Free Response to Motion - District Court of Colorado - Colorado

Case 1:02-cv-01533-WYD-BNB

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Filed 08/08/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 02-cv-01533-WYD-BNB JOHN A. DEGRADO, Plaintiff, v. JEFFERSON PILOT FINANCIAL INSURANCE COMPANY, a Nebraska Corporation, Defendant. PLAINTIFF'S RESPONSE AND OBJECTION TO JEFFERSON PILOT'S MOTION TO FILE BRIEF IN EXCESS OF PAGE LIMITATION AND DEFENDANT'S FILING OF CROSS-MOTION FOR SUMMARY JUDGMENT

Plaintiff, John A. DeGrado ("DeGrado"), by and through his attorneys, Thomas L. Roberts and Alexa R. Salg of ROBERTS LEVIN ROSENBERG PC, and Marilee E. Langhoff of MARILEE E. LANGHOFF, P.C., respectfully submits the within response and objection to Jefferson Pilot Financial Insurance Company's ("JPFIC") Motion to File Brief in Excess of Page Limitation and Defendant's Filing of Cross-Motion for Summary Judgment. I. INTRODUCTION DeGrado not only objects to allowing JPFIC to file a brief in excess of the Court's Practice Standards page limitation but objects to permitting JPFIC to file its own motion for summary judgment at this late stage in the aged litigation. II. ARGUMENT ERISA was designed to allow for an expeditious procedure and a prompt resolution of claims. Jewell v. Life Ins. Co. of N. Am., 508 F.3d 1303, 1308 (10th Cir. 2007). This litigation

Case 1:02-cv-01533-WYD-BNB

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arises from the Defendant's handling of a November 2000 disability claim that led to the filing of this lawsuit in August 2002. Now, some eight years after the claim decision, six years after litigation was commenced, more than two full years following the Tenth Circuit's limited remand after appeal, and after full briefing of Plaintiff's Motion for Summary Judgment on the sole issue to be addressed, JPFIC has announced its intention to file its own motion for summary judgment and supported by further legal argument in a 25-page brief. This should not be allowed. Following remand in this case, the Jewell decision was issued in which the court directed parties seeking resolution of an ERISA claim to use the summary judgment procedure set out in Fed.R.Civ.P. 56, rather than through a "Motion for Judgment on the Administrative Record." The Jewell Court went on to say that, even in ERISA matters to be reviewed de novo, "'the best way' for a district court `to implement ERISA's purposes in this context is ordinarily to restrict de novo review to the administrative record' compiled during the claim administration process, instead of taking new evidence, hearing witnesses, and the like." Jewel, 508 F. 3d at 1308. Thus ERISA cases are to be resolved on briefs and no trial will be had. Judge Figa's order on Plaintiff's Motion for Declaration of Procedure and Scope of Remand," provides that DeGrado, if he "decides to appeal the new determination he need not file a request for further review by the Defendant as may be provided for in the disability policy, or as allowed generally by ERISA, 29 U.S.C. § 1133." Doc. 187 at 15. Per Jewell, appeal must take the form of a summary judgment motion. DeGrado filed such a motion. The Tenth Circuit's Order on remand and Judge Figa's Order on the scope of remand make no provision for JPFIC to file its own motion for summary judgment. Indeed, to permit JPFIC to file its own motion at this juncture would be tantamount to allowing it to appeal from its own decision, an

