Spears et al v. Washington Mutual, Inc. et al

Filing 331

STIPULATION AND ORDER 325 Extending the Deadlines in the Action. ***Deadlines terminated and Reset. Jury Trial set for 11/24/2014 01:30 PM in Courtroom 6, 4th Floor, San Jose before Hon. Ronald M. Whyte. Motion Hearing set for 7/18/2014 09:0 0 AM in Courtroom 6, 4th Floor, San Jose before Hon. Ronald M. Whyte. Pretrial Conference set for 10/30/2014 02:00 PM in Courtroom 6, 4th Floor, San Jose before Hon. Ronald M. Whyte. Signed by Judge Ronald M. Whyte on 8/30/13. (jgS, COURT STAFF) (Filed on 8/30/2013)

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Joseph N. Kravec, Jr. (pro hac vice)
FEINSTEIN DOYLE PAYNE
& KRAVEC, LLC
429 Forbes Avenue, 17th Floor
Pittsburgh, PA 15219
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]

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Janet Lindner Spielberg (SBN 221926)
LAW OFFICES OF JANET
LINDNER SPIELBERG
12400 Wilshire Boulevard, #400
Los Angeles, California 90025
Tel: [phone]
Fax: [phone]
Email: [e-mail]

CO-LEAD CLASS COUNSEL

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IN THE UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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FELTON A. SPEARS, JR. and
SIDNEY SCHOLL, on behalf of themselves and
all others similarly situated,

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Plaintiffs,
vs.
FIRST AMERICAN EAPPRAISEIT
(a/k/a eAppraiseIT, LLC),
a Delaware limited liability company,
Defendant.

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Stipulation and [] Order; CASE NO. 5-08-CV-00868 (RMW)

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Case No. 5-08-CV-00868 (RMW)
STIPULATION AND []
ORDER EXTENDING THE DEADLINES
IN THE ACTION

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Plaintiffs Felton A. Spears, Jr. and Sidney Scholl (collectively “Plaintiffs”), and Defendant

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eAppraiseIT, LLC (“EA”), by and through their respective counsel of record and pursuant to Local

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Rules 6-2 and 7-12, enter into the following stipulation for an order to extend the remaining

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deadlines in the action by approximately one (1) month pursuant to the schedule detailed below.

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WHEREAS, on April 25, 2012, the Court Granted Plaintiffs’ Motion for Class Certification

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of Plaintiffs’ single remaining claim under RESPA, 12 U.S.C. § 2607(a), certifying a Class of “All

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consumers in California and throughout the United States who, on or after June 1, 2006, received

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home loans from Washington Mutual Bank, FA in connection with appraisals that were obtained

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through eAppraiseIT.” Dkt. No. 249, p. 12.

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WHEREAS, on August 1, 2012, the Court entered a Revised Amended Order Regarding

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Class Notice, Appointment of Lead Counsel, and Pre-Trial Scheduling setting forth deadlines for

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distribution of Class Notice, merits discovery cutoff, expert reports, supplemental and rebuttal expert

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reports, dispositive motions, mediation and trial. Dkt. No. 260, p. 3.

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WHEREAS, on March 27, 2013, the Court entered an Order extending the deadlines in the

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action by four (4) months to accommodate the scheduling of depositions and other discovery which

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is primarily of third-parties, and to allow each party to take twenty-five (25) depositions in this

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action. Dkt. No. 303.

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WHEREAS, on April 23, 2013, the Court entered Orders denying EA’s motion for leave to

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file a third-party complaint against the Federal Deposit Insurance Corporation (“FDIC”), denying

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EA’s cross motion for judgment on the pleadings, and granting-in-part and denying-in-part

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Plaintiffs’ motion for partial judgment on the pleadings. Dkt. Nos. 308 and 309.

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WHEREAS, on May 7, 2013, EA filed its First Amended Answer and Affirmative Defenses
to Plaintiffs’ Second Amended Class Action Complaint. Dkt. No. 310.

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WHEREAS, the Parties have worked cooperatively to conduct discovery, including

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discovery of third-parties which has made up the majority of depositions, and have not yet neared

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the court-allotted number of twenty-five (25) depositions per side. Dkt. No. 303.

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WHEREAS, the Parties have agreed to a stipulation regarding document authenticity

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(including, but not limited to, the stipulated authenticity of Washington Mutual Bank (“WaMu”) and
Stipulation and ] Order; CASE NO. 5-08-CV-00868 (RMW)

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EA emails and attachments, appraisals, reports, and data generated by WaMu or EA) to eliminate the

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need for certain depositions, and to reduce the time required in taking other witnesses’ depositions.

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WHEREAS, the Parties have received cooperation from several third-party witnesses to

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participate in depositions at mutually agreeable times for all of the parties involved, and to

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reasonable time limitations for third-party depositions whereby all of the depositions to-date have

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been completed within one (1) days time.

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WHEREAS, Plaintiffs have subpoenaed documents from third-party LSI Appraisal, LLC

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(“LSI”), the company Plaintiffs alleged participated in a three-way conspiracy with EA and WaMu,

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for evidence of meetings between EA and WaMu regarding appraisal services and inflation. LSI has

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objected to producing records in response to the subpoena necessitating a motion to compel the

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production which will be decided by a judge in the United States District Court for the Central

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District of California.

