Roth v. PTGMB LLC ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 Case No. 1: 20-cv-00231-SAB KELLI ROTH, 10 SCHEDULING ORDER (Fed. R. Civ. P 16) Plaintiff, 11 Class Certification Deadline: Motion Filing: January 15, 2021 12 v. Discovery Deadlines: 13 Non-Expert Discovery: November 1, 2020 Expert Disclosure: October 1, 2020 14 PTGMB LLC, Supp. Expert Disclosure: November 1, 2020 Expert Discovery: December 1, 2020 15 Defendant. 16 17 I. Date of Scheduling Conference 18 The Scheduling Conference was held on May 1, 2020. 19 II. Appearances of Counsel 20 Manuel Hiraldo and Ignacio Hiraldo telephonically appeared on behalf of Plaintiff. 21 Harrison Brown and Ana Tagvoryan telephonically appeared on behalf of Defendant. 22 III. Consent to Magistrate Judge 23 The parties have consented to the jurisdiction of the magistrate judge and this matter has 24 been reassigned to the undersigned for all purposes. 25 IV. Initial Disclosure under Fed. R. Civ. P. 26(a)(1) 26 The parties exchanged the initial disclosures required by Fed. R. Civ. P. 26(a)(1) prior to 27 the scheduling conference. 28 1 V. Amendments to Pleading 2 Any motions or stipulations requesting leave to amend the pleadings must be filed by no 3 later than June 30, 2020. The parties are advised that filing motions and/or stipulations 4 requesting leave to amend the pleadings does not reflect on the propriety of the amendment or 5 imply good cause to modify the existing schedule, if necessary. All proposed amendments must 6 (A) be supported by good cause pursuant to Fed. R. Civ. P. 16(b) if the amendment requires any 7 modification to the existing schedule, see Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 8 609 (9th Cir. 1992), and (B) establish, under Fed. R. Civ. P. 15(a), that such an amendment is not 9 (1) prejudicial to the opposing party, (2) the product of undue delay, (3) proposed in bad faith, or 10 (4) futile, see Foman v. Davis, 371 U.S. 178, 182 (1962). 11 VI. Class Certification 12 Defendant seeks to have this matter bifurcated with the first phase addressing only 13 whether Plaintiff consented to being contacted and whether the ringless voicemail is a call under 14 the Telephone Consumer Protection Act (“the Act”). Plaintiff asserts that bifurcated or phased 15 discovery will only prolong the litigation, increase expenses, waste judicial resources and 16 duplicate discovery. 17 If the Court were to bifurcate discovery as requested by Defendant it would result in 18 multiple phases and multiple motions filed before the Court. The Court finds that bifurcating the 19 matter into two phases, with the first phase addressing class certification is the most efficient 20 manner for this matter to be litigated. The Court declines to bifurcate this case on the matter of 21 Plaintiff’s consent and whether the ringless voice mail is a call under the Act. 22 “The decision to bifurcate discovery in putative class actions prior to certification is 23 committed to the discretion of the trial court.” Ahmed v. HSBC Bank USA, Nat’l Ass’n, No. 24 EDCV152057FMOSPX, 2018 WL 501413, at *4 (C.D. Cal. Jan. 5, 2018); see also Mbazomo v. 25 ETourandTravel, Inc., No. 2:16-CV-02229-SB, 2017 WL 2346981, at *2 (E.D. Cal. May 30, 26 2017) (quoting Doherty v. Comenity Capital Bank & Comenity Bank, No. 16CV1321-H-BGS, 27 2017 WL 1885677, at *3 (S.D. Cal. May 9, 2017) (precertification discovery in a class action 28 “lies entirely within the court’s discretion.”). 1 “Generally at the pre-class certification stage, discovery in a putative class action is 2 limited to certification issues such as the number of class members, the existence of common 3 questions, typicality of claims, and the representative’s ability to represent the class. Gusman v. 4 Comcast Corp., 298 F.R.D. 592, 595 (S.D. Cal. 2014) (citing Oppenheimer Fund, Inc. v. Sanders, 5 437 U.S. 340, 359 (1978)) “Although discovery on the merits is usually deferred until it is certain 6 that the case will proceed as a class action, the merits/certification distinction is not always clear.” 7 Gusman, 298 F.R.D. at 595. The facts that are relevant to determining whether a class should be 8 certified frequently will overlap with the merits of the case. Gusman, 298 F.R.D. at 595; see 9 Wal–Mart Stores Inc. v. Dukes, 564 U.S. 338, 350-52 (2011) (explaining that often the “rigorous 10 analysis” under Rule 23(a) “will entail some overlap with the merits of the plaintiff's underlying 11 claim. That cannot be helped.”). 12 To the extent that Plaintiff argues that merits discovery will over lap with class discovery, 13 this Court shall adopt a flexible approach to discovery recognizing this over lap between class and 14 merits discovery. Should a disagreement arise regarding the discovery requested in this first 15 phase, the parties are directed to this Court’s informal discovery procedures on the Court’s 16 website (see below). 