Wishnev v. The Northwestern Mutual Life Insurance Company

Filing 73

STIPULATION AND ORDER re 72 to Continue Stay and Case Management Conference; Declaration of Michael J. Stortz filed by The Northwestern Mutual Life Insurance Company, Case Management Statement due by 9/21/2017. Further Case Management Conference set for 9/28/2017 10:30 AM in Courtroom 5, 17th Floor, San Francisco. Signed by Judge Edward M. Chen on 3/10/17. (bpfS, COURT STAFF) (Filed on 3/10/2017)

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MICHAEL J. STORTZ (SBN 139386)
[e-mail]
MARSHALL L. BAKER (SBN 300987)
[e-mail]
DRINKER BIDDLE & REATH LLP
50 Fremont Street, 20th Floor
San Francisco, CA 94105-2235
Telephone:
[phone]
Facsimile:
[phone]
STEPHEN C. BAKER (pro hac vice)
[e-mail]
TIMOTHY J. O’DRISCOLL (pro hac vice)
[e-mail]
DRINKER BIDDLE & REATH LLP
One Logan Square, Ste. 2000
Philadelphia, PA 19103-6996
Telephone:
[phone]
[phone]
Facsimile:
Attorneys for Defendant
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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SANFORD J. WISHNEV, individually and
on behalf of all others similarly situated,

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Plaintiff,
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v.

Case No. 3:15-CV-03797-EMC
STIPULATION AND [PROPOSED]
ORDER TO CONTINUE STAY AND CASE
MANAGEMENT CONFERENCE;
DECLARATION OF MICHAEL STORTZ

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THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY, a Wisconsin
corporation, and DOES 1-10, inclusive,

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Defendants.
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D RINKER B IDDLE &
R EATH LLP
ATTORNEYS AT LAW
SAN FRANCISCO

STIPULATION AND [PROPOSED] ORDER TO
CONTINUE STAY AND CMC; STORTZ DECL.

CASE NO. 3:15-CV-03797-EMC

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WHEREAS, on June 9, 2016, the Ninth Circuit Court of Appeals granted Defendant The

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Northwestern Mutual Life Insurance Company’s (“Northwestern Mutual”) petition to appeal this

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Court’s Order denying Northwestern Mutual’s motion to dismiss;

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WHEREAS, this action has been stayed since June 30, 2016, when this Court issued an

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order (Dkt. No. 69) staying the action “pending completion of the appellate review or further

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order”;

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WHEREAS, appellate briefing in Northwestern Mutual’s appeal has been complete since
January 27, 2017, and the parties are currently awaiting a date to be set for oral argument;
WHEREAS, in addition to Northwestern Mutual’s appeal, there are two other appeals

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presenting the same issues pending in the Ninth Circuit: Martin v. Metro. Life Ins. Co., No. 16-

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15690 (9th Cir. Apr. 15, 2016) and Lujan v. New York Life Ins. Co., No. 16-16401 (9th Cir. Aug.

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9, 2016);

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WHEREAS, appellate briefing in Martin and Lujan is also complete, and the parties in
those appeals are awaiting a date to be set for oral argument;
WHEREAS, on June 30, 2016, in addition to staying this action, the Court set a further
Case Management Conference (“CMC”) for March 30, 2017 (Dkt. No. 69);
WHEREAS, by minute order dated March 2, 2017 (Dkt. No. 71), the Court rescheduled
the March 30, 2017 CMC to occur two days earlier, on March 28, 2017;

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WHEREAS, the Parties through counsel have met and conferred and agree that given the

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status of Northwestern Mutual’s appeal, as well as the Martin and Lujan appeals, all of which are

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fully-briefed and awaiting oral argument, (1) the existing stay in this action should continue for

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six more months; and (2) the March 28, 2017 CMC should likewise be continued for six months;

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WHEREAS, Plaintiff’s agreement to the above six month continuance is with full

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reservation of his right to urge (should he deem it appropriate) that the existing stay be lifted at

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the continued CMC, whether because of changed circumstances or otherwise; and

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D RINKER B IDDLE &
R EATH LLP
ATTORNEYS AT LAW
SAN FRANCISCO

WHEREAS, the requested continuance will not impact any other deadlines already set by
the Court.
THEREFORE, IT IS HEREBY STIPULATED AND AGREED by the parties through
STIPULATION AND [PROPOSED] ORDER TO
CONTINUE STAY AND CMC; STORTZ DECL.

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CASE NO. 3:15-CV-03797-EMC

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their respective counsel as follows:

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1.

This action should remain stayed until the date on which the Court holds the next

Case Management Conference or pending further Order of the Court; and

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2.

The Case Management Conference currently scheduled for March 28, 2017

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should be continued to September 28, 2017 at 10:30 a.m., or the next date that is available for the

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Court.

