Reply to Response to Motion re 311 Motion to Stay Individual — In re BofA Unemployment Litigation (Dkt. 325)

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Reply to Response re  Individual Plaintiffs’ Motion to Stay Proceedings  
CASE No: 3:21-md-02992-LAB-MSB 
 
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Joshua B. Swigart (SBN 225557) 
Josh@SwigartLawGroup.com 
SWIGART LAW GROUP, APC 
2221 Camino del Rio S, Ste 308 
San Diego, CA  92108 
josh@swigartlawgroup.com 
P: 866-219-3343 
F: 866-219-8344 
 
Liaison Counsel for Individual Plaintiffs 
 
 
UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
CASE: 3:21-md-02992-GPC-MSB 
 
REPLY IN SUPPORT OF 
INDIVIDUAL PLAINTIFFS’ 
MOTION TO STAY 
PROCEEDINGS PENDING 
RESOLUTION OF RELATED 
CLASS ACTION CERTIFICATION  
  
Date: September 9, 2024 
Time: 2:30 p.m. 
Crtrm.: 2D – 2nd Floor 
Judge:  Hon. Gonzalo P. Curiel 
 
IN RE BANK OF AMERICA 
CALIFORNIA 
UNEMPLOYMENT BENEFITS 
LITIGATION      
 
 
 
This Document Relates to All 
Actions 

 
 
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Reply to Response re  Individual Plaintiffs’ Motion to Stay Proceedings  
CASE No: 3:21-md-02992-LAB-MSB 
 
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I. 
INTRODUCTION 
The 133 Individual Plaintiffs submit this reply in support of their request that the 
Court stay their cases until the common issues of law and fact are adjudicated in the 
consolidated Class Case. As explained in their moving papers, a temporary stay will 
serve the interests of judicial and party economy by permitting Class Counsel, Bank of 
America (BANA), and this Court to focus on the class certification motion and related 
classwide issues, which would likely decrease the number of individual cases to be 
litigated and streamline the proceedings.  
BANA’s Opposition does not negate any of these points. Instead, it misstates the 
record and the Individual Plaintiffs’ arguments, casts false aspersions on counsel for the 
Individual Plaintiffs, and greatly exaggerates the negative effect of a stay. Because 
BANA has not shown that a stay would cause it any prejudice—including because 
nearly 260 other individual plaintiffs’ similar cases are already stayed by order of the 
JPML—BANA cannot overcome the Individual Plaintiffs’ showing of the harm (and 
inefficiencies and potential inconsistent adjudications) that could result if the requested 
stay is denied.  
Nor can BANA reasonably dispute that this litigation would proceed in a far more 
streamlined manner if the stay is granted. While BANA may be hoping to use the 
pendency of the 133 non-stayed Individual Plaintiffs’ cases to take two-a-day 
depositions for its use in preparing its brief in opposition to class certification, BANA 
has not identified any reason why it needs those depositions now, in the Individual 
Plaintiffs’ cases, rather than after the principal disputed issues are sorted out in MDL 
class proceedings.  
II. 
LEGAL STANDARD  
Federal courts have the inherent power to manage their dockets. Landis v. N. Am. 
Co., 299 U.S. 248, 254 (1936). Incidental to this power is the discretion to stay 
proceedings. See id.; see also Leyva v. Certified Grocers of Cal. Ltd., 593 F.2d 857, 863 
(9th Cir. 1979) (“A trial court may, with propriety, find it is efficient for its own docket 

 
 
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Reply to Response re  Individual Plaintiffs’ Motion to Stay Proceedings  
CASE No: 3:21-md-02992-LAB-MSB 
 
