Kristensen v. Credit Payment Services Inc.

Filing 24

ORDER that Proposed Discovery Plan/Scheduling Orders 20 , 22 , are NOT APPROVED and are DENIED. The following discovery plan and scheduling order dates shall apply: Discovery due by 7/29/2013. Motions due by 8/26/2013. Proposed Joint Pretrial Orde r due by 9/25/2013. Counsel for Plaintiff shall have until November 13, 2012, in which to meet and confer with opposing counsel in an effort to obtain a stipulation to amend the complaint, or, if counsel for Defendant is unwilling to stipulate, to file a motion for leave to amend the complaint. Signed by Magistrate Judge Peggy A. Leen on 10/30/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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FLEMMING KRISTENSEN,

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Plaintiff,
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vs.
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CREDIT PAYMENT SERVICES, INC.,
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Defendant.
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__________________________________________)

Case No. 2:12-cv-00528-KJD-PAL
ORDER

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The court conducted a hearing on the parties’ competing Proposed Discovery Plan and

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Scheduling Orders (Dkt. #20, 22) on October 30, 2012. John Benedict, John Ochoa and Evan Meyers

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appeared telephonically on behalf of the Plaintiff. Martin Welsh appeared on behalf of the Defendant.

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The Complaint (Dkt. #1) in this case was filed March 29, 2012. Defendant Credit Payment

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Services, Inc. (“CPS”) filed a Motion to Dismiss (Dkt. #12) May 17, 2012, as its initial response. The

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motion is fully briefed and under submission to the district judge.

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This is an action filed under the Telephone Computer Protection Act (“TCPA”). Plaintiff is a

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resident of New York. Complaint (Dkt. #1) ¶6. Defendant CPS is a Nevada corporation that provides

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payday loans to consumers throughout the nation. Id. ¶7. Plaintiff alleges that the Defendant violated

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the TCPA by sending the Plaintiff an unsolicited cell phone text message on December 6, 2011. Id.

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¶16. Plaintiff alleges that this text was part of a mass transmission of wireless spam to cell phones

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nationwide to potential customers of its payday loan products. Id. ¶15. Plaintiff seeks to pursue this

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case as a class action under Rule 23(b)(2) and Rule 23(b)(3) of the Federal Rules of Civil Procedure on

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behalf of himself and a class of all persons in the United States and its territories who received one or

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more unauthorized text message advertisements on behalf of the Defendant. Id. ¶22. The prayer for

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relief seeks an order certifying the class, an award of actual and/or statutory damages, an injunction

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requiring the Defendants to cease all wireless spam activities, and an award of reasonable attorney’s

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fees and costs.

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Defendant filed a Proposed Discovery Plan and Scheduling Order (Dkt. #20) October 24, 2012,

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indicating Defendant served Rule 26(a) disclosures on September 28, 2012, but had not received

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Plaintiff’s initial disclosures. The parties conducted a Rule 26(f) conference, but were unable to agree

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on a stipulated plan. The Defendant’s proposed plan points out that the motion to dismiss is fully

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briefed and under submission to the district judge and no answer has been filed. However, Defendant

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filed a proposed plan to comply with LR 26-1(e). The Defendant’s plan proposed an April 30, 2013,

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discovery cutoff and other deadlines generally consistent with LR 26-1(e).

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Plaintiff’s Proposed Discovery Plan and Scheduling Order (Dkt. #22) requested special

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scheduling review and a December 30, 2013, discovery cutoff. Counsel for Plaintiff served initial

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disclosures on October 26, 2012. Counsel for Plaintiff states that he was under the impression the

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parties were still discussing a potential stipulated plan when Defendant filed its own proposed plan with

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the court. Additional time is requested due to the complex factual and legal issues in this case, the need

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to conduct substantial third-party discovery, the need for both class and merits discovery, and the likely

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addition of new defendants in this case.

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At the hearing, counsel for Plaintiff, Mr. Meyers, stated that this firm had filed a number of

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complaints under the TCPA. Plaintiff believes perhaps tens of thousands of unsolicited text messages

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were sent to putative class members on whose behalf Plaintiff seeks to assert a class action. Plaintiff

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anticipates a need for third-party discovery, which, based on his prior experience, is often contentious

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and requires motions to compel. The Plaintiff proposes to proceed with both class and merits discovery

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without bifurcation. Plaintiff also believes that expert discovery will take two to three months. Finally,

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Plaintiff intends to file a motion to amend the complaint to add parties, and did not want to engage in

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discovery that would have to be duplicated. Counsel for Plaintiff indicated a draft proposed amended

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complaint could be prepared in approximately two weeks.

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Counsel for Defendant opposed Plaintiff’s request for an extended discovery cutoff. The

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complaint, as currently plead, involves a single text transmission to a single plaintiff and is not

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complex. Counsel for Plaintiff indicated that he had not had discussions with opposing counsel about
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potentially amending the complaint or adding parties, although out-of-state counsel may have had such

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discussions. Counsel for Defendant acknowledged that neither side had engaged in discovery because

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of the pending motion to dismiss, although neither side had asked for a stay of discovery.

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Having reviewed and considered the matter, the court will give the parties 270 days, measured

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from the date of the hearing, in which to complete discovery. The court will also require counsel for

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Plaintiff to draft a proposed amended complaint and meet and confer with opposing counsel to

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determine whether Defendant will stipulate to filing the amended complaint. If defense counsel is

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unwilling to stipulation, counsel for Plaintiff shall file a motion for leave to file an amended complaint.

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IT IS ORDERED that:
1.

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The parties’ Proposed Discovery Plan and Scheduling Orders (Dkt. ##20, 22) are NOT
APPROVED and are DENIED.

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The following discovery plan and scheduling order dates shall apply:

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b.

Last date to complete discovery: July 29, 2013.

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c.

Last date to amend pleadings and add parties: April 29, 2013.

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d.

Last date to file interim status report: May 28, 2013.

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e.

Last date to disclose experts pursuant to Fed. R. Civ. P. 26(a)(2): May 28, 2013.

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f.

Last date to disclose rebuttal experts: June 27, 2013.

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g.

Last date to file dispositive motions: August 26, 2013.

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h.

Last date to file joint pretrial order: September 25, 2013. In the event

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dispositive motions are filed, the date for filing the joint pretrial order shall be

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suspended until 30 days after a decision of the dispositive motions.

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3.

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The disclosures required by Fed. R. Civ. P. 26(a)(3), and any objections thereto, shall be
included in the pretrial order.

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Applications to extend any dates set by this discovery plan and scheduling order shall, in

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addition to satisfying the requirements of LR 6-1, be supported by a showing of good

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cause for the extension. All motions or stipulations to extend discovery shall be

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received no later than 4:00 p.m., July 8, 2013, and shall fully comply with the

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requirements of LR 26-4.
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Counsel for Plaintiff shall have until November 13, 2012, in which to meet and confer

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with opposing counsel in an effort to obtain a stipulation to amend the complaint, or, if

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counsel for Defendant is unwilling to stipulate, to file a motion for leave to amend the

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complaint.

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Dated this 30th day of October, 2012.

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______________________________________
Peggy A. Leen
United States Magistrate Judge

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