17 To the extent that Defendant seeks to adjudicate the issue of liability, Defendant is not 18 precluded from doing so at an early stage of the proceedings. The issues regarding consent and 19 whether the technology used in this instance are both issues that are appropriate to investigate 20 during this first phase. Defendant is free to seek discovery on the limited issues it believes will 21 result in a prompt resolution of the case and make the appropriate motion at the earliest juncture it 22 chooses. Charvat v. Plymouth Rock Energy, LLC, No. 15CV4106JMASIL, 2016 WL 207677, at 23 *3 (E.D.N.Y. Jan. 12, 2016). 24 This first phase shall relate to class certification. Any motions for class certification shall 25 be filed on or before January 15, 2021. 26 VII. Discovery Plan and Cut-Off Dates 27 The parties are ordered to complete all non-expert discovery on or before November 1, 28 2020 and all expert discovery on or before December 1, 2020. 1 The parties are directed to disclose all expert witnesses, in writing, on or before October 2 1, 2020 and to disclose all supplemental experts on or before November 1, 2020. The written 3 designation of retained and non-retained experts shall be made pursuant to Fed. R. Civ. P. 4 26(a)(2), (A), (B) and (C) and shall include all information required thereunder. Failure to 5 designate experts in compliance with this order may result in the Court excluding the testimony or 6 other evidence offered through the experts that are not properly disclosed in compliance with this 7 order. 8 The provisions of Fed. R. Civ. P. 26(b)(4) and (5) shall apply to all discovery relating to 9 experts and their opinions. Experts must be fully prepared to be examined on all subjects and 10 opinions included in the designation. Failure to comply will result in the imposition of sanctions, 11 which may include striking the expert designation and the exclusion of their testimony. 12 The provisions of Fed. R. Civ. P. 26(e) regarding a party’s duty to timely supplement 13 disclosures and responses to discovery requests will be strictly enforced. 14 The parties are cautioned that the discovery/expert cut-off deadlines are the dates by 15 which all discovery must be completed. Absent good cause, discovery motions will not be heard 16 after the discovery deadlines. Moreover, absent good cause, the Court will only grant relief on a 17 discovery motion if the relief requested requires the parties to act before the expiration of the 18 relevant discovery deadline. In other words, discovery requests and deposition notices must be 19 served sufficiently in advance of the discovery deadlines to permit time for a response, time to 20 meet and confer, time to prepare, file and hear a motion to compel and time to obtain relief on a 21 motion to compel. Counsel are expected to take these contingencies into account when proposing 22 discovery deadlines. Compliance with these discovery cutoffs requires motions to compel be 23 filed and heard sufficiently in advance of the discovery cutoff so that the Court may grant 24 effective relief within the allotted discovery time. A party’s failure to have a discovery dispute 25 heard sufficiently in advance of the discovery cutoff may result in denial of the motion as 26 untimely. 27 VIII. Pre-Trial Motion Schedule 28 Unless prior leave of Court is obtained at least seven (7) days before the filing date, all 1 moving and opposition briefs or legal memorandum in civil cases shall not exceed twenty-five 2 (25) pages. Reply briefs filed by moving parties shall not exceed ten (10) pages. Before 3 scheduling any motion, the parties must comply with all requirements set forth in Local Rule 230 4 and 251. 5 A. Non-Dispositive Pre-Trial Motions 6 As noted, all non-expert discovery, including motions to compel, shall be completed no 7 later than November 1, 2020. All expert discovery, including motions to compel, shall be 8 completed no later than December 1, 2020. Compliance with these discovery cutoffs requires 9 motions to compel be filed and heard sufficiently in advance of the discovery cutoff so that the 10 Court may grant effective relief within the allotted discovery time. A party’s failure to have a 11 discovery dispute heard sufficiently in advance of the discovery cutoff may result in denial of the 12 motion as untimely. Non-dispositive motions are heard on Wednesdays at 10:00 a.m., before 13 United States Magistrate Judge Stanley A. Boone in Courtroom 9. 14 In scheduling any non-dispositive motion, the Magistrate Judge may grant Applications 15 for an Order Shortening Time pursuant to Local Rule 144(e). However, if counsel does not 16 obtain an Order Shortening Time, the Notice of Motion must comply with Local Rule 251. 17 Counsel may appear and argue non-dispositive motions by telephone, providing a written 18 request to so appear is made to the Magistrate Judge’s Courtroom Clerk no later than three (3) 19 court days before the noticed hearing date. In the event that more than one attorney requests to 20 appear by telephone, then it shall be the obligation of the moving party(ies) to arrange and 21 originate a conference call to the court. 