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Case 3:08-cv-02351-MHP

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Electronic Case Filing | U.S. District Court - Middle District of Florida Case 3:08-cv-02351-MHP Document 1-2 Filed 05/09/2008

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MDLOUT

U.S. District Court Middle District of Florida (Ft. Myers) CIVIL DOCKET FOR CASE #: 2:08-cv-00074-MMH-SPC

Bodmer v. Wells Fargo Bank, N.A. Assigned to: Judge Marcia Morales Howard Referred to: Magistrate Judge Sheri Polster Chappell Cause: 29:206 Collect Unpaid Wages

Date Filed: 01/28/2008 Date Terminated: 04/21/2008 Jury Demand: Both Nature of Suit: 710 Labor: Fair Standards Jurisdiction: Federal Question

Plaintiff Justine Bodmer on her own behalf and others similarly situated represented by Andrew Ross Frisch Morgan & Morgan, PA Suite 230 7450 Griffin Rd Davie, FL 33324 954-318-0268 Fax: 954-333-3515 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Wells Fargo Bank, N.A. a Foreign Corporation represented by Jonathan A. Beckerman Littler Mendelson, PC 1 Biscayne Twr - Ste 1500 2 S Biscayne Blvd Miami, FL 33131 305/400-7500 Fax: 305/418-7368 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 01/28/2008 01/28/2008

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Docket Text COMPLAINT against Wells Fargo Bank, N.A. ; jury demand (Filing fee $ 350 receipt number F10454) filed by Justine Bodmer.(kma) (Entered: 01/30/2008) NOTICE of filing notice of consent to join by Justine Bodmer (kma) (Entered:

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01/30/2008) 01/28/2008 01/30/2008 01/31/2008 3 4 Summons issued as to Wells Fargo Bank, N.A. (kma) (Entered: 01/30/2008) STANDING ORDER: Filing of documents that exceed twenty-five pages. Signed by All Divisional Judges on 03/27/2007. (kma) (Entered: 01/30/2008) RELATED CASE ORDER AND NOTICE of designation under Local Rule 3.05 - track 2. Notice of pendency of other actions due by 2/11/2008. Signed by All Divisional Judges on 1/31/2008. (LAG) (Entered: 01/31/2008) INTERESTED PERSONS ORDER. Certificate of interested persons and corporate disclosure statement due by 2/11/2008. Signed by All Divisional Judges on 1/31/2008. (LAG) (Entered: 01/31/2008) NOTICE of pendency of related cases re 4 Related case order and notice of designation of track 2 per Local Rule 1.04(d) by Justine Bodmer. Related case (s): no (Frisch, Andrew) (Entered: 02/11/2008) CERTIFICATE of interested persons and corporate disclosure statement re 5 Interested persons order by Justine Bodmer. (Frisch, Andrew) (Entered: 02/11/2008) RETURN of service executed on 1/31/08 by Justine Bodmer as to Wells Fargo Bank, N.A.. (Frisch, Andrew) (Entered: 02/15/2008) ANSWER and affirmative defenses to 1 Complaint with Jury Demand by Wells Fargo Bank, N.A..(Beckerman, Jonathan) (Entered: 02/20/2008) NOTICE by Wells Fargo Bank, N.A. Notice to the Clerk of the Court (Attachments: # 1 Attachment 1)(Beckerman, Jonathan) (Entered: 02/26/2008) INTERESTED PERSONS ORDER. Certificate of interested persons and corporate disclosure statement due by 4/21/2008 as to the Defendant. Signed by All Divisional Judges on 4/8/2008. (LAG) (Entered: 04/08/2008) CERTIFICATE of interested persons and corporate disclosure statement re 11 Interested persons order by Wells Fargo Bank, N.A.. (Beckerman, Jonathan) (Entered: 04/18/2008) MULTIDISTRICT LITIGATION panel order transferring case to: Northern District of California Transferee court case number: 2:08-cv-74-FtM-34SPC MDL case number: 1770. (JS) (Entered: 04/28/2008)

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PACER Service Center
Transaction Receipt
05/06/2008 13:00:16 PACER Login: Description: us4077 Docket Report Client Code: Search Criteria: 2:08-cv-00074-MMHSPC

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FT. MYERS DIVISION
JUSTINE BODMER on her own behalf and others similarly situated, Plaintiff, v. WELLS FARGO BANK, N.A. a Foreign Corporation, Defendant. ______________________________________ Case No. 2:08-cv-74-FtM-34SPC

RELATED CASE ORDER AND TRACK TWO NOTICE
It is hereby ORDERED that, no later than eleven days from the date of the filing of the complaint (or a copy of a notice of removal) in this Court, counsel and any pro se party shall comply with Local Rule 1.04(d), and shall file and serve a certification as to whether the instant action should be designated as a similar or successive case pursuant to Local Rule 1.04(a) or (b). The parties shall utilize the attached form NOTICE OF PENDENCY OF OTHER ACTIONS. It is FURTHER ORDERED that, in accordance with Local Rule 3.05, this action is designated a Track Two case. All parties must comply with the requirements established in Local Rule 3.05 for Track Two cases. Counsel and any unrepresented party shall meet within sixty days after service of the complaint upon any defendant for the purpose of preparing and filing a Case Management Report. The parties shall utilize the attached CASE MANAGEMENT REPORT form. Unless otherwise ordered by the Court, a party may not seek discovery from any source before the meeting.

