United States District Court, E.D. California
RENEE L. MARTIN, Plaintiff,
LITTON LOAN SERVICING LP, et al., Defendants.
FINAL PRETRIAL ORDER
MORRISON C. ENGLAND, JR UNITED STATES DISTRlCT JUDGE
to Court Order dated April 3, 2017, the Final Pretrial
Conference previously scheduled for April 6, 2017, was
VACATED after pro se Plaintiff Renee L. Martin
(“Plaintiff”) failed to file a trial brief,
exhibit lists, witness lists, motions in limine, or
oppositions to the sole remaining Defendant Ocwen Loan
Servicing LLC's (“Defendant”) Motion to
Strike (ECF No. 204) or Motions in Limine (ECF Nos. 205-208)
as required by the Court's Pretrial Scheduling Order
(“PTSO”). See ECF Nos. 197, 211.
Plaintiff was also ordered to show cause (“OSC”)
why the remaining claims should not be dismissed for failure
to prosecute or to comply with the rules or a court order.
See ECF No. 211. Plaintiff responded by providing
physician's notes indicating without explanation that she
had been placed off of work for several weeks beginning on
March 8, 2017. ECF No 213. She also subsequently filed
purported oppositions to two of Defendant's motions in
limine and a motion to continue the trial. ECF Nos. 216-18.
To date, Plaintiff has made no attempt to designate any
witnesses or exhibits for trial, nor has she opposed
Defendant's Motion to Strike.
response is wholly insufficient to warrant continuation of
any of the dates previously set by this Court. Once a
district court has issued a PTSO pursuant to Federal Rule of
Civil Procedure 16, that Rule's standards control.
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,
607-08 (9th Cir. 1992). Prior to the final pretrial
conference in this matter the Court can modify its PTSO upon
a showing of “good cause.” See
Fed.R.Civ.P. 16(b). “Rule 16(b)'s ‘good
cause' standard primarily considers the diligence of the
party seeking the amendment.” Johnson, 975
F.2d at 609. In explaining this standard, the Ninth Circuit
A district court may modify the pretrial schedule ‘if
it cannot reasonably be met despite the diligence of the
party seeking the extension.' Moreover, carelessness is
not compatible with a finding of diligence and offers no
reason for granting of relief. Although the existence or
degree of prejudice to the party opposing the modification
might supply additional reasons to deny a motion, the focus
of the inquiry is upon the moving party's reasons for
seeking modifications. If that party was not diligent, the
inquiry should end.
Id. (citations omitted). Plaintiff has not even
attempted to show that she was diligent in seeking to
continue the trial date. Nor has she shown substantive good
cause necessitating more time. Accordingly, Plaintiff's
Motion for an Extension of Time and a New Date for Trial (ECF
No. 218) is DENIED. Her oppositions to Defendant's
Motions in Limine (ECF Nos. 216-217) and her Trial Brief (ECF
No. 214) are STRICKEN, and Defendant's Motion to Strike
and Motions in Limine are GRANTED as unopposed.
on Plaintiff's Response to Order to Show Cause (ECF No.
215), however, the Court will nonetheless discharge the OSC
and confirm this matter for trial. Having reviewed the docket
in its entirety, the Court makes the following findings and
is predicated upon 28 U.S.C. § 1331. Jurisdiction and
venue are not contested.
Court granted above Defendant's unopposed Motion to
Strike Plaintiff's Jury Demand. See ECF No. 204.
Accordingly, this matter will be tried by the Court.
UNDISPUTED FACTUAL ISSUES
parties have not stipulated to any facts.
DISPUTED FACTUAL ISSUES
remaining claims for trial are:
Plaintiff's Disputed Facts
1. Plaintiff disputes that Ocwen is not a debt collector by
correspondence from Ocwen to Plaintiff identifying itself as
a debt collector.
2. Plaintiff disputes all of Ocwen's facts.
Defendant's Disputed Facts
1. Ocwen's serviced debt is not a “debt”
covered by the FDCPA.
2. Ocwen did not make repeated, harassing and abusive calls
to Plaintiff for the purposes of debt collection.
3. Ocwen made calls to Plaintiff to make initial contact with
its new customer and offer her the opportunity to discuss her