Free Motion to Stay - District Court of California - California

Case 3:08-cv-01313-L-NLS

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BROOKS R. BROWN (SBN 250724) [email protected] GOODWIN PROCTER LLP 10250 Constellation Blvd. Los Angeles, California 90067 Tel.: 310.788.5100 Fax: 310.286.0992 [Additional Counsel Listed on Signature Block] Attorneys for Defendants: COUNTRYWIDE FINANCIAL CORPORATION; COUNTRYWIDE HOME LOANS, INC.; AND FULL SPECTRUM LENDING, a Division of Countrywide Home Loans, Inc. erroneously named as Full Spectrum Lending, Inc. JOSEPH J. REGO, ESQ. (SBN 163183) [email protected] LAW OFFICES OF JOSEPH J. REGO 4019 Park Blvd. San Diego, CA 92103 Telephone: 619.293.0310 Facsimile: 619.293.0940 Attorneys for Plaintiff: ROY V. HURSH

14 15 16 17 18 19 20 21 22 23 24 Defendants. 25 26 27 28 v. COUNTRYWIDE FINANCIAL CORPORATION; COUNTRYWIDE HOME LOANS, INC.; FULL SPECTRUM LENDING, INC.; ANGELO MOZILO; DAVID SAMBOL; and DOES 1-100, inclusive, ROY V. HURSH, Plaintiff, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA SAN DIEGO DIVISION Case No. 08 CV 01313-L-NLS JOINT MOTION TO STAY PENDING RESOLUTION OF CONSOLIDATION MOTION BEFORE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION Date: Time: Courtroom: 12 Judge: Honorable M. James Lorenz

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INTRODUCTION Plaintiff Roy V. Hursh ("Plaintiff") and Defendants Countrywide Financial Corporation ("CFC"), Countrywide Home Loans, Inc. ("CHL"), Full Spectrum Lending (a division of CHL, erroneously named as Full Spectrum Lending, Inc.) (collectively, "Defendants") 1 hereby stipulate to, and jointly move this Court for an order, staying all proceedings in this case until the Judicial Panel on Multidistrict Litigation ("MDL Panel") resolves a motion for transfer and consolidation or coordination pertaining to this case under 28 U.S.C. § 1407 ("MDL Motion"). 2 (A form of Proposed Order has been submitted to this Court contemporaneously herewith.) This case is one of at least six actions filed against one or more of the Defendants alleging that CFC and/or its affiliates (individually or collectively, "Countrywide") originated and/or serviced residential mortgage loans in an unlawful, unfair, or deceptive fashion. All six of the actions allege violations of unfair competition laws based on these common core allegations. In an effort to bring order to these parallel lawsuits, currently pending in three different federal courts (this Court, the Central District of California and the Northern District of Illinois), Countrywide and Bank of America Corporation ("MDL Movants") filed the MDL Motion with the MDL Panel seeking to transfer all of these cases to the Central District of California for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407. That Motion is currently pending, with response briefs due on August 29, 2008 and a hearing set for September 25, 2008. See Notice of Hearing Session, at 11 (August 15, 2008) (relevant excerpts attached as Exhibit B). As discussed more fully below, this Court has inherent power to stay the proceedings pending resolution of the MDL Motion. In fact, it is common practice to issue stay orders pending the MDL Panel's resolution of a motion to transfer and coordinate or consolidate cases. Moreover, a stay would conserve judicial resources, avoid prejudice to the parties, and prevent duplicative or inconsistent rulings pending the MDL Panel's resolution of the MDL Motion.

