Jordan v. Paul Financial, LLC

Filing 355

ORDER RE: EMERGENCY EX PARTE APPLICATION (SI, COURT STAFF) (Filed on 5/20/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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GREGORY M. JORDAN, et al.

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United States District Court
For the Northern District of California

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No. C 07-04496 SI

Plaintiffs,

ORDER RE: EMERGENCY EX PARTE
APPLICATION

v.
PAUL FINANCIAL, LLC, et al.
Defendants.

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All three named plaintiffs have filed a motion to certify a class action. Plaintiffs Eli Goldhaber

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and Josephina Goldhaber are the only plaintiffs seeking to represent a class against defendant RBS

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Financial Products. Defendant RBS and defendant HSBC Bank USA have each filed motion for

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summary judgment. All three motions are scheduled for hearing on June 17, 2011.

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In RBS’s motion for summary judgment, and in its opposition to plaintiffs’ class certification

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motion, RBS argues that the Goldhabers lack standing to bring their claims and are not adequate class

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representatives because (1) they filed for Chapter 7 bankruptcy and (2) they failed to disclose their

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interest in this litigation in their bankruptcy petition or schedules.

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The Goldhabers wish to remedy this. They have successfully petitioned the bankruptcy court

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to reopen their bankruptcy case and reappoint their former trustee. See Doc. 150. The bankruptcy court

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gave the Goldhabers permission to file an emergency ex parte motion to approve a stipulation between

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them and their trustee that would allow the Goldhabers to “work with and on behalf of [the] reappointed

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trustee to prosecute an unadministered prepetition claim for the benefit of [the Goldhabers’] bankruptcy

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estate”: that is, the claim in this case. See id.

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The Goldhabers now request a two-month stay of the pending motions to allow them to finalize

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their arrangement with the trustee and the bankruptcy court. Doc. 351. RBS opposes the stay, arguing,

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among other things, that the Goldhabers were not diligent in attempting to remedy their failure to

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disclose their interest and that the Goldhabers’ proposed solution does not remedy the problems RBS

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has identified in terms of standing and adequacy for class representation. Doc. 352.
The Court hereby ORDERS that arguments on all three pending motions – plaintiffs’ motion

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for class certification, RBS’s motion for summary judgment, and HSBC’s motion for summary

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judgment – will be heard at 9:00 a.m. on June 24, 2011. The Court will address the motions under the

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assumption that the Goldhabers’ proposed solution will be approved by the bankruptcy court. The

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parties shall proceed under the same assumption in their remaining briefs.1 The Goldhabers shall work

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United States District Court
For the Northern District of California

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diligently to obtain the relief that they are seeking from the bankruptcy court, and shall file a status

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update with the Court by 12:00 p.m. on June 21, 2011.

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The Goldhabers’ emergency ex parte application is GRANTED IN PART and DENIED IN
PART. (Doc. 351.) RBS’s motion to appear by telephone is DENIED AS MOOT. (Doc. 353.)

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IT IS SO ORDERED.

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Dated: May 20, 2011
SUSAN ILLSTON
United States District Judge

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Neither party is prejudiced by this solution. RBS already argued in its opposition to
plaintiffs’ motion for class certification that the Goldhabers’ proposed solution is insufficient to remedy
the problem RBS identified in its motion for summary judgment. Additionally, RBS will have the
opportunity to address the Goldhabers’ proposed solution in its reply brief in support of its motion for
summary judgment, which is now due June 10, 2011. The Goldhabers will have the opportunity to
address RBS’s arguments in their reply brief in support of their motion for class certification, which is
now due June 10, 2011, and in their not-yet-filed opposition brief to RBS’s motion for summary
judgment, which is now due June 3, 2011.
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