Free Case Management Statement - District Court of California - California

Case 3:08-cv-02837-MMC

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RIMAC & MARTIN, P.C. JOSEPH M. RIMAC - State Bar No. 72381 ANNA M. MARTIN - State Bar No. 154279 1051 Divisadero Street San Francisco, California 94115 Telephone (415) 561-8440 Facsimile (415) 561-8430 Attorneys for Defendants CUSHMAN & WAKEFIELD OF CALIFORNIA, INC., LONG TERM DISABILITY PLAN; UNUM LIFE INSURANCE COMPANY OF AMERICA LAW OFFICES OF LAURENCE F. PADWAY LAURENCE F. PADWAY - State Bar No. 89314 COSTA NIKOLOUTSOPOULOS - State Bar No. 248905 1516 Oak Street, Suite 109 Alameda, California 94501 Telephone: (510) 814-6100 Facsimile: (510) 814-0650 Attorneys for Plaintiff GLORIA LITTLES-ANDRADES

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

E-FILING
) ) ) Plaintiff, ) ) vs. ) ) CUSHMAN & WAKEFIELD OF CALIFORNIA, ) INC., LONG TERM DISABILITY PLAN; ) UNUM LIFE INSURANCE COMPANY OF ) AMERICA (Real Party in Interest), ) ) Defendants. ) ________________________________________ ) /// GLORIA LITTLES-ANDRADES, CASE NO. CV 08-02837 MMC JOINT STATUS REPORT/CASE MANAGEMENT CONFERENCE STATEMENT Date: September 12, 2008 Time: 10:30 a.m. Ctrm: 7, 19th Floor The Honorable Maxine M. Chesney

-1JOINT CASE M ANAGEM ENT CONFERENCE STATEM ENT CASE NO.

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The parties in the above-captioned matter submit this Case Management Statement and Proposed Order, and request the Court adopt it as its Case Management Order for this case.

1.

Jurisdiction and Service

This Court has subject matter jurisdiction in that Plaintiff's claims arise under the Employee Retirement Income Security Act of 1974, 29 U.S.C., Sections 1001 et seq. All parties have been served and appeared. 2. Facts

This case relates to an employee welfare benefit plan governed by ERISA. Plaintiff, Gloria Littles-Andrades, was an employee of Cushman & Wakefield, Inc., and a participant in the Cushman & Wakefield of California, Inc. Long-term Disability Plan (the "Plan"), which procured group long term disability insurance underwritten by Unum Life Insurance Company of America ("Unum"). Plaintiff seeks judicial review of UNUM's decision to deny benefits under a group disability insurance policy, pursuant to ERISA, 29 U.S.C. § 1132(a)(1)(B). The Principal Factual Issues Which the Parties Dispute Plaintiff's Statement Whether plaintiff satisfied the plan's definition of disability as of the date of denial of the claim for benefits. Whether any statute of limitations or contractual limitation applies, and whether these limitations are tolled. Defendant's Statement Whether UNUM's determination to deny further LTD benefits was reasonable. Whether plaintiff's claims are barred in whole or in part by the contractual limitation provided for by Insurance Code, Section 10350.11and included in the plan. Whether plaintiff's claims are barred in whole or in part by the applicable statute of limitations, including but not limited to, California Code of Civil Procedure, Sections 337 & 339. -2JOINT CASE M ANAGEM ENT CONFERENCE STATEM ENT CASE NO.

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3.

Legal Issues

Plaintiff's Statement The applicability of any statute of limitations or contractual limitations and whether these limitations are tolled. Whether the standard of review to be conducted by the Court is an "abuse of discretion" or

6 "de novo." In the event that it is determined that the standard of review is for abuse of discretion, 7 rather than de novo, Plaintiff contends that the failure of defendants to act appropriately will affect 8 the existence of and amount of deference granted to Defendants. See Metropolitan Life Insurance 9 Co. v. Glenn, 128 S. Ct. 2343 (2008). 10 Plaintiff alleges that the she was not provided a full and fair review as required under

11 Abatie v. Alta Health and Life Ins. Co., 458 F. 3d 955 (2006), and was not provided a clear and 12 coherent explanation of what was missing from the proof of claim as required by Saffon v. Wells 13 Fargo & Co. Long Term Disability Plan, 522 F.3d 863 (2007), and related cases. These issues can be addressed concurrently with hearing on the merits. 14 15 16 17 18 · 19 20 21 22 23 24 25 4. · Whether plaintiff's claims are barred in whole or in part by the contractual limitation provided for by Insurance Code, Section 10350.11and included in the plan. Whether plaintiff's claims are barred in whole or in part by the applicable statute of limitations, including but not limited to, California Code of Civil Procedure, Sections 337 & 339. Motions Defendants' Statement The principal factual and legal bases for plaintiff's claims and defendant's defenses are: · The standard of review to be applied by the Court when reviewing UNUM's decision to deny further benefits to plaintiff.

