Free Objection - District Court of California - California

Case 3:08-cv-01140-JM-RBB

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BUTTERFIELD SCHECHTER
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MARC S. SCHECHTER (State Bar No. 116190) SUSAN L. METER (State Bar No. 236133) ELIZABETH M. SALES (State Bar No. 250992) Butterfield Schechter LLP 10616 Scripps Summit Court, Suite 200 San Diego, California 92131 (858) 444-2300 (858) 444-2345 Fax E-mail: [email protected] [email protected] [email protected] Attorneys for Plaintiffs and Counterdefendant UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA TJRK, INC., a California corporation; JOSEPH CHRISTENSON, an individual; and PATRICIA CHRISTENSON, an individual, Plaintiffs, v. SCOTT WAAGE, an individual; THE WAAGE LAW FIRM, a California professional corporation; JERRY WAAGE, an individual; PROVERBIAL INVESTMENTS, INC., an Iowa corporation; ROBERT JENSEN, an individual; INDIANAPOLIS LIFE INSURANCE COMPANY, an AMERUS COMPANY, nka AVIVA USA CORPORATION, an Iowa corporation; and DOES 1 through 100, inclusive, Defendants. INDIANAPOLIS LIFE INSURANCE COMPANY, an AMERUS COMPANY, nka AVIVA USA CORPORATION, an Iowa corporation; Counterclaimant, v. TJRK, INC., a California corporation Counterdefendant. /././
OPP'N TO EX PARTE APPLICATION OF JERRY WAAGE RE REQUEST TO APPEAR TELEPHONICALLY FOR ENE CONF AND DECL OF MARC SCHECHTER IN SUPPORT OF OPP'N

Case No.: 08-cv-1140 JM RBB OPPOSITION TO EX PARTE APPLICATION OF JERRY WAAGE RE: REQUEST TO APPEAR TELEPHONICALLY FOR EARLY NEUTRAL EVALUATION CONFERENCE AND DECLARATION OF MARC S. SCHECHTER IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION

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I. PRELIMINARY STATEMENT AND BACKGROUND Plaintiffs TJRK, Inc., Joseph Christenson, and Patricia Christenson ("Plaintiffs") hereby oppose the Ex Parte Application of Jerry Waage Re: Request to Appear Telephonically For Early Neutral Evaluation Conference based on the following factual and legal arguments. Defendants Jerry Waage and Proverbial Investments, Inc. ("Defendants") were personally served with Plaintiffs' Complaint on July 25, 2008. The Notice and Order for Early Neutral Evaluation Conference was issued by the Court on August 4, 2008. Defendants' Ex Parte Application states that they did not receive the Notice and Order for Early Neutral Evaluation Conference until August 12, 2008. On August 15, 2008, Defendants' filed the Ex Parte Application. II. ARGUMENT A. Defendants' Ex Parte Application Should Not Be Granted Because Defendants Have Not Shown Good Cause For Their Attendance At the ENE To Be Excused Defendant's Ex Parte Application should be denied because Defendants have not shown good cause for their attendance at the ENE to be excused. Rule 16.1(c) of the Local Rules of the United States District Court for the Southern District of California states: Attendance may be excused only for good cause shown and by permission of the court. Sanctions may be appropriate for an unexcused failure to attend. In addition, the Notice and Order for Early Neutral Evaluation Conference issued by United States Magistrate Judge Ruben B. Brooks on August 4, 2008, states that "all parties . . . as well as the principal attorneys responsible for litigation, must be present and legally and factually prepared to discuss and resolve the case." (Not. and Order, p. 2:3-9) 1. Defendants Have Not Shown Travel Costs Will Be Prohibitive Defendants' Ex Parte Application should be denied because Defendants have not shown that the travel costs to San Diego for the ENE constitute good cause. Defendants assert that they "request for Defendant to appear via telephone for the ENE Conference [sic] made in -2OPP'N TO EX PARTE APPLICATION OF JERRY WAAGE RE REQUEST TO APPEAR TELEPHONICALLY FOR ENE CONF AND DECL OF MARC SCHECHTER IN SUPPORT OF OPP'N