The remaining defendants ­ Angelo Mozilo and David Sambol ­ are former officers of Defendants and have not yet been served in this action.
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1

A copy of the MDL Motion is attached as Exhibit A. 1
JOINT MOTION TO STAY

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As additional grounds for this Joint Motion, Plaintiff and Defendants state as follows: FACTUAL BACKGROUND 1. There are five cases subject to the MDL Motion: this case, a case brought by the

California Attorney General; a case brought by the Illinois Attorney General; and two other private putative class actions. In addition, on July 28, 2008, Countrywide also identified a recent case, captioned as People of the State of California v. Countrywide Financial Corporation, et al., No. 08-cv-1348-JLS-BLM (S.D. Cal.) ("San Diego Action"), filed by the San Diego City Attorney after the MDL Movants filed the MDL Motion, as an additional action appropriate for including in any MDL proceeding. 2. Plaintiffs in all six cases allege that Countrywide's purported conduct resulted in

financial harm to borrowers in the form of concealed or inadequately disclosed principal, fees, penalties, and expenses, as well as foreclosure, loss of their homes, and damage to their credit and financial position. 3. The claims for relief in the six cases are also similar. Five of the six complaints,

including the complaint here, allege violations of California's Unfair Competition Law ("UCL") and False Advertising Law ("FAL"), and the remaining complaint alleges violations of the Illinois Consumer Fraud and Deceptive Business Practices Act. 4. This lawsuit and the two other private actions are putative class actions seeking

certification of significantly overlapping nationwide classes. The state attorney general and city attorney actions assert claims for relief based on the same injuries allegedly sustained by many of the same borrowers otherwise covered by the putative class actions. 5. The following table identifies the names, number, court, presiding judge, and filing

date of each action: Case name Sizemore v. Countrywide Financial Corp. et al. Case Number (Court) (Judge) Case No. CV07-006094 (C.D. Cal.) (Hon. Stephen V. Wilson) 2
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Case name People of the State of Illinois v. Countrywide Financial Corp. et al. People of the State of California v. Countrywide Financial Corp. et al. Hursh v. Countrywide Financial Corp. et al. Leyvas v. Bank of America Corp. et al. People of the State of California v. Countrywide Financial Corp. et al. 6.

Case Number (Court) (Judge) Case No. 08CV4210 (N.D. Ill.) (Hon Elaine E. Bucklo) Case No. CV 08-04861 (C.D. Cal.) (Hon. Stephen V. Wilson) Case No. 3:08-cv-01313 (S.D. Cal.) (Hon. James Lorenz) Case No. CV08-787 (C.D. Cal.) (Hon. David O. Carter) Case No. 08-CV-1348 (S.D. Cal.) (Hon. Janis L. Sammartino)

Filing date Filed in state court June 25, 2008; removed July 24, 2008. Filed in state court June 25, 2008; removed July 24, 2008. Filed in state court July 2, 2008; removed July 22, 2008. Filed July 17, 2008. Filed in state court July 23, 2008; removed July 25, 2008.

Two of these six actions (Sizemore and the California AG Action) are pending

before the Hon. Stephen V. Wilson of the Central District of California. The MDL Motion thus requests the MDL Panel to transfer to the Central District this and the other actions not already pending there so that all five actions can be coordinated or consolidated for pretrial proceedings before Judge Wilson. See MDL Motion. ARGUMENT 7. Plaintiff and Defendants agree that this Court should stay all proceedings in this

case while the MDL Panel is considering the MDL Motion, because a stay would help ensure consistent treatment of six similar pending lawsuits and conserve judicial and party resources. The requested stay would stay Defendants' obligation to respond to the Complaint, as well as discovery stay discovery and other proceedings. 8. This Court's "power to stay proceedings is incidental to the power inherent in every

court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants." Landis v. North American Co., 299 U.S. 248, 254 (1936). A stay is particularly appropriate and routinely granted where, as here, a party has requested MDL transfer and coordination or consolidation. See, e.g., Rivers v. Walt Disney Co., 980 F. Supp. 3
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1358, 1362 (C.D. Cal. 1997) (staying action pending MDL Panel's decision regarding whether to create an MDL proceeding; "it appears that a majority of courts have concluded that it is often appropriate to stay preliminary pretrial proceedings while a motion to transfer and consolidate is pending with the MDL Panel because of the judicial resources that are conserved"); Good v. Prudential Ins. Co. of Am., 5 F. Supp. 2d 804, 809 (N.D. Cal. 1998); Bernstine v. Merck & Co. Inc., No. Civ. S-07-0034, 2007 WL 1217589, *1 (E.D. Cal. Apr. 24, 2007) (citing Conroy v. Fresh Del Monte Produce Inc., 325 F. Supp. 2d 1049, 1053 (N.D. Cal. 2004)). 9. Where a motion to transfer has been filed with the MDL Panel, district courts

