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Spears v. First American Eappraiseit

United States District Court, Ninth Circuit

August 30, 2013

FELTON A. SPEARS, JR. and SIDNEY SCHOLL, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
FIRST AMERICAN EAPPRAISEIT (a/k/a eAppraiseIT, LLC), a Delaware limited liability company, Defendant.

Joseph N. Kravec, Jr. (pro hac vice), FEINSTEIN DOYLE PAYNE & KRAVEC, LLC, Pittsburgh, PA, CO-LEAD CLASS COUNSEL.

Janet Lindner Spielberg, (SBN 221926) LAW OFFICES OF JANET LINDNER SPIELBERG, Los Angeles, California.

A. Matthew Ashley, IRELL & MANELLA LLP, Attorneys for Defendant.

STIPULATION AND [ ] ORDER EXTENDING THE DEADLINES IN THE ACTION

RONALD M. WHYTE, District Judge.

Plaintiffs Felton A. Spears, Jr. and Sidney Scholl (collectively "Plaintiffs"), and Defendant eAppraiseIT, LLC ("EA"), by and through their respective counsel of record and pursuant to Local Rules 6-2 and 7-12, enter into the following stipulation for an order to extend the remaining deadlines in the action by approximately one (1) month pursuant to the schedule detailed below.

WHEREAS, on April 25, 2012, the Court Granted Plaintiffs' Motion for Class Certification of Plaintiffs' single remaining claim under RESPA, 12 U.S.C. ยง 2607(a), certifying a Class of "All consumers in California and throughout the United States who, on or after June 1, 2006, received home loans from Washington Mutual Bank, FA in connection with appraisals that were obtained through eAppraiseIT." Dkt. No. 249, p. 12.

WHEREAS, on August 1, 2012, the Court entered a Revised Amended Order Regarding Class Notice, Appointment of Lead Counsel, and Pre-Trial Scheduling setting forth deadlines for distribution of Class Notice, merits discovery cutoff, expert reports, supplemental and rebuttal expert reports, dispositive motions, mediation and trial. Dkt. No. 260, p. 3.

WHEREAS, on March 27, 2013, the Court entered an Order extending the deadlines in the action by four (4) months to accommodate the scheduling of depositions and other discovery which is primarily of third-parties, and to allow each party to take twenty-five (25) depositions in this action. Dkt. No. 303.

WHEREAS, on April 23, 2013, the Court entered Orders denying EA's motion for leave to file a third-party complaint against the Federal Deposit Insurance Corporation ("FDIC"), denying EA's cross motion for judgment on the pleadings, and granting-in-part and denying-in-part Plaintiffs' motion for partial judgment on the pleadings. Dkt. Nos. 308 and 309.

WHEREAS, on May 7, 2013, EA filed its First Amended Answer and Affirmative Defenses to Plaintiffs' Second Amended Class Action Complaint. Dkt. No. 310.

WHEREAS, the Parties have worked cooperatively to conduct discovery, including discovery of third-parties which has made up the majority of depositions, and have not yet neared the court-allotted number of twenty-five (25) depositions per side. Dkt. No. 303.

WHEREAS, the Parties have agreed to a stipulation regarding document authenticity (including, but not limited to, the stipulated authenticity of Washington Mutual Bank ("WaMu") and EA emails and attachments, appraisals, reports, and data generated by WaMu or EA) to eliminate the need for certain depositions, and to reduce the time required in taking other witnesses' depositions.

WHEREAS, the Parties have received cooperation from several third-party witnesses to participate in depositions at mutually agreeable times for all of the parties involved, and to reasonable time limitations for third-party depositions whereby all of the depositions to-date have been completed within one (1) days time.

WHEREAS, Plaintiffs have subpoenaed documents from third-party LSI Appraisal, LLC ("LSI"), the company Plaintiffs alleged participated in a three-way conspiracy with EA and WaMu, for evidence of meetings between EA and WaMu regarding appraisal services and inflation. LSI has objected to producing records in response to the subpoena necessitating a motion to compel the production which will be decided by a judge in the United States District Court for the Central District of California.

