McCreary v. Aetna Life Insurance Company

Filing 26

ORDER granting 21 plaintiff's Motion for clarification as follows: Both parties are granted 60 days to conduct discovery concerning (1) whether McCreary can meet the injury-in-fact element of constitutional standing and (2) whether McCreary i s a "participant, beneficiary, or fiduciary" under 29 U.S.C. Sec. 1132(a)(3). Any further disputes concerning the limited discovery authorized by the court will be referred to U.S. Magistrate Judge Robert A. McQuaid, Jr. Signed by Judge Larry R. Hicks on 10/26/09. (Copies have been distributed pursuant to the NEF - SL)

1 2 3 4 5 6 7 8 9 10 Plaintiffs, 11 v. 12 AETNA LIFE INSURANCE COMPANY, 13 Defendant. 14 15 Before the court is Plaintiff Terence McCreary's Motion for Clarification of July 2, 2009, 16 Order (#211). Defendant Aetna Life Insurance Company ("Aetna") has filed an opposition (#24) to 17 which Plaintiff replied (#25). 18 On July 2, 2009, this court entered an order (#20) granting Plaintiff's Motion to Stay Ruling 19 Upon Defendant's Motion to Dismiss Pending Discovery to Respond (#12). In the order, the court 20 granted the parties "60 days to conduct discovery concerning (1) whether McCreary can meet the 21 injury-in-fact element of constitutional standing and (2) whether McCreary is a `participant, 22 beneficiary, or fiduciary' under 29 U.S.C. § 1132(a)(3)." (Order (#20) at 4.) The parties now 23 dispute whether the order authorizes both parties to conduct discovery or only permits Plaintiff to 24 conduct discovery. 25 26
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UNITED STATES DISTRICT COURT DISTRICT OF NEVADA *** ) ) ) ) ) ) ) ) ) ) ) ) )

TERENCE L. McCREARY, on Behalf of Himself and All Others Similarly Situated,

3:08-CV-00654-LRH-RAM ORDER

Refers to the court's docket entry number

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In its order, the court indicated that, in addressing the motion to dismiss, it would employ the standard applicable to a motion for summary judgment and consider whether jurisdictional facts were in dispute. Because there are potential disputed issues of fact, it is appropriate for both Plaintiff and Defendant to conduct the limited discovery authorized by the court's previous order. IT IS THEREFORE ORDERED that Plaintiff's Motion for Clarification is GRANTED as follows: Both parties are granted 60 days to conduct discovery concerning (1) whether McCreary can meet the injury-in-fact element of constitutional standing and (2) whether McCreary is a "participant, beneficiary, or fiduciary" under 29 U.S.C. § 1132(a)(3). Any further disputes concerning the limited discovery authorized by the court will be referred to U.S. Magistrate Judge Robert A. McQuaid. IT IS SO ORDERED. DATED this 26th day of October, 2009.

__________________________________ LARRY R. HICKS UNITED STATES DISTRICT JUDGE

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