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Fed. R. Civ. P. 26 (d); Local Rule 3.05(c)(2)(B). Plaintiff (or defendant in a removal case) is responsible for serving a copy of this notice and order with attachments upon each party no later than eleven days after appearance of the party. January 31, 2008

JOHN E. STEELE John E. Steele United States District Court Judge DOUGLAS N. FRAZIER Douglas N. Frazier United States Magistrate Judge

MARCIA MORALES HOWARD Marcia Morales Howard United States District Court Judge SHERI POLSTER CHAPPELL Sheri Polster Chappell United States Magistrate Judge

Attachments: Notice of Pendency of Other Actions [mandatory form] Case Management Report [mandatory form]

Note: A Magistrate Consent form, Local Rules and PacerNet can be found on the Court's website at http://www.flmd.uscourts.

Copies: All Parties of Record

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FT. MYERS DIVISION
JUSTINE BODMER on her own behalf and others similarly situated, Plaintiff, v. WELLS FARGO BANK, N.A. a Foreign Corporation, Defendant. ______________________________________ Case No. 2:08-cv-74-FtM-34SPC

NOTICE OF PENDENCY OF OTHER ACTIONS
In accordance with Local Rule 1.04(c), I certify that the instant action: _____ IS related to pending or closed civil or criminal case(s) previously filed in this Court, or any other Federal or State court, or administrative agency as indicated below: _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ related to any pending or closed civil or criminal case filed with this Court, or any other Federal or State court, or administrative agency.

_____ IS NOT

I further certify that I will serve a copy of this NOTICE OF PENDENCY OF OTHER ACTIONS upon each party no later than eleven days after appearance of the party.

Dated:

_____________________________ [Counsel of Record or Pro Se Party] [Address and Telephone]

_____________________________ [Counsel of Record or Pro Se Party] [Address and Telephone]

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FT. MYERS DIVISION
JUSTINE BODMER on her own behalf and others similarly situated, Plaintiff, v. WELLS FARGO BANK, N.A. a Foreign Corporation, Defendant. ______________________________________ Case No. 2:08-cv-74-FtM-34SPC

CASE MANAGEMENT REPORT
The parties have agreed on the following dates and discovery plan pursuant to Fed.R.Civ.P. 26(f) and Local Rule 3.05(c):

DEADLINE OR EVENT Mandatory Initial Disclosures (pursuant to Fed.R.Civ.P. 26(a)(1) as amended effective December 1, 2000) [Court recommends 30 days after CMR meeting] Certificate of Interested Persons and Corporate Disclosure Statement [each party who has not previously filed must file immediately] Motions to Add Parties or to Amend Pleadings [Court recommends 1 - 2 months after CMR meeting]

AGREED DATE

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DEADLINE OR EVENT Disclosure of Expert Reports Plaintiff: Defendant: [Court recommends last exchange 6 months before trial and 1 - 2 months before discovery deadline to allow expert depositions] Discovery Deadline [Court recommends 5 months before trial to allow time for dispositive motions to be filed and decided; all discovery must be commenced in time to be completed before this date] Dispositive Motions, Daubert, and Markman Motions [Court requires 4 months or more before trial term begins] Final Pretrial Conference Trial Term Begins [Local Rule 3.05 (c)(2)(E) sets goal of trial within 1 year of filing complaint in most Track Two cases, and within 2 years in all Track Two cases; trial term must not be less than 4 months after dispositive motions deadline (unless filing of such motions is waived); district judge trial terms begin on the first business day of each month; trials before magistrate judges will be set on a date certain after consultation with the parties] Estimated Length of Trial [trial days] Jury / Non-Jury Mediation Deadline: Mediator: Address:

AGREED DATE

Telephone: [Absent arbitration, mediation is mandatory; Court recommends either 2 - 3 months after CMR meeting, or just after discovery deadline]

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DEADLINE OR EVENT All Parties Consent to Proceed Before Magistrate Judge

AGREED DATE Yes____ No____

Likely to Agree in Future _____

I.

Meeting of Parties in Person Lead counsel must meet in person and not by telephone absent an order permitting

otherwise. Counsel will meet in the Middle District of Florida, unless counsel agree on a different location. Pursuant to Local Rule 3.05(c)(2)(B) or (c)(3)(A),1 a meeting was held in person on ___________________ (date) at and was attended by:
Name Counsel for (if applicable) (time)

at

(place)

II.

Preliminary Pretrial Conference Local Rule 3.05(c)(3)(B) provides that preliminary pretrial conferences are

mandatory in Track Three cases. Track Two cases: Parties (check one) [__] request [__] do not request a preliminary pretrial conference before entry of a Case Management and Scheduling Order in this Track Two case. Unresolved issues to be addressed at such a conference include:

1

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III.

Pre-Discovery Initial Disclosures of Core Information Fed.R.Civ.P. 26(a)(1)(A) - (D) Disclosures Fed.R.Civ.P. 26, as amended effective December 1, 2000, provides that these

disclosures are mandatory in Track Two and Track Three cases, except as stipulated by the parties or otherwise ordered by the Court (the amendment to Rule 26 supersedes Middle District of Florida Local Rule 3.05, to the extent that Rule 3.05 opts out of the mandatory discovery requirements): The parties ____ have exchanged ____ agree to exchange (check one) information described in Fed.R.Civ.P. 26(a)(1)(A) - (D) on by
(check one) (date).