22 Discovery Disputes: If a motion is brought under Fed. R. Civ. P. 37, the parties must 23 prepare and file a Joint Statement re Discovery Disagreement (“Joint Statement”) as required by 24 Local Rule 251. The Joint Statement must be filed seven (7) calendar days before the scheduled 25 hearing date. Courtesy copies of all motion-related documents, declarations, and exhibits must be 26 delivered to the Clerk’s Office by 10:00 a.m. on the fourth court day prior to the scheduled 27 hearing date. Motions will be removed from the court’s hearing calendar if the Joint Statement is 28 not timely filed or if courtesy copies are not timely delivered. In order to satisfy the meet and 1 confer requirement set forth in Local Rule 251(b), the parties must confer and talk to each other 2 in person, over the telephone or via video conferencing before the hearing about the discovery 3 dispute. The Court may issue sanctions against the moving party or the opposing party if either 4 party fails to meet and confer in good faith. 5 B. Dispositive Pre-Trial Motions 6 Motions for Summary Judgment or Summary Adjudication: Prior to filing a motion for 7 summary judgment or motion for summary adjudication, the parties are ORDERED to meet, in 8 person or by telephone, and confer to discuss the issues to be raised in the motion. 9 The purpose of the meeting shall be to: 1) avoid filing motions for summary judgment 10 where a question of fact exists; 2) determine whether the respondent agrees that the motion has 11 merit in whole or in part; 3) discuss whether issues can be resolved without the necessity of 12 briefing; 4) narrow the issues for review by the court; 5) explore the possibility of settlement 13 before the parties incur the expense of briefing a summary judgment motion; and 6) to arrive at a 14 Joint Statement of Undisputed Facts. 15 The moving party shall initiate the meeting and provide a draft of the Joint Statement of 16 Undisputed Facts. In addition to the requirements of Local Rule 260, the moving party shall 17 file a Joint Statement of Undisputed Facts. 18 In the Notice of Motion, the moving party shall certify that the parties have met and 19 conferred as ordered above or set forth a statement of good cause for the failure to meet and 20 confer. 21 IX. Compliance with Federal Procedure 22 All counsel are expected to familiarize themselves with the Federal Rules of Civil 23 Procedure and the Local Rules of the Eastern District of California, and to keep abreast of any 24 amendments thereto. The Court must insist upon compliance with these Rules if it is to 25 efficiently handle its increasing case load and sanctions will be imposed for failure to follow the 26 Rules as provided in both the Federal Rules of Civil Procedure and the Local Rules for the 27 Eastern District of California. 28 Additional requirements and more detailed procedures for courtroom practice before wOAOe UV VV EVEL OYA Ce PO ee Yt 1 | United States Magistrate Judge Stanley A. Boone can be found at the United States District Court 2 | for the Eastern District of California’s website (www.caed.uscourts.gov) under Judges; United 3 | States Magistrate Judge Stanley A. Boone (SAB). In the area entitled “Case Management 4 | Procedures,” there is a link to “Standard Information.” All parties and counsel shall comply with 5 | the guidelines set forth therein. 6 X. Effect of this Order 7 The foregoing order represents the best estimate of the court and counsel as to the agenda 8 || most suitable to dispose of this case. The trial date reserved is specifically reserved for this case. 9 | Ifthe parties determine at any time that the schedule outlined in this order cannot be met, counsel 10 | are ordered to notify the court immediately of that fact so that adjustments may be made, either 11 | by stipulation or by subsequent status conference. 12 Stipulations extending the deadlines contained herein will not be considered unless 13 | they are accompanied by affidavits or declarations, and where appropriate attached 14 | exhibits, which establish good cause for granting the relief requested. The parties are 15 | advised that due to the impacted nature of civil cases on the district judges in the Eastern 16 | District of California, Fresno Division, that stipulations to continue set dates are disfavored 17 | and will not be granted absent good cause. 18 Lastly, should counsel or a party appearing pro se fail to comply with the directions 19 | as set forth above, an ex parte hearing may be held and contempt sanctions, including 20 | monetary sanctions, dismissal, default, or other appropriate judgment, may be imposed 21 | and/or ordered. 22 74 IT IS SO ORDERED. OF. nf ee 24 | Dated: _May 6, 2020 _ ef UNITED STATES MAGISTRATE JUDGE 25 26 27 28