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good faith and for good cause, based upon the increased costs to be incurred by Defendant for travel arrangements between Iowa and California due to short notice of the ENE Conference." (Defendant's Ex Parte Application p. 3:1-3). This means that Defendants are claiming that the costs to travel from Iowa to San Diego on August 27, 2008, a Wednesday, constitute good cause to excuse physical presence; however, Defendants did not allege any facts which substantiate their claim. In particular, Defendants did not even claim that the attendance of Defendants Jerry Waage and Proverbial Investments, Inc., would require more than one person to travel to the ENE. In fact, the Ex Parte Application specifically states that Jerry Waage will appear on behalf of himself and Defendant Proverbial Investments, Inc., which implies that travel arrangements need only be made for one individual. As of August 18, 2008, the cost of a flight for one person from Des Moines, Iowa, to San Diego California, when researched on the website www.orbitz.com, ranges from $400 to $500 round trip. (Decl. of Marc S. Schechter, p. 6:8-10.) In addition, Defendants' Ex Parte Application as quoted in the previous paragraph states that good cause exists based upon the "increased costs to be incurred by Defendant for travel arrangements between Iowa and California"; however, mere increased costs should not constitute good cause if the total cost is not prohibitive. (Defendant's Ex Parte Application p. 3:1-3.) Although case law is limited regarding this specific issue, a similar ex parte application to appear telephonically was denied by United States Magistrate Judge Jan M. Adler and upheld by District Judge John A. Houston in United States v. $1,474,770.000 In U.S. Currency where the defendant filed an ex parte motion to appear at the ENE telephonically because he was permanently out of the country. United States v. $1,474,770.00 In U.S. Currency, 538 F. Supp.2d 1298, 1300 (S.D. Cal. 2008). The defendant's ex parte application was denied and Judge Adler required his personal appearance despite his being out of the country permanently. Although the present case and United States v. $1,474,770.000 In U.S. Currency involve very different fact patterns and causes of action, the case still shows that distance and cost of travel have, in some circumstances, been insufficient reasons to grant an ex parte request to appear telephonically at an ENE. -3OPP'N TO EX PARTE APPLICATION OF JERRY WAAGE RE REQUEST TO APPEAR TELEPHONICALLY FOR ENE CONF AND DECL OF MARC SCHECHTER IN SUPPORT OF OPP'N

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2.

Defendants Additional Reasons Do Not Constitute Good Cause In addition to asserting that travel costs constitute good cause to not appear at the

ENE, Defendants' Ex Parte Application states that "this request (to appear telephonically) is also based upon the fact that no demand has been made by Plaintiffs' [sic] and therefore, Defendant has insufficient information to fully and adequately evaluate the case at this time." This basis should not constitute good cause to be excused from attending the ENE because Judge Ruben B. Brooks' Notice and Order specifically states that "all parties . . . must be present and legally and factually prepared to discuss and resolve the case" and further provides that absent good cause shown, sanctions can be imposed if any party is "substantially unprepared to meaningfully participate in the settlement conference." (Notice and Order, p. 2:8-9, and p. 3:9-11.) The purpose of an ENE is to expedite the action, discourage wasteful pretrial activities, identify and narrow the issues, and facilitate settlement; therefore, Defendants' assertion that they do not need to attend the ENE because no demand has been made by Plaintiffs should not be considered good cause. In fact, Plaintiffs' Complaint specifically states the allegations made against Defendants and that Plaintiffs are seeking restitution damages which are stated in the Complaint. (Plaintiffs' Complaint p. 24:25-26 and p. 24:6-11.) Furthermore, Defendants sell insurance in the state of California and receive revenue from residents of San Diego County. In the present case, Plaintiffs allege that