generally apply three factors to decide whether to stay proceedings pending the Panel's decision: "(1) potential prejudice to the non-moving party; (2) hardship and inequity to the moving party if the matter is not stayed; and (3) the judicial resources that would be saved by avoiding duplicative litigation if the cases are in fact consolidated." Rivers, 980 F. Supp. at 1360; Brault v. Merck & Co., No. 06CV2039 IEGBLM, 2006 WL 3924223, *1 (S.D. Cal. Nov. 7, 2006). A stay is warranted here based on these factors. 10. First, there is no potential prejudice to Plaintiff, because he agrees that a stay is

appropriate pending resolution of the MDL Motion. 11. Second, Defendants would suffer prejudice if a stay were not granted because they

would be subject to potentially duplicative discovery, and motion and pleading practice before multiple courts. Absent a stay, it is likely that the plaintiffs in each case will seek to proceed independently, notwithstanding the resulting burden on Defendants; moreover, without a stay, there is likely to be an inefficient and duplicative use of judicial resources, as well as the risk of inconsistent outcomes. By contrast, coordinating the litigation would enable Defendants to address discovery and motions practice in a comprehensive fashion without having to duplicate efforts. See, e.g., Brault, 2006 WL 3924223, *2 (staying action where defendant would "face the prospect of having to litigate the issue of subject matter jurisdiction before different courts and the possibility of inconsistent rulings.") 12. Indeed, this and the other cases subject to the MDL Motion, are based on the same

core allegations, assert substantially overlapping putative classes or other groups of borrowers on 4
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whose behalf relief is sought, and advance very similar claims for relief. These are exactly the kinds of cases for which MDL proceedings are meant. Permitting this action to proceed before the MDL Panel has had an opportunity to rule would undercut the coordination and efficiencies for which MDL proceedings are designed. Tench v. Jackson Nat'l Life Ins. Co., No. 99-C-5182, 1999 WL 1044923, at *1 (N.D. Ill. Nov. 12, 1999) ("The MDL Panel is likely to transfer the case at bar, since it involves a nearly identical set of facts and similar legal theories as the cases previously consolidated" before the MDL transferee judge); Weinke v. Microsoft Corp., 84 F. Supp. 2d 989, 990 (E.D. Wis. 2000). 13. Third, a stay is warranted to promote judicial economy. This Court should avoid

"needlessly expend[ing] its energies familiarizing itself with the intricacies of a case that would be heard by another judge." Rivers, 980 F. Supp. at 1360. Yet that is exactly what would happen if this case were to proceed now, and the six actions later were transferred by the MDL Panel to the Central District of California, as the MDL Movants have requested. Indeed, if the cases at issue proceeded in transferor courts around the country pending the MDL Panel's transfer decision, those courts may duplicate each other's work and reach inconsistent rulings on overlapping motions. Thus, "it appears that a majority of courts have concluded that it is often appropriate to stay preliminary pretrial proceedings while a motion to transfer and consolidate is pending with the MDL Panel because of the judicial resources that are conserved." Rivers, 980 F. Supp. at 1362; see also Lyman v. Asbestos Defendants, No. C 07-4240 SBA, 2007 WL 2972926, at *3 (N.D. Cal. Oct. 10, 2007); U.S. Bank, Nat'l Ass'n v. Royal Indem. Co., No. Civ. A 3:02-CV-0853P, 2002 WL 31114069, at *2 (N.D. Tex. Sept. 23, 2002). 14. Furthermore, neither the fact that the MDL Motion encompasses actions by state