Below is a description of information disclosed or scheduled for disclosure.

IV.

Agreed Discovery Plan for Plaintiffs and Defendants A. Certificate of Interested Persons and Corporate Disclosure Statement

-- This Court has previously ordered each party, governmental party, intervenor, non-party movant, and Rule 69 garnishee to file and serve a Certificate of Interested Persons and Corporate Disclosure Statement using a mandatory form. No party may seek discovery from any source before filing and serving a Certificate of Interested Persons and Corporate Disclosure Statement. A motion, memorandum, response, or other paper -- including emergency motion -- is subject to being denied or stricken unless the filing party has previously filed and served its Certificate of Interested
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Persons and Corporate Disclosure Statement. Any party who has not already filed and served the required certificate is required to do so immediately. Every party that has appeared in this action to date has filed and served a Certificate of Interested Persons and Corporate Disclosure Statement, which remains current: _______ Yes _______ No Amended Certificate will be filed by ____________________ (party) on or before ____________________ (date).

B.

Discovery Not Filed --

The parties shall not file discovery materials with the Clerk except as provided in Local Rule 3.03. The Court encourages the exchange of discovery requests on diskette. See Local Rule 3.03 (e). The parties further agree as follows:

C.

Limits on Discovery --

Absent leave of Court, the parties may take no more than ten depositions per side (not per party). Fed.R.Civ.P. 30(a)(2)(A); Fed.R.Civ.P. 31(a)(2)(A). Absent leave of Court, the parties may serve no more than twenty-five interrogatories, including sub-parts. Fed.R.Civ.P. 33(a). The parties may agree by stipulation on other limits on discovery. The Court will consider the parties' agreed dates, deadlines, and other limits in entering the
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scheduling order. Fed.R.Civ.P. 29. In addition to the deadlines in the above table, the parties have agreed to further limit discovery as follows: 1. 2. 3. 4. 5. Depositions Interrogatories Document Requests Requests for Admissions Supplementation of Discovery

D.

Discovery Deadline --

Each party shall timely serve discovery requests so that the rules allow for a response prior to the discovery deadline. The Court may deny as untimely all motions to compel filed after the discovery deadline. In addition, the parties agree as follows:

E.

Disclosure of Expert Testimony --

On or before the dates set forth in the above table for the disclosure of expert reports, the parties agree to fully comply with Fed.R.Civ.P. 26(a)(2) and 26(e). Expert testimony on direct examination at trial will be limited to the opinions, basis, reasons, data, and other information disclosed in the written expert report disclosed pursuant to this order. Failure to disclose such information may result in the exclusion of all or part of the testimony of the expert witness. The parties agree on the following additional matters pertaining to the disclosure of expert testimony:
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F.

Confidentiality Agreements --

Whether documents filed in a case may be filed under seal is a separate issue from whether the parties may agree that produced documents are confidential. The Court is a public forum, and disfavors motions to file under seal. The Court will permit the parties to file documents under seal only upon a finding of extraordinary circumstances and particularized need. See Brown v. Advantage Engineering, Inc., 960 F.2d 1013 (11th Cir. 1992); Wilson v. American Motors Corp., 759 F.2d 1568 (11th Cir. 1985). A party seeking to file a document under seal must file a motion to file under seal requesting such Court action, together with a memorandum of law in support. The motion, whether granted or denied, will remain in the public record. The parties may reach their own agreement regarding the designation of materials as "confidential." There is no need for the Court to endorse the confidentiality agreement. The Court discourages unnecessary stipulated motions for a protective order. The Court will enforce appropriate stipulated and signed confidentiality agreements. See Local Rule 4.15. Each confidentiality agreement or order shall provide, or shall be deemed to provide, that "no party shall file a document under seal without first having obtained an order granting leave to file under seal on a showing of particularized need." With respect to confidentiality agreements, the parties agree as follows:

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G.

Disclosure or Discovery of Electronically Stored Information and

Assertion of Claims of Privilege -- Pursuant to Fed.R.Civ.P. 16(b)(5) and (6), the parties have made the following agreements regarding the disclosure and discovery of electronically stored information as well as the assertion of claims of privilege or protection of trial preparation materials after production:

H.

Other Matters Regarding Discovery --

V.

Settlement and Alternative Dispute Resolution. A. Settlement -- The parties agree that settlement is

_____ likely ______ unlikely

(check one)

The parties request a settlement conference before a United States Magistrate Judge. yes B. no Arbitration -- Local Rule 8.02(a) defines those civil cases that will be referred to arbitration automatically. Does this case fall within the scope of Local Rule 8.02(a)? yes no likely to request in future

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For cases not falling within the scope of Local Rule 8.02(a), the parties consent to arbitration pursuant to Local Rules 8.02(a)(3) and 8.05(b): likely to agree in future _______ Binding ________Non-Binding yes no

In any civil case subject to arbitration, the Court may substitute mediation for arbitration upon a determination that the case is susceptible to resolution through mediation. Local Rule 8.02(b). The parties agree that this case is susceptible to resolution through mediation, and therefore jointly request mediation in place of arbitration: yes C. no Mediation -- Absent arbitration or a Court order to the contrary, the parties in every case will participate in Court-annexed mediation as detailed in Chapter Nine of the Court's Local Rules. The parties have agreed on a mediator from the Court's approved list of mediators as set forth in the table above, and have agreed to the date stated in the table above as the last date for mediation. The list of mediators is available from the Clerk, and is posted on the Court's web site at http://www.flmd.uscourts.gov. likely to agree in future

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D.

