Free Joint Case Management Statement - District Court of California - California

Case 3:08-cv-01313-VRW

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Irving L. Berg (SBN 36273) THE BERG LAW GROUP 145 Town Center, PMB 493 Corte Madera, California 94925 (415) 924-0742 (415) 891-8208 (Fax) [email protected] (e-mail) ATTORNEY FOR PLAINTIFF

Debbie P. Kirkpatrick, Esq. SESSIONS, FISHMAN, NATHAN & ISRAEL, L.L.P. 3667 Voltaire Street San Diego, CA 92106 (619) 758-1891 (619) 222-3667 (Fax) [email protected] ATTORNEY FOR DEFENDANTS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

FRANCES SERANIA and STEPHEN LEE, individually and on behalf of all others similarly situated, Plaintiff, v. ERIN CAPITAL MANAGEMENT, LLC; ELTMAN, ELTMAN & COOPER, P.C.; DONALD B. SERAFANO, an individual; DOES 1 THROUGH 10, Defendants. /

Case No.:CV 08-01313 VRW JOINT CASE MANAGEMENT STATEMENT Date: Time: Dept: Judge: June 12, 2008 3:30 p.m. Courtroom 6 Hon. Vaughn R. Walker

The parties, by their attorneys, file their Joint Case Management Statement addressing all of the topics set forth in the Standing Orders of All Judges of the Northern District of California. 1. Jurisdiction and Service. This Court's jurisdiction is based on 15 U.S.C. §

1692k(d) and 28 U.S.C. § 1331. Supplemental jurisdiction over the state law claims is based on 28 U.S.C. § 1367. There are no issues regarding personal jurisdiction or venue.
JOINT CASE MANAGEMENT STATEMENT SERANIA & LEE V. ERIN CAPITAL MAN AG EM EN T, L.L.C., et al. CASE NO. CV 08-01313 VRW

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At this time, Plaintiffs are not aware of any additional parties to be served, but asks that the time for service remain open until the completion of discovery. 2. Facts. Plaintiff alleges Defendant Erin purchases defaulted consumer debts in

groups of one thousand or more. It assigns many of these debts to Defendant Eltman, Eltman & Cooper, Attorneys at Law, to sue. Many of these debts are time-barred under California law. Plaintiff alleges Defendant Eltman nonetheless brings lawsuits on these time-barred debts, making false, deceptive and misleading representations as to the validity of its claim. On April 29, 2008, Defendants filed their Answer, denying all material allegations. Defendants contend the facts are undisputed that the collection actions filed by Erin Capital Management, LLC against plaintiffs were timely filed. The collection complaints assert common counts to which a four year statute of limitations applies pursuant to California Code of Civil Procedure section 337. Both plaintiffs had account activity and made final payments on their respective accounts in 2005 and the collection actions were filed in July 2007 ­ within the four year limitations period. 3. Legal Issues. Issues are whether Defendants' suits on allegedly time-barred debts

violate the FDCPA and the California Rosenthal Act. Plaintiff's Issues are whether there were violations in the following particulars: A. Using false, deceptive and misleading representations and means in

connection with the collection of the alleged debt, in violation of § 1692e; B. Falsely representing the character, amount and legal status of the debt, in

violation of § 1692e(2)(A); C. Falsely representing the compensation which may be lawfully received by

the Defendants for the collection of the debt, in violation of § 1692e(2)(B); D. § 1692e(5); E. Using false representations or deceptive means to collect or attempt to Threatening to take action that cannot legally be taken, in violation of

collect the debt, in violation of § 1692e(10);
JOINT CASE MANAGEMENT STATEMENT SERANIA & LEE V. ERIN CAPITAL MAN AG EM EN T, L.L.C., et al. CASE NO. CV 08-01313 VRW

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F.

Using unfair or unconscionable means to collect or attempt to collect the

debt, in violation of § 1692f; and G. Collecting or attempting to collect an amount not expressly authorized by

the agreement creating the debt or permitted by law, in violation of § 1692f(1). Defendants' Issues are: A. B. Whether the named plaintiffs have standing to represent the class; Whether the complaint states a claim on which relief can be granted.

