Motion Picture Association of America v. CrystalTech Web Hosting Inc.

Filing 665

Motion Picture Association of America v. CrystalTech Web Hosting Inc.

Doc. 665

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Eric G. Slepian Bar # 017495 SLEPIAN LAW OFFICE 3737 N. 7th Street, Ste. 106 Phoenix, Arizona 85014 Telephone [phone] Attorney for Plaintiff UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA JOHN B. ROSS, Plaintiff, vs. EXCEL GROUP FLEXIBLE BENEFIT PLAN, a/k/a THE EXCEL GROUP EMPLOYEE BENEFIT PLAN; THE EXCEL GROUP; and THE HARTFORD a/k/a HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY, Defendants. The parties submit this proposed case management plan pursuant to the Court's Order filed on May 21, 2007. 1. The Nature of the Case, Setting Forth in Brief Statements the Factual and Legal Basis of the Plaintiff's Claims and Defendants' Defenses NO. CV06-1474-PHX-JWS PROPOSED JOINT CASE MANAGEMENT PLAN

(Assigned to the Honorable John W. Sedwick)

This lawsuit concerns a dispute over Plaintiff's entitlement to Long Term Disability benefits under a group disability insurance plan and medical benefits under the Excel Group Flexible Benefit Plan a/k/a The Excel Group Employee Benefit Plan and administered by the Hartford a/k/a Hartford Life and Accident Insurance Company (collectively "The Hartford" or "Defendants"). The parties agree that the Long Term Disability plan is subject to the Employee Retirement Income Security Act of 1974

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("ERISA"), 29 U.S.C. § 1001 et. seq. The plan further asserts that this Court has jurisdiction over this matter pursuant to 29 U.S.C.S.§ 1166. Plaintiff's Claims and Defenses: Defendant The Hartford ("Hartford") issued a policy group Long-Term Disability insurance policy to The Excel Group ("Excel"), effective July 1, 2001 for the benefit of Excel's employees. At all material times, Plaintiff, John Ross ("Ross") participated in the Plan. The Plan provides monthly benefits if a participant becomes "disabled" as defined by the Plan. On or about August 16, 2004 Ross submitted a claim for long-term disability benefits, asserting that he had been disabled beginning June 18, 2004. The Social Security Administration and the Department of Veteran's Administration have both declared Mr. Ross disabled and unemployable. Despite a plethora of medical records, objective findings and opinions of disability, the Defendant denied and continues to deny the claim, all to the economic harm to Mr. Ross. Plaintiff now seeks the benefits to which he is entitled. Defendants' Claims and Defenses: The Hartford agrees that Ross was a participant in the ERISA-governed Excel Group Long Term Disability Plan while he was an Excel Group employee and that he submitted a claim for benefits in August 2004. Ross's claimed disability, however, was not supported by evidence from his physicians. His medical records actually showed that he quit his job so that he could move to Phoenix to live closer to his children and because his position with Excel Group was going to be eliminated, not for medical

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reasons. The Hartford, as plan administrator, exercised the discretion conferred upon it in the plan and denied Ross's claim. 2. Elements of Proof and Scope of Review

Plaintiff's Statement: In determining the issues subject hereto, the Court must consider Defendants' conflict of interest and other motivations and/or improprieties in denying the claim. Defendants' conflict of interest affects the standard of review. Abatie v. Alta Health and Life Insurance Company, 458 F.3d 955 (9th Cir. 2006). Defendants' Statement: To recover benefits under 29 U.S.C. § 1132(a)(1)(B) the plaintiff must prove that The Hartford abused its discretion by denying benefits. See Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955 (9th Cir. 2006) (abuse of discretion standard always applies where the plan confers discretion upon administrator). In accordance with Kearney v. Standard Insurance Co., 175 F.3d 1084 (9th Cir. 1999), this Court will decide the merits of this case after a "paper trial" ­ that is, a bench trial based upon the administrative record. See also Abatie, 458 F.3d at 970. Discovery may be limited to production of the administrative record. Or the plaintiff may seek limited discovery related to the application of the standard of review only. 3. The Factual and Legal Issues Genuinely in Dispute

The following factual legal issues are in dispute: Plaintiff's Statement: (a) Whether Plaintiff is entitled to his Long Term Disability benefits under the

terms and provisions of the plan documents.

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(b)

Whether Defendants operated under conflict of interest effecting the

standard of review. Defendants' Statement: (a) (b) Did The Hartford abuse its discretion in denying the plaintiff benefits? What weight, if any, should the Court give to The Hartford's "structural

conflict of interest" in assessing whether The Hartford abused its discretion? 4. The Jurisdictional Basis of the Case, Citing Specific Statutes

This Court has jurisdiction pursuant to ERISA, 28 U.S.C. §1132 and U.S.C. 1331. 5. Parties, If any, Which Have not Been Served, as Well as Parties Which Have Not Filed an Answer or Other Appearance, Including Fictitious Parties

All parties have been served. 6. None. 7. Whether There are Dispositive or Partially Dispositive Issues to be Decided by Pretrial Motions The parties may file dispositive motions subsequent Names of Parties Not Subject to the Court's Jurisdiction

Plaintiff's Statement:

to the completion of discovery. If denied, a bench trial is warranted. Abatie v. Alta Health and Life Insurance Company, 458 F.3d 955 (9th Cir. 2006). Defendants' Statement: This Court will decide the merits based upon motion

practice. See, e.g., Kearney v. Standard Life Ins. Co., 175 F.3d 1084 (9th Cir. 1999) (court decides merits after a bench trial based on the administrative record). At this point, The Hartford does not expect any interim motions seeking partial disposition of the case.

