Zuckerman v. United of Omaha Life Insurance Company et al

Filing 85

WRITTEN Opinion entered by the Honorable Robert M. Dow, Jr on 1/27/2012: Status hearing held on 1/26/2012. Cross motions for summary judgment on the timeliness issue due February 17, 2012; combined responses/replies to cross motions for summary judgm ent due March 9, 2012. Defendant APP Benefit Plan to submit to Plaintiff on or before March 16, 2012 supplemental joint statement regarding standard of review and discovery; Plaintiff to submit to APP Benefit Plan her supplemental filing of joint sta tement regarding standard of review and discovery on or before March 23, 2012; APP Benefit Plan to file combined supplemental joint statement on or before March 23, 2012. In addition, for the reasons stated on the record and summarized below, APP Benefit Plans motion to remand 62 and Plaintiffs motion to strike affirmative defense 73 are denied and Plaintiffs motion for reconsideration 58 is denied without prejudice.Please see below for further discussion. Mailed notice(tbk, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Robert M. Dow, Jr.

CASE NUMBER

09 C 4819

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

1/27/2012

Zuckerman vs. American Pharmaceuticals Partners, Inc. Employee Benefit Plan

DOCKET ENTRY TEXT

Status hearing held on 1/26/2012. Cross motions for summary judgment on the timeliness issue due February
17, 2012; combined responses/replies to cross motions for summary judgment due March 9, 2012. Defendant
APP Benefit Plan to submit to Plaintiff on or before March 16, 2012 supplemental joint statement regarding
standard of review and discovery; Plaintiff to submit to APP Benefit Plan her supplemental filing of joint
statement regarding standard of review and discovery on or before March 23, 2012; APP Benefit Plan to file
combined supplemental joint statement on or before March 23, 2012. In addition, for the reasons stated on the
record and summarized below, APP Benefit Plan’s motion to remand [62] and Plaintiff’s motion to strike
affirmative defense [73] are denied and Plaintiff’s motion for reconsideration [58] is denied without prejudice.
Please see below for further discussion.
O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
At the status hearing held on 1/26/2012 the Court engaged in an extended discussion with counsel on the record
in open court about the most efficient way to move the case forward to disposition. Consistent with that
discussion and the Court’s direction to the parties, the parties have submitted the following schedule, which the
Court adopts:
Cross Motions for Summary Judgment on the timeliness issue due February 17, 2012; Combined
Responses/Replies to Cross Motions for Summary Judgment due March 9, 2012. Defendant APP
Benefit Plan to submit to Plaintiff on or before March 16, 2012 Supplemental Joint Statement
Regarding Standard of Review and Discovery; Plaintiff to submit to APP Benefit Plan her
supplemental filing of Joint Statement Regarding Standard of Review and Discovery on or before
March 23, 2012; APP Benefit Plan to file combined Supplemental Joint Statement on or before
March 23, 2012.
With the completion of the briefing set forth above, the Court will be in position to issue rulings on the
timeliness, standard of review, and discovery issues that the parties have presented for decision.
In addition, and also consistent with the discussion on the record in open court, Defendant American
Pharmaceuticals Partners Inc. Employee Benefit Plan’s motion to remand [62] and Plaintiff’s motion to strike
Defendants’ second affirmative defense [73] are denied. In the Court’s view, the timeliness issue referenced in
both motions may be subject to a more expeditious and definitive resolution on summary judgment than in a
motion for judgment on the pleadings or a remand. However, the parties are reminded that the Court previously
addressed the law pertaining to the timeliness issue in its ruling on Defendant’s motion to dismiss and counsel
09C4819 Zuckerman vs. American Pharmaceuticals Partners, Inc. Employee Benefit Plan

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STATEMENT
would be well-advised to take into account the Court’s prior ruling in deciding whether a good faith basis exists
to pursue a timeliness defense in light of the facts discovered to date.
Moreover, as stated on the record, the Court does not believe that a remand would be appropriate in the present
circumstances. Finally, Plaintiff’s motion for reconsideration [58] is denied without prejudice at this time. As
Plaintiff has recognized, that claim that she has asked the Court to reinstate in the motion for reconsideration is
highly contingent at this time – it “will only become viable if her claim against the Plan is defeated on grounds
of timeliness.” If it appears that the continent event may come to pass, the Court will then invest the judicial
resources to sort out the legal issue of whether Cigna Corp v. Amara, 131 S. Ct. 1866 (2011), “entirely changes
the landscape” with respect to breach of fiduciary duty claims in the ERISA context and authorizes an action
against APP, as Plaintiff contends in support of her motion.

09C4819 Zuckerman vs. American Pharmaceuticals Partners, Inc. Employee Benefit Plan

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