Free Scheduling Order - District Court of Colorado - Colorado

Case 1:03-cv-02485-MSK-PAC

Document 286

Filed 08/08/2005

Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO MAGISTRATE JUDGE PATRICIA A. COAN Civil Action No. 03-CV-02485-MSK-PAC CAMILLE MELONAKIS-KURZ , individually and on behalf of other similarly situated employees, and OTHER INDIVIDUALS WHO HAVE CONSENTED TO JOIN THIS ACTION, Plaintiffs, v. HEARTLAND HOME FINANCE, INC., Defendant.

SECOND AMENDED SCHEDULING ORDER

1. DATE OF CONFERENCE AND APPEARANCES OF COUNSEL Another Scheduling Conference was held on August 8, 2005. Counsel for Plaintiffs and Defendant held a prior teleconference pursuant to D.C. Colo. L. Civ. R 16.1, and the Court's Orders of June 17 and July 9, 2005. Counsel for the parties are listed below: For Plaintiff: Donald H. Nichols Paul J. Lukas Michele R. Fisher 4644 IDS Center 80 South 8th Street Minneapolis, MN 55402 (612) 338-1919 For Defendant: David J. Carr

Case 1:03-cv-02485-MSK-PAC

Document 286

Filed 08/08/2005

Page 2 of 10

Steven F. Pockrass Margaret D. Wielenberg ICE MILLER One American Square, Box 82001 Indianapolis, IN 46282-0200 Phone: (317) 236-2100 Sean R. Gallagher HOGAN & HARTSON LLP 1200 Seventeenth Street, Suite 1500 Denver, CO 80202 (303) 454-2415 2. STATEMENT OF CLAIMS AND DEFENSES a. Plaintiff(s): Plaintiff(s) are current or former loan officers who assert that Defendant failed to pay them overtime compensation in violation of the Fair Labor Standards Act. b. Defendant: Defendant asserts that Plaintiff is not entitled to any overtime compensation and that there is no similarly situated class. Plaintiff is exempt from overtime consideration under the Fair Labor Standards Act ("FLSA") under the administrative exemption, as well as the exemption for commissioned salespeople engaged in retail sales. Moreover, Defendant has had in place a policy prohibiting managers from employing loan officers such as Plaintiff in excess of 40 hours per week. Thus, even if overtime occurred, it was the result of rogue management and requires individualized analysis of each loan officer's situation. As a result, class issues do not predominate, and this case should not be certified as a collective action for any purpose. Defendant possesses multiple offices which are run in largely autonomous fashion, sometimes with more than one branch manager per location supervising autonomous teams within the branch, and again, individual issues would predominate over collective issues. Further, venue is not proper for other potential plaintiffs because they have by contract agreed to litigate disputes in the states in which they were employed. Defendant acted in good faith, and consistent with the FLSA; thus no claim exists for liquidated damages or attorney fees. Recent prior Department of Labor (DOL) investigations resulted in correction of some deficiencies, but those were addressed at that time and DOL did not see a basis for pursuing the types of claims now asserted by Plaintiff. 3. UNDISPUTED FACTS The following facts are undisputed:

Case 1:03-cv-02485-MSK-PAC

Document 286

Filed 08/08/2005

Page 3 of 10

a. Plaintiff worked for Defendant's Aurora, Colorado, branch office as a loan officer, commencing on approximately March 24, 2003, and concluding with her resignation on August 14, 2003. b. At the time the Complaint was filed, Defendant provided lending and brokerage services on conforming and non-conforming residential mortgage loans in Colorado, and 25 other states. Defendant is incorporated in Illinois.

[When the parties have their rule 26(f) meeting, they should make a good-faith attempt to determine which facts are not in dispute.] 4. COMPUTATION OF DAMAGES Plaintiff(s) assert that they are entitled to unpaid overtime compensation at 1.5 times their hourly rate. Defendant is in possession of the information necessary to conduct a complete and accurate calculation of these damages. In addition, Plaintiff(s) are entitled to an amount equal to their unpaid overtime compensation as liquidated damages and attorneys' fees and costs incurred in pursuing this action as provided by the Fair Labor Standards Act. [Include a computation of all categories of damages sought and the basis and theory for calculating damages. See Fed. R. Civ. P. 26(a)(1)(C). This should include the claims of all parties. It should also include a description of the economic damages, noneconomic damages, and physical impairment claimed, if any.] 5. REPORT OF PRECONFERENCE DISCOVERY AND MEETING UNDER FED. R. CIV. P. 26(f) a. b. For Plaintiff: Paul J. Lukas 4644 IDS Center 80 South 8th Street Minneapolis, MN 55402 (612) 338-1919 For Defendant: Date of Rule 26(f) meeting: February 25, 2004. Names of each participant and party he/she represented:

