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Jeffrey Schulken, et al v. Washington Mutual Bank

April 2, 2013


The opinion of the court was delivered by: Lucy H. Koh United States District Judge


Before the Court are (1) Plaintiffs-Appellees Jeffrey and Jenifer Schulken ("Plaintiffs- Appellees") Motion to Compel purported class member, objector, and Appellant Donald R. Earl 21 ("Mr. Earl") to comply with Circuit Rules regarding ordering transcripts for appeal; (2) Plaintiffs-22 Appellees' Motion to Shorten Time on that motion; (3) Mr. Earl's Motion to Strike a declaration 23 submitted in support of Plaintiffs-Appellees' Motion to Shorten Time; and (4) Plaintiffs-Appellees' 24 Motion to Set an Appeal Bond. The Court held a hearing on the motions on March 28, 2013. 25

Having considered the parties' submissions, oral argument, and the relevant law, the Court 26 GRANTS the Motion to Compel, DENIES as moot the Motion to Shorten Time, and GRANTS IN 27 PART and DENIES IN PART both the Motion to Strike and the Motion for Bond. 28


Plaintiffs filed the instant class action on June 18, 2009, alleging that Defendants Washington Mutual Bank and JPMorgan Chase Bank, N.A. had violated state and federal law 3 relating to home equity lines of credit ("HELOCs") following the collapse of the housing market in 4 late 2008. On April 27, 2012, the parties reached an agreement and moved for preliminary 5 approval of a class action, which the Court granted on July 25, 2012. ECF No. 203; ECF No. 210. 6 8, 2012, the Court held a fairness hearing which Mr. Earl did not attend. On November 13, 2012, 8 the Court overruled Mr. Earl's objections, granted final approval to the settlement, and extended 9 the settlement opt-out deadline to permit Mr. Earl to exclude himself from the class and bring his 10 individual claims separately. ECF No. 223. Rather than opting out, Mr. Earl filed a motion to vacate the judgment pursuant to Rule 60(b), which the Court denied on January 1, 2013. ECF No. 237.

On October 15, 2012, Mr. Earl filed an objection to the settlement. ECF No. 213. On November 7 14 alleging inadequate representation by lead plaintiffs, a "disproportionate" settlement distribution, 15 and an inadequate opt-out notice. ECF No. 238. *fn1 On that day, Mr. Earl sent an email to Plaintiffs-16

Appellees' counsel indicating that he was not planning to order any transcripts for purposes of the 17 appeals. On February 11, 2013, Plaintiffs-Appellees sent an email and attached letter to Mr. Earl, 18 requesting that Mr. Earl order three hearing transcripts, pursuant to Circuit Rule 10-3.1(b). See 19 ECF No. 240; ECF No. 243.Also on February 11, 2013, Mr. Earl responded by email that he 20 would not order the requested transcripts because the deadline to make such a request had expired. 21

On February 15, 2013, Plaintiffs-Appellees filed a Motion to Compel Donald R. Earl to File 23 a Certification and Explanation under Circuit Rule 10-3.1 or to Arrange and Pay for Transcripts 24 Rule 6-3 ("Motion to Shorten Time"), ECF No. 242. On February 21, 2013, Mr. Earl filed an 26


On January 28, 2012, Mr. Earl filed a Notice of Appeal of four Orders of this Court, See id.; ECF No. 242-2, Ex. B; ECF No. 243; ECF No. 244. 22

("Motion to Compel"), ECF No. 241, and an Administrative Motion to Shorten Time Under Local 25 Opposition to the Motion to Shorten Time and a Cross Motion to Strike the declaration 2 accompanying the Motion to Shorten Time ("Motion to Strike"), ECF No. 243. On March 4, 2013, 3

Appellees filed a Reply in Support of the Motion to Shorten Time and an Opposition to the Motion 5 to Strike, ECF No. 249. On March 8, 2013, Plaintiffs-Appellees filed a Reply in Support of the 6

Also on February15, 2013, Plaintiffs-Appellees filed a Motion for Posting of an Appeal

Bond by Objector Donald R. Earl to Secure Payment of Costs on Appeal ("Bond Motion"), EFC 9

Mr. Earl filed an Opposition to the Motion to Compel, ECF No. 247. On March 7, 2013, Plaintiffs' 4

Motion to Compel, ECF No. 251. 7

No. 240. On March 4, 2019, Mr. Earl filed an Opposition to the Bond Motion, ECF No. 246, and 10 on March 8, 2013, Plaintiffs-Appellees posted a Reply, ECF No. 250.

