Free Notice (Other) - District Court of California - California

Case 3:08-cv-01416-W-RBB

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Filed 08/29/2008

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GLENN L. BRIGGS (SB# 174497) [email protected] S. SEAN SHAHABI (SB# 204710) [email protected] THOREY M. BAUER (SB# 234813) [email protected] HODEL BRIGGS WINTER LLP 8105 Irvine Center Drive, Suite 1400 Irvine, CA 92618 Telephone: (949) 450-8040 Facsimile: (949) 450-8033 Attorneys for Defendant DOWNEY SAVINGS AND LOAN ASSOCIATION, F.A. BLUMENTHAL & NORDREHAUG Norman B. Blumenthal (SB # 068687) Kyle R. Nordrehaug (SB # 205975) Aparajit Bhomik (SB# 248066) 2255 Calle Clara La Jolla, CA 92037 Telephone (858) 551-1223 Facsimile: (858) 551-1232 Attorneys for Plaintiff UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA JOHN SONES, an individual, on behalf of himself, and on behalf of all persons similarly situated, Plaintiffs, vs. DOWNEY SAVINGS AND LOAN ASSN, F.A; and DOES 1 to 10, Defendants. CASE NO. 08CV1416 J(RBB)

JOINT EX PARTE APPLICATION FOR RELIEF FROM EARLY NEUTRAL EVALUATION CONFERENCE

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JOINT EX PARTE APPLICATION FOR RELIEF FROM LOCA RULE 16.1(c) AND ENE CONFERENCE

Case 3:08-cv-01416-W-RBB

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Plaintiff John Sones ("Plaintiff") and Defendant Downey Savings and Loan Association, F.A. ("Downey") hereby jointly apply ex parte to the Court for an order:

1. Relieving them from the currently-ordered Early Neutral Evaluation Conference set for Friday, September 5, 2008, at 8:30 a.m. in the chambers of United States Magistrate Judge Ruben B. Brooks; or

2. Relieving them from the requirement under Rule 16.1(c) that the parties personally appear at the Early Neutral Evaluation Conference; and

3. Permitting counsel to appear by telephone on September 5, 2008, for determination as to the scheduling of a conference under Rule 26(f), the scheduling of exchange of initial disclosures and the date for lodging a discovery plan, and the scheduling of a case management conference under Rule 16(b), pursuant to the Court's August 6, 2008, order.

Local Rule 16.1(c) states that upon receiving a written request from one or both parties for relief from the Early Neutral Evaluation Conference, the "Judicial Officer shall examine the circumstances of the case and the reasons for the request and determine whether any such conference would assist in the reduction of expense and delay in the case." In this case, an ENE would not serve the interests of the parties or the Court.

Plaintiff has brought a wage-and-hour class action against Downey. Plaintiff has brought causes of action under the Fair Labor Standards Act and various statelaw codes, claiming that Downey misclassified employees as exempt, and therefore failed to pay overtime as required by state and federal law. Plaintiff also alleges
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JOINT EX PARTE APPLICATION FOR RELIEF FROM LOCA RULE 16.1(c) AND ENE CONFERENCE

Case 3:08-cv-01416-W-RBB

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that Downey failed to provide meal periods and failed to indemnify for necessary expenditures incurred by Plaintiff in direct consequence of the discharge of his duties.

Counsel for both parties are experienced in the settlement of wage-and-hour class actions. Settlement usually occurs only after meaningful mediation before a private mediator who specializes in settling wage-and-hour cases. In order to prepare for mediation, the parties must first conduct significant legal research and analysis, formally or informally exchange information and documents and, often, retain consulting experts in order to calculate and determine the range of possible settlement amounts. At this time, neither of the parties possess information sufficient to allow resolution of Plaintiff's claims on a class-wide basis. Indeed, without legal research and a formal or informal exchange of information, it would be impossible for the parties to determine the correct value of the class claims, and therefore, the parties would have no basis on which to make or accept an offer of settlement, and more importantly, Plaintiff's counsel would have no basis on which to discharge their ethical duty to protect the interests of unnamed class members.

As a result, an early neutral evaluation conference in this case would not assist in the reduction of expense and delay of this case, but rather would likely be unproductive at this stage of litigation. In the even the Court determines that the early neutral evaluation conference should go forward as currently scheduled, however, the parties request that they be permitted to attend by telephone, while their counsel attend personally.

If the Court determines that it will not proceed with the early neutral evaluation conference, but will proceed with the scheduling of a Rule 26(f) conference, dates for the exchange of initial disclosures, and scheduling of a case
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JOINT EX PARTE APPLICATION FOR RELIEF FROM LOCA RULE 16.1(c) AND ENE CONFERENCE

Case 3:08-cv-01416-W-RBB

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management conference -- as outlined in its August 6, 2008, order -- counsel for both parties request that they be permitted to appear by telephone.

For the foregoing reasons, the parties respectfully request the relief set forth above. DATED: August ___, 2008 HODEL BRIGGS WINTER LLP GLENN L. BRIGGS S. SEAN SHAHABI THOREY M. BAUER /s/Thorey M. Bauer THOREY M. BAUER Attorneys for Defendant DOWNEY SAVINGS AND LOAN ASSOCIATION, F.A. By:

DATED: August ___, 2008

BLUMENTHAL & NORDREHAUG NORMAN B. BLUMENTHAL KYLE R. NORDREHAUG APARAJIT BHOWMIK By: /s/Aparajit Bhowmik APARAJIT BHOWMIK Attorneys for Plaintiff JOHN SONES

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JOINT EX PARTE APPLICATION FOR RELIEF FROM LOCA RULE 16.1(c) AND ENE CONFERENCE