WHEREAS, EA subpoenaed Kathleen Rice, an employee of third-party LSI, for her testimony in this action. Ms. Rice has moved to quash the subpoena which will be decided by a judge in the United States District Court for the Western District of Pennsylvania on a still-undecided schedule (although the Parties may request that the judge transfer the matter to this Court as the Parties believe that LSI is misstating this Court's earlier motion to dismiss rulings by claiming that they should be read as precluding any deposition of a current or former LSI employee in this case at all).

WHEREAS, Plaintiffs subpoenaed Bonnie Manz, an employee of third-party LSI, for her testimony in this action. Ms. Manz also moved to quash said subpoena which will be decided by a judge in the United States District Court for the Western District of Pennsylvania.

WHEREAS, Cheryl Feltgen, WaMu's former Chief Risk Officer, has been contacted about providing testimony at a deposition and has indicated she is likely to object to any subpoena for her testimony. If Ms. Feltgen objects to a subpoena, it will necessitate court intervention to compel her attendance at a deposition.

WHEREAS, the Parties have each subpoenaed records for the now-defunct bank WaMu from JP Morgan Chase, N.A. ("Chase"), the bank that purchased assets of WaMu, including Class members' loans, after WaMu went into receivership by the FDIC. Plaintiffs first served a subpoena on Chase in September 2012, and EA first served a subpoena on Chase in January 2013, and further subpoenas were subsequently served on Chase by Plaintiffs. The records subpoenaed from Chase seek information about Class members' loan status, the appraisal used for the loan, the appraisal fees charged, and information relevant to the issue of whether the loan was a RESPA loan. These records are relevant to various issues raised in this case. After meeting and conferring over the subpoenas on numerous occasions, Chase agreed to produce certain records and information responsive to both Parties' subpoenas concerning the more than 230, 000 persons to whom Class notice was sent. While some of those records have been produced, many others have yet to be produced despite the long period of time since the parties' subpoenas were served. Depending on Chase's future productions over the next week or so, a motion to compel may be imminently necessary, but it is something that the Parties are attempting to avoid.

WHEREAS, with the possible exception of Chase, LSI, Feltgen, Rice, and Manz, the Parties anticipate they will be able to complete outstanding first and third-party discovery by October 15, 2013.

WHEREAS, while the Parties are hopeful that they can complete the remaining third-party discovery of Chase, LSI, Feltgen, Rice, Manz, and all other witnesses that have been identified as having relevant information by October 15, 2013, given the need for Court intervention to compel documents and testimony, the Parties recognize that they may need an additional extension to the proposed schedule in the future. The Parties will raise any such need at the earliest possible date if and when the need becomes apparent.

NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING, IT IS HEREBY STIPULATED, by and between the parties, that:

1. The pending deadlines for merits discovery cutoff, expert reports, supplemental and rebuttal expert reports, dispositive motions, other motions, pretrial conference, pre-trial briefs and trial date are extended pursuant to the below schedule:

Event Prior Deadline New Deadline Merits discovery cutoff September 13, 2013 October 15, 2013 Expert reports October 14, 2013 November 15, 2013 Supplemental and rebuttal expert reports March 11, 2014 April 14, 2014 Expert discovery cutoff (including any discovery relating to or arising from Plaintiffs' aggregate inflation analysis) Mediation May 29, 2014 June 30, 2014 Dispositive motion cutoff June 12, 2014 July 18, 2014 Other motion cutoff July 14, 2014 August 15, 2014 (other than motions in limine) Pretrial conference (hearing on motions in September 4, 2014 October 6, 2014 limine, agreed jury instructions and verdict forms, proposed voir dire questions) Pretrial briefs September 29, 2014 October 3, 2014 Trial date October 20, 2014 November 24, 2014

PURSUANT TO STIPULATION, IT IS SO ORDERED.


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