Free Motion for Leave to File - District Court of Connecticut - Connecticut

Case 3:03-cv-00383-WIG

Document 272

Filed 12/12/2005

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT WASLEY PRODUCTS, INC., ET AL., Plaintiffs, V. BARRY BULAKITES, ET AL., Defendants. THIS PERTAINS TO: CIVIL NO. 3:03 CV 1790 (MRK) (Prentiss et at. v. Wasley Products, Inc. et al.) DECEMBER 12, 2005 MASTER CONSOLIDATED CASE CIVIL NO. 3:03 CV 383 (MRK)

NATIONWIDE'S MOTION FOR PERMISSION TO FILE SUR-REPLY IN OPPOSITION TO PLAN PARTICIPANTS' MOTION FOR PERMISSION TO JOIN ADDITIONAL PARTIES, TO AMEND COMPLAINT, AND FOR CERTIFICATION OF DERIVATIVE ACTION UNDER RULE 23.1 Nationwide Life Insurance Company of America f/k/a Provident Mutual Life Insurance Company ("Nationwide") hereby respectfully moves for permission pursuant to Local Rule 7.1(d) to file a Sur-Reply In Opposition to the Plan Participants' Motion for Permission to Join Additional Parties, To Amend Complaint, and For Certification of Derivative Action Under Rule 23.1 (the "Reply"). In support hereof, Nationwide states the following: 1. On October 16, 2003, the Plan Participants brought a Complaint (the "Original

Complaint") against Wasley Products, Inc. ("Wasley"), Alan Wasley, Andrew Brady, Sandi Dumas-LaFerriere, Barry Connell (collectively with Wasley, the "Trustees"), Barry Bulakites, James Winslow, and Joshua Adams Corporation (collectively, the "Individual Defendants"). In the Original Complaint, the Plan Participants, all employees of Wasley and participants in the Wasley 401(k) Profit Sharing Plan (the "Wasley 401(k) Plan") allege that the Trustees and the Individual Defendants breached fiduciary duties owed to them and the Wasley 401(k) Plan under the Employee Retirement Income Security Act of 1974 ("ERISA").

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2.

On September 16, 2005, the Plan Participants filed a Motion for Permission to

Join Additional Parties, To Amend Complaint, and For Certification of Derivative Action Under Rule 23.1 (the "Motion to Amend"). The Plan Participants appended their proposed Amended Complaint to the Motion to Amend (the "Amended Complaint"). 3. Nationwide filed an Opposition to the Motion to Amend on September 30, 2005

(the "Opposition"). Specifically, Nationwide opposed the Motion to Amend because the Plan Participants sought to amend the Original Complaint to: (a) join Nationwide as a defendant; (b) add John Wiblyi as a plaintiff; and (c) supplement the Plan Participants' Complaint to add claims concerning the Wasley Products, Inc. Defined Benefit Plan ("DBP"). Nationwide's basis for opposing the Amended Complaint was that the proposed amendments were futile because they were barred by ERISA's six year statute of limitations and because Mr. Wiblyi did not have standing. 4. Critically, in the Reply, the Plan Participants assert for the first time that their

ERISA claims fall under the "fraud or concealment" statute of limitations found in 29 U.S.C.§ 1113 ("ERISA §413") and that the statute of limitations did not begin to run on their breach of fiduciary duty claims against Nationwide until the date when the Plan Participants discovered the alleged breaches. 5. Because this is the first time the "fraud or concealment" statute of limitations has

been raised by the Plan Participants, Nationwide did not address this issue in its Opposition. 6. Nationwide now requests permission to file a Sur-Reply to address the new legal

issues raised by the Reply. 7. A copy of the Sur-Reply is attached hereto as Exhibit A.

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WHEREFORE, for all of the foregoing reasons, Nationwide respectfully requests this Court grant it permission to file a Sur-Reply to address the new issues raised by the Plan Participants' Reply.

DEFENDANT, NATIONWIDE LIFE INSURANCE COMPANY OF AMERICA By: /s/ Sara R. Simeonidis Deborah S. Freeman [ct05257] Sara R. Simeonidis [ct25566] BINGHAM MCCUTCHEN LLP One State Street Hartford, CT 06103 (860) 240-2700 (860) 240-2800 (fax) [email protected] [email protected] Its Attorneys

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CERTIFICATION This is to certify that a copy of the foregoing Motion for Permission to File Sur-Reply in Opposition to Plan Participants' Motion to Amend has been filed electronically and served this 12th day of December, 2005 via first class mail, postage prepaid, or electronic mail to all counsel and pro se parties of record in these consolidated actions as follows: Theodore J. Tucci, Esq. Jean E. Tomasco, Esq. Robinson & Cole LLP 280 Trumbull Street Hartford, CT 06103-3597 Thomas G. Moukawsher, Esq. Ian O. Smith, Esq. Moukawsher & Walsh 21 Oak Street, Suite 209 Hartford, CT 06106 Joseph V. Meaney, Jr. Cranmore, Fitzgerald & Meaney 49 Wethersfield Avenue Hartford, CT 06114-1102 Steven J. Errante, Esq. Eric P. Smith, Esq. Nancy Fitzpatrick Myers, Esq. Marisa A. Bellair, Esq. Lynch, Traub, Keefe & Errante, P.C. 52 Trumbull Street P.O. Box 1612 New Haven, CT 06506-1612 James J. Reardon, Jr., Esq. Thomas G. Rhoback, Esq. Doug Dubitsky, Esq. LeBouef, Lamb, Greene & MacRae 225 Asylum Street Hartford, CT 06103

/s/ Sara R. Simeonidis Sara R. Simeonidis -4CTDOCS/1647318.1