Motions. Plaintiff will move for class certification pending the court's

determination of Defendant's summary judgment motion. Defendants will file a motion for summary judgment within 30 days. 5. Amendment of Pleadings. Plaintiff at this time does not anticipate amending the

Complaint. Plaintiff asks that the deadline for amendment be set after the completion of discovery. Defendants at this time do not anticipate amending the Answer. Defendants ask that the deadline for amendment of pleadings be set before the discovery completion deadline so that discovery may be conducted, if needed, on any new matter in any amended Complaint. 6. Evidence Preservation. Plaintiff asks that the Court issue an evidence

preservation order. Defendants have directed relevant personnel to preserve all documents, in paper or electronic form, related to the subject matter of this case. 7. Disclosures. On May 14, 2008, Plaintiff submitted the initial disclosures required

pursuant to Rule 26 of the Fed. Rules Civ. Proc. Defendants will serve on or before June 5, 2008 the initial disclosures required pursuant to Rule 26 of the Fed. Rules Civ. Proc. 8. Discovery. Plaintiff will propound Plaintiff's first set of discovery requests to

Defendants within the next thirty days. Defendants will propound a first set of discovery requests to Plaintiffs within the next thirty days. 9. Class actions.

Plaintiffs allege: (a) The class action is maintainable under Rules 23(a) and 23(b) of the Federal Rules of
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Civil Procedure. (b) The class is all California consumers against whom Defendants instituted legal action in a California court to collect a debt that was time-barred. A sub-class relates to the class members who made payment on time-barred debts. (c) Plaintiff is entitled to maintain the action under Fed. R. Civ. Proc. 23(a), as (i) the class is so numerous that joining all of the members would be impracticable, (ii) there are questions of law or fact common to the class, (iii) the claims or defenses of the representative party is typical of the class members, and (iv) the representative party will fairly and adequately protect the interests of the class. (d) The proposed date for the Court to consider whether the case can be maintained as a class action is February 15, 2009. Defendants allege: (a) (b) Plaintiffs lack standing to represent the class; This action is not maintainable as a class action under Rules 23(a) and 23(b) of

the Federal Rules of Civil Procedure. 10. 11. Related cases. The parties are not aware of any related cases. Relief. Plaintiff seeks statutory damages of $2,000 and relief for the Class of the

lesser of a sum not to exceed 1% of Defendants' net worth, or $1,000,000. Defendants seek dismissal of plaintiffs' claims and reserve all rights under 15 U.S.C. § 1692k(a)(3) to seek an award of attorney's fees and costs. 12. Settlement and ADR. The parties have agreed to mediation under ADR auspices.

Key discovery revolves around numerosity and net worth issues. 13. Consent to magistrate judge for all purposes. Plaintiff consents to have this

matter heard by the magistrate judge for all purposes. Defendants decline to have this matter heard by the magistrate judge for all purposes. 14. ADR.
JOINT CASE MANAGEMENT STATEMENT SERANIA & LEE V. ERIN CAPITAL MAN AG EM EN T, L.L.C., et al. CASE NO. CV 08-01313 VRW

Other references. Plaintiff declines references other than mediation under the

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15.

Narrowing of Issues. Plaintiff believes the issues can be narrowed by stipulation

to class certification. Defendants will not stipulate to class certification. Defendants believe the issues will be narrowed through motion for summary judgment. 16. 17. Expedited schedule. This case is not amenable to handling on an expedited basis. Scheduling. The parties propose that the discovery cut-off be April 1, 2009, that

the date for designation of experts be March 1, 2009, that the date for hearing summary judgment motions be the week of December 1, 2008, and that the trial date be after June1, 2009. 18. Trial. The trial will be a court trial, and the length of trial is expected to be 3-4

19.

Disclosures of non-party, interested entities or persons. Plaintiff has no

disclosures to make. Defendants disclose that other than the named defendants, non-party James Brian Boyle, Esq., by whom defendant Eltman, Eltman & Cooper P.C. is wholly-owned, is an interested person. 20. Other matters. The parties have no other matters to disclose at this time.

Respectfully submitted,

Dated: June 1, 2008

____s/_____________________ Irving L. Berg The Berg Law Group Attorney for Plaintiffs

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JOINT CASE MANAGEMENT STATEMENT

____/s/______________________ Debbie Kirkpatrick Sessions, Fishman, Nathan & Israel, L.L.P. Attorneys for Defendants

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