Hagerty v. American Airlines Long Term Disability Plan

Filing 54

STIPULATION AND ORDER. Signed by Magistrate Judge Bernard Zimmerman on 9/21/2010. (bzsec, COURT STAFF) (Filed on 9/21/2010)

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RUSSELL G. PETTI, State Bar No. 137160 2 THE LAW OFFICES OF RUSSELL G. PETTI 466 Foothill Blvd., # 389 3 La Canada, California 91011 818 952-2168Telephone [phone] Facsimile Email: [e-mail] 5 6 Attorneys for Plaintiff Brian Hagerty 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Plaintiff, Brian Hagerty ("Plaintiff"), and Defendant American Airlines Long 25 Term Disability Plan ("Defendant"), through their respective counsel of record, 26 hereby stipulate as follows: 27 1. This Court has set a Pretrial Conference for November 3, 2010 at 4:00 p.m. 28 Further, in its Order of February 2, 2010, the Court has tasked the parties with a number 1
STIPULATION AND ORDER RE PRETRIAL REQUIREMENTS; Case No. CV 09-3299 BZ

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ) ) ) ) Plaintiff, ) ) ) ) VS. ) ) ) AMERICAN AIRLINES LONG TERM ) ) DISABILITY PLAN, ) ) Defendant. ) ) ) ) ) _________________________________) BRIAN HAGERTY, CASE NO: CV 09-3299 BZ STIPULATION AND [PROPOSED] ORDER THAT (1) THE PARTIES BE E X C U S E D FROM PRETRIAL REQUIREMENTS; (2) THE P R E T R I A L CONFERENCE BE TAKEN OFF CALENDAR; AND (3) A BRIEFING SCHEDULE BE SET Trial Date: Date: Time: Place: Date: Time: Place: November 3, 2010 9:00 a.m. Courtroom G October 26, 2010 4:00 a.m. Courtroom G

Pretrial Conference:

1 of duties to be preformed prior to the Pretrial Conference, such as filing a pretrial 2 statement and exchanging and submitting exhibits; 3 2. The parties bring this stipulation to respectfully ask the Court to excuse them 4 from these pretrial requirements. Instead, for the reasons shown below, the parties 5 request the Court to set a briefing schedule, and to conduct the trial as it would a Motion 6 for Summary Judgment; 7 3. This case results from the denial of long term disability benefits to Plaintiff 8 under an employee benefit plan administered and funded by Defendants and therefore, 9 is governed by the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. 10 Section 1001, et seq.; 11 4. In the case of Kearney v. Standard Ins. Co., 175 F. 3d 1084 (9th Cir. 1999) 12 (en banc), the Ninth Circuit determined that a District Court's review of a fiduciary's 13 benefits decision under ERISA should - with some exceptions - be conducted solely on 14 the administrative record which was before the fiduciary at the time it made its decision. 15 As the Kearly Court held: 16 17 18 19 20 21 22 23 24 25 26 27 28 Although Rule 43(a) requires that "testimony" be taken in open court, the record should be regarded as being in the nature of exhibits, in the nature of documents, which are routinely a basis for findings of fact even though no one reads them out loud. We have affirmed bench trials on records in other cases. See Adair v. Sunwest Bank (In re Adair), 965 F.2d 777, 779 (9th Cir.1992). A majority of us conclude that, in its discretion guided by Mongeluzo [Mongeluzo v. Baxter Travenol Disability Benefit Plan, 46 F.3d 938, 942 (9th Cir.1995)], the district court may try the case on the record that the administrator had before it. This is vastly less expensive to all parties, accomplishes the policies enacted as part of the statute, and also gives significance, which would otherwise largely evaporate, to the administrator's internal review procedure required by the statute. Kearney, 175 F.3d at 1094 -1095 (footnote omitted); 5. 6. /// 2
STIPULATION AND ORDER RE PRETRIAL REQUIREMENTS; Case No. CV 09-3299 BZ

This administrative record has already been filed. The parties do not intend The parties further agree that, given the applicable law, this matter will be

to introduce any other evidence, or to present any witnesses at the trial of this matter; tried to the Court;

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7. a. b. c. 8.

As such, the parties contemplate that the trial of this matter will consist of The filing of a Memoranda of Fact and Law by each party; The filing of an Trial Brief (Opposition) by each party; and A one hour hearing before the Court for oral argument. Given the above, the parties respectfully submit that they should be allowed

2 the following:

7 to dispense with a pre-trial conference, jury instructions, an exhibit list and a witness list, 8 because no jury or witnesses are contemplated, and the only exhibit at trial will be the 9 previously filed Administrative Record; 10 9. Moreover, the parties request that the Pretrial Conference be taken off 11 calendar, that they be excused from performing the pretrial requirements in this Court's 12 February 2, 2010 Order, and that instead the Court set the following briefing schedule: 13 14 15 16 17 19 20 21 DATED: September 21, 2010 22 23 Law Offices of Russell G. Petti 24 25 /S/ 26 BY____________________________ RUSSELL G. PETTI 27 ATTORNEY FOR PLAINTIFF BRIAN HAGERTY 28 3
STIPULATION AND ORDER RE PRETRIAL REQUIREMENTS; Case No. CV 09-3299 BZ

a. b. 10.

The opening Memoranda of Fact and Law will be filed by each party no later than October 6, 2010; and Each party may file a Trial Brief opposing the other party's Memorandum no later than October 20, 2010; The trial of this matter is expected to take up no more than 1-2 hours of this It is So Stipulated DATED: September 21, 2010 Littler Mendelson A Professional Corporation /S/ BY____________________________ KENNETH R. O'BRIEN ATTORNEY FOR DEFENDANT AMERICAN AIRLINES LONG TERM DISABILITY PLAN

18 Court's time.

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21 DATED: September __, 2010

ORDER BASED ON THE STIPULATION OF THE PARTIES and for Good Cause 1. 2. 3. 4. That the Pretrial Conference previously set for October 26, 2010 be taken That the parties be excused from the pretrial requirements of this Court's That the parties will file opening Memoranda of Fact and Law no later Each party may file a Trial Brief opposing the other party's

3 shown, the following is hereby ORDERED: 5 off calendar; 7 February 2, 2010 Order; 9 than October 6, 2010; and 11 Memorandum no later than October 20, 2010.

IT IS SO ORDERED

_______________________________ The Honorable Bernard Zimmerman United States Magistrate Judge

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STIPULATION AND ORDER RE PRETRIAL REQUIREMENTS; Case No. CV 09-3299 BZ