(f), which outline the process for obtaining transcripts for the purposes of appeal, and Federal Rule 14 of Appellate Procedure 26 ("Rule 26") governing calculations of time, but disagree on the 15 application of these rules. For the reasons set forth below, the Court deems Plaintiffs-Appellees' 16 interpretation of the rules proper and GRANTS the Motion to Compel. 17

Circuit Rule 10-3.1(a) provides that, unless the parties have agreed on which portions of the

18 transcript to order, or an appellant intends to order the entire transcript, an appellant must serve on 19 an appellee notice specifying which portions, if any, appellant intends to order. In this case, the 20 parties agree that Mr. Earl complied with this requirement by notifying Plaintiffs-Appellees on 21

Circuit Rule 10-3.1(b) states that "[w]ithin 10 days of the service date of appellant's initial

23 notice, appellee may respond . . . by serving on appellant a list of any additional portions of the 24 transcript that appellee deems necessary to the appeal." Mr. Earl submits that because he served 25 his initial notice on January 28, 2013, and did not receive Plaintiffs-Appellees' request until 26

Plaintiffs-Appellees rely on Rule 26 to justify their contention that their service was indeed timely. 28


The parties agree that the Motion to Compel is governed by Circuit Rule 10-3.1(a), (b), and January 28, 2013, that he did not intend to order any portion of the transcript. 22

February 11, 2013, the request was untimely, and he need not respond to the request. However, 27 Rule 26(c) provides that "[w]hen a party may or must act within a specified time after service, 3 days are added after the period would otherwise expire under Rule 26(a), unless the paper is 2 delivered on the date of service stated in the proof of service." Rule 26(c) further specifies that "a 3 paper that is served electronically is not treated as delivered on the date of service stated in the 4 proof of service" for the purposes of this rule. Thus, because Mr. Earl electronically served his 5 initial notice (and did not physically deliver it), Rule 26(c) offered Plaintiffs-Appellees an 6 additional 3 days for a timely response. Because the thirteenth day after Mr. Earl's initial notice 7 was Sunday, February 10, Rule 26(a) operated to allow Plaintiffs-Appellees to respond on Monday, 8

Mr. Earl agrees with this reasoning, but also maintains that Rule 26(c) "cuts both ways," 10 such that Plaintiffs' service was not deemed to be completed until 3 days after the actual day of February 11.*fn2 9 service. See ECF No. 247 at 4; ECF No. 241 n.2. Mr. Earl does not cite any legal authority for his interpretation, and the Court can find no basis for it in the language of Rule 26(c), which adds 3 days to a period "when a party must act within a specified time after service." The Rule does not 14 impact the effective date of service. Mr. Earl's interpretation -- that timely service on February 11 15 should in fact be considered untimely service on February 14 -- is particularly indefensible in light 16 of the fact that he confirmed receiving the transcript request on February 11.Because notice was 17 timely and proper, the Court need not decide the application of Circuit Rule 10-3.1 with respect to 18 untimely appellee requests for transcripts. 19

Nor does the Court find merit in any of Mr. Earl's other objections. First, Mr. Earl 20 contends that Plaintiffs-Appellees' request for transcripts was improper due to the absence of proof 21 of service, citing Local Rule 5-5, which requires a certificate of service for "any pleading or other 22 paper presented for filing." However, Circuit Rule 10-3.1(b) does not require appellants to file 23 their requests for transcripts with the Court, and thus Local Rule 5-5 is inapplicable. Mr. Earl 2 further cites Circuit Rule 30-1.2, which exempts pro se litigants from the Ninth Circuit's 3 requirement to submit their own excerpts of the record (in place of the appendix prescribed by 4 Federal Rule of Appellate Procedure 30). The language of Circuit Rule 30-1.2 does not affect the 5 obligations of pro se litigants with respect to the application of other rules, and does not undermine 6 Mr. Earl's obligation to comply with Circuit Rule 10-3.1 and either pay for the transcripts 7 requested by Plaintiffs-Appellees, or certify to the Court why he should not be required to pay. Mr. 8

Circuit Rule 30-1.7 states that if an appellant does not file excerpts of record under subsection 30-10 excerpts are limited to the district court docket sheet, the notice of appeal, the judgment or order appealed from, and any specific portions of the record cited in appellee's brief. As set forth below,

Plaintiffs-Appellees will cite several portions of the transcripts in their answering brief, see ECF 14

Plaintiffs-Appellees have requested the following transcripts: (1) October 13, 2011

Transcript of Hearing on Revised Motion to Certify Class; (2) July 19, 2012 Transcript of Hearing 17 on Motion for Preliminary Approval of Class Action Settlement Agreement; and (3) November 8, 18

Plaintiffs-Appellees provide a detailed and persuasive explanation of the reasons for their request. 20

ECF No. 241 at 6-7. Specifically, because Mr. Earl has raised procedural concerns, including 21 constitutional due process challenges to the class certification and class settlement in this case, the 22 requested transcripts related to class certification and class settlement are likely to be highly 23 relevant on appeal. Id. If Mr. Earl continues to refuse to dispute the relevance and scope of the 24 requested transcripts, he must do so by filing a certification with this Court, pursuant to Circuit 25

Mr. Earl is herby ORDERED to either arrange payment for the requested transcripts or 27 certify an explanation of his refusal to do so within 5 days of this Order. Mr. Earl shall seek any 28 Earl's argument that Circuit Rule 30-1.7 relieves him of his obligation is similarly unavailing. 9

1.3 (which Mr. Earl does not intend to do), then the contents of an appellee's supplemental No. 251, at 6, and thustheir request for the transcripts is ...

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