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Martin v. Litton Loan Servicing LP

United States District Court, E.D. California

April 25, 2017

RENEE L. MARTIN, Plaintiff,
v.
LITTON LOAN SERVICING LP, et al., Defendants.

          FINAL PRETRIAL ORDER

          MORRISON C. ENGLAND, JR UNITED STATES DISTRlCT JUDGE

         Pursuant 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.

         Plaintiff's 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 has stated:

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.[1]

         Based 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 orders:

         I. JURISDICTION/VENUE

         Jurisdiction is predicated upon 28 U.S.C. § 1331. Jurisdiction and venue are not contested.

         II. NON-JURY

         The 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.

         III. UNDISPUTED FACTUAL ISSUES

         The parties have not stipulated to any facts.

         IV. DISPUTED FACTUAL ISSUES

         The remaining claims for trial are:

         A. 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.

         B. 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 ...

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