Bommarito v. The Northwestern Mutual Life Insurance Company

Filing 33

STIPULATION and ORDER signed by Senior Judge William B. Shubb on 5/17/17: Designation of Expert Witnesses due by 12/15/2017. Discovery due by 2/16/2018. Dispositive Motions filed by 3/23/2018. Final Pretrial Conference set for 5/7/2018 at 01:30 PM in Courtroom 5 (WBS) before Senior Judge William B. Shubb. Jury Trial set for 7/17/2018 at 09:00 AM in Courtroom 5 (WBS) before Senior Judge William B. Shubb. (Kaminski, H)

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Rebecca Grey (State Bar No. 194940)
[e-mail]
THE GREY LAW FIRM, P.C.
235 Montgomery Street, Suite 1101
San Francisco, California 94104
Telephone: [phone]
Facsimile: [phone]
Attorney for Plaintiff and Counterdefendant
DEVRA BOMMARITO
Sean P. Nalty (State Bar No. 121253)
[e-mail]
Shivani Nanda (State Bar No. 253891)
[e-mail]
Cara F. Barrick (State Bar No. 303107)
[e-mail]
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
Steuart Tower, Suite 1300
One Market Plaza
San Francisco, CA 94105
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant and Counterclaimant
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SACRAMENTO

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DEVRA BOMMARITO, an individual,

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Plaintiff and Counterdefendant,
v.
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY and MARK
MAJEWSKI,
Defendant and Counterclaimant.

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Case No. 2:15-cv-01187-WBS-DB
JOINT STIPULATION AND REQUEST
TO MODIFY THE DECEMBER 28, 2016
PRETRIAL SCHEDULING ORDER;
[PROPOSED] ORDER
Complaint Filed: June 1, 2015
Trial Date:
February 28, 2017
Judge:
Hon. William B. Shubb

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JOINT STIPULATION AND REQUEST TO MODIFY THE MAY 27, 2016
PRETRIAL SCHEDULING ORDER

Case No. 2:15-cv-01187-WBS-DB(TEMP)

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Plaintiff and Counterdefendant DEVRA BOMMARITO and Defendant and Counterclaimant

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THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, through their undersigned

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counsel hereby request that the Court adopt the stipulated modifications to the Scheduling Order in this

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matter set forth below based on the following:

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A.

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WHEREAS, Plaintiff filed the complaint in this matter on June 1, 2015. She alleges claims for

Current Status

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relief for breach of contract and breach of the covenant of good faith and fair dealing (“bad faith”)

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based on the alleged wrongful denial of her claim for disability benefits by Defendant.

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WHEREAS, on October 7, 2015, the Honorable William B. Shubb issued a Pretrial Scheduling

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Order setting forth the discovery deadlines, motion hearing schedule, final Pretrial Conference, and

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trial date in this matter. Due to the Plaintiff’s substitution of counsel, and difficulties created by a

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criminal investigation, the Court in a May 27, 2016 order modified the scheduling order as follows:

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Date for initial expert disclosures cut-off: February 10, 2017; Rebuttal expert disclosures cut-off:

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March 10, 2017; Date for discovery cut-off: April 7, 2017; Date for last day to hear discovery motions:

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April 7, 2017; Date for last day to hear all motions, except for motions for continuances, temporary

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restraining orders, or other emergency applications: June 26, 2017, 1:30 p.m. Final Pretrial

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Conference: September 11, 2017 at 1:30 p.m.; and Jury Trial date: October 24, 2017 at 9:00 a.m. On

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December 28, this Court granted a joint stipulation, with modification, establishing the following:

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Date for initial expert disclosures cut-off: June 12, 2017; Rebuttal expert disclosures cut-off: July 10,

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2017; Date for discovery cut-off: August 10, 2017; Date for last day to hear discovery motions: August

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10, 2017; Date for last day to hear all motions, except for motions for continuances, temporary

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restraining orders, or other emergency applications: September 18, 2017, 1:30 p.m. Final Pretrial

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Conference: December 4, 2017 at 1:30 p.m.; and Jury Trial date: Februarty 6, 2018 at 9:00 a.m.

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(Docket 31.)

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B.

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WHEREAS, on February 22, 2016, Plaintiff was charged with making a fraudulent claim for

The Criminal Action

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insurance payment, insurance fraud, grand theft of personal property, and making false entries in

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records by the San Joaquin County District Attorney’s Office. Plaintiff is charged with felony
-2JOINT STIPULATION AND REQUEST TO MODIFY THE MAY 27, 2016
PRETRIAL SCHEDULING ORDER

Case No. 2:15-cv-01187-WBS-DB(TEMP)

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insurance fraud with regard to the claim for disability benefits submitted to Defendant, the same claim

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for disability benefits that is the subject of Plaintiff’s claims for relief for breach of contract and bad

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faith in this action.

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C.