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and the fairest course for the parties to enter a stay of an action before it, pending 
resolution of independent proceedings which bear upon the case.”). 
That discretion is guided by balancing the harms and benefits that may arise from 
a stay. In particular, courts weigh three factors: (1) “the possible damage which may 
result from the granting of a stay;” (2) “the hardship or inequity which a party may 
suffer in being required to go forward;” and (3) “the orderly course of justice measured 
in terms of the simplifying or complicating of issues, proof, and questions of law.” 
Lockyer v. Mirant Corp., 398 F.3d 1098, 1110 (9th Cir. 2005) (quoting CMAX, Inc. v. 
Hall, 300 F.2d 265, 268 (9th Cir. 1962)).  
III. 
ARGUMENT 
A. BANA’s Preliminary Contentions 
Before turning to the propriety of a stay, the Individual Plaintiffs first address 
several baseless contentions made by BANA in its opposition.  To begin, the Individual 
Plaintiffs did not bring their motion “in the twilight of discovery” or “hastily.”  To the 
contrary, the December 12, 2024 discovery deadline was set only recently — on June 
27, 2024 — and the instant motion was filed just a few weeks later and only after BANA 
changed its position and sent notice for approximately 122 individual depositions 
packed tightly into the period between when Class Plaintiffs filed their motion for class 
certification and when BANA’s opposition to class certification is due.  That is not 
dilatory behavior on the part of the Individual Plaintiffs.   
As for not previously contesting Judge Burns’s July 2021 Order, it was entirely 
unnecessary for the Individual Plaintiffs to have done so earlier, because there were no 
practical consequences of that order until recently.  Based on conversations with Class 
Counsel, and as discussed with Judge Burns at the July 19, 2021 status conference, the 
Individual Plaintiffs understood that individual litigation would be paused “at least until 
the summary judgment stage, and even discovery will be limited only to the extent the 
bank has unique defenses as to any individual plaintiff will the bank take discovery or 
the individuals take discovery.”  (ECF No. 55 at 27:5–14.)  In all other regards, the 

 
 
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Reply to Response re  Individual Plaintiffs’ Motion to Stay Proceedings  
CASE No: 3:21-md-02992-LAB-MSB 
 
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individual cases would be put “on hold” until “the MDL is over.”  (Id. at 27:20–25; see 
also Class Action Plaintiffs’ Status Conference Statement, ECF No. 31 at 10 [“Counsel 
further agree that, with the exception of discovery relating to the specific records of the 
individual plaintiffs at Bank of America, all discovery requests and depositions will be 
made by and through interim co-lead counsel for the Class Action Plaintiffs in 
coordination with counsel for the individual plaintiffs.”].)   
Consistent with this understanding, Judge Burns’s July 2021 Order provided, 
“No plaintiff may make any request for or response to discovery … except through 
Interim Co-Lead Counsel.”  (ECF No. 48 at 3.).  It was not until Magistrate Judge Berg’s 
June 2024 Amended Scheduling Order that the December 12, 2024 discovery deadline 
was, for the first time, applied to “all parties” and not just Class Counsel and defense 
counsel as in the June 2023 Scheduling Order. It was only after receiving that June 2024 
order that Individual Plaintiffs had the need to move, and did move, for a formal stay. 
BANA next contends a stay is unnecessary because the Individual Plaintiffs have 
already participated in this case and have conducted discovery.  But the Individual 
Plaintiffs have never claimed that they have been unable to participate in this case at 
all.  As BANA points out, counsel for the Individual Plaintiffs attended the September 
2021 Early Neutral Evaluation conference, filed an opposition to BANA’s partial 
motion to dismiss, and participated in meet and confer efforts with BANA.  
The point we have repeatedly made, however, is that per Judge Burns’s July 2021 
Order, the Individual Plaintiffs’ ability to conduct discovery was limited in two 
meaningful ways. First, their participation in discovery was limited by the 
organizational structure set forth in the Order. That is, to streamline the process, Judge 
Burns directed Class Counsel to take the lead on discovery.  Class Counsel does not 
represent the individual Plaintiffs and have focused on their class case, as they should.  
It is the job of the Individual Plaintiffs’ Counsel, who have been restricted by the 
Court’s CMO, to further the individual matters (specifically the discovery process).  
While the Individual Plaintiffs do not challenge this structure, it is undisputed that their 

