Greenberg v. Life Insurance Company of North America et al

Filing 35

STIPULATION AND ORDER to Vacate Summary Judgment Hearing re 33 Stipulation; ORDER REFERRING CASE to Magistrate Judge Richard Seeborg for Settlement. the parties shall contact Judge Seeborg's Chambers on or before 4/13/2009 to set up their conference. In light of this Order, the Court exempts the parties from participating in the Court's ADR program at this time. Signed by Judge James Ware on 4/2/2009. (ecg, COURT STAFF) (Filed on 4/3/2009)

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F DI UNITED STATES DISTRICT COURT S T R I C T O
NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION RICK M. GREENBERG, Plaintiff, v. LIFE INSURANCE COMPANY OF NORTH AMERICA and ARROW ELECTRONICS, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. CV08-03240 JW

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JOINT APPLICATION TO VACATE SUMMARY JUDGMENT HEARING DATE and [PROPOSED] ORDER THEREON ORDER REFERRING THE CASE FOR A Current Hearing Date: May 4, 2009 SETTLEMENT CONFERENCE WITH MAGISTRATE JUDGE SEEBORG Complaint Filed: July 3, 2008

Plaintiff, Rick M. Greenberg, pro se, and Defendants, Life Insurance Company of North America ("LINA") and Arrow Electronics ("Arrow"), through their counsel of record as identified above, hereby jointly request that the Court vacate the date currently set for the hearing on cross-motions for summary judgment in this matter, of May 4, 2009. As grounds therefore, the parties state: 1. The current date of May 4, 2009 for cross-motions for summary judgment was

set by the Court in its Order Vacating Hearing and Vacating Case Management Conference, issued November 25, 2008. In setting a hearing date for cross-motions for summary judgment, the Court properly understood from the parties' Joint Report of Rule 26 Conference that this
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Attorneys for Defendants LIFE INSURANCE COMPANY OF NORTH AMERICA AND ARROW ELECTRONICS

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ADRIENNE C. PUBLICOVER (SBN 161432) LAWRENCE J. ROSE (SBN 129511) WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 525 Market Street, 17th Floor San Francisco, California 94105 Tel: [phone] Fax: [phone]

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ERISA benefits dispute is to be resolved via cross-motions for summary judgment, or crossmotions under Rule 52, and thus conducting "a bench trial on the record." E.g., Caplan v. CNA Fin. Corp., 544 F.Supp.2d 984 (N.D. Cal. 2008), citing Kearney v. Standard Ins. Co., 175 F.3d 1084, 1094-95 (9th Cir. 1999)(en banc). 2. The parties are informed, and thereby submit, that when the Case Management

Conference date was vacated, this matter went off the calendar of the Court's Alternative Dispute Resolution Program, despite the fact that the parties had jointly requested a Settlement Conference before a United States Magistrate Judge and had filed the required Notice of Need for an ADR Telephone Conference on October 7, 2008. This matter has now been set for an ADR Telephone Conference on March 25, 2009, and the parties still desire a Settlement Conference before a Magistrate Judge. 3. In December, 2008, the Court granted the Defendants' Motion to Strike several

of the prayers for relief contained in Plaintiff's Complaint. In January, 2009, Defendants filed their joint Answer to the Complaint, and LINA filed a Counterclaim for reimbursement of certain sums previously paid to Plaintiff as benefits under the ERISA plan. 4. On March 6, 2009, approximately fifty (50) days later, Plaintiff filed a Motion

to Strike Portions of Defendant Life Insurance Company of North America's Counterclaim and Motion to Amend Plaintiff's Prayers for Relief. That motion is currently set for hearing on April 27, 2009. 5. Pursuant to the schedule established by the Court and the applicable Local

Rules, the parties' briefing of their cross-motions for summary judgment must be completed before the time that the Court hears argument on Plaintiff's pending motion, and before the parties can schedule and conduct a Settlement Conference. 6. The parties submit that proper briefing of the ultimate issues for judgment in the

case will necessarily depend upon the Court's ruling on the Plaintiff's motion to amend, and therefore would have to be rewritten by reply or surreply memoranda. Thus, the current schedule virtually guarantees duplication of efforts and inconvenience for the parties and for the Court. Moreover, the parties submit that the overall interest in judicial economy would be
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served by permitting them to participate in a Settlement Conference before undertaking the expense and effort of preparing summary judgment motions. 7. In order to allow for hearing on the Plaintiff's pending motion, full participation

in a Settlement Conference ­ preferably before a United States Magistrate Judge ­ and then careful preparation of cross-motions for judgment, the parties hereby jointly request that the date currently set for the hearing on the cross-motions be vacated, and that a new date convenient for the Court be set for a hearing after September 1, 2009. Dated: March 18, 2009 RICK M. GREENBERG By: s/Rick M. Greenberg per authorization of March 18, 2009 RICK M. GREENBERG, Plaintiff pro se Dated: March 18, 2009 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP By: /s/ Lawrence J. Rose ADRIENNE C. PUBLICOVER LAWRENCE J. ROSE Attorneys for Defendants LIFE INSURANCE COMPANY OF NORTH AMERICA AND ARROW ELECTRONICS ORDER ON JOINT APPLICATION Good cause appearing, IT IS HEREBY ORDERED THAT the hearing date previously set for cross-motions for summary judgment of May 4, 2009 is VACATED,. and the Court sets The Court will set a new date 9:00 a.m. as a hearing Plaintiff's Motion to Amend. _______________________, 2009 atin its Order addressing date for anticipated cross-motions for judgment. of the parties' strong desire to resolve the case short of trial and request for a In light Dated: March ____, 2009 settlement conference with a magistrate judge, the Court refers the parties to Magistrate Judge Hon. JAMES WARE Seeborg for a settlement conference. On or before April 13, 2009, the parties shall contact United States District Judge Judge Seeborg's Chambers to set up their conference. In light of this Order, the Court exempts the parties from participating in the Court's ADR program at this time.

Dated: April 2, 2009

________________________________ 3 JAMES WARE JUDGMENT HEARING DATE JOINT APPLICATION TO VACATE SUMMARY United States District Judge USDC NDCA Case #CV08-03240 JW
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