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WHEREAS, the preliminary hearing in the criminal action, originally set December 13, 2016,

The Preliminary Hearing was Moved A SECOND TIME in the Criminal Action

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had been rescheduled to April 18, 2017. On April 18, 2017, the hearing was called, however the

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District Attorney failed to produce a single witness and asked for a short delay to locate and subpoena

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witness(es). One week later the District Attorney again appeared without a witness, reporting that his

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witness was termporarily unavailable. The Hon. Lauren Thomasson continued the matter to

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September 5, 2017.
The Parties agree that the criminal continuance significantly impacts the prosecution of this

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matter. Before the Parties must disclosure experts, currently June 12, 2017, and comply with the other

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deadlines in the current scheduling order, the Parties need to know if Plaintiff is going to be criminally

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indicted for insurance fraud. A criminal indictment for insurance fraud will have a significant impact

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on her claims for breach of contract and bad faith. The claim for relief for bad faith will be presented to

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the Court in an entirely different fashion depending on whether she is indicted or the charges are

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dismissed. The existence of an indictment impacts the evaluation of whether Defendant’s claim

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decision was reasonable.

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In addition, for the same reason, before the Court becomes more actively involved in this

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matter through law and motion, pre-trial, and trial proceedings, the Parties and the Court need to know

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if Plaintiff has been indicted and, if so, when the criminal trial will take place. The determination of the

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criminal action plays a significant role on how the claims for relief for breach of contract and bad faith

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will be presented to this Court.

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D.

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Previous continuances have been ordered as a result of Plaintiff’s counsel’s cancer diagnosis in

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October of 2016. WHEREAS, for much of the fall, counsel for Plaintiff was undergoing treatment for

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cancer. Gratefully, she now has recovered and the Parties once again are able to move forward in this

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matter. Due to Plaintiff’s battle with cancer, the Parties stopped prosecuting this matter altogether for

Plaintiff’s Counsel’s Battle with Cancer

-3JOINT STIPULATION AND REQUEST TO MODIFY THE MAY 27, 2016
PRETRIAL SCHEDULING ORDER

Case No. 2:15-cv-01187-WBS-DB(TEMP)

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much of the winter of 2016/17. Now, Plaintiff’s counsel has recovered fully and the Parties are again

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prosecuting this matter.

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Under the current scheduling order, the Parties had planned to complete in September through

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November a significant document production and the significant depositions in this matter. The parties

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have undertaken several key depositions, including those of Plaintiff, and several participants in the

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claims decision at Northwestern. The parties have exchanged thousands of pages of documents.

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The outcome of the September 2017 criminal hearing, which will result in either a dismissal or

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an indictment, will fundamentally alter the direction the final stages of discovery, trial preparation and

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any settlement discussions.

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E.

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Therefore, based on the status of the criminal action, and counsel for Plaintiff’s battle with

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cancer, the Parties to this matter, through their counsel of record, hereby stipulate to the following

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modifications to the Scheduling Order in this matter and respectfully request that the Court issue an

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order modifying the Scheduling order as requested. With these modifications to the Scheduling Order,

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the determination of whether Plaintiff will be indicted will be determined before this Court has to

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address law and motion, pre-trial, and trial proceedings in this matter. At the same time the schedule

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compels the Parties to complete discovery and prepare for trial.

Requested Modifications to the Scheduling Order

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

Proposed date for initial expert disclosures cut-off: December 15, 2017

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Proposed date for rebuttal expert disclosures cut-off: January 19, 2018

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Proposed date for discovery cut-off: February 16, 2018

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Proposed date for last day to hear discovery motions: February 16, 2018

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Proposed date for last day to hear all motions, except for motions for continuances,
temporary restraining orders, or other emergency applications: March 23, 2018

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

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Proposed Final Pretrial Conference: May 7, 2018



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Proposed trial date: July 9, 2018

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-4JOINT STIPULATION AND REQUEST TO MODIFY THE MAY 27, 2016
PRETRIAL SCHEDULING ORDER

Case No. 2:15-cv-01187-WBS-DB(TEMP)

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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Dated:

May 16, 2017

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THE GREY LAW FIRM, P.C.
By:

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Dated:

OGLETREE, DEAKINS, NASH, SMOAK &
STEWART, P.C.

May 16, 2017

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By:

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/s/ Rebecca Grey
Rebecca Grey
Attorney for Plaintiff and Counterdefendant
DEVRA BOMMARITO

/s/ Sean P. Nalty
Sean P. Nalty
Attorneys for Defendant and Counterclaimant
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY

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For the reasons set forth in section D. above, and only for those reasons, pursuant to stipulation of the

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parties, IT IS SO ORDERED. The dates and deadlines are modified as follows:

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

Date for initial expert disclosures cut-off: December 15, 2017

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Date for rebuttal expert disclosures cut-off: January 19, 2018

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Date for discovery cut-off: February 16, 2018

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Date for last day to hear discovery motions: February 16, 2018

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Date for last day to file all motions, except for motions for continuances, temporary
restraining orders, or other emergency applications: March 23, 2018

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

Final Pretrial Conference: May 7, 2018 at 1:30 p.m.

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Trial date: July 17, 2018 at 9:00 a.m.

Dated: May 17, 2017

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-5JOINT STIPULATION AND REQUEST TO MODIFY THE MAY 27, 2016
PRETRIAL SCHEDULING ORDER

Case No. 2:15-cv-01187-WBS-DB(TEMP)