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

Case 3:07-cv-06066-MHP

Document 6

Filed 03/10/2008

Page 1 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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

Tomio B. Narita SIMMONDS & NARITA LLP 44 Montgomery Street, Suite 3010 San Francisco, CA 94104-4816 Facsimile (415) 352-2625 Tel. (415) 283-1000 [email protected] ATTORNEY FOR DEFENDANTS

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

STEPHEN LEE, individually and on behalf of all others similarly situated, Plaintiffs, v. FIRST REVENUE ASSURANCE CORPORATION, et al. Defendants. _______________________________/

Case No. CV 07-6066 MHP JOINT CASE MANAGEMENT STATEMENT Date: Time: Dept: Judge: March 17, 2008 4:00 p.m. Courtroom 15, 18th Floor Hon. Marilyn H. Patel District Court Judge

The parties, by their attorneys, file their Joint Case Management Statement pursuant to L.R. 16-9, addressing all of the topics set forth in the Standing Orders of All Judges of the Northern District of California. 1. Jurisdiction and Service. The Plaintiff contends that this Court's jurisdiction is

based on 15 U.S.C. § 1692k(d) and 28 U.S.C. § 1331. The parties are not aware of any issues regarding personal jurisdiction or venue. At this time, Plaintiff is not aware of any additional parties to be served, but asks that the time for service remain open until the completion of discovery.
JOINT CASE MANAGEMENT STATEMENT STEPHEN LEE V. FIRST REVENUE ASSURANCE CORPORATION CASE NO. CV 07-6066

1

Case 3:07-cv-06066-MHP

Document 6

Filed 03/10/2008

Page 2 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Defendants ask the Court to set a deadline in 30 days for addition of any new parties and 60 days for service of same. 2. Facts: Plaintiff filed this class action complaint on November 30, 2007. Plaintiff,

Stephen Lee, incurred a debt in the approximate amount of $100.00 to Cingular Wireless for telephone services used for his personal needs. Mr. Lee was unable to pay the debt due to personal problems. The debt was assigned to or purchased by Defendant First Revenue Assurance Corporation, a debt collector regulated by federal law. Defendant First Revenue Assurance Corporation sent a collection letter threatening to report the $100.00 debt to the national credit bureaus. The collection letter was dated June 18, 2007, Exhibit A attached to the Complaint. The threat was false, as Cingular Wireless did not authorize the credit bureau report and the credit report was not made. Defendant First Revenue Assurance Corporation's collection letter, Exhibit A, referred Plaintiff to Defendant's website, deceptively representing that it acted as a mediation company rather than as a debt collector; Exhibit B attached to the Complaint. Defendant First Revenue Corporation, on its referenced website, sought personal information regarding Plaintiff by the false report that the personal information was necessary to process bankruptcy information; Exhibit C attached to the Complaint. Defendant First Revenue Corporation, on its referenced website, falsely represented that all disputes were to be sent in writing, Exhibit D attached to the Complaint. The law does not require a consumer to register a dispute in writing (15 U.S.C. § 1692a(3). Defendant First Revenue Assurance Corporation, in its referenced website, falsely represented that it complied with the Fair Debt Collection Practices Act, Exhibit E attached to the Complaint. Defendant's Answer to the Complaint was filed on January 16, 2008.

JOINT CASE MANAGEMENT STATEMENT

2

STEPHEN LEE V. FIRST REVENUE ASSURANCE CORPORATION CASE NO. CV 07-6066

Case 3:07-cv-06066-MHP

Document 6

Filed 03/10/2008

Page 3 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

3. (a)

Legal Issues. Issues are: whether the collection letter and statements from its referenced website, Exhibits