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8.

Whether the Case is Suitable for Reference to Arbitration, to a Master, or to a United States Magistrate Judge for all Further Proceedings.

No. 9. The Status of Related Cases Pending Before Other Judges of This Court or Before Other Courts Suggested Changes, if Necessary, and the Timing, Form, or Requirement for Disclosures Under Rule 26(A0 Federal Rules of Civil Procedure, Including a Statement of When Initial Disclosures Were Made or Will be Made

There are no related cases pending before this Court or other Courts. 10.

Initial disclosures will be served by August 30, 2007. 11. Proposed Deadlines Plaintiff's Statement: (a) (b) (c) (d) Discovery cutoff: November 15, 2007 Dispositive Motions: January 15, 2008 Disclosure of Expert Testimony, if any: November 15, 2007 Scheduling of the final Pretrial Conference: Thirty days after determination of dispositive motions or February 15, 2008 whichever is later. Defendants' Statement: (a) (b) Amendment of the pleadings: July 30, 2007

Production and Review of Administrative Record: The Hartford will produce the claim file to the plaintiff on August 30, 2007. The plaintiff will notify The Hartford by October 10, 2007 of his position as to the following issues: (1) whether the plaintiff believes that any additional documents should be added to the administrative record; (2) whether the plaintiff believes that any documents contained in the administrative record should be omitted; and (3) whether the plaintiff believes that any discovery beyond the administrative record should be conducted and on what grounds. The parties will thereafter work together to resolve any issues.

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(c)

Filing of the Administrative Record: By December 15, 2007, the parties will file a joint administrative record with the Court (or if agreement cannot be reached, the parties may file a motion regarding the same). Motion for Discovery: Also by December 15, 2007, the plaintiff may file a motion for permission to take discovery related to the standard of review. Briefing Schedule for Legal Issues/Merits of the Case: The primary legal issue in this matter is whether The Hartford abused its discretion in denying benefits. If a joint administrative record is timely filed and the plaintiff does not seek to conduct discovery beyond the administrative record, The Hartford proposes that dispositive motions (whether under rule Rule 52, 56, or both) be filed no later than January 3, 2007. Response memoranda will be due February 7, 2008. And reply memoranda will be due on February 25, 2008.

(d)

(e)

12.

The Scope and Discovery and Whether Discovery Should be Conducted in Phases or Should Be Limited to or Focused Upon Particular Issues Plaintiff does not believe discovery should be

Plaintiff's Statement: conducted in phases. Defendants' Statement:

The Hartford contends that discovery, if permitted at

all in ERISA cases, is extremely limited. Accordingly, it has suggested the procedure set forth in Section 11, above. 13. Suggested Changes, if any, in the Limitations On Discovery Imposed By The Federal Rules of Civil Procedure. Plaintiff does not believe that any change to the

Plaintiff's Statement:

Federal Rules of Civil Procedure is warranted. Defendants' Statement: The Hartford contends that discovery, if permitted at

all in ERISA cases, is extremely limited. Accordingly, it has suggested the procedure set forth in Section 11, above.

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14.

Estimated Date That the Case Will be Ready for Trial and the Estimated Length of Trial Plaintiff believes that this matter will be ready for a

Plaintiff's Statement:

bench trial by February 15, 2008. Plaintiff expects a three day trial. Defendants' Statement: In this ERISA case, the Court will decide the merits

based upon motion practice. See, e.g., Kearney v. Standard Life Ins. Co., 175 F.3d 1084 (9th Cir. 1999) (court decides merits after a bench trial based on the administrative record). 15. Whether a Jury Trial Has Been Requested and Whether the Request for a Jury Trial is Contested

The parties agree that under ERISA there is no right to a jury trial. Nevill v. Shell Oil Co., 835 F.2d 209 (9th Cir. 1987); Blau v. Del Monte Corp., 748 F.2d 1348 (9th Cir 1985). 16. The Prospects for Settlement, Including Any Request to Have a Settlement Conference Before Another United States District Court Judge or Magistrate Judge, or Other Requests of the Court for Assistance in Settlement Efforts.

The parties may engage in mediation at the appropriate time. 17. Whether the Parties Desire to have a Scheduling and Planning Conference with the Court.

A scheduling conference with the Court is not needed. 18. Whether the Parties Consent to Trial by a Magistrate.

The parties do not consent to a trial by a Magistrate. DATED this 26th day of June, 2007.

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THE SLEPIAN LAW FIRM

By

s/Eric G. Slepian Eric G. Slepian 3737 N. 7th Street, Suite 106 Phoenix, Arizona 85014 Attorney for Plaintiff

LEWIS AND ROCA, LLP By s/Ann-Martha Andrews___ Ann-Martha Andrews 40 North Central Avenue Phoenix, AZ 85004-4429 Attorney for UNUM Life Insurance Co.

CERTIFICATE OF SERVICE I hereby certify that on June 26, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF Registrants: Ann-Martha Andrews, Esq. Lewis & Roca, LLP 40 North Central Avenue Phoenix, AZ 85004-4429 Attorney for Defendant UNUM Life Insurance Co.

s/ Genesia Conover SLEPIAN LAW OFFICE

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