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WHEREAS, EA subpoenaed Kathleen Rice, an employee of third-party LSI, for her

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testimony in this action. Ms. Rice has moved to quash the subpoena which will be decided by a

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judge in the United States District Court for the Western District of Pennsylvania on a still-

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undecided schedule (although the Parties may request that the judge transfer the matter to this Court

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as the Parties believe that LSI is misstating this Court’s earlier motion to dismiss rulings by claiming

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that they should be read as precluding any deposition of a current or former LSI employee in this

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case at all).

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WHEREAS, Plaintiffs subpoenaed Bonnie Manz, an employee of third-party LSI, for her

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testimony in this action. Ms. Manz also moved to quash said subpoena which will be decided by a

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judge in the United States District Court for the Western District of Pennsylvania.

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WHEREAS, Cheryl Feltgen, WaMu’s former Chief Risk Officer, has been contacted about

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providing testimony at a deposition and has indicated she is likely to object to any subpoena for her

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testimony. If Ms. Feltgen objects to a subpoena, it will necessitate court intervention to compel her

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attendance at a deposition.

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WHEREAS, the Parties have each subpoenaed records for the now-defunct bank WaMu

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from JP Morgan Chase, N.A. (“Chase”), the bank that purchased assets of WaMu, including Class
Stipulation and [] Order; CASE NO. 5-08-CV-00868 (RMW)

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members’ loans, after WaMu went into receivership by the FDIC. Plaintiffs first served a subpoena

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on Chase in September 2012, and EA first served a subpoena on Chase in January 2013, and further

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subpoenas were subsequently served on Chase by Plaintiffs. The records subpoenaed from Chase

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seek information about Class members’ loan status, the appraisal used for the loan, the appraisal fees

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charged, and information relevant to the issue of whether the loan was a RESPA loan. These records

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are relevant to various issues raised in this case. After meeting and conferring over the subpoenas on

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numerous occasions, Chase agreed to produce certain records and information responsive to both

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Parties’ subpoenas concerning the more than 230,000 persons to whom Class notice was sent. While

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some of those records have been produced, many others have yet to be produced despite the long

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period of time since the parties’ subpoenas were served. Depending on Chase’s future productions

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over the next week or so, a motion to compel may be imminently necessary, but it is something that

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the Parties are attempting to avoid.

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WHEREAS, with the possible exception of Chase, LSI, Feltgen, Rice, and Manz, the Parties

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anticipate they will be able to complete outstanding first and third-party discovery by October 15,

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2013.

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WHEREAS, while the Parties are hopeful that they can complete the remaining third-party

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discovery of Chase, LSI, Feltgen, Rice, Manz, and all other witnesses that have been identified as

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having relevant information by October 15, 2013, given the need for Court intervention to compel

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documents and testimony, the Parties recognize that they may need an additional extension to the

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proposed schedule in the future. The Parties will raise any such need at the earliest possible date if

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and when the need becomes apparent.

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NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING, IT IS HEREBY
STIPULATED, by and between the parties, that:
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The pending deadlines for merits discovery cutoff, expert reports, supplemental and

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rebuttal expert reports, dispositive motions, other motions, pretrial conference, pre-trial briefs and

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trial date are extended pursuant to the below schedule:

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Stipulation and ] Order; CASE NO. 5-08-CV-00868 (RMW)

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Event

Prior Deadline

New Deadline

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Merits discovery cutoff

September 13, 2013

October 15, 2013

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Expert reports

October 14, 2013

November 15, 2013

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March 11, 2014

April 14, 2014

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Supplemental and rebuttal expert reports
Expert discovery cutoff (including any
discovery relating to or arising from
Plaintiffs’ aggregate inflation analysis)
Mediation

May 29, 2014

June 30, 2014

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Dispositive motion cutoff

June 12, 2014

July 1 , 2014

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Other motion cutoff
(other than motions in limine)

July 14, 2014

August 15, 2014

September 4, 2014

October 6, 2014

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Pretrial conference (hearing on motions in
limine, agreed jury instructions and verdict
forms, proposed voir dire questions)
Pretrial briefs

September 29, 2014

October 3 , 2014

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Trial date

October 20, 2014

November 24, 2014

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Dated: August 16, 2013

FEINSTEIN DOYLE PAYNE & KRAVEC, LLC

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By:

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Joseph N. Kravec, Jr., Co-Lead Class Counsel

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Dated: August 16, 2013

/s/ Joseph N. Kravec, Jr.

LAW OFFICES OF JANET LINDNER SPIELBERG

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By:

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Janet Lindner Spielberg, Co-Lead Class Counsel

/s/ Janet Lindner Spielberg via consent

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Dated: August 16, 2013

IRELL & MANELLA LLP

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By:

/s/ A. Matthew Ashley via consent

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A. Matthew Ashley, Attorneys for DEFENDANT

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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Dated: August ___, 2013
Honorable Ronald M. Whyte
United States District Judge

Stipulation and [] Order; CASE NO. 5-08-CV-00868 (RMW)

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