 
 
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Reply to Response re  Individual Plaintiffs’ Motion to Stay Proceedings  
CASE No: 3:21-md-02992-LAB-MSB 
 
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access to information has been limited; of the hundreds of thousands of pages of 
documents produced by BANA, the Individual Plaintiffs have only received access to 
a few thousand. BANA’s Opposition confirms this point, noting that when counsel for 
the Individual Plaintiffs expressed concern about obtaining documents from Class 
Counsel, BANA provided the Individual Plaintiffs a spreadsheet of documents 
produced and BANA produced certain documents directly to counsel for the Individual 
Plaintiffs. (See ECF No. 321 at 8.)  
Second, as noted in the Individual Plaintiffs’ moving papers, most of the 
discovery that has been conducted has been limited to the common Class issues. This 
conforms with Judge Burns’s July 2021 Order and with the efficient prosecution of the 
underlying MDL proceedings. The concern now is that Judge Berg’s June 2024 
Amended Scheduling Order has apparently opened discovery for “all parties” (not just 
Class Counsel and defense counsel) and, presumably, on all issues (not just common 
Class issues). The effect of this sudden free-for-all is that the Individual Plaintiffs must 
now scramble to conduct wide-ranging discovery for 133 individuals within a very short 
period. Further, BANA seeks to depose four individual plaintiffs per day over a two-
month period, which will require counsel for the Individual Plaintiffs to allocate the 
vast majority of their professional resources to the depositions. The court should see 
BANA’s request to take the depositions for what it is—simply an attempt to gain more 
information that BANA can use to oppose class certification.  There is no harm in 
allowing the depositions to take place after class certification and dispositive motions 
are resolved. 
B. The Landis Factors 
As for the propriety of a stay, the Landis factors weigh in favor of a stay pending 
resolution of the class issues. BANA contends that it will be prejudiced by a stay 
because it has already expended considerable effort and resources in completing 
discovery. However, BANA conflates the time and costs expended in relation to Class 
issues with those related specifically to the Individual Plaintiffs. As the record shows, 

 
 
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Reply to Response re  Individual Plaintiffs’ Motion to Stay Proceedings  
CASE No: 3:21-md-02992-LAB-MSB 
 
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of the hundreds of thousands of pages produced by BANA in response to discovery 
requests by Class Counsel, only 14,000 pages relate to the Individual Plaintiffs.  
Further, BANA repeatedly asserts that a stay is inappropriate at this “late stage,” 
but it overlooks the fact that this matter is in pretrial proceedings, that BANA’s motion 
to dismiss was only recently decided, that the scope of discovery was limited by Judge 
Burns’s July 2021 Order, and that a class certification motion was not filed until August 
29, 2024 and will not be fully briefed until late fall. Moreover, the Bank did not file its 
Answer to the operative complaint until August 15, 2024, and that Answer included 38 
Affirmative Defenses (EDF 316), none of have been the subject of discovery given how 
recently that Answer was filed. 
Along these lines, BANA’s reliance on Seufert v. Merck Sharp & Dohme Corp., 
2016 WL 9503735 (S.D. Cal. Mar. 9, 2016) is misplaced. There, the court held that a 
stay was not warranted because, inter alia, the parties had completed preemption 
discovery and expended resources. (Id., at *2.) In Seufert, the case had been pending 
for three years, a summary judgment motion was granted, and the judgment appealed. 
By contrast, this case is still in the preliminary stages, with a class certification motion 
just recently filed, and any summary judgment motions months away. Thus, the 
concerns expressed in Seufert are simply inapplicable here. BANA’s remaining 
citations are also inapposite as none concern the factual circumstances presented here, 
namely, where discovery has thus far been limited in scope to common Class issues.  
BANA next asserts that a stay is not warranted because it would be prejudiced 
by a stay of “indefinite” duration. But BANA does not explain how such a stay, if it 
could even be characterized as “indefinite,” would be substantively different from the 
stay in any of the other 257 individual plaintiffs’ cases already stayed by Judge Burns. 
The 133 Individual Plaintiffs merely ask that their cases be tracked alongside the other 
257 individual cases except insofar as they relate to common Class issues (as originally 
contemplated by Judge Burns). BANA does not and cannot provide a rationale for 
treating individual Plaintiffs differently (those who are stayed and those who are not). 