Other Alternative Dispute Resolution --

The parties intend to pursue the following other methods of alternative dispute resolution:

Date: _____________________

Signature of Counsel (with information required by Local Rule 1.05(d)) and Signature of Unrepresented Parties.

____________________________________ _________________________________

____________________________________ _________________________________

____________________________________ _________________________________

____________________________________ _________________________________

____________________________________ _________________________________

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FT. MYERS DIVISION
JUSTINE BODMER on her own behalf and others similarly situated, Plaintiff, v. WELLS FARGO BANK, N.A. a Foreign Corporation, Defendant. ______________________________________ Case No. 2:08-cv-74-FtM-34SPC

INTERESTED PERSONS ORDER FOR CIVIL CASES
This Court makes an active effort to screen every case in order to identify parties and interested corporations in which any assigned judge may be a shareholder, as well as for other matters that might require consideration of recusal. It is therefore ORDERED that, within eleven days1 from the date of this order (or from the date of subsequent first appearance2 in this action), each party, pro se party, governmental party, intervenor, non-party movant, and Rule 69 garnishee shall file and serve a Certificate of Interested Persons and Corporate Disclosure Statement. (See Attachment A) FURTHER ORDERED that no party may seek discovery from any source before filing and serving a. A motion, memorandum, response, or other paper -- including emergency motion --
Intermediate Saturdays, Sundays, and specified legal holidays are included in the computation of periods of eleven days or more. See Fed.R.Civ.P. 6(a); Local Rule 4.20. If this order was served by mail, add three days to the prescribed period. Fed.R. Civ.P 6(e); Local Rule 4.20(a)(2). Service by facsimile constitutes a method of hand delivery for the purpose of computing the time within which any response is required. Local Rule 1.07(c).
1 2

Every pleading or paper filed constitutes a general appearance of the party unless otherwise specified. Local Rule 2.03(a).

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may be denied or stricken unless the filing party has previously filed and served its Certificate of Interested Persons and Corporate Disclosure Statement. FURTHER ORDERED that each party has a continuing obligation to file and serve an amended Certificate of Interested Persons and Corporate Disclosure Statement within eleven days of 1) discovering any ground for amendment, including notice of case reassignment to a different judicial officer; or 2) discovering any ground for recusal or disqualification of a judicial officer. A party should not routinely list an assigned district judge or magistrate judge as an "interested person" absent some non-judicial interest. FURTHER ORDERED that, in order to assist the Court in determining when a conflict of interest may exist, particularly when ruling on matters formally assigned to another judge, each party shall use the full caption of the case -- including the names of all parties and intervenors -- on all motions, memoranda, papers, and proposed orders submitted to the Clerk. See Fed.R.Civ.P. 10(a); Local Rule 1.05(b) ("et al." discouraged). January 31, 2008 JOHN E. STEELE John E. Steele United States District Court Judge MARCIA MORALES HOWARD Marcia Morales Howard United States District Court Judge

DOUGLAS N. FRAZIER Douglas N. Frazier United States Magistrate Judge

SHERI POLSTER CHAPPELL Sheri Polster Chappell United States Magistrate Judge

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ATTACHMENT A CERTIFICATE OF INTERESTED PERSONS CORPORATE DISCLOSURE STATEMENT

AND

I hereby disclose the following pursuant to this Court's interested persons order: 1. The name of each person, attorney, association of persons, firm, law firm, partnership, and corporation that has or may have an interest in the outcome of this action -- including subsidiaries, conglomerates, affiliates, parent corporations, publicly-traded companies that own 10% or more of a party's stock, and all other identifiable legal entities related to any party in the case: [insert list] 2. The name of every other entity whose publicly-traded stock, equity, or debt may be substantially affected by the outcome of the proceedings: [insert list] 3. The name of every other entity which is likely to be an active participant in the proceedings, including the debtor and members of the creditors' committee (or twenty largest unsecured creditors) in bankruptcy cases: [insert list] 4. The name of each victim (individual or corporate) of civil and criminal conduct alleged to be wrongful, including every person who may be entitled to restitution: [insert list] I hereby certify that, except as disclosed above, I am unaware of any actual or potential conflict of interest involving the district judge and magistrate judge assigned to this case, and will immediately notify the Court in writing on learning of any such conflict. I further certify that I have inserted "None" if there is no actual or potential conflict of interest. [Date] _____________________________ [Counsel of Record or Pro Se Party] [Address and Telephone]

[Certificate of Service]

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FT. MYERS DIVISION JUSTINE BODMER, on her own behalf and others similarly situated, Plaintiff, v. WELLS FARGO BANK, N.A., a Foreign Corporation, Defendant. _____________________________________/ NOTICE OF PENDENCY OF OTHER ACTIONS In accordance with Local Rule 1.04 (c), I certify that the instant action: _____ IS related to pending or closed civil or criminal case(s) previously filed in this Court, or any other Federal or State Court, or administrative agency as indicated below: ____________________________________________________________ ____________________________________________________________ ____________________________________________________________ related to any pending or closed civil or criminal case filed with this Court, or any other Federal or State court, or administrative agency. CASE NO.: 2:08-cv-00074-MMH-SPC

