Wishnev v. The Northwestern Mutual Life Insurance Company

Filing 77

STIPULATION AND ORDER resetting CMC. Case Management Statement due by 9/20/2018. Further Case Management Conference set for 9/27/2018 10:30 AM in San Francisco, Courtroom 05, 17th Floor. Signed by Judge Edward M. Chen on 3/14/18. (bpf, COURT STAFF) (Filed on 3/14/2018)

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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 J.
STORTZ IN SUPPORT

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

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DRINKER BIDDLE &
REATH 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 oral argument took place on 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 in
those cases also took place on October 16, 2017;
WHEREAS, on January 18, 2018, the Ninth Circuit issued an Order asking the California

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Supreme Court to resolve two questions of California law presented in the pending appeals;

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WHEREAS, the California Supreme Court (Case No. S246541) has not yet decided

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whether to grant or deny the Ninth Circuit’s request;

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WHEREAS, if the California Supreme Court grants the Ninth Circuit’s request, the

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California Supreme Court may order further briefing and oral argument before issuing its decision

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on the two certified questions;

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WHEREAS, if the California Supreme Court denies the Ninth Circuit’s request, the Ninth
Circuit will issue its decision in the pending appeals;

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WHEREAS, while Northwestern Mutual’s appeal has been pending, this Court has twice

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issued Orders continuing the Case Management Conference (“CMC”) and continuing the stay of

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this action;

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WHEREAS, specifically, on March 10, 2017, this Court issued an Order (Dkt. No. 73)

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continuing the next CMC to September 28, 2017 and continuing the stay through that date “or

DRINKER BIDDLE &
REATH 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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pending further Order of the Court”;
WHEREAS, on September 19, 2017, this Court issued an Order (Dkt. No. 75) continuing
both the CMC and the stay to March 29, 2018 “or pending further Order of the Court”;
WHEREAS, the Parties through counsel have met and conferred and agree that given the

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

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proceedings before the California Supreme Court, (1) the existing stay in this action should

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continue for six more months, unless earlier terminated by the Court upon request of one or both

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of the parties; and (2) the March 29, 2018 CMC should be continued for six months, unless earlier

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scheduled by the Court;

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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:
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This action should remain stayed through September 27, 2018 or pending further

Order of the Court; and
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The Case Management Conference currently scheduled for March 29, 2018 should

be continued to September 27, 2018 at 10:30 a.m., or such other date as the Court deems proper.
3.

The parties shall file a Case Management Statement on or before September 20,

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2018 or as hereafter ordered by the Court.

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IT IS SO STIPULATED.

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Dated: March 9, 2018

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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DRINKER BIDDLE &
REATH 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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Dated: March 9, 2018

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

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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 the

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foregoing is true and correct. Executed this 9th day of March, 2018 in San Francisco, California.

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/s/ Michael J. Stortz
Michael J. Stortz

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[PROPOSED] ORDER

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Pursuant to Stipulation, IT IS SO ORDERED.
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S

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ERED

O ORD
IT IS S

R NIA

3/14/18

Date:

UNIT
ED

Hon. Edward M. Chen
UNITED STATES DISTRICT en
JUDGE
M. Ch
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Judge E

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DRINKER BIDDLE &
REATH 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

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 denying

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Northwestern Mutual’s motion to dismiss.

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3.

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

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appellate briefing has been complete since January 27, 2017. Oral argument took place on

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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. 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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5.

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The appellate briefing in Martin and Lujan is also complete, and oral argument in

those cases took place on October 16, 2017.
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On January 18, 2018, the Ninth Circuit issued an Order asking the California

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Supreme Court to resolve two questions of California law presented in the pending appeals. The

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California Supreme Court (Case No. S246541) has not yet decided whether to grant or deny the

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Ninth Circuit’s request.

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7.

On March 10, 2017, and again on September 19, 2017, this Court issued Orders

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that continued both the stay and the date for the CMC by six months. A CMC is currently

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scheduled for March 29, 2018.

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DRINKER BIDDLE &
REATH 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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8.

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

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continue the March 29, 2018 CMC to September 27, 2018, as Northwestern Mutual’s appeal,

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

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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 Court.

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10.

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 CMC to November 20, 2015; on November 20,

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2015, the Court again reset the CMC to January 21, 2016; on January 12, 2016, the Court again

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

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Motion to Continue the CMC to March 24, 2016; on May 31, 2016, the Court approved the

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Parties’ stipulated request to continue the CMC to June 30, 2016; on March 2, 2017, the Court

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rescheduled the March 30, 2017 CMC for March 28, 2017; on March 10, 2017, the Court

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continued the CMC to September 28, 2017; and on September 19, 2017, the Court continued the

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CMC to March 29, 2018.

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

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foregoing is true and correct. Executed this 9th day of March, 2018 at San Francisco, California.

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/s/ Michael J. Stortz
Michael J. Stortz

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DRINKER BIDDLE &
REATH 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