The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDING OF FACT AND CONCLUSIONS OF LAW
This matter came on for trial before the undersigned, sitting without a jury, on December 1, 2008, through December 4, 2008. The parties were unable to complete the trial within their time estimate and trial continued from January 7, 2009, through January 9, 2009, and February 26, 2009, through February 27, 2009.
On March 6, 2009, the parties filed a Stipulation and Order Regarding the Post-Trial Briefing Schedule and agreed that briefing would be concluded by June 12, 2009.
Subsequently, on March 19, 2009, Plaintiff Jeff Reich ("Plaintiff") filed a Motion to Shorten Time for a Petition for Submission of Further Evidence. The Court denied the request on March 30, 2009, and Plaintiff filed his Petition for Submission of Further Evidence on March 31, 2009. The Court vacated the May 1, 2009, hearing date and denied the petition on May 19, 2009.
On May 27, 2009, the parties stipulated to a further revision to the post-trial briefing schedule and agreed that closing briefs would be due on July 24, 2009. The Court approved this stipulation on May 29, 2009.
On August 3, 2009, the parties again stipulated to extend the briefing schedule, this time extending the date for closing briefs to September 4, 2009. The stipulation also set a briefing schedule for Defendant Calvary Investments, LLC's ("Defendant") Motion to Strike Plaintiff's Request to Move Exhibits 69 and/or 119 into Evidence and its Motion to Strike a Portion of Plaintiff's Closing Brief and Accompanying Appendix A, both of which were filed on July 23, 2009. The Court approved the stipulation on August 10, 2009.
On September 18, 2009, Defendant's motions were heard before the undersigned and this case was submitted for decision. The Court DENIES Plaintiff's Motion to Admit Exhibits 69 and 119 into Evidence. The Court GRANTS Defendant's Motion to Strike Appendix A to Plaintiff's Closing Brief.
Having heard the testimony and reviewed the exhibits received at trial,*fn1 and having read and considered the parties' post-trial briefs and Proposed Findings of Fact and Conclusions of Law, the Court renders the following Findings of Fact and Conclusions of Law.
Plaintiff is a citizen of the State of California and resides in the County of Fresno. He is an attorney licensed to practice law in the State of California and practices within the State at The Reich Law Firm.
Defendant is, and at all relevant times was, a limited liability company existing under the laws of the State of Delaware, with a principal place of business in Hawthorne, New York. For purposes of jurisdiction, Defendant does business in the State of California.
Defendant is a business that purchases delinquent credit accounts, mainly credit card accounts, and pursues collection of the accounts for its own benefit. In its regular course of business, Defendant retains attorneys to represent it in collecting on these accounts.
On or about April 30, 1999, Plaintiff and Defendant entered into a written contingency fee agreement (the "Contract"), pursuant to which Plaintiff would provide legal services on Defendant's behalf in collections actions in California. Trial Exhibit ("Trial Ex."), 10.
The Contract was drafted by Donald Strauch, Defendant's Executive Vice-President. Trial Ex. 10. Among other things, the Contract provided:
REICH is entitled to 20.0% contingency fee on all funds REICH collected (sic) (whether litigated or not) on the assigned accounts with the exception of the recovery of costs. Costs and disbursements are the sole responsibility of CILLC.
CILLC will be responsible to supply adequate documentation to initiate suit and respond to any request by REICH within 48 hours. REICH will be responsible to commence suit within 48 hours of receipt of a claim, acknowledge receipt of it in the same time frame, and proceed with all due hast at every juncture of the suit. Once judgment is attained, all know assets will be attached promptly. On any assets uncovered by CILLC subsequently, REICH will issue the appropriate execution(s) within 24 hours of its advice.
REICH will provide a concise and accurate status report to CILLC on a monthly basis. Furthermore, REICH shall provide information to CILLC on a daily ...