Koloff v. Metropolitan Life Insurance Company

Filing 35

ORDER re Briefing on Exhaustion of Administrative Remedies signed by Magistrate Judge Jennifer L. Thurston on 1/5/2012. Filing Deadline 1/10/2012.(Attachments: # 1 Consent Form). (Leon-Guerrero, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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SHEEMA KOLOFF,

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Plaintiff,
v.
METROPOLITAN LIFE INSURANCE
COMPANY,

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Defendant.
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) Case No.: 1:11-cv-00195 OWW DLB
)
)
) ORDER RE BRIEFING ON EXHAUSTION OF
) ADMINISTRATIVE REMEDIES
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On January 5, 2012, the Court conducted the settlement conference in this matter. At the

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time, the issue of Plaintiff’s failure complete an administrative appeal was presented by the

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parties. The Court expressed an intention to require briefing on topics related to the exhaustion

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issue and its impact on these proceedings. As a result, counsel conferred with their clients and

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indicated that they wished to consent to Magistrate Judge jurisdiction for the limited purpose of

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deciding what would be treated as dispositive motion on this issue.

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Given this background, and though recognizing that the failure to exhaust administrative

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remedies is “prudential rather that jurisdictional” (Mack v. Kuckenmeister, 619 F.3d 1010, 1020

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(9th Cir. 2010), the Court ORDERS:

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1.

The parties SHALL brief the following issues:
a.

Whether Plaintiff failed to exhaust her administrative remedies,
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b.

If Plaintiff failed to exhaust her administrative remedies, whether she

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should be relieved of her obligation to exhaust her administrative

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remedies,

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c.

If Plaintiff should not be excused from exhausting her administrative

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remedies, whether the matter should be dismissed or remanded for further

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administrative proceedings,

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d.

Any other related topics deemed pertinent by counsel.

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2.

Opening briefs SHALL be filed no later than January 27, 2012;

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3.

Responding briefs SHALL be filed no later than February 10, 2012;

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4.

Based upon the oral consent of the parties to the Magistrate Judge’s jurisdiction

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for this motion only, the telephonic hearing on this motion SHALL occur on

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February 22, 2012 at 10 a.m. before Magistrate Judge Thurston. The parties’

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request to appear via teleconference is GRANTED. Counsel SHALL determine

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which of them will initiate the conference call. Once all counsel are on the line,

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the call SHALL be placed to chambers at [phone];

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5.

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Counsel are ORDERED to file their consent to the Magistrate Judge jurisdiction
for the limited purpose of this motion, no later than January 10, 2012;

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The Clerk of the Court is DIRECTED to provide a copy to the parties of the

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Magistrate Judge the modified “consent form” reflecting the limited purpose

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consent.

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IT IS SO ORDERED.

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Dated: January 5, 2012
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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