X

IS NOT

DATED this 11th day of February 2008. Respectfully submitted, /s ANDREW FRISCH ANDREW FRISCH FL Bar No.: 27777 MORGAN & MORGAN 7450 Griffin Road, Suite 230 Davie, Florida 33324 Tel: 954-318-0268 Fax: 954-333-3515 E-Mail: [email protected] Trial Counsel for Plaintiffs

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent via U.S. Mail to Corporation Service Company, Registered Agent for Defendant, 1201 Hays Street, Tallahassee, FL 32301, this 11th day of February 2008. /s ANDREW FRISCH ANDREW FRISCH

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UNITED STATE DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION JUSTINE BODMER, on her own behalf and others similarly situated, Plaintiff, v. WELLS FARGO BANK, N.A., a Foreign Corporation, Defendant. ____________________________________/ ANSWER OF WELLS FARGO HOME MORTGAGE, A DIVISION OF WELLS FARGO BANK, N.A. TO COMPLAINT FOR JURY TRIAL Defendant Wells Fargo Home Mortgage, a division of Wells Fargo Bank, National Association ("Wells Fargo"), on behalf of itself only hereby answers the Complaint (the "Complaint") of Plaintiff Justine Bodmer ("Plaintiffs") as follows: 1. As to the allegations in Paragraph 1 of the Complaint, Wells Fargo admits CASE NO. 2:08-CV-00074-MMH-SPC

that Plaintiff is a home mortgage consultant for Wells Fargo Home Mortgage. 2. As to the allegations in Paragraph 2 of the Complaint, Wells Fargo admits

that it is a national banking association with its main office in Sioux Falls, South Dakota, and that it operates and conducts business in Lee County, Florida. Wells Fargo denies that

jurisdiction is proper in this Court because, as a tag-along action defined by Multidistrict Litigation Rule 1.1, this action is subject to the Order of the Judicial Panel on Multidistrict Litigation, dated June 15, 2006, transferring all such cases to the Northern District of California in the In Re Wells Fargo Home Mortgage Overtime Pay Litigation, MDL Case No. 1770, pursuant to 28 U.S.C. § 1407.

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Case No. 2:08-CV-00074-MMH-SPC 3. As to the allegations in Paragraph 3 of the Complaint, these contain

statements to which no response is required. To the extent that a response is required, Wells Fargo denies the allegations contained in this paragraph. 4. As to the allegations in Paragraph 4 of the Complaint, these contain

statements to which no response is required. To the extent that a response is required, Wells Fargo denies the allegations contained in this paragraph. 5. As to the allegations in Paragraph 5 of the Complaint, Wells Fargo admits

that it is covered by the Fair Labor Standards Act ("FLSA"). Except as expressly admitted, Wells Fargo denies the allegations contained in Paragraph 5. 6. the allegations. 7. As to the allegations in Paragraph 7 of the Complaint, Wells Fargo admits As to the allegations in Paragraph 6 of the Complaint, Wells Fargo denies

that it properly classified Plaintiff, and those similarly situated to her, as exempt employees and thus had no legal obligation to pay overtime for any hours they worked in excess of forty hours per week. Except as expressly admitted, Wells Fargo denies the allegations contained in the paragraph. 8. As to the allegations in Paragraph 8 of the Complaint, Wells Fargo admits

that it properly classified its HMCs as exempt employees and thus had no obligation to record the specific hours worked by HMCs. Except as expressly admitted, Wells Fargo denies the allegations contained in the paragraph. 9. As to the allegations in Paragraph 9 of the Complaint, Wells Fargo

incorporates by reference its Answer to the allegations set forth in the preceding paragraphs.

2

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Case No. 2:08-CV-00074-MMH-SPC 10. denies them. 11. As to the allegations in Paragraph 11 of the Complaint, Wells Fargo As to the allegations in Paragraph 10 of the Complaint, Wells Fargo

denies them, and also denies the bases for any request for damages contained therein. 12. As to the allegations in Paragraph 12 of the Complaint, Wells Fargo

denies them, and also denies the bases for any request for damages contained therein. 13. As to the allegations in Paragraph 13 of the Complaint, these contain

statements to which no response is required. DEFENSES In further answer to the Complaint, and as separate and distinct affirmative and other defenses, Wells Fargo alleges the following defenses. In asserting these defenses, Wells Fargo does not assume the burden of proof as to matters that, as a matter of law, are Plaintiff's burden to prove. FIRST DEFENSE Pursuant to 28 U.S.C. § 1407, jurisdiction is not proper in this Court because, as a tagalong action defined by Multidistrict Litigation Rule 1.1, this action is subject to the Order of the Judicial Panel on Multidistrict Litigation, dated June 15, 2006, transferring all such cases to the Northern District of California in the In Re Wells Fargo Home Mortgage Overtime Pay Litigation, MDL Case No. 1770. SECOND DEFENSE The Complaint, and each purported cause of action alleged therein, fails to state facts sufficient to constitute a claim for relief upon which any relief may be granted.

