Free Reply to Response to Motion - District Court of Connecticut - Connecticut

Case 3:03-cv-00194-CFD Document 39 Filed 05/12/2005 Page 1 of 4
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
)
THOMAS E. TYNDALL, ) ·
)
Plaintiff, V )
)
v. )
)
NEW ENGLAND TEAMSTERS & TRUCKING )
INDUSTRY PENSION FUND, ) Case No. 3 :03cvl94(CFD)
DAVID W. LAUGHTON, PAUL V. WALSH, )
ANTHONY S. BUONPAN E, GEORGE W. )
CASHMAN, J. LEO BARRY, JOHN J. )
MCCARTHY, JR., WILLIAM M. VAUGHN III, )
and J. DAWSON CUNNINGHAM, )
)
Defendants. )

DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF
THEIR MOTION FOR LEAVE TO FILE A
SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT
On February 1 1, 2005, Defendants New England Teamsters and Trucking
Industry Pension Fund, et al, filed a Motion for Leave to File a Supplemental Motion for
Summary Judgment conceming the issue of whether Plaintiff Thomas Tyndall is owed
interest on the lump sum payment of benefits he received in October 2001. On May 2,
2005, Plaintiff filed a Special Motion to Deny Defendant’s Supplemental Motion for
Summary Judgment. Defendants hereby file this brief Reply in support of Their Motion
for Leave.
I. Rule 56gb) Permits the Filing of a Motion for Summary Judgment at Any Time.
Rule 56(b) of the Federal Rules of Civil Procedure permits a Defending Party to
7 move, "at any time, with or without supporting affidavits for a summary judgment in the

Case 3:03-cv—00194-CFD Document 39 Filed 05/12/2005 Page 2 of 4
party’s favor upon all or any part thereof." Defendants filed their Motion for Leave on
February 18, 2005, following mediation before Hon. Thomas P. Smith on the remaining
issue of interest on the lump sum payment.
II. The Court Has Discretion to Deviate from the Standing Order.
Plaintiff argues that the Standing Order on Pretrial Deadlines issued by Order of
the Court and Clerk of Court Kevin F. Rowe on January 2, 2003, prevents the filing of a
summary judgment motion "within seven months after the filing of the complaint, the
filing of a petition for removal, or the date of transfer from another District."
VVhile the Standing Order clearly exists, it is within the Court’s discretion to set a
date later than seven months after the filing of the complaint, the petition for removal, or
the date of transfer for the filing of summary judgment motions. This is evidenced by the
fact that the Court approved the parties’ proposal of a dispositive motion filing date of
July 11, 2003 for Defenda.nts’ first Motion for Summary Judgment (concerning whether
the Defendants reduction of Plaintiff Thomas E. Tyndall’s monthly pension benefit
altered, modified, or changed the Plan), even though this date was more tha.n seven
months after the case had been transferred to this Court.
In addition, granting a party Motion for Leave to file a Supplemental Motion for
Summary Judgment to address remaining claims is not uncommon. See: Duncan v. Town
0fBr00kfielaf 2003 U.S. Dist. LEXIS 15953, [*15] (D. Conn.) (August 22, 2003) (Court
granted defendant leave to file a supplemental motion for summary judgment on the issue
of whether the plaintiff was disabled within the meaning of the Americans with
Disabilities Act).
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Case 3:03-cv—00194-CFD Document 39 Filed 05/12/2005 Page 3 of 4
III. Summary Judgment is the Appropriate Procedure for Resolving the Only
Remaining Issue.
As noted in Defendants’ initial Motion for Leave, there are no material facts in
dispute. The only remaining issue is whether Plaintiff is entitled to interest on the lump
sum payment of benefits he received in October 2001 following the granting of his
request to change his effective retirement date from February 1995 to August 1990. In
addition, case law which was decided after the time in which the parties agreed to submit
their initial Motions for Summary Judgment has shed new light on the issue, specifically
Dobson v. Harford Financial Services Group, Inc., 389 F.3d 386 (2nd Cir. 2004), and
Campanella v. Mason T enders’ District Council Pension Plan, 299 F.Supp.2d 274
(S.D.N.Y., 2004).
Furthermore, permitting Defendants to File a Supplemental Motion for Summary
Judgment is in accordance with "the very mission of the summary judgment procedure,"
which is “to pierce the pleadings and assess the proof in order to see whether there is a
genuine need for trial." Fed.R.Civ.P. 56, 1963 amendment, subdivision (e).
IV. Conclusion
For all of the foregoing reasons, Defendants respectfully request that the Court
grant Defendants Leave to File a Supplemental Motion for Siunmary Judgment.
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Case 3:03-cv—00194-CFD Document 39 Filed 05/12/2005 Page 4 of 4
Dated: May Q , 2005. Respectliilly submitted
For the Defendants
By their attorneys,
Jonathan M. Conti
Federal Bar No. ct24593
Feinberg, Campbell & Zack, P.C.
177 Milk Street
Boston, MA 02109
(617) 338-1976
wwvv:[email protected]
By Local Counsel,
ghomas M. Brockett,
Federal Bar No. ct10873
Robert M. Cheverie & Associates, P.C.
333 East River Drive, Suite 101
East Hartford, CT 06108]
(860) 290-9610
www:[email protected]
CERTIFICATE OF SERVICE
I, Jonathan M. Conti, hereby certify that I caused a copy of the foregoing to be served
on pro se plaintiff Thomas E. Tyndall by depositing a copy thereof by certified mail
with the United States Postal Service on May Il , 2005 addressed to Thomas
E. Tyndall, P.O. Box 6041, Wolcott, CT 06716. ·
Jonathan M. Congr
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