Scardina v. United Recovery Systems, LP

MOTION

N.D. Ill.March 2, 2011

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION DAVE SCARDINA, individually and on behalf of ) a class ) Plaintiff, ) 10 C 8009 v. ) ) Honorable Samuel Der-Yeghiayan UNITED RECOVERY SYSTEMS, LP, ) ) Defendant. ) DEFENDANTS’ MOTION TO SET A SETTLEMENT CONFERENCE, SUSPEND THE TIME TO ANSWER OR OTHERWISE RESPOND TO THE AMENDED COMPLAINT AND CLASS CERTIFICATION AND TO STAY DISCOVERY NOW COMES, Defendant UNITED RECOVERY SYSTEMS, LP by and through its undersigned counsel, and pursuant to FRCP 1 and FRCP 6(b), requests that this Honorable Court: (1) set this matter for a settlement conference; (2) suspend the time to answer or otherwise respond to the Amended Complaint and Class Certification Motion; and (3) stay discovery: 1. This case involves calls to Plaintiff’s cell phone allegedly in violation of 47 U.S.C. § 227 (“TCPA”). Plaintiff alleges that Defendant improperly placed calls to Plaintiff’s and the putative class member’s cell phones without prior express consent using an automatic telephone dialing service and/or an artificial or prerecorded voice (“Predictive Dialer”) in violation of the TCPA. 2. Defendant wrote to Plaintiff’s counsel on March 2, 2011 to explain to Plaintiff’s counsel that the phone system that it used to call Plaintiff is not a automatic telephone dialing service or predictive dialer as defined by the TCPA. Previously, defense counsel had asked Plaintiff’s counsel to extend the date to respond to the Amended Complaint so that parties could entertain an individual settlement based upon 130069176v1 0919494 00033 Case: 1:10-cv-08009 Document #: 22 Filed: 03/02/11 Page 1 of 4 PageID #:133 the fact that Defendant’s phone system is not a automatic telephone dialing service or predictive dialer as defined by the TCPA. Plaintiff’s counsel agreed to a short extension. 3. Defendant’s letter asked Plaintiff’s counsel to evaluate the defense and to make a settlement offer. The letter also suggested that the stated purpose of FRCP 1 would be met if the parties suspending discovery and motion practice in an effort to settle the case. Defense counsel also explained to Plaintiff’s counsel that his delay in sending the letter was caused by him being on trial. 4. Shortly after the letter was transmitted, Plaintiff’s counsel contacted defense counsel and complained that defense counsel had “promised” to make an offer. Defense counsel tried to respond that he had just gotten off of trial, and when he attempted to explain the rationale behind the letter’s request that Plaintiff’s counsel make an initial demand, and suggested a reasonable settlement range, defense counsel was repeatedly cutoff. While Plaintiff’s counsel may been felt upset that Defendant’s letter did not provide a settlement figure, it is in the interests of justice for the parties to continue the settlement process without Defendant expending fees on responding to the complaint, related motion practice and class based discovery demands. 5. Defendant believes that this case can be resolved without expensive motion practice and discovery if it is assigned to a magistrate judge for an expedited settlement conference. In fact, Defendant is ready, willing and able to have this Honorable Court mediate this case at its earliest convenience if it so desires. To the extent a settlement conference is set with the assigned Magistrate Judge or this Court, Defendant is be prepared to make a good faith offer. 130069176v1 0919494 00033 2 Case: 1:10-cv-08009 Document #: 22 Filed: 03/02/11 Page 2 of 4 PageID #:134 6. Consistent with FRCP 1, which promotes “the just, speedy, and inexpensive determination of every action and proceeding,” Defendant requests that this Honorable Court set this matter for an expedited settlement conference and contemporaneously moves for the entry of a minute order: (a) suspending the time to answer or otherwise respond to the Amended Complaint and the pending Class Certification Motion and (b) staying discovery. WHEREFORE, for the reasons set forth above, Defendant UNITED RECOVERY SYSTEMS, LP requests that this Honorable Court (1) set this matter for an expedited settlement conference; (2) suspend the time to answer or otherwise respond to the Amended Complaint and Class Certification Motion; and (3) stay discovery, and issue any other relief that this Court deems necessary. Respectfully submitted, Attorney for Defendant UNITED RECOVERY SYSTEMS, LP By: /s/ James C. Vlahakis James C. Vlahakis Hinshaw & Culbertson LLP 222 North LaSalle, Suite 300 Chicago, IL 60601 t 312-704-300 f 312-704-3001 jvlahakis@hinshawlaw.com 130069176v1 0919494 00033 3 Case: 1:10-cv-08009 Document #: 22 Filed: 03/02/11 Page 3 of 4 PageID #:135 130069176v1 0919494 00033 4 Certificate of Service I hereby certify that on March 2, 2011, I electronically filed the above document with the Clerk of the U.S. District Court, Northern District of Illinois, Eastern Division, using the CM/ECF system. By: /s/ James C. Vlahakis James C. Vlahakis Hinshaw & Culbertson LLP 222 North LaSalle, Suite 300 Chicago, IL 60601 t 312-704-300 f 312-704-3001 jvlahakis@hinshawlaw.com Case: 1:10-cv-08009 Document #: 22 Filed: 03/02/11 Page 4 of 4 PageID #:136