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Case No. 2:08-CV-00074-MMH-SPC THIRD DEFENSE The Complaint, and each purported cause of action alleged therein, is barred to the extent Representative Plaintiffs and/or the members of the alleged putative group they purport to represent have released Wells Fargo from any claims they may have against it.1 FOURTH DEFENSE The Complaint, and each purported cause of action alleged therein, is barred because Plaintiffs and/or the members of the alleged putative group they purport to represent were and are property classified as exempt employees under the outside sales, commissioned sales, executive, administrative and/or highly compensated exemptions. FIFTH DEFENSE Plaintiffs and/or the members of the putative group they purport to represent are precluded from recovering any amounts from Wells Fargo where Wells Fargo has paid Plaintiffs and/or the members of the alleged putative group they purport to represent all sums legally due under the FLSA. SIXTH DEFENSE The Complaint, and each purported cause of action alleged therein, is barred because Plaintiffs and/or the members of the alleged putative group they purport to represent misperformed their respective duties and/or failed to perform the duties which Wells Fargo realistically expected them to perform.

Wells Fargo expressly denies the existence of any alleged putative group of persons that Plaintiffs purport to represent in this lawsuit. Wells Fargo incorporates (as if fully set forth therein) this express denial each and every time it mentions the alleged putative group in this pleading.

1

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Case No. 2:08-CV-00074-MMH-SPC SEVENTH DEFENSE Some or all of the disputed time for which Plaintiffs and/or the members of the alleged putative group they purport to represent seek to recover (of wages purportedly owed) is not compensable pursuant to the doctrine of de minimis non curat lex. EIGHTH DEFENSE The Complaint, and each purported cause of action alleged therein, is barred by the provisions of the Portal-to-Portal Act (29 U.S.C. § 254) as to all hours which Plaintiffs and/or members of the alleged putative group they purport to represent were engaged in preliminary or postliminary activities. NINTH DEFENSE Plaintiffs cannot satisfy the prerequisites for a collective action and therefore cannot represent the interests of others. TENTH DEFENSE Plaintiffs lack standing to assert the legal rights or interests of others. ELEVENTH DEFENSE The types of claims alleged by Plaintiffs on behalf of themselves and/or the alleged putative group they purport to represent are matters in which individual questions predominate. TWELFTH DEFENSE The purported causes of action alleged by Plaintiffs are neither common to nor typical of those, if any, of the alleged putative group that Plaintiffs purport to represent.

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Case No. 2:08-CV-00074-MMH-SPC THIRTEENTH DEFENSE Plaintiffs are not similarly situated to other potential members of the alleged putative group they purport to represent and thus are inadequate representatives of the alleged putative group. FOURTEENTH DEFENSE Certain of the interests of the alleged putative group that Plaintiffs purport to represent are in conflict with the interests of all or certain sub-groups of the members of the alleged putative group. FIFTEENTH DEFENSE The alleged putative group that Plaintiffs purport to represent cannot proceed collectively under 29 U.S.C. section 216(b), because they are not similarly situated. SIXTEENTH DEFENSE Plaintiffs have not shown and cannot show that their Complaint is a superior means of adjudicating the controversy. SEVENTEENTH DEFENSE The Complaint, and each purported cause of action alleged therein, cannot proceed as a purported collective or class action because difficulties likely to be encountered render the action unmanageable. EIGHTEENTH DEFENSE To the extent liability, affirmative defenses and/or damages, if any, to each member of the alleged group Plaintiffs purport to represent are not determined by a single jury or is determined on a group-wide basis, permitting this action to proceed as a collective or class action

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Case No. 2:08-CV-00074-MMH-SPC violates Wells Fargo's rights under the Fifth, Seventh, Eighth and Fourteenth Amendments to the United States Constitution and Article 1 of the California Constitution. NINETEENTH DEFENSE To the extent one trier of fact is permitted to award penalties or punitive damages while another trier of fact determines the amount of any compensatory damages awarded, Wells Fargo's rights under the Fifth, Seventh, Eighth and Fourteenth Amendments of the United States Constitution will be violated. TWENTIETH DEFENSE To the extent the amount of any punitive damages awarded are unreasonable, excessive, arbitrary, or disproportionate to the amount of harm to Plaintiffs and to the general damages recovered, Wells Fargo's rights under the Fifth, Seventh, Eighth and Fourteenth Amendments of the United States Constitution and Article 1 of the California Constitution will be violated. TWENTY-FIRST DEFENSE The Complaint, and each purported cause of action alleged therein, is barred in whole or in part by all applicable statutes of limitation, including, but not limited to, 29 U.S.C. § 255. TWENTY-SECOND DEFENSE Plaintiffs and/or the members of the alleged putative group they purport to represent are not entitled to any penalty award under the FLSA because Wells Fargo did not willfully fail to comply with the compensation provisions of the FLSA, but rather acted in good faith and had reasonable grounds for believing it did not violate them.

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Case No. 2:08-CV-00074-MMH-SPC TWENTY-THIRD DEFENSE Some or all of the purported causes of action alleged in the Complaint are barred in whole or in part by the equitable doctrines of laches, avoidable consequences, waiver, estoppel and/or unclean hands. PRAYER FOR RELIEF 1. with prejudice; 2. 3. 4. For costs of suit and reasonable attorneys' fees incurred herein; For such other and further relief as this Court deems proper; That this action be transferred to the Northern District of California Plaintiff takes nothing by the Complaint and the Complaint be dismissed

pursuant to the Multidistrict Litigation Order, filed June 15, 2006, in In Re Wells Fargo Home Mortgage Overtime Litigation, MDL Case No. 1770. DEMAND FOR JURY TRIAL Wells Fargo hereby demands trial by jury of Plaintiff's claims for relief and Wells Fargo's defenses to the extent authorized by law. DATED this 20th day of February, 2008.

