Wishnev v. The Northwestern Mutual Life Insurance Company

Filing 75

STIPULATION AND ORDER continuing stay and resetting CMC. Case Management Statement due by 3/22/2018. Further Case Management Conference set for 3/29/2018 10:30 AM in Courtroom 5, 17th Floor, San Francisco. Signed by Judge Edward M. Chen on 9/19/17. (bpfS, COURT STAFF) (Filed on 9/19/2017)

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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]
Facsimile:
[phone]
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
ATTO RNEY S AT LAW
SAN FRA NCI S CO

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 oral argument is set for October 16, 2017;
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 oral argument
is also set for October 16, 2017 in those cases;
WHEREAS, on March 10, 2017, this Court issued an Order (Dkt. No. 73) (1) continuing

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the next Case Management Conference from March 28, 2017 to September 28, 2017 at 10:30

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a.m.; and (2) staying the action through the date of the Conference, September 28, 2017, “or

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pending further Order of the Court”;

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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, unless earlier terminated by the Court upon request of one or both of the

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parties; and (2) the September 28, 2017 CMC should be continued for six months, unless earlier

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scheduled by the Court;

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D RINKER B IDDLE &
R EATH LLP
ATTO RNEY S AT LAW
SAN FRA NCI S CO

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
their respective counsel as follows:
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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1.

This action should remain stayed through March 29, 2018 or pending further

Order of the Court; and

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2.

The Case Management Conference currently scheduled for September 28, 2017

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should be continued to March 29, 2018 at 10:30 a.m., or such other date as the Court deems

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proper.

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3.

The parties shall file a Case Management Statement on or before March 22, 2018

or as hereafter ordered by the Court.
IT IS SO STIPULATED.
Dated: September 14, 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: September 14, 2017

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

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obtained concurrence in the filing of this document from the other signatory to this document.

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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 14th day of September, 2017 in Charleston,

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South Carolina.

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/s/ Michael J. Stortz
Michael J. Stortz

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D RINKER B IDDLE &
R EATH LLP
ATTO RNEY S AT LAW
SAN FRA NCI S CO

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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Further CMC is reset for

Pursuant to Stipulation, IT IS SO ORDERED.
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by 3/22/18.
9/19/17

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Hon. Edward M. Chen DERED
UNITEDIT IS SO DISTRICT JUDGE
STATES OR
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UNIT
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Date:

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An updated joint CMC Statement shall be filed

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3/29/18 at 10:30 a.m.

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N

D IS T IC T
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OF

C

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D RINKER B IDDLE &
R EATH LLP
ATTO RNEY S AT LAW
SAN FRA NCI S CO

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.

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2.

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.

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3.

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. Oral argument is scheduled

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for October 16, 2017.

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4.

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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5.

The appellate briefing in Martin and Lujan is also complete, and the parties in

those appeals are also scheduled to appear for oral argument on October 16, 2017.
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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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On March 10, 2017, this Court granted the parties’ Stipulation and continued

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the stay through September 28, 2017 “or pending further Order of the Court.” This Court also

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continued the next Case Management Conference from March 28, 2017 to September 28, 2017

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at 10:30 a.m.

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D RINKER B IDDLE &
R EATH LLP
ATTO RNEY S AT LAW
SAN FRA NCI S CO

8.

There is good cause to continue the stay for an additional six months, and to

continue the September 28, 2017 Case Management Conference to March 29, 2018, as
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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Northwestern Mutual’s appeal, Martin, and Lujan each present the same threshold questions of

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law, the resolution of which may obviate the need for any further proceedings in this Court.

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

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

Court.

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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; on March 2, 2017, the Court rescheduled the March 30, 2017

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Case Management Conference for March 28, 2017; and on March 10, 2017, the Court

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continued the Case Management Conference to September 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 14th day of September, 2017 at Charleston,

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South Carolina.

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/s/ Michael J. Stortz
Michael J. Stortz

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D RINKER B IDDLE &
R EATH LLP
ATTO RNEY S AT LAW
SAN FRA NCI S CO

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

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