Case 1:03-cv-02485-MSK-PAC

Document 286

Filed 08/08/2005

Page 4 of 10

David J. Carr Steven F. Pockrass ICE MILLER One American Square, Box 82001 Indianapolis, IN 46282-0200 Phone: (317) 236-2100 c. Proposed changes, if any, in timing or requirement of disclosures under Fed. R. Civ. P. 26(a)(1): None. d. Statement as to when rule 26(a)(1) disclosures were made or will be made. Disclosures were made on March 3, 2004. [If a party's disclosures were not made within the time provided in Fed. R. Civ. P. 26(a)(1), the party must provide here an explanation showing good cause for the omission.] e. Statement concerning any agreements to conduct informal discovery, including joint interviews with potential witnesses, exchanges of documents, and joint meetings with clients to discuss settlement. If there is agreement to conduct joint interviews with potential witnesses, list the names of such witnesses and a date and time for the interview which has been agreed to by the witness, all counsel, and all pro se parties. None. 6. CONSENT [Pursuant to D.C.COLO.LCivR 72.2, all full-time magistrate judges in the District of Colorado are specially designated under 28 U.S.C. º636(c)(1) to conduct any or all proceedings in any jury or nonjury civil matter and to order the entry of judgment. Upon consent of the parties and an order of reference from the district judge, the magistrate judge assigned the case under 28 U.S.C. º 636(a) and (b) will hold the scheduling conference and retain settlement jurisdiction, whereas pretrial case management, jurisdiction of dispositive motions, and trial will be assigned to the magistrate judge drawn at random under D.C.COLO.LCivR 72.2.] [Indicate below the parties' consent choice.] The parties have not consented to the exercise of jurisdiction of a magistrate judge. 7. CASE PLAN AND SCHEDULE Assuming a final pretrial conference date of February 10, 2006 and a trial

Case 1:03-cv-02485-MSK-PAC

Document 286

Filed 08/08/2005

Page 5 of 10

date of May 22, 2006, a. Deadline for Joinder of Parties and Amendment of Pleadings: November 28, 2005 b. c. d. Discovery Deadline: January 24, 2006 Dispositive Motion Deadline: January 31, 2006 Expert Witness Disclosure

[(1) State anticipated fields of expert testimony, if any. Statistics; Computers; Economics. (2) witnesses. (3) The parties shall designate all experts and provide opposing counsel and any pro se party with all information specified in Fed. R. Civ. P. 26(a)(2) sixty (60) days prior to the close of discovery. (4) The parties shall designate all rebuttal experts and provide opposing counsel and any pro se party with all information specified in Fed. R. Civ. P. 26(a)(2) on or before thirty (30) days prior to the close of discovery. (5) Notwithstanding the provisions of Fed. R. Civ. P. 26(a)(2)(B), no exception to the requirements of the rule will be allowed by stipulation of the parties unless the stipulation is approved by the court.] e. Deposition Schedule: A deposition schedule with dates is to be filed as a supplement to this Order no later than October 15, 2005. Name of Deponent Date of Deposition Time of Deposition Expected Length of Deposition Camille Melonakis-Kurz Taken on April 29, 2004 State any limitations proposed on the use or number of expert

Other Opt-In Plaintiffs TBD 9am

Case 1:03-cv-02485-MSK-PAC

Document 286

Filed 08/08/2005

Page 6 of 10

7 hours Defendant Representative (30 (B)(6) Representative Taken on April 8, 2004

Donald Flynn Taken on April 8, 2004

Rachelle Schuster Taken on April 8, 2004

Lawrence Graiber Taken on April 8, 2004

Regional and Branch Managers TBD 9am 7 hours [List the names of persons to be deposed and a schedule of any depositions to be taken, including (i) a good faith estimate of the time needed for the deposition and (ii) time(s) and date(s)for the deposition which have been agreed to by the deponent and persons signing the scheduling order.] f. Interrogatory Schedule

Interrogatories shall be submitted and answered consistent with Rule 33 of the Federal Rules of Civil Procedure. g. Schedule for Request for Production of Documents

Requests for Production shall be submitted and answered consistent with Rule 34 of the Federal Rules of Civil Procedure.

h.

Discovery Limitations:

(1) Any limits which any party wishes to propose on the number of depositions. No limit on the number of depositions, so long as they are sought in a manner and spirit consistent with the Federal Rules of Civil Procedure.