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Case No. 2:08-CV-00074-MMH-SPC Respectfully Submitted,

LITTLER MENDELSON, PC One Biscayne Tower, Suite 1500 2 S. Biscayne Boulevard Miami, Florida 33131 (305) 400-7500 (Telephone) (305) 603-2552 (Facsimile) By: /s/ Jonathan A. Beckerman_______ Jonathan A. Beckerman, Esq. Florida Bar No. 0568252 E-Mail: [email protected] Counsel for Defendant WELLS FARGO BANK, NATIONAL ASSOCIATION

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Case No. 2:08-CV-00074-MMH-SPC CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 20th day of February 2008, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing.

Jonathan A. Beckerman
Jonathan A. Beckerman

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Case No. 2:08-CV-00074-MMH-SPC SERVICE LIST Bodmer, Justine v. Wells Fargo Bank, N.A. Case No. 2:08-CV-00074-MMH-SPC Andrew Frisch, Esq. E-Mail: [email protected] MORGAN & MORGAN 7450 Griffin Road, Suite 230 Davie, Florida 33314 Tel: (954) 318-0268 Fax: (954) 333-3515 Counsel for Plaintiff (Served via Transmission of Notices of Electronic Filing) Jonathan A. Beckerman, Esq. E-Mail: [email protected] LITTLER MENDELSON, PC One Biscayne Tower, Suite 1500 2 S. Biscayne Boulevard Miami, Florida 33131 Tel: (305) 400-7500 Fax: (305) 603-2552 Counsel for Defendant Wells Fargo Bank, National Association (Served via Transmission of Notices of Electronic Filing)

Firmwide:84335882.1 051995.1003

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UNITED STATE DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION JUSTINE BODMER, on her own behalf and others similarly situated, Plaintiff, v. WELLS FARGO BANK, N.A., a Foreign Corporation, Defendant. ____________________________________/ CASE NO. 2:08-CV-00074-MMH-SPC

TO THE CLERK OF THE COURT: Attached hereto as Attachment 1 is the Notice To The Clerk of the Multidistrict Litigation Panel of Wells Fargo Bank's request to have the above-entitled action transferred to the Northern District of California as a "tag-along" action, pursuant to MDL Rules 7.4 and 7.5(e), and the Transfer Order of the MDL Panel, filed June 15, 2006, in the In re Wells Fargo Home Mortgage Overtime Pay Litigation, MDL Case No. MDL 06-1770. DATED this 26th day of February, 2008. Respectfully Submitted, LITTLER MENDELSON, PC One Biscayne Tower, Suite 1500 2 S. Biscayne Boulevard Miami, Florida 33131 (305) 400-7500 (Telephone) (305) 603-2552 (Facsimile) By: /s/ Jonathan A. Beckerman_______ Jonathan A. Beckerman, Esq. Florida Bar No. 0568252 E-Mail: [email protected] Counsel for Defendant WELLS FARGO BANK, NATIONAL ASSOCIATION

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Case No. 2:08-CV-00074-MMH-SPC CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 26th day of February 2008, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing.

Jonathan A. Beckerman
Jonathan A. Beckerman

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Case No. 2:08-CV-00074-MMH-SPC SERVICE LIST Bodmer, Justine v. Wells Fargo Bank, N.A. Case No. 2:08-CV-00074-MMH-SPC Andrew Frisch, Esq. E-Mail: [email protected] MORGAN & MORGAN 7450 Griffin Road, Suite 230 Davie, Florida 33314 Tel: (954) 318-0268 Fax: (954) 333-3515 Counsel for Plaintiff (Served via Transmission of Notices of Electronic Filing) Jonathan A. Beckerman, Esq. E-Mail: [email protected] LITTLER MENDELSON, PC One Biscayne Tower, Suite 1500 2 S. Biscayne Boulevard Miami, Florida 33131 Tel: (305) 400-7500 Fax: (305) 603-2552 Counsel for Defendant Wells Fargo Bank, National Association (Served via Transmission of Notices of Electronic Filing)

Firmwide:84391124.1 051995.1005

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FT. MYERS DIVISION
JUSTINE BODMER on her own behalf and others similarly situated, Plaintiff, v. WELLS FARGO BANK, N.A. a Foreign Corporation, Defendant. ______________________________________ Case No. 2:08-cv-74-FtM-34SPC

INTERESTED PERSONS ORDER FOR CIVIL CASES
This Court makes an active effort to screen every case in order to identify parties and interested corporations in which any assigned judge may be a shareholder, as well as for other matters that might require consideration of recusal. It is therefore ORDERED that, within eleven days1 from the date of this order the Defendant shall file and serve a Certificate of Interested Persons and Corporate Disclosure Statement. (See Attachment A) FURTHER ORDERED that no party may seek discovery from any source before filing and serving a. A motion, memorandum, response, or other paper -- including emergency motion -- may be denied or stricken unless the filing party has previously filed and served its Certificate of Interested Persons and Corporate Disclosure Statement.

