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Jeffrey Schulken, et al v. Washington Mutual Bank

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


April 2, 2013

JEFFREY SCHULKEN, ET AL.,
PLAINTIFFS,
v.
WASHINGTON MUTUAL BANK, HENDERSON, NV, ET AL.,
DEFENDANTS.

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

ORDER RE: MISCELLANEOUS MOTIONS RELATED TO APPEAL

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

I. BACKGROUND

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

ORDER RE: MISCELLANEOUS MOTIONS RELATED TO APPEAL

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

II. MOTION TO COMPEL

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 not precluded by Circuit Rule 30-1.7. 15

2012 Transcript of Hearing on Motion for Final Approval of Class Action Settlement Agreement. 19

Rule 10-3.1. 26

necessary extensions or accommodations from the Ninth Circuit, as provided under Circuit Rule 2

10-3.1, with respect to the expired Transcript Order deadline of March 1, 2013. 3

III. MOTION TO SHORTEN TIME

Because this Court has ruled on the Motion to Compel, the Motion to Shorten Time is now

DENIED as Moot. 6

IV. MOTION TO STRIKE 7

Mr. Earl's Motion to Strike consists of an allegation that the Declaration of Steven L. Woodrow in Support of Administrative Motion to Shorten Time Under Local Rule 6-3 ("Woodrow 9 Declaration") "contains opinions, arguments, conclusions of fact and conclusions of law, in 10 violation of local CR 7-5(b)." United States District Court for the Northern District of California

Civil Local Rule 7-5(b) states:

An affidavit or declarations may contain only facts, must conform as much as possible to the requirements of Fed. R. Civ. P. 56(e), and must avoid conclusions and argument. Any statement made upon information or belief must specify the basis therefor. An affidavit or declaration not in compliance with this rule may be stricken in whole or in part.

Mr. Earl provides no further specification or analysis of his allegations. However, the Court will 17 strike as factual conclusions the first sentence of Paragraph 3 of the Woodrow Declaration, which 18 reads, "In his communications with Counsel and through his actions thus far, Earl has shown that 19 he intends to delay the proceedings and has demonstrated unwillingness to engage in constructive 20 discussions." ECF No. 241-1. Cf. Page v. Children's Council, C 06-3268 SBA, 2006 WL 21 2595946 (N.D. Cal. Sept. 11, 2006).The Motion to Strike the remainder of the Woodrow 22

Declaration is DENIED. 23

V. BOND MOTION 24

A. Legal Standard

The parties do not dispute that Federal Rule of Appellate Procedure 7 ("Rule 7") governs Plaintiffs-Appellees' Motion for Bond, and provides in relevant part that, "[i]n a civil case, the 27 district court may require an appellant to file a bond or provide other security in any form and 28 amount necessary to ensure payment of costs on appeal." Fed. R. App. P. 7. The need for a bond,

as well its amount, are left in the discretion of the trial court. See Fleury v. Richemont N. Am., Inc., 2

C-05-4525 EMC, 2008 WL 4680033 (N.D. Cal. Oct. 21, 2008) (citing Fed. R. App. P. 7, 1979 3 advisory committee notes). 4

6 factors a court should consider in determining whether to require a bond. However, in applying 7 relevant Ninth Circuit precedent, district courts have articulated three relevant elements of the 8 inquiry: (1) appellant's financial ability to post bond; (2) the risk that appellant would not pay the 9 costs if the appeal loses; and (3) an assessment of the likelihood that appellant will lose the appeal 10 and be subject to costs. See Fleury, 2008 WL 468033, at *7 (applying the reasoning of Azizian v.

Federated Department Stores, Inc., 499 F.3d 950 (9th Cir. 2007)); Miletak v. Allstate Ins. Co., No. C 06-03779 JW, 2012 WL 3686785, at *1.

The first factor, ability to pay, is grounded in due process concerns. See Azizian,499 F.3d 14 at 961 (noting constitutional concern regarding unduly burdening the right to appeal). District 15 courts have found this factor weighs in favor of a bond, absent an indication that a plaintiff is 16 financially unable to post bond. Fleury, 2008 WL 4680033, at *7; Embry v. ACER Am. Corp., No. 17

C 09-01808 JW, 2012 WL 2055030, at *1 (N.D. Cal. June 5, 2012). Here, Mr. Earl has made no 18 indication that he is financially unable to post bond, and Plaintiffs-Appellees point to evidence in 19 the record that Mr. Earl affirmatively has the financial ability to pay. See Bond Motion, ECF No. 20

240, at 5 (noting Mr. Earl's prior declaration regarding holding large cash balances, and his 21 frequent litigation); cf. Gemelas v. Dannon Co., Inc., No. 1:08 CV 236, 2010 WL 3703811 (N.D. 22

Ohio Aug. 31, 2010) (finding a serial class action objector had evidenced financial ability to pay 23 appeal bond). Consequently, nothing in the record indicates that an appeal bond will amount to an 24 undue burden on Mr. Earl. 25

26 costs from out of state appellants may be difficiult. See Embry v. ACER Am. Corp., No. C 09-27