Defendants received a substantial amount of commissions from the sale of insurance to Plaintiffs which Plaintiffs seek to recover. If the Defendants were able to avail themselves to San Diego for the purpose of benefiting from the sale of the insurance to Plaintiffs who are residents of San Diego County, Jerry Waage should be financially and otherwise able to appear in person at the ENE. Jerry Waage should not be permitted to reap the benefits of selling insurance within this jurisdiction while at the same time be excused from personal appearance at the ENE because the increased cost of travel or because Plaintiffs have not made a demand. In any event, Defendants' additional reasons in favor of their Ex Parte Application do not constitute good cause and should not weigh in favor of allowing Defendants to appear telephonically. /././ -4OPP'N TO EX PARTE APPLICATION OF JERRY WAAGE RE REQUEST TO APPEAR TELEPHONICALLY FOR ENE CONF AND DECL OF MARC SCHECHTER IN SUPPORT OF OPP'N

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III. CONCLUSION Defendants will not have to incur prohibitive costs to attend the ENE in person and the allegation that Plaintiffs have not made a specific demand or engaged in settlement discussions should not constitute good cause to excuse the attendance of Defendants Jerry Waage and Proverbial Investments, Inc. The purpose of an ENE is to expedite the action, discourage wasteful pretrial activities, identify and narrow the issues, and facilitate settlement. Plaintiffs respectfully submit that the best way to serve the purposes of an ENE is to have all parties and their counsel physically present at the ENE. For these reasons, Plaintiffs request that Defendants' Ex Parte Application be denied. DATED: August 19, 2008 BUTTERFIELD SCHECHTER LLP By: /s/Marc S. Schechter MARC S. SCHECHTER Attorneys for Plaintiffs and Counterdefendant [email protected]

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DECLARATION OF MARC S. SCHECHTER IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION I, Marc S. Schechter, hereby declare as follows: 1. I am a licensed attorney duly admitted to practice before this Court. I am a partner

of Butterfield Schechter LLP, attorneys for Plaintiffs and Counterdefendant in this matter. I make this declaration of my personal knowledge, and if called as a witness I could and would testify competently to the facts stated herein. 2. Attached to this Declaration as Exhibit A is a true and correct copy of a printout

from the Orbitz website, www.orbitz.com, produced on August 18, 2008, which shows available flights from Des Moines, Iowa, to San Diego, leaving August 26, 2008, and returning August 28, 2008. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this 19th day of August, 2008, at San Diego, California. /s/Marc S. Schechter MARC S. SCHECHTER

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CERTIFICATE OF SERVICE I, Marc S. Schechter, hereby declare: On August 19, 2008, I caused the following document to be electronically served: OPPOSITION TO EX PARTE APPLICATION OF JERRY WAAGE RE: REQUEST TO APPEAR TELEPHONICALLY FOR EARLY NEUTRAL EVALUATION CONFERENCE AND DECLARATION OF MARC S. SCHECHTER IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION on the interested parties who have agreed to accept e-filing as effective service in this action by filing this through the CM/ECF system to the following e-mail addresses: [email protected] attorneys in this matter for Defendants Scott Waage, The Waage Law Firm, and Robert Jensen, and; [email protected] attorneys in this matter for Defendant and Counterclaimant Indianapolis Life Insurance Company. The above-referenced document the above-referenced documents by placing a true and correct copy on the interested parties in this action by placing a true copy thereof, on the above date, enclosed in a sealed envelope, following the ordinary business practice of Butterfield Schechter LLP, for collection and mailing in the United States mail addressed as follows: Peter L. Garchie, Esq. Lewis Brisbois Bisgaard & Smith LLP 550 West C Street, Suite 800 San Diego, CA 92101 attorney in this matter for Defendants Jerry Waage and Proverbial Investments, Inc. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this 19th day of August, 2008, at San Diego, California. /s/Marc S. Schechter MARC S. SCHECHTER

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CERTIFICATE OF SERVICE

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