1 Intermediate Saturdays, Sundays, and specified legal holidays are included in the computation of periods of eleven days or more. See Fed.R.Civ.P. 6(a); Local Rule 4.20. If this order was served by mail, add three days to the prescribed period. Fed.R. Civ.P 6(e); Local Rule 4.20(a)(2). Service by facsimile constitutes a method of hand delivery for the purpose of computing the time within which any response is required. Local Rule 1.07(c).

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FURTHER ORDERED that each party has a continuing obligation to file and serve an amended Certificate of Interested Persons and Corporate Disclosure Statement within eleven days of 1) discovering any ground for amendment, including notice of case reassignment to a different judicial officer; or 2) discovering any ground for recusal or disqualification of a judicial officer. A party should not routinely list an assigned district judge or magistrate judge as an "interested person" absent some non-judicial interest. FURTHER ORDERED that, in order to assist the Court in determining when a conflict of interest may exist, particularly when ruling on matters formally assigned to another judge, each party shall use the full caption of the case -- including the names of all parties and intervenors -- on all motions, memoranda, papers, and proposed orders submitted to the Clerk. See Fed.R.Civ.P. 10(a); Local Rule 1.05(b) ("et al." discouraged). April 8, 2008 JOHN E. STEELE John E. Steele United States District Court Judge MARCIA MORALES HOWARD Marcia Morales Howard United States District Court Judge

DOUGLAS N. FRAZIER Douglas N. Frazier United States Magistrate Judge

SHERI POLSTER CHAPPELL Sheri Polster Chappell United States Magistrate Judge

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ATTACHMENT A CERTIFICATE OF INTERESTED PERSONS CORPORATE DISCLOSURE STATEMENT

AND

I hereby disclose the following pursuant to this Court's interested persons order: 1. The name of each person, attorney, association of persons, firm, law firm, partnership, and corporation that has or may have an interest in the outcome of this action -- including subsidiaries, conglomerates, affiliates, parent corporations, publicly-traded companies that own 10% or more of a party's stock, and all other identifiable legal entities related to any party in the case: [insert list] 2. The name of every other entity whose publicly-traded stock, equity, or debt may be substantially affected by the outcome of the proceedings: [insert list] 3. The name of every other entity which is likely to be an active participant in the proceedings, including the debtor and members of the creditors' committee (or twenty largest unsecured creditors) in bankruptcy cases: [insert list] 4. The name of each victim (individual or corporate) of civil and criminal conduct alleged to be wrongful, including every person who may be entitled to restitution: [insert list] I hereby certify that, except as disclosed above, I am unaware of any actual or potential conflict of interest involving the district judge and magistrate judge assigned to this case, and will immediately notify the Court in writing on learning of any such conflict. I further certify that I have inserted "None" if there is no actual or potential conflict of interest. [Date] _____________________________ [Counsel of Record or Pro Se Party] [Address and Telephone]

[Certificate of Service]

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FT. MYERS DIVISION JUSTINE BODMER, on her own behalf and others similarly situated, Plaintiff, v. WELLS FARGO BANK, N.A., a Foreign Corporation, Defendant. _____________________________________/ PLAINTIFF'S CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT I hereby disclose the following pursuant to this Court's interested persons order: 1.) the name of each person, attorney, association of persons, firm, law firm, partnership, and CASE NO.: 2:08-cv-00074-MMH-SPC

corporation that has or may have an interest in the outcome of this action ­ including subsidiaries, conglomerates, affiliates, parent corporation, publicly-traded companies that own 10% or more of a party's stock, and all other identifiable legal entities related to any party in the case: 1. Justine Bodmer ­ Plaintiff 2. Wells Fargo Bank, N.A. ­ Defendant 3. Morgan & Morgan ­ Counsel for Plaintiff 4. Andrew Frisch, Esquire ­ Counsel for Plaintiff 2.) the name of every other entity whose publicly-traded stock, equity, or debt may be

substantially affected by the outcome of the proceedings: 1. None known. 3.) the name of every other entity which is likely to be an active participant in the

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proceedings, including the debtor and members of the creditors' committee (or twenty largest unsecured creditors) in bankruptcy cases: 1. None other than the persons identified in 1.) above. 4.) the name of each victim (individual or corporate) of civil and criminal conduct alleged

to be wrongful, including every person who may be entitled to restitution: 1. Justine Bodmer, Plaintiff. Additionally, as this is styled as a collective action,

Plaintiff maintains that there are additional "similarly situated" employees of Defendant who were subjected to the same illegal pay practices complained of by Plaintiff, whose names and contact information currently are unknown. Therefore, as discovery commences and the identity of the additional employees becomes known, Plaintiff will supplement this disclosure. I hereby certify that I am unaware of any actual or potential conflict of interest involving the district judge and magistrate judge assigned to this case, and will immediately notify the Court in writing on learning of any such conflict. DATED this 11th day of February 2008. Respectfully submitted, /s ANDREW FRISCH ANDREW FRISCH FL Bar No.: 27777 MORGAN & MORGAN 7450 Griffin Road, Suite 230 Davie, Florida 33324 Tel: 954-318-0268 Fax: 954-333-3515 E-Mail: [email protected] Trial Counsel for Plaintiffs

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent via U.S. Mail to Corporation Service Company, Registered Agent for Defendant, 1201 Hays Street, Tallahassee, FL 32301, this 11th day of February 2008. /s ANDREW FRISCH ANDREW FRISCH

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