Basich v. Patenaude and Felix, APC et al

Filing 51

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO MODIFY THE CASE MANAGEMENT ORDER AND APPOINT SPECIAL DISCOVERY MASTER. The court GRANTS Plaintiff's motion to modify the schedule. The court does not find that the appointment of a special mas ter is necessary at this time because the matters at hand can be effectively and timely addressed by a judge of the district. Accordingly, the court DENIES Plaintiff's motion to appoint a special discovery master. IT IS HEREBY ORDERED that the f ollowing modified schedule shall apply to this case: Fact and Expert Discovery cutoff 7/1/2012. Last Date for Filing Dispositive Motions due by 7/15/2012. Preliminary Pretrial Conference Statement due by 8/1/2012. Preliminary Pretrial Conference set for 8/10/2012 11:00 AM in Courtroom 4, 5th Floor, San Jose before Hon. Edward J. Davila. Motions terminated AS MOOT: 48 MOTION to Appear by Telephone filed by Mary Basich. Please see Order for further specifics. Signed by Judge Edward J. Davila on 4/17/2012. (ecg, COURT STAFF) (Filed on 4/18/2012)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 9 SAN JOSE DIVISION 10 11 12 MARY BASICH, Plaintiff(s), v. 13 PATENAUDE & FELIX, A.P.C., et al., 14 15 16 Defendant(s). ) ) ) ) ) ) ) ) ) ) ) Case No. 5:11-CV-04406 EJD ORDER GRANTING IN PART AND DENYING IN PART MOTION TO MODIFY THE CASE MANAGEMENT ORDER AND APPOINT SPECIAL DISCOVERY MASTER 17 Presently before the court is Plaintiff’s Motion to Modify the Case Management Order of 18 February 15, 2012 (see Docket Item No. 44). A hearing is scheduled for April 20, 2012. Having 19 reviewed the parties’ submissions, the court finds this matter appropriate for decision without oral 20 argument. Civil L.R. 7-1(b). Accordingly, the hearing is VACATED. Furthermore, the court 21 finds that the Case Management Conference scheduled for April 20, 2012 is unnecessary at this 22 time. Accordingly, the Case Management Conference is VACATED. 23 Plaintiff is a 73-year-old retired woman living in Watsonville, California. On September 2, 24 2011, Plaintiff filed a Complaint alleging that Defendants improperly attempted to collect a 25 delinquent Capital One credit card debt owed by Mary Ryals from Plaintiff. 26 27 28 1 Case No. 5:11-CV-4406 EJD ORDER GRANTING IN PART AND DENYING IN PART MOTION TO MODIFY THE CASE MANAGEMENT ORDER AND APPOINT SPECIAL DISCOVERY MASTER 1 Plaintiff alleges that in 2005, Defendants obtained a judgment against Mary Ryals, who had an alias of Mary Basich Serls. Since that time, Defendants harassed and abused Plaintiff in an 3 attempt to collect the debt. Plaintiff repeatedly told Defendants that they were attempting to collect 4 the debt from the wrong person. She has never used or owned a Capital One Bank credit card. In 5 2009, Defendants obtained copies of Plaintiff’s credit report and attempted to take $2,500 from 6 Plaintiff’s personal bank account. In October 2010, Plaintiff’s bank removed $2,680.63 from a 7 joint bank account that Plaintiff shares with her husband. In November 2010, Defendants admitted 8 to Plaintiff in a written letter that debt involved a person with a different social security number 9 United States District Court For the Northern District of California 2 than her own. Defendants caused $2,580.63 to be returned to Plaintiff’s bank account, which is not 10 11 the entire amount originally removed. After Plaintiff’s Complaint was filed in September 2011, the parties engaged in mediation 12 on March 14, 2012, but were unable to resolve the litigation. Plaintiff filed this present motion on 13 April 5, 2012. Plaintiff requests that the schedule be modified because of her advanced age and 14 because of the advanced age and state of health of her 93-year-old husband, who is a material fact 15 witness in this case. Mr. Basich suffers from degenerative heart disease and his advanced age 16 increases the risk of illness or death. Furthermore, if Mr. Basich becomes incapacitated, Plaintiff, 17 who is the sole caregiver, will have to take care of her husband. 18 Defendants oppose a change to the February 15, 2012 Scheduling Order. 19 Federal Rule of Civil Procedure 16 allows courts to enter pretrial scheduling orders and set 20 deadlines for the proceeding of the trial. Rule 16(b) provides that “a schedule may be modified 21 only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b). 22 The court finds that a modification of the schedule is appropriate and requested for good 23 cause because of the advanced ages of Plaintiff and her husband, who is a material witness. 24 Accordingly, the court GRANTS Plaintiff’s motion to modify the schedule. 25 26 Plaintiff also requests the appointment of a special master for the case. The court may appoint a special master only to: (1) perform duties consented to by the parties; (2) hold trials and 27 28 2 Case No. 5:11-CV-4406 EJD ORDER GRANTING IN PART AND DENYING IN PART MOTION TO MODIFY THE CASE MANAGEMENT ORDER AND APPOINT SPECIAL DISCOVERY MASTER 1 make or recommend findings of fact in nonjury trials; or (3) address pre- and post-trial matters that 2 cannot be addressed by a judge. Fed. R. Civ. P. 53(a)(1). The court does not find that the 3 appointment of a special master is necessary at this time because the matters at hand can be 4 effectively and timely addressed by a judge of the district. Accordingly, the court DENIES 5 Plaintiff’s motion to appoint a special discovery master. 6 IT IS HEREBY ORDERED that the following modified schedule shall apply to this case: 7 EVENT DEADLINE 9 United States District Court For the Northern District of California 8 Fact Discovery Cutoff July 1, 2012 Designation of Opening Experts with Reports June 1, 2012 Designation of Rebuttal Experts with Reports June 15, 2012 Expert Discovery Cutoff July 1, 2012 Deadline(s) for Filing Discovery Motions See Civil Local Rule 37-3 13 Deadline for Filing Dispositive Motions 1 July 15, 2012 14 Preliminary Pretrial Conference 11:00 a.m. on August 10, 2012 15 Joint Preliminary Pretrial Conference Statement August 1, 2011 10 11 12 16 17 IT IS SO ORDERED. 18 Dated: April 17, 2012 19 _________________________________ EDWARD J. DAVILA United States District Judge 20 21 22 23 24 25 1 26 This is the last date for filing dispositive motions. The actual hearing on the motion may be noticed for a date subsequent after contacting Judge Davila’s courtroom deputy. 27 28 3 Case No. 5:11-CV-4406 EJD ORDER GRANTING IN PART AND DENYING IN PART MOTION TO MODIFY THE CASE MANAGEMENT ORDER AND APPOINT SPECIAL DISCOVERY MASTER

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