There are no prior or pending motions. The parties believe that this case may be decided

26 on cross-motions for summary judgment. The parties reserve their right to file other appropriate 27 motions. 28 -3JOINT CASE M ANAGEM ENT CONFERENCE STATEM ENT CASE NO.

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5.

Amendment of Pleadings

No amendments are anticipated. 6. Evidence Preservation

Plaintiff's Statement Plaintiff asserts that discovery is permitted under certain circumstances, such as when a

6 conflict of interest exists. See Metropolitan Life Insurance Co. v. Glenn, 128 S. Ct. 2343 (2008) 7 and Abatie v. Alta Health and Life Ins. Co., 458 F. 3d 955 (2006). Plaintiff agrees to preserve all 8 documents relevant to the subject matter of litigation. 9 10 Defendants' Statement Defendants assert that no discovery is permitted as the review of the denial of plaintiff's

11 claim for benefits must be made by the Court based on the administrative record of the claims 12 appeal that was before UNUM at the time it concluded benefits were not payable. See Kearney v. 13 14 15 16 preserve all documents relevant to the subject matter of litigation, including, electronic databases, 17 18 19 20 21 22 internal and external e-mail systems, and hard copy documents. The parties affirm that appropriate steps have been taken to help ensure the preservation of potentially discoverable materials. 7. Disclosures Standard Ins. Co., 175 F.3d 1084,1094-1095 (9th Cir. 1999) and Taft v. Equitable Life Assurance Society, 9 F.3d 1469, 1471-72 (9th Cir. 1993). The administrative record will be produced to plaintiff by Friday, September 5, 2008. Notwithstanding the foregoing, the parties agree, during pendency of the litigation, to

Plaintiff's Statement Plaintiff mailed her initial disclosures to Defendants' counsel on September 2, 2008,

23 which consisted of a list of witnesses and medical providers that would have primary knowledge 24 concerning Plaintiff's medical conditions, and documents provided via computer CD relating to 25 this case such as: correspondence between the parties, Plaintiff's medical records, and Plaintiff's 26 employee file. Plaintiff anticipates receiving the administrative record from Defendants' counsel 27 shortly. In the event that Plaintiff deems the administrative record incomplete, Defendants' 28 -4JOINT CASE M ANAGEM ENT CONFERENCE STATEM ENT CASE NO.

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counsel will be informed and requested that the record be supplemented. Plaintiff assserts that a full and complete administrative record should be provided. Defendant's Statement Full and timely compliance of disclosures, which consist of the non-privileged portions of

5 the administrative record, will be provided to plaintiff on September 5, 2008 in compliance with 6 the Court's order. 7 8 9 8. Discovery

Plaintiff's Statement Discovery has not yet taken place. Plaintiff may desire discovery after reviewing the

10 administrative record, which has not yet been provided to Plaintiff, on issues such as the 11 completeness of the administrative record, conflict of interest, and funding of the Plan. Defendants' Statement 12 13 14 15 16 Society, 9 F.3d 1469, 1471-72 (9th Cir. 1993). 17 18 19 20 21 22 23 24 9. Class Action Defendants assert that no discovery is permitted as the review of the denial of plaintiff's claim for benefits must be made by the Court based on the administrative record of the claims appeal that was before UNUM at the time it concluded benefits were not payable. See Kearney v. Standard Ins. Co., 175 F.3d 1084,1094-1095 (9th Cir. 1999) and Taft v. Equitable Life Assurance

This is not a class action. 10. Related Cases

There are no related cases. 11. Relief

Plaintiff's Statement Plaintiff asserts the following damages and requests that the court grant relief: A. Plaintiff earned $3,744 per month. The Plan pays a benefit equal to 60% of salary after

25 a 180 day elimination period in the amount of $2,246.40. Plaintiff has therefore lost benefits due 26 to date of approximately $152,755.20. For future benefits until January 15, 2013 in the amount of 27 $119,059.20. For benefits, past and future, for long term disability, in the sum of $271,811.40, 28 -5JOINT CASE M ANAGEM ENT CONFERENCE STATEM ENT CASE NO.

