the case and to dispose of by pretrial motion those issues that are

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susceptible to resolution without trial. To accomplish that purpose, the parties need to identify

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and fully research the issues presented by the case, and then examine those issues in light of the

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evidence obtained through discovery. If it appears to counsel after examining the legal issues and

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facts that an issue can be resolved by pretrial motion, counsel are to file the appropriate motion

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consistent with the law and motion cutoff set forth above.

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ALL PURELY LEGAL ISSUES ARE TO BE RESOLVED BY TIMELY PRETRIAL

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MOTION. Counsel are reminded that motions in limine are procedural devices designed to

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address the admissibility of evidence. COUNSEL ARE CAUTIONED THAT THE COURT

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WILL LOOK WITH DISFAVOR UPON SUBSTANTIVE MOTIONS PRESENTED UNDER

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THE GUISE OF MOTIONS IN LIMINE AT THE TIME OF TRIAL.

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DISCOVERY

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All discovery shall be completed by August 3, 2017. The word “completed” means that

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all discovery shall have been conducted so that all depositions have been taken and any disputes

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related to discovery shall have been resolved by appropriate order if necessary and, where

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discovery has been ordered, the order has been complied with. Discovery motions must be

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noticed on the undersigned’s law and motion calendar in accordance with the Local Rules and

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must be heard not later than July 20, 2017. Judge Newman generally hears civil motions on

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Thursdays at 10:00 a.m.

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The parties are reminded that discovery-related motions must conform to the requirements

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of the Federal Rules of Civil Procedure and this court’s Local Rules, including Local Rule 251.

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Additionally, the parties are required to meet and confer in good faith in an attempt to resolve

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their discovery disputes informally and without court intervention prior to filing a discovery

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motion. Such meet and confer shall take place in person, or at a minimum, via a telephonic

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conference. The mere exchange of letters or e-mails alone is not sufficient. As part of their joint
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statement related to a discovery motion submitted pursuant to Local Rule 251, the parties shall

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also specifically outline: (a) what meet-and-confer efforts were undertaken; (b) when and where

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such discussions took place; (c) who was present; and (d) how the parties’ disputes were

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narrowed as a result of such discussions. Failure to comply with these requirements may result in

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summary denial of a discovery motion.

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Additionally, the court strongly encourages the use of informal telephonic discovery

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conferences with the court in lieu of formal discovery motion practice. The procedures and

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conditions for requesting and conducting such an informal telephonic discovery conference are

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outlined in Judge Newman’s “Order re Informal Telephonic Conferences re Discovery Disputes,”

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posted on the court’s website at http://www.caed.uscourts.gov/caednew/index.cfm/judges/all-

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judges/5046/. Additionally, subject to the court’s availability, the court will also rule on disputes

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encountered at oral depositions, so as to avoid such depositions from breaking down. In the

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course of the deposition, the parties may contact Judge Newman’s courtroom deputy clerk at

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[phone] to inquire regarding Judge Newman’s availability. However, the parties are

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cautioned that these informal procedures are not to be abused, and the court may impose

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appropriate sanctions on an offending party or parties, even in the course of informal discovery

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conferences.

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EXPERT DISCLOSURES

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The parties shall disclose any expert witnesses in accordance with the specifications of

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Federal Rule of Civil Procedure 26(a)(2) no later than May 4, 2017. Any rebuttal expert

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disclosures shall be made in accordance with the specifications of Federal Rule of Civil

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Procedure 26(a)(2) no later than June 1, 2017. Expert disclosures shall be filed with the court

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and served upon all other parties.

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An expert witness not timely disclosed will not be permitted to testify unless the party

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offering the witness demonstrates that: (a) the necessity of the witness could not have been

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reasonably anticipated at the time that the expert disclosures were due; (b) the court and opposing

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counsel were promptly notified upon discovery of the witness; and (c) the witness was promptly

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proffered for deposition. Failure to provide the information required by Federal Rule of Civil
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Procedure 26(a)(2) along with the expert disclosures may lead to preclusion of the expert’s

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testimony or other appropriate sanctions.

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FINAL PRETRIAL CONFERENCE/TRIAL SETTING

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The final pretrial conference and trial will take place before the assigned district judge, the

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Hon. Morrison C. England. The court declines to set final pretrial conference and trial dates at

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this juncture. Instead, those dates will be scheduled by Judge England upon the filing of the

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parties’ Joint Notice of Trial Readiness.

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The parties are ordered to file a Joint Notice of Trial Readiness not later than thirty (30)

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days after receiving the court’s ruling(s) on the last filed dispositive motion(s). If the parties do

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not intend to file dispositive motions, the parties are ordered to file a Joint Notice of Trial

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Readiness not later than thirty (30) days after the close of discovery and the notice must include

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statements of intent to forgo the filing of dispositive motions.

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The parties are to set forth in their Notice of Trial Readiness the appropriateness of special

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procedures, whether this case is related to any other case(s) on file in the Eastern District of

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California, the prospect for settlement, the estimated trial length, any request for a jury, and the

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parties’ availability for trial. After review of the parties’ Joint Notice of Trial Readiness, Judge

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England will issue an order that sets forth dates for a final pretrial conference and trial.

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SETTLEMENT CONFERENCE

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As discussed with the parties at the status conference, the parties shall promptly meet and

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confer regarding whether a settlement conference before another magistrate judge would be

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beneficial at this juncture. If the parties so conclude, they shall file an appropriate stipulation and

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proposed order requesting the scheduling of a settlement conference.

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MISCELLANEOUS PROVISIONS

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The parties are reminded that pursuant to Federal Rule of Civil Procedure 16(b)(4), this

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order shall not be modified except by leave of court upon a showing of “good cause.” See

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Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1992). Mere agreement by the

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parties pursuant to a stipulation does not constitute good cause. Nor does the unavailability of

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witnesses or counsel, except in extraordinary circumstances, constitute good cause.
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IT IS SO ORDERED.
Dated: October 14, 2016

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