Attorneys General and City Attorneys nor this action's removal to federal court weighs against a stay. The MDL Panel has included Attorney General and City Attorney actions, along with other civil actions, in MDL proceedings where the grounds for transfer were otherwise evident (see, e.g., In re Dynamic Random Access Memory (DRAM) Antitrust Litig., No. M 02-1486 PJH, 2008 WL 1766763, at *1 (N.D. Cal. April 15, 2008); In re Mid-Atlantic Toyota Antitrust Litig., 605 F. Supp. 440 (D. Md. 1984); City of Philadelphia v. Chas. Pfizer & Co., Inc., 345 F. Supp. 454 5
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(S.D.N.Y. 1972)) and district courts presiding over removed actions proposed for MDL consolidation have stayed proceedings notwithstanding the possibility of remand motions or pendency of such motions. See, e.g., Board of Tr. of Teachers' Ret. Sys. of Ill. v. WorldCom, Inc., 244 F. Supp. 2d 900, 905 (N.D. Ill. 2002) (granting stay pending transfer to a MDL court and remand motion pending). In fact, "[t]he general rule is for federal courts to defer ruling on pending motions to remand in MDL litigation until after the JPMDL has transferred the case" to allow coordinated consideration of any jurisdictional issues presented. Jackson ex. rel. Jackson v. Johnson & Johnson, Inc., No. 01-2113 DA, 2001 WL 34048067, at *6 (W.D. Tenn. Apr. 2, 2001).

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CONCLUSION For the foregoing reasons, Plaintiff and Defendants respectfully request that this Court stay all further proceedings in this action until ten (10) days after the MDL Panel's ruling on the MDL Motion or, in the event the MDL Motion is granted, until further order of the transferee court. Respectfully submitted, By: s/ Brooks R. Brown Brooks R. Brown [email protected] GOODWIN PROCTER LLP 10250 Constellation Blvd. Los Angeles, California 90067 Tel.: 310.788.5100 Thomas M. Hefferon (pro hac vice) [email protected] GOODWIN PROCTER LLP 901 New York Avenue NW Washington, DC 20001 Tel.: 202.346.4000 Paul G. McNamara [email protected] O'MELVENY & MYERS LLP 400 S. Hope Street, 18th Floor Los Angeles, California 90071 Tel.: 213.430.6000 Attorneys for Defendants: COUNTRYWIDE FINANCIAL CORPORATION; COUNTRYWIDE HOME LOANS, INC.; AND FULL SPECTRUM LENDING, a Division of Countrywide Home Loans, Inc. erroneously named as Full Spectrum Lending, Inc.

By:

s/ Joseph J. Rego JOSEPH J. REGO, ESQ. [email protected] LAW OFFICES OF JOSEPH J. REGO 4019 Park Blvd. San Diego, CA 92103 Attorneys for Plaintiff: ROY V. HURSH

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PROOF OF SERVICE I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 10250 Constellation Blvd., Los Angeles, CA 90067. On August 22, 2008, I served the following documents by placing a true copy thereof in a sealed envelope(s) on the persons below as follows: JOINT MOTION TO STAY PENDING RESOLUTION OF CONSOLIDATION MOTION BEFORE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION Joseph J. Rego, Esq. LAW OFFICES OF JOSEPH J. REGO 4010 Park Blvd. San Diego, CA 92103 Counsel for Plaintiff Roy V. Hursh Telephone: (619) 293-0310 Facsimile: (619) 293-0940 [email protected]

(MAIL) I placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this firm's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at Los Angeles, California. (CM/ECF ELECTRONIC FILING) I caused the above document(s) to be transmitted to the office(s) of the addressee(s) listed above by electronic mail at the e-mail address(es) set forth above pursuant to Fed.R.Civ.P.5(d)(1). "A Notice of Electronic Filing (NEF) is generated automatically by the ECF system upon completion of an electronic filing. The NEF, when e-mailed to the e-mail address of record in the case, shall constitute the proof of service as required by Fed.R.Civ.P.5(d)(1). A copy of the NEF shall be attached to any document served in the traditional manner upon any party appearing pro se." (OVERNIGHT DELIVERY) I deposited in a box or other facility regularly maintained by Federal Express , an express service carrier, or delivered to a courier or driver authorized by said express service carrier to receive documents, a true copy of the foregoing document in sealed envelopes or packages designated by the express service carrier, addressed as stated above, with fees for overnight delivery paid or provided for. I declare under penalty of perjury that I am employed in the office of a member of the bar of this Court at whose direction this service was made and that the foregoing is true and correct. Executed on August 22, 2008, at Los Angeles, California.

s/Brooks R. Brown (Signature)

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