Newsom et al v. Countrywide Home Loans, Inc. et al

Filing 134

ORDER for further briefing re 121 Second MOTION for Default Judgment by the Court as to Whiteside and Banker's Alliance filed by Stephanie Newsom, Peter Newsom. Signed by Magistrate Judge Nandor J. Vadas on January 22, 2013. (njvlc2, COURT STAFF) (Filed on 1/22/2013) (Additional attachment(s) added on 1/22/2013: # 1 Certificate/Proof of Service) (njvlc2, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PETER NEWSOM, et al.

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Plaintiffs

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ORDER REQUIRING FURTHER
BRIEFING ON PLAINTIFFS’ SECOND
MOTION FOR DEFAULT JUDGMENT

v.

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BANKERS ALLIANCE INC., et al.

Re: Dkt. No.: 121.

Defendants

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United States District Court
Northern District of California

Case No.:4:09-cv-05288-SBA (NJV)

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Plaintiffs Peter and Stephanie Newsom have filed a second motion for default judgment

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against defendants Julie Whiteside and Bankers’ Alliance, which the district court referred to the

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undersigned. Doc. Nos. 121 & 122 On January 17, 2013, Julie Whiteside filed an opposition to

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Plaintiffs’ motion for default judgment. Doc. No. 130.1 A hearing on Plaintiffs’ motion has been

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set for February 26, 2013.

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In anticipation of the hearing, the undersigned orders the parties to file the following
declarations, under oath, on or before February 5, 2013:

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Julie Whiteside shall address the following issues:

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1. The date, location, manner and detailed content of all of her communications with any

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attorney who has represented Plaintiffs.

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2. The address(es) at which she has resided or received mail since 2009.

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3. Her relationship, if any, with Jamie Pantuso and/or the residence located at 2762

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Whiteside’s motion is procedurally improper, since entry of default has cut off Whiteside’s right
to appear in the action. See Doc. No. 129 (Order Striking Defendant Whiteside’s Motion To
Dismiss and instructing her to file a motion to set aside entry of default). The undersigned
construes Whiteside’s opposition to the motion for default judgment as a motion to set aside
default.

Filbert Street in San Francisco.

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4. How she learned that she was still a participant in this lawsuit in time to file her
opposition to the motion for default judgment (Doc. No. 130).

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5. Any prejudice she would suffer if the district court were to allow the case to proceed
against her at this time.

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Plaintiffs’ counsel, Michael Rooney, shall address the following issues:

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Why he failed to attempt serve Whiteside within the thirty-day time frame ordered by

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the district court in its September 5, 2012 order. Compare Doc. No. 109, with Doc.

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No. 114.

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2. How he determined that Whiteside should be served at 2762 Filbert Street in San

United States District Court
Northern District of California

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Francisco rather than at the address at which he had previously successfully served

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Whiteside (1212 Stearns St. in Los Angeles). See Doc. 131; see also Doc. No. 121, Ex.

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10. Counsel should address why he believed that “Joanne M. Whiteside” was, in fact,

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Julie Whiteside and why Mr. Pantuso was Ms. Whiteside’s brother-in-law. In

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particular, counsel should explain how he determined service there was proper given

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Mr. Pantuso’s representation to the process server on October 22, 2012, that he had

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“never heard of [Whiteside] before.” Doc. No. 121, Ex. 10.

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3. The date, location, manner and content of all of his communications with Whiteside,

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including any representations by Whiteside that she would not defend the action.

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4. How counsel determined that Whiteside “understood the case was pending against her”
when he deposed her. Doc. No. 101.

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5. The factual basis for his representation to the district court that “Whiteside could not be

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found for the majority of this case, despite all good faith efforts by counsel to do so.

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Julie Whiteside had moved several times.” Doc. No. 106.

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6. How counsel calculates Plaintiffs’ damages ($193,985.06), identifying each category

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of damage and setting out the calculation of each category. The undersigned notes that

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this is the identical amount Plaintiffs requested in their first motion for default

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judgment, and subsequently revised after this court ordered further briefing on the issue
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of damages. Compare Doc. No. 95 at 3 (seeking $63,939 in closing costs), with Doc.

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No. 41 at (seeking $41,408 in closing costs).

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IT IS SO ORDERED.

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Dated: January 22, 2013

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________________________
Nandor J. Vadas
United States Magistrate Judge

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United States District Court
Northern District of California

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