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absurd result. Further, such motion would be completely redundant of the briefs already filed on the matter at issue. On remand, this Court had no reason to enter a scheduling order imposing deadlines for the filing of motions because there would be no trial. That this matter would be resolved on the briefs, was understood. Doc. 121 and 122. Plaintiff first indicated his intention to file an appeal in the form of a Motion for Summary Judgment in February 2008, Doc. 194, and filed his PostRemand Motion for Summary Judgment in March 2008 (Doc. 199). The parties' extensive briefing of the matter was concluded on July 28, 2008. Doc. 199, 216 and 220. JPFIC made no request to file a cross-motion at that time nor was there any need to do so. Unlike traditional summary judgment practice where the Court may deny cross-motions and order the case to trial, in an ERISA case, the court must rule in favor of one or the other party. JPFIC need not file a motion for summary judgment as a prerequisite to securing judgment in its favor. Summary judgment in the ERISA context is different from an ordinary summary judgment case, "[I]n an ERISA case where review is based only on the administrative record before the plan administrator and is an ultimate conclusion as to disability to be drawn from the facts, summary judgment is simply a vehicle for deciding the issue." Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510, 517 (1st Cir. 2005) (citation omitted). Here, the sole issue before the Court for determination is whether JPFIC's decision in its December 11, 2007 "additional findings" letter was a product of a reasoned application of plan terms to the facts of record or whether it continues to be unsupported by substantial evidence and thus arbitrary and capricious. This issue has been extensively briefed by both parties. Docs. 199, 216, & 220, and this Court's ruling on DeGrado's summary judgment motion will decide this issue.

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On August 5, 2008, JPFIC's counsel advised Plaintiff's counsel, for the first time, that JPFIC intends to file its own Motion for Summary Judgment. Although cross motions for summary judgment may be filed under ordinary circumstances, this case presents no ordinary circumstance. DeGrado submits that to permit JPFIC to file its own motion at this late date after full briefing of the issue to be decided on remand would not lead to efficient resolution of this matter on its merits but simply produce unending redundant argument and unnecessarily delay resolution of this case, contrary to the letter and spirit of the remand orders and the rules of procedure, overburden this tribunal with needless paper and argument, and waste the parties' resources. To suggest that JPFIC can quietly sit back for more than six months from the date DeGrado indicated he was going to file a summary judgment motion and then unilaterally require that the parties begin the briefing process, on the same issue, anew, is contrary to the goal of expeditious resolution of ERISA claims and the scope and purpose of the rules of procedure. Fed.R.Civ.P. 1 (the rules "should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding."). "Federal courts have the inherent power to regulate the activities of abusive litigants . . . ." Andrews v. Heaton, 483 F.3d 1070, 1077 (2007). The issue to be decided by this Court has been fully briefed and to prolong resolution of this matter with further briefing is unwarranted. Enough is enough. The interests of justice require that this matter proceed to resolution on the record as made.

WHEREFORE, Plaintiff John A. DeGrado, for the reasons above stated, respectfully requests this honorable Court, pursuant to its inherent supervisory authority, to exercise its sound discretion and deny JPFIC's Motion to File Brief in Excess of the Page Limitation and, further, to

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issue its order precluding JPFIC from filing a motion for summary judgment given the state of the record and for such other and further relief as the Court deems appropriate under the circumstances. DATED at Denver, Colorado, this 8th day of August 2008. Respectfully submitted: s/ Thomas L. Roberts Thomas L. Roberts Alexa R. Salg ROBERTS, LEVIN ROSENBERG PC 1660 Wynkoop, Suite 800 Denver, CO 80202 (303) 575-9390 Marilee E. Langhoff, Esq. MARILEE E. LANGHOFF, P.C. 6131 S. Marion Way Centennial, CO 80121 Phone: (303) 795-1284 ATTORNEYS FOR PLAINTIFF

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Case 1:02-cv-01533-WYD-BNB

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CERTIFICATE OF SERVICE I hereby certify that on this 8th day of August 2008, a true and correct copy of the foregoing PLAINTIFF'S RESPONSE AND OBJECTION TO JEFFERSON PILOT'S MOTION TO FILE BRIEF IN EXCESS OF PAGE LIMITATION AND DEFENDANT'S FILING OF CROSS-MOTION FOR SUMMARY JUDGMENT was filed with the Clerk of the Court using the CM/ECF System which will send notification of such filing to the following email addresses: [email protected] [email protected] [email protected] Michael S. Beaver Catherine C. Crane Todd W. Miller HOLLAND & HART, LLP 8390 E. Crescent Pkwy., Suite 400 Greenwood Village, CO 80111 [email protected] Marcy Geoffrey Glenn HOLLAND & HART, LLP 555 17th St., Ste. 3200 P.O. Box 8749 Denver, CO 80201 ATTORNEYS FOR DEFENDANT

and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the non-participant's name: N/A s/ Thomas L. Roberts Thomas L. Roberts

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