 
 
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Reply to Response re  Individual Plaintiffs’ Motion to Stay Proceedings  
CASE No: 3:21-md-02992-LAB-MSB 
 
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BANA also misstates the prejudice to the Individual Plaintiffs should a stay be 
denied. The Individual Plaintiffs do not contend that merely participating in depositions 
is prejudicial to them.  The prejudice results from the fact that BANA intends to conduct 
four depositions per day over a two-month period (which BANA is only doing to gain 
an advantage in the class case, not because it needs that many depositions, in that 
compressed a time period, in the Individual Plaintiffs’ cases).1 The strain this proposed 
schedule would place on counsel for the Individual Plaintiffs cannot be overstated. 
Likewise, and to reiterate a point made in the Individual Plaintiffs’ moving papers,  
Without a stay, [the Individual Plaintiffs] would be forced to scramble 
to propound and respond to discovery in 133 cases (let alone the 257 
individual cases that are currently stayed), review hundreds of thousands 
of pages of documents, bring motions to compel (should they become 
necessary), and conduct an unwieldly number of depositions, all in the 
next three months. This would cause severe prejudice to the Individual 
Plaintiffs, and it is not necessary for the efficient litigation of their 
claims.  (Mot. to Stay, at 14.)  
Finally, while BANA argues that “it would be more efficient to simply complete 
the depositions that have already been noticed,” its argument can only properly be 
construed as efficient for BANA only, but as the facts and circumstances show, denying 
the stay would be wholly inefficient for Individual Counsel and Class Counsel, who 
would attend the depositions of the Individual Plaintiffs instead of focusing their efforts 
on class certification and expert discovery; the Individual Plaintiffs, who would be 
required to scramble to conduct wide-ranging discovery and to attend over 100 
depositions in a short period; and this Court, which would need to address any discovery 
motions filed in the respective 133 individual cases.  
Stated simply, the Landis factors heavily favor granting the Individual Plaintiffs’ 
motion to stay their individual cases pending resolution of the common Class issues. 
 
1 We suspect that if the Court were to preclude BANA from using the Individual 
Plaintiffs’ depositions for the purpose of opposing class certification, BANA would 
lose all interest in taking so many depositions in such a compressed time period. 

 
 
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Reply to Response re  Individual Plaintiffs’ Motion to Stay Proceedings  
CASE No: 3:21-md-02992-LAB-MSB 
 
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IV. 
CONCLUSION 
The Individual Plaintiffs therefore respectfully request that their motion to stay 
until common issues of law and fact are determined in the Class Case be granted. 
Granting the motion would not harm BANA while denying it would greatly impact the 
Individual Plaintiffs’ ability to litigate their respective cases by forcing them to conduct 
extensive discovery during an extremely short time frame. Granting the motion would 
also promote judicial economy and efficiency by focusing the litigation on issues 
common to both the putative class and the Individual Plaintiffs, reducing duplication of 
efforts, and reducing the risk of overlap. 
 
 
 
 
 
 
 
Respectfully submitted,  
 
 
 
 
 
 
 
 
SWIGART LAW GROUP, APC 
 
 
 
 
 
 
 
 
Date:  August 30, 2024   
 
By:  /s/ Joshua B. Swigart 
 
 
 
 
 
 
       
Joshua B. Swigart, Esq. 
 
 
 
 
 
 
        Josh@SwigartLawGroup.com 
  
 
 
 
 
 
        Co-Liaison Counsel for Individual  
Plaintiffs

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