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plus interest according to proof; B. For attorneys fees of $150,000 or according to proof; C. For such other relief as the court deems just and proper. Defendants' Statement Defendants assert that plaintiff is not entitled to any relief whatsoever. 12. Settlement and ADR

Plaintiff desires court-sponsored mediation, and has discussed this option with

8 Defendants' counsel. Defendants have agreed to court-sponsored mediation to be completed 9 within 120 days of the case management conference. 10 11 13. Consent to Magistrate Judge For All Purposes

Plaintiff previously was, and currently is, willing to proceed before a Magistrate Judge.

12 Defendants respectfully declined to consent to a Magistrate Judge and the matter has been assigned to the Honorable Maxine M. Chesney, United States District Court Judge. 13 14. Other References 14 The parties do not believe this case is suitable for other references. 15 15. Narrowing of Issues 16 The parties do not believe that the issues can be narrowed at this point. 17 16. Expedited Schedule 18 The parties believe this case can be handled on an expedited basis. Plaintiff asserts that 19 this is contingent on the completeness of the Administrative Record, which has not yet been 20 received or reviewed by Plaintiff. 21 17. Scheduling 22 Plaintiff anticipates receiving the Administrative Record within two weeks of signing this

23 statement. Reviewing the record will take approximately two months. If Plaintiff determines 24 discovery is necessary, Plaintiff will require approximately two months in addition to conduct 25 such discovery. 26 27 28 -6JOINT CASE M ANAGEM ENT CONFERENCE STATEM ENT CASE NO.

18.

Trial

If this matter is not resolved via dispositive motions, Plaintiff anticipates that a bench trial

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will last no more than one day. Plaintiff contends that the documentary evidence will be primarily based on the administrative record, but that in some instances, evidence outside the administrative

3 record is permitted. Plaintiff does not anticipate calling live witness or experts, and any 4 testimonial evidence submitted will be in the form of declarations. It is anticipated that either 5 Costa Nikoloutsopoulos or Laurence Padway will try the case for Plaintiff and Anna M. Martin 6 will try the case for Defendants. 7 8 19. Disclosure of Non-party Interested Entities or Persons

Plaintiff has filed the "Certificate of Interested Entities or Persons" as required by Civil

9 Local Rule 3-16. Plaintiff asserts that other than the named parties, there is no other interested 10 entity or party. 11 Defendants filed the Certificate of Interested Entities or Persons on August 11, 2008.

12 Defendants identified the following in their filing: Gloria Littles-Andradas 13 Cushman Wakefield of California, Inc. Long Term Disability Plan 14 UNUM Life Insurance Company of America 15 Unum Group, parent company of UNUM Life Insurance Company of America. 16 20. Other Matters 17 Plaintiff would like to alert the Court that Plaintiff's counsel, attorney Costa 18 Nikoloutsopoulos, will not be available from November 21, 2008 to December 1, 2008 due to his 19 wedding and honeymoon. Defense counsel, Anna Martin, has a three week trial specially set in 20 Madera County beginning on December 1, 2008. 21 22 23 24 25 26 27 28 -7JOINT CASE M ANAGEM ENT CONFERENCE STATEM ENT CASE NO.

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1 2 3 DATED: September 4, 2008 4 5 6 7 8 9 10 11 12 13 14 15 16 DATED: September 4, 2008 By: By:

LAW OFFICES OF LAURENCE F. PADWAY

/S/ COSTA NIKOLOUTSOPOULOS COSTA NIKOLOUTSOPOULOS Attorneys for Plaintiff GLORIA LITTLES-ANDRADES

RIMAC & MARTIN, P.C.

/s/ ANNA M. MARTIN ANNA M. MARTIN Attorneys for Defendants CUSHMAN & WAKEFIELD OF CALIFORNIA,

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INC., LONG TERM DISABILITY PLAN; UNUM LIFE INSURANCE COMPANY OF AMERICA

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CASE MANAGEMENT [PROPOSED] ORDER

The Joint Status Report / Case Management Conference Statement is hereby adopted by

4 the Court as the Case Management Order for the case and the parties are ordered to comply with 5 this order. 6 7 8 Dated: ____________ 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9JOINT CASE M ANAGEM ENT CONFERENCE STATEM ENT CASE NO.

By: __________________________________

Judge of the United States District Court

CV 08-02837 MMC