*7). This factor is particularly troubling when an appellant lives outside the jurisdiction of the 7

B. Need for Bond

Neither Rule 7 nor the Ninth Circuit have provided explicit guidance in enumerating the Regarding the second factor, courts in the Northern District have recognized that collecting

01808 JW, 2012 WL 2055030, at *1 (N.D. Cal. June 5, 2012) (citing Fleury, 2008 WL 8468033, at 28

Ninth Circuit. See id. In this case, Mr. Earl resides in Washington State, within the jurisdiction of 2 the Ninth Circuit, but outside the jurisdiction of this Court. In light of Mr. Earl's unwillingness to 3 comply with the Circuit Rules regarding payment for transcripts, it is not unreasonable for 4

This factor weighs in favor of requiring an appeal bond. 6

7 concerns regarding the adequacy of representation of the lead plaintiffs, the distribution of 8 settlement funds, and the sufficiency of notice, all of which have been thoroughly addressed by this 9

Plaintiffs-Appellees to anticipate difficulty in collecting costs awarded by this Court on appeal. 5

Finally, the third factor weighs heavily in favor of setting an appeal bond. Mr. Earl raises

Court. ECF No. 238-2. Regarding sufficiency of representation, the Court carefully considered 10 and limited the proposed class, denying class certification with respect to injunctive relief. See

had been conducted in good faith, by experienced attorneys negotiating at arms length, and with 14 the assistance of an experienced mediator, and that the settlement amounts represented "fair value." 15

ECF No. 223. Lastly, the Court has issued two opinions regarding Mr. Earl's claims of insufficient 16 notice (which were raised both in Mr. Earl's initial objections and his Motion to Vacate). Both 17 times, the Court found the claims meritless. See Order Granting Final Approval to Class Action 18

Settlement, ECF No. 223, at 8 ("The Court overrules the objections raised by Donald R. Earl, after 19 having considered his objections, related filings, and arguments stated on the record.");Order 20

Denying Motion to Set Aside Judgment, ECF No. 237, at 5 ("The Court has found that Mr. Earl's 21 filings have failed to raise meritorious legal theories."). The Court found that Mr. Earl's 22 contentions of insufficient notice lacked any legal basis, and that his allegations of fraud were 23

"baseless." ECF No. 237, at 3-4. Given the lack of meritorious grounds for Mr. Earl's previous 24 challenges, the Court finds it likely that Mr. Earl may not prevail on appeal. 25

26 and GRANTS Plaintiffs-Appellees' request to set a bond. 27

Order Granting in Part and Denying in Part Motion to Certify Class Action, ECF No. 184; and

Final Approval Order, ECF No. 223. The Court further found that the parties' proposed settlement

Therefore, the Court finds that all three factors weigh in favor of setting an appeal bond,

C. Amount of Bond

2 transcripts for appeal, and $10,000 for the costs of administrative delay. They do not request 3 attorney's fees. By contrast, Mr. Earl alleges that the bond amount should not exceed $300 in 4 costs, assuming that transcripts will be largely unnecessary, and does not specifically address the 5 issue of administrative delay. 6

8 bond at the "amount necessary to ensure payment of costs on appeal," Fed. R. App. P. 7. These 9 costs clearly include the costs taxable under Federal Rule of Appellate Procedure 39(e) for "(1) the 10 preparation and transmission of the record; (2) the reporter's transcript, if needed to determine the

appeal; (3) premiums paid for a supersedeas bond or other bond to preserve rights pending appeal;

and (4) the fee for filing the notice of appeal." Fed. R. App. P. 39(e). See Azizian, 499 F.3d 950,

955-59. However, the parties' estimates of such expenses differ dramatically. 14

15 length of 50 pages, with a maximum number of copies of 27 if en banc hearing is necessary. See 16

ECF No. 246 at 3. Mr. Earl correctly states that the Ninth Circuit has set a 10 cent maximum in 17 assessing costs of copies, and thus estimates that the total cost of copying briefs would not exceed 18

$150. Id. (citing Cir. R. 39-1). Because Mr. Earl insists that excerpts of the record will be largely 19 unnecessary, he concludes that copying costs should not exceed $300. Id. 20

21

Plaintiffs-Appellees request $10,000 for taxable costs, including the cost of ordering the

i. Costs Taxable under Federal Rule of Appellate Procedure 39(e)

Based on the plain language of Rule 7, neither party disputes that this Court may set the

Mr. Earl contends that Plaintiffs-Appellees will file no more than one brief at a maximum

By contrast, Plaintiffs-Appellees estimate that taxable costs will total approximately

$10,000. Noting that Rule 7 does not require a showing of alleged costs, Plaintiffs-Appellees do 22 not identify the calculation of these estimated costs with specificity. See ECF No. 240 at 10. They 23 do note that they anticipate incurring "substantial costs" taxable under Rule 39(e), emphasizing that 24 their appellate briefs will address litigation that spans nearly three years, and the appeal of four 25 separate orders from the Court. See id. However, Plaintiffs-Appellees include in their estimate the 26