Case 1:03-cv-02485-MSK-PAC

Document 286

Filed 08/08/2005

Page 7 of 10

(2) Any limits which any party wishes to propose on the length of depositions. Only those limits found in Fed. R. Civ. P. 30 (d)(2). (3) Modifications which any party proposes on the presumptive numbers of depositions or interrogatories contained in the federal rules. The parties anticipate that substantially more than 10 depositions will be necessary per side. (4) Limitations which any party proposes on number of requests for production of documents and/or requests for admissions. Twenty-five (25) Requests for Production to and including subparts, for each side. [At the rule 26(f) meeting, the parties should make a good-faith attempt to agree to limit the number of depositions, interrogatories, requests for admissions, and requests for production. In the majority of cases, the parties should anticipate that discovery, will be limited as specified in Fed. R. Civ. P. 30(a)(2)(A), 33.] (5) Other Planning or Discovery Orders (a) 8. SETTLEMENT The parties engaged in formal mediation on October 20, 2004, in Richmond, Virginia. The case did not settle. Informal attempts at mediation and settlement continue. 9. OTHER SCHEDULING ISSUES a. A statement of those discovery or scheduling issues, if any, on which counsel, after a good-faith effort, were unable to reach an agreement. After discussion in good faith, counsel for the parties were unable to reach agreement on the discovery, de-certification, and dispositive motion deadlines. All counsel agree that the current trial date and pretrial conference dates are unworkable. After some discovery, a motion to decertify may be filed. If granted, the case for trial is one plaintiff as opposed to the 930 plus plaintiffs who now comprise the collective action. Accordingly, counsel will file a stipulated motion to continue the trial and final pretrial conference dates pending ruling on a motion to decertify. b. Anticipated length of trial and whether trial is to the court or jury. Plaintiff has requested a jury trial. Cannot be determined at this time. 10. DATES FOR FURTHER CONFERENCES Motions to Decertify: January 31, 2006.

Case 1:03-cv-02485-MSK-PAC

Document 286

Filed 08/08/2005

Page 8 of 10

[The magistrate judge will complete this section at the scheduling conference if he or she has not already set deadlines by an order filed before the conference.] a. A settlement conference will be held at the request of counsel. It is hereby ordered that all settlement conferences that take place before the magistrate judge shall be confidential. ( ) Pro se parties and attorneys only need be present.

( ) Pro se parties, attorneys, and client representatives with authority to settle must be present. (NOTE: This requirement is not fulfilled by the presence of counsel. If an insurance company is involved, an adjustor authorized to enter into settlement must also be present.) ( ) Each party shall submit a Confidential Settlement Statement to the magistrate judge on or before _______________ outlining the facts and issues in the case and the party's settlement position. b. Status conferences will be held in this case at the following dates and

times: __________________________________________________________________ __________________________________________________________________ c. A final pre-trial conference will be held on the case on February 10, 2006 with District Judge Krieger. The Final Pretrial Order format may be downloaded from Judge Krieger' procedures on the court' website. The proposed final pretrial order s s shall be prepared by the parties and submitted to the Court no later than five days before the final pretrial conference. (Prior to the Order on Conditional Certification of June 27, 2005, the November 23, 2004 Revised Scheduling Order set a pretrial conference for September 14, 2005 in Courtroom 501. However, by order dated December 8, 2004, Judge Krieger set the pretrial conference for February 10, 2006. See Pretrial Preparation and Trial Setting Order - Jury Trial (Civil) at p. 1. In any event, counsel for the parties anticipate that the final pretrial conference deadlines will be reset in light of the Order on Conditional Certification.) 11. OTHER MATTERS Prior to the Order on Conditional Certification of June 27, 2005, the Court had set the one plaintiff case of Ms. Camille Melonakis-Kurz for a one week jury trial commencing on May 22, 2006. Counsel for the parties anticipate that a new trial date will be set at such time as the Court makes a final ruling on certification/decertification at the end of the discovery process. (See Court Order of June 27, 2005, p.4.)

Case 1:03-cv-02485-MSK-PAC

Document 286

Filed 08/08/2005

Page 9 of 10

In addition to filing an appropriate notice with the clerk's office, counsel must file a copy of any notice of withdrawal, notice of substitution of counsel, or notice of change of counsel's address or telephone number with the clerk of the magistrate judge assigned to this case. In addition to filing an appropriate notice with the clerk's office, a pro se party must file a copy of a notice of change of his or her address or telephone number with the clerk of the magistrate judge assigned to this case. With respect to discovery disputes, parties must comply with D.C.COLO.LCivR 7.1A. The parties filing motions for extension of time or continuances must comply with D.C.COLO.LCivR 6.1D. by submitting proof that a copy of the motion has been served upon the moving attorney's client, all attorneys of record, and all pro se parties. 12. AMENDMENTS TO SCHEDULING ORDER The Scheduling Order may only be altered or amended for good cause. DATED this 8 th day of August 2005. BY THE COURT: s/Patricia A. Coan Patricia A. Coan United States Magistrate Judge APPROVED /s/ Paul J. Lukas Donald H. Nichols Paul J. Lukas Michele R. Fisher NICHOLS KASTER & ANDERSON, PLLP 4644 IDS Center 80 South 8th Street Minneapolis, MN 55402 (612) 338-1919 [email protected] [email protected] ATTORNEYS FOR PLAINTIFF

Case 1:03-cv-02485-MSK-PAC

Document 286

Filed 08/08/2005

Page 10 of 10

/s/ David J. Carr David J. Carr Steven F. Pockrass Margaret D. Wielenberg ICE MILLER One American Square Box 82001 Indianapolis, IN 46282-0200 (317) 236-2100 [email protected] [email protected]

/s/ Sean R. Gallagher Sean R. Gallagher HOGAN & HARTSON LLP 1200 Seventeenth Street, Suite 1500 Denver, CO 80202 (303) 454-2415 [email protected]

10