Free Memorandum and Order - District Court of Delaware - Delaware

Case 1:04-cv-01470-JJF Document 33 Filed 11/21/2006 Page 1 013
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
SHARON MARMON—KACZOROWSKI, :
Plaintiff, ;
v. E Civil Action No. 04—1470—JJF
CONTINENTAL CASUALTY COMPANY, E
Defendant. E
MEMORANDUM ORDER
On March 22, 2006, the Court entered a Memorandum Opinion
denying Defendant's Motion For Summary Judgment on the grounds
that genuine issues of material fact existed precluding
resolution of this case on summary judgment. (D.I. 29}.
Thereafter, the parties submitted a joint, proposed Scheduling
Order in which Plaintiff requested discovery and Defendant
contended that discovery was unnecessary in this case. (D.I.
32).
In light of the discovery dispute raised in the proposed
Scheduling Order, and the Court’s reconsideration of Plaintiff’s
.Opposition to Defendant's Motion For Summary Judgment
(“Opposition”) in view of that dispute, the Court finds that the
“genuine issues of material fact" asserted by Plaintiff in her
Opposition and previously recognized by the Court in its
Memorandum Opinion do not require discovery. Because the Court
has concluded, after reviewing the proposed Scheduling Order,
that discovery is not required in this case, the Court further
concludes that the legal and standard of review issues that the

Case 1:04-cv-01470-JJF Document 33 Filed 11/21/2006 Page 2 of 3
Court must now address are suitable for resolution in the context g
of cross-motions for summary judgment. 2
Because the Court's decision concerning Defendant’s initial
Motion For Summary Judgment is not consistent with the present l
circumstances and issues of this case, the Court will permit the
parties to file supplemental briefs based on the following
conclusions by the Court. Specifically, the Court has previously
concluded, and this conclusion is unchanged by the current
circumstances, that a conflict of interest exists in this case
which implicates the Qigpg sliding scale approach to the
application of the arbitrary and capricious standard of review,
and therefore, a heightened application of the arbitrary and
capricious standard of review is required. (D.I. 29 at 4-5).
The Court further concludes that this standard is being applied
to the administrative record, and there are no genuine issues of
material fact concerning that record. Stated another way, the
procedural posture of this case is that Plaintiff and Defendant
are both moving for summary judgment on the administrative record
because all remaining issues in this case are legal in nature and
once decided will be case dispositive.
NOW THEREFORE, IT IS HEREBY ORDERED that, unless otherwise
agreed to by the parties in the form of a stipulated briefing
schedule submitted to the Court within ten (10) days of the date
of this Order,
2

Case 1:04-cv-01470-JJF Document 33 Filed 11/21/2006 Page 3 013
1. Plaintiff shall serve and file a Motion For Summary
Judgment and Opening Brief within forty—five (45) days of the
date of this Order.
Q
2. Defendant shall serve and file a Cross—Motion For
Summary Judgment and a Combined Opening And Answering Brief
within thirty (30) days of service of Plaintiff’s Brief. `
( 3. Plaintiff may serve and file a combined Reply and
Answering Brief within fifteen (15) days of service of
Defendants' Brief. U
November QJ, 2006 xv.-e_· A A
DATE TED DISTRICT ss
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