"printing and administrative costs associated with the appellate briefs," id., which may include 27 costs beyond those authorized by Rule 39(e) for "preparation and transmission of the record," or 28 the "fee for filing the notice of appeal." Additionally, Plaintiffs-Appellees include in their $10,000

estimate the cost of ordering transcripts. Id. at 11. At the hearing on March 28, 2013, Plaintiffs-2

Appellees' counsel estimated that the cost of transcripts comprised approximately 25% of the 3 estimated taxable costs. In this Order, the Court has recognized that the requested transcripts are 4 likely to be relevant on appeal, and has compelled Mr. Earl to pay for the transcripts, or to explain 5 why he should not be required to do so. 6

The Court finds that taxable costs associated with preparing and transmitting the relevant

7 record of this case may indeed be substantial, but that Plaintiffs-Appellees' estimate is over-8 inclusive. As a result, the Court reduces Plaintiffs-Appellees' requested bond amount by 25% 9 based on the potentially overly broad nature of the Plaintiffs-Appellee's estimate of costs 10 associated with the briefs, and by an additional 25% based on the presumption that Mr. Earl will 11 pay for the transcripts. The Court hereby ORDERS Mr. Earl to post a bond pursuant to Rule 7 of

$5,000. If Plaintiffs-Appellees do take on the cost of ordering transcripts or otherwise stand to

incur taxable expenses beyond this amount, the Court may increase the amount of bond required. 14

16 addressing settlement delay, including the costs of corresponding with class members, ensuring 17 that class members' contact information remains current, maintaining the settlement website, and 18 paying the claims administrator for its services. ECF No. 240, at 12-13. Mr. Earl interprets this as 19 a request for attorney's fees, and therefore alleges that it is foreclosed by the Ninth Circuit. ECF 20

No. 246 (citing language from Azizian, 499 F.3d 950, holding that an appeal bond cannot include 21 appellate attorney's fees that might be awarded if the appellate court finds an appeal frivolous 22 under Federal Rule of Appellate Procedure 38). 23

24 categorically foreclose including attorney's fees in a Rule 7 bond, but rather held that the "costs on 25 appeal" contemplated by Rule 7 include all expenses defined as "costs" by an applicable fee-26 shifting statute (including attorney's fees). Azizian, 499 F.3d at 958 (noting that a district court 27 may include "costs" on appeal, as expressly defined by rule or statute). However, the Ninth Circuit 28

ii. Administrative Delay

Plaintiffs-Appellees' also request $10,000 that represents the "administrative costs" of Azizian's holding is more nuanced than Mr. Earl represents. The Ninth Circuit did not

did make clear that a district court may not include in the bond amount attorney's fees that would 2 be imposed under Federal Rule of Civil Procedure 38 for filing a frivolous appeal. Id. at 960. 3

4 another set of costs beyond those taxable under Federal Rule of Appellate Procedure 39(e) -- the 5 administrative costs of delaying settlement. Under Azizian, it is clear that this Court may include 6 such expenses in the appeal bond if an applicable rule or statute defines them as "costs." Id. By 7 contrast, if such delay expenses are more properly deemed "damages" of delay, the Court may not 8 include them in the appeal bond. See Fleury, 2008 WL 4680033 at *8 (finding that "delay 9 damages" may not be included as "costs" for the purposes of Rule 7, especially because such 10 damages may fall within the purview of 28 U.S.C. § 1912 (allowing prevailing party to recover

In this case, Plaintiffs-Appellees do not in fact seek a bond for attorney's fees, but rather for

just damages for delay following affirmance on appeal)). Cf. In re IPO Sec. Litig., 721 F.Supp.2d

210 (2010) (excluding delay expenses from the amount of an appeal bond, absent authorization by

an applicable fee-shifting statute). Fleury explicitly distinguished cases to the contrary that 14 preceded the Ninth Circuit's decision in Azizian. 2008 WL 4680033 at *8. 15

16 for the purpose of Rule 7, even without identifying an authorizing fee-shifting statute. In the single 17 post-Azizian case relied on by Plaintiffs-Appellees, the Miletak Court distinguished between "delay 18 damages" (caused by the delay in recovering the award) and the "administrative costs" of 19 responding to class members' needs pending the appeal, and included the latter in assessing the 20 amount of an appeal bond. Miletak, 2012 WL 3686785 (citing Order Granting Plaintiff's Motion 21 for Reconsideration; Requiring Appellate Bond at 4 n. 12, Docket Item No. 265 in No. 09--01808 22

"costs," but nonetheless interpreted such expenses as falling within the meaning of "costs" in Rule 24

At the March 28, 2013 hearing, Plaintiffs-Appellees were unable to identify any additional

26 precedent or statutes authorizing administrative expenses as "costs," and could neither concretely 27 identify the basis for their $10,000 estimate, nor clearly distinguish the projected costs from those 28

For the Northern District of

Plaintiffs note that some courts have recognized administrative expense of delay as "costs"

JW). This opinion did not identify any fee-shifting statute authorizing administrative expenses as 23

7. 25

that could be claimed as attorney's fees. As a result, the Court declines to include the $10,000 of 2 administrative costs in the appeal bond. 3

IT IS SO ORDERED. 4


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