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IT IS SO STIPULATED.
Dated: March 8, 2017

DRINKER BIDDLE & REATH LLP

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By: /s/ Michael J. Stortz
Michael J. Stortz
Marshall L. Baker

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Attorneys for Defendant
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY

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Dated: March 8, 2017

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BRAMSON, PLUTZIK, MAHLER &
BIRKHAEUSER, LLP

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By: /s/ Robert M. Bramson
Robert M. Bramson

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Attorneys for Plaintiff
SANFORD J. WISHNEV

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Attestation Pursuant to Civil Local Rule 5-1(i)

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Pursuant to Civil Local Rule 5-1(i), I, Michael J. Stortz, hereby attest that I have
obtained concurrence in the filing of this document from the other signatory to this document.
I declare under penalty of perjury under the laws of the United States of America that
the foregoing is true and correct. Executed this 8th day of March, 2017 in San Francisco,
California.
/s/ Michael J. Stortz
Michael J. Stortz

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D RINKER B IDDLE &
R EATH LLP
ATTORNEYS AT LAW
SAN FRANCISCO

STIPULATION AND [PROPOSED] ORDER TO
CONTINUE STAY AND CMC; STORTZ DECL.

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CASE NO. 3:15-CV-03797-EMC

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[PROPOSED] ORDER

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Pursuant to Stipulation, IT IS SO ORDERED. The Case Management
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Conference presently scheduled for March 28, 2017 is hereby continued and shall be
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Sept.28
held on _________, 2017 at 10:30 a.m.

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Date:

March 10, 2017

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DERED
SO OR ED
IT IS
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Hon. EdwardAS ChenDI
M. MO

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UNIT
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S DISTRICT
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UNITED STATES DISTRICT JUDGE
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Judg

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D RINKER B IDDLE &
R EATH LLP
ATTORNEYS AT LAW
SAN FRANCISCO

STIPULATION AND [PROPOSED] ORDER TO
CONTINUE STAY AND CMC; STORTZ DECL.

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CASE NO. 3:15-CV-03797-EMC

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DECLARATION OF MICHAEL J. STORTZ

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I, Michael J. Stortz, declare as follows:

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1.

I am an active member in good standing of the Bar of the State of California,

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admitted to practice before this Court, and a partner with the firm of Drinker Biddle & Reath

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LLP, attorneys of record for Defendant The Northwestern Mutual Life Insurance Company

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(“Northwestern Mutual”) in the above-entitled action. I make this Declaration in support of the

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parties’ Stipulation to Continue Stay and Case Management Conference. If called, I could and

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would testify to the matters set forth herein.
2.

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This action has been stayed since June 30, 2016. Since that time, Northwestern

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Mutual has pursued an appeal in the Ninth Circuit as to this Court’s interlocutory Order

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denying Northwestern Mutual’s motion to dismiss.
3.

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In Northwestern Mutual’s appeal, the parties have filed their respective briefs,

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and appellate briefing has been complete since January 27, 2017. The parties are currently

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awaiting a date to be set for oral argument.
4.

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In addition to Northwestern Mutual’s appeal, there are two other appeals

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presenting the same issues pending in the Ninth Circuit: Martin v. Metro. Life Ins. Co., No.

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16-15690 (9th Cir. Apr. 15, 2016) and Lujan v. New York Life Ins. Co., No. 16-16401 (9th Cir.

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Aug. 9, 2016).
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those appeals are awaiting a date to be set for oral argument.
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The appellate briefing in Martin and Lujan is also complete, and the parties in

On March 2, 2017, the parties in the present action met and conferred though

counsel and agreed to a continuance of the existing stay for six more months.
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There is good cause to continue the stay, and to continue the March 28, 2017

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Case Management Conference to September 28, 2017, as Northwestern Mutual’s appeal,

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Martin, and Lujan each present the same threshold questions of law, the resolution of which

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may obviate the need for any further proceedings in this Court.
8.

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D RINKER B IDDLE &
R EATH LLP
ATTORNEYS AT LAW
SAN FRANCISCO

The requested continuance will not impact any deadlines already set by the

Court.
STIPULATION AND [PROPOSED] ORDER TO
CONTINUE STAY AND CMC; STORTZ DECL.

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CASE NO. 3:15-CV-03797-EMC

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9.

To date, the other time modifications in this case are as follows: on August 31,

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2015, the Court approved the Parties’ Stipulation As to Filing of the Amended Complaint; on

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November 5, 2015, the Court reset the hearing on Northwestern Mutual’s Motion to Dismiss

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Plaintiff’s First Amended Complaint and reset the Case Management Conference to November

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20, 2015; on November 20, 2015, the Court again reset the Case Management Conference to

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January 21, 2016; on January 12, 2016, the Court again reset the Case Management

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Conference to March 3, 2016; on February 23, 2016, the Court granted Northwestern Mutual’s

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Motion to Continue the Case Management Conference to March 24, 2016; on May 31, 2016,

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the Court approved the Parties’ stipulated request to continue the Case Management

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Conference to June 30, 2016; and on March 2, 2017, the Court rescheduled the March 30, 2017

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Case Management Conference for March 28, 2017.

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I declare under penalty of perjury under the laws of the United States of America that

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the foregoing is true and correct. Executed this 8th day of March, 2017 at San Francisco,

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California.

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/s/ Michael J. Stortz
Michael J. Stortz

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D RINKER B IDDLE &
R EATH LLP
ATTORNEYS AT LAW
SAN FRANCISCO

STIPULATION AND [PROPOSED] ORDER TO
CONTINUE STAY AND CMC; STORTZ DECL.

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CASE NO. 3:15-CV-03797-EMC