Free Memorandum in Opposition - District Court of California - California

Case 4:97-cv-04014-SBA

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THOMAS M. HERLIHY (SBN 83615) JOHN T. BURNITE (SBN 162223) KELLY, HERLIHY & KLEIN LLP 44 Montgomery Street, Suite 2500 San Francisco, California 94104-4217 Telephone: (415) 951-0535 Facsimile: (415) 391-7808 Attorneys for Defendant THE PAUL REVERE LIFE INSURANCE COMPANY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

P. PAUL STORRER, Plaintiff, vs. THE PAUL REVERE LIFE INSURANCE COMPANY, a Massachusetts corporation, Defendant.

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Case No. C97-04014 MJJ OPPOSITION BY THE PAUL REVERE LIFE INSURANCE COMPANY TO PLAINTIFF'S MOTION TO CONSIDER CASE AS RELATED AND REASSIGNED TO MAGISTRATE JUDGE JAMES LARSON

OPPOSITION TO MOTION TO CONSIDER CASE RELATED AND FOR REASSIGNMENT TO MAGISTRATE JUDGE

CASE NO. C97-04014 M JJ

Case 4:97-cv-04014-SBA

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Defendant The Paul Revere Life Insurance Company ("Paul Revere") opposes plaintiff's motion to consider the above-entitled action related to a completely different matter (Hangarter v. Provident Life and Accident Insurance Company, et al., United States District Court for the Northern District of California, Case No. C99-5286JL), as well as the request to have this action assigned to Magistrate Judge James Larson. The motion fails to satisfy the requirement set forth in Local Rule 3-12. Paul Revere opposes the motion on the following grounds: 1. No related case exists. The above-entitled action is unrelated to Hangarter v.

Provident Life. The cases involve two different, unrelated, plaintiffs (P. Paul Storrer and Joan Hangarter). The present action involves one defendant, Paul Revere; Hangarter involved three defendants (Provident Life, Paul Revere, and UnumProvident Corporation). (See, dockets for each case). 2. Plaintiff does not and cannot satisfy Local Rule 3-12 which requires a showing that

"the actions concern substantially the same parties, property, or transaction or event; and it appears likely that there will be an unduly burdensome duplication of labor or expense or conflicting results if the cases are conducted by different Judges." L.R. 3-12 (a). Plaintiff has not presented any competent, admissible evidence in support of the motion (See, accompanying objections/motion to strike Declaration of Montie Day). 3. The two cases involve a myriad of unique and significant factual differences,

including medical, occupational, and claims handling issues. 4. Plaintiff's "law of the case" argument vis-a-vis Hangarter is bizarre, unintelligible,

and without merit. 5. Plaintiff's motion appears to violate the procedural requirements for an administrative

motion. L.R. 3-12. 6. Plaintiff's motion is untimely, and lacks any good cause for the delay in bringing such

motion. L.R. 3-12(b). Hangarter was filed in 1999, with a final judgment affirmed in 2004. 7. The Declaration of Montie Day should be stricken on the grounds that it fails to make
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any showing of personal knowledge. L.R. 7-5(a). It also should be stricken because it is based on conclusions and argument, and consists of hearsay. L.R. 7-5(b). 8. matter. 9. The lack of merit in plaintiff's motion implicates Rule 11 concerns. Paul Revere does not consent to Magistrate Judge Larson hearing the above-captioned

Based upon the foregoing, Paul Revere respectfully requests that the Court deny plaintiff's motion. KELLY, HERLIHY & KLEIN, LLP

Date: February 26, 2008

By_________/s/________________ John T. Burnite Attorneys for Defendant THE PAUL REVERE LIFE INSURANCE COMPANY

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-2OPPOSITION TO MOTION TO CONSIDER CASE RELATED AND FOR REASSIGNMENT TO MAGISTRATE JUDGE CASE NO. C97-04014 M JJ