A-E attached to the Complaint, are false and deceptive, in violation of the anti-deception provisions of the FDCPA; (b) whether the threat to make a negative credit report to the credit bureau is false and

violative of the anti-deception provisions of the FDCPA and a coercive tactic resulting in an unfair and unconscionable debt collection practice. All of these representations are viewed from the perspective of a hypothetical least sophisticated consumer. Swanson v. Southern Credit Service, Inc., 869 F.2d 1222, 1225 (9th Cir. 1988); and (c) whether Defendant violated 15 U.S.C. § 1692g(a)(3) by contradictory and

misleading language concerning Plaintiff's right to dispute the debt. Defendant contends that there is no factual or legal merit to any of plaintiff's claims, and defendant plans to file a motion for summary judgment. First Revenue did, in fact, report the debt to the consumer reporting agencies, and Cinguular authorized this reporting. The FDCPA does not prohibit collectors from truthfully advising debtors about the negative consequences to their credit if they fail to pay. There are no false or misleading statements on First Revenue's website. No consumer, not even the least sophisticated debtor, would be led to believe that First Revenue is a mediation service, rather than a debt collector. The website does not seek the debtor's Social Security number, as the Complaint alleges. Nor is it possible for the website to contradict or overshadow plaintiffs rights under section. 1692g(a)(3) of the FDCPA, because the letter referring the plaintiff to the site was sent months after the initial validation letter, well outside of the 30-day validation period. 4. Motions. Plaintiff will set her motion for class certification to be heard before this

honorable court on June 23, 2008. Defendant will be filing a motion for summary judgment. 5. Amendment of Pleadings. Plaintiff will amend the Complaint to include specific

references to the code sections violated by Defendant. Other issues may develop during
JOINT CASE MANAGEMENT STATEMENT STEPHEN LEE V. FIRST REVENUE ASSURANCE CORPORATION CASE NO. CV 07-6066

3

Case 3:07-cv-06066-MHP

Document 6

Filed 03/10/2008

Page 4 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

discovery, and Plaintiff asks that the deadline for amendment be set at the completion of discovery. Defendant asks that the deadline to seek leave to amend be set within 30 days of the case management conference. 6. Evidence Preservation. Plaintiff asks that the Court issue an evidence

preservation order. 7. 8. Disclosures. Plaintiff has complied with the initial disclosure requirements. Discovery. Plaintiff propounded her first set of discovery requests to Defendants

on February 12, 2008. 9. Class actions.

(a) The class action is maintainable under Paragraphs b(2) and b(3) of Rule 23 of the Federal Rules of Civil Procedure. (b) The class is all California consumers who received the collection letter, attached as Exhibit A to the Complaint, within the one year immediately preceding the filing of the Complaint. (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 June 23, 2008. (e) Defendant requests that the date for hearing on class certification be deferred until

after the Court has heard Defendant's motion for summary judgment. 10. 11. Related cases. Plaintiff is not aware of any related cases. Relief. Plaintiff seeks statutory damages of $1,000 and relief for the Class, of the

lesser of a sum not to exceed $500,000.00 or 1% per centum of Defendant's net worth.
JOINT CASE MANAGEMENT STATEMENT STEPHEN LEE V. FIRST REVENUE ASSURANCE CORPORATION CASE NO. CV 07-6066

4

Case 3:07-cv-06066-MHP

Document 6

Filed 03/10/2008

Page 5 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 days. ADR.

12. 13.

Settlement and ADR. The parties agree to mediation under ADR auspices. Consent to magistrate judge for all purposes. Plaintiff consents to have this

matter heard by the magistrate judge for all purposes. Defendant does not consent. 14. Other references. The parties decline references other than mediation under the

15.

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

to class certification. Defendant believes its motion for summary judgment will dispose of the case or narrow the issues. 16. 17. Expedited schedule. This case is not amenable to handling on an expedited basis. Scheduling. Plaintiff proposes that the discovery cut-off be October 1, 2008, that

the date for designation of experts be September 1, 2008, that the date for hearing summary judgment motions be the week of July 1, 2008, and that the trial date be after December 1, 2008. 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' Certificate of Non-Interested Parties has been filed. 20. Other matters. The parties have no other matters to disclose at this time. Respectfully submitted,

Dated: 3-04-08

____/s/_____________ Irving L. Berg The Berg Law Group Attorney for Plaintiffs

Dated: 3-10-08 24 25 26 27 28
JOINT CASE MANAGEMENT STATEMENT

____s/______________ Tomio B. Narita Simmonds & Narita LLP Attorney for Defendants

5

STEPHEN LEE V. FIRST REVENUE ASSURANCE CORPORATION CASE NO. CV 07-6066