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

Stephen A. U'Ren, #004387 3030 S. Rural Road, Suite 114 Tempe, AZ 85282 (480) 838-6566 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA RONALD HERBERT PERRIN and the ESTATE OF LUCY MILDRED PERRIN through RONALD HERBERT PERRIN, Personal Representative, Plaintiffs, VS. THE OFFICE OF SERVICEMEMBERS GROUP LIFE INSURANCE, a subsidiary of the PRUDENTIAL INSURANCE COMPANY OF AMERICA, a corporation. Defendant. Plaintiffs through counsel reply to Defendant's Response to Plaintiffs' Motion to Alter/Amend the Judgment and Respond to Defendant's Cross-Motion. This Reply and Response is supported by the following Memorandum of Points and Authorities. DATED this 27th day of December, 2005. By is Stephen A. U'Ren Stephen A. U'Ren Attorney for Plaintiffs NO. CIV 04 0571 PHX RGS PLAINTIFFS' REPLY TO DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION TO ALTEWAMEND JUDGMENT AND RESPONSE TO DEFENDANT'S CROSSMOTION TO ALTERIAMEND JUDGMENT

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MEMORANDUM OF POINTS AND AUTHORITIES
I

.

Introduction
Prudential's Response to Pemns' Motion to Alter or Amend the Judgment does

make clear the need for the requested amendment. The Motion merely requested that a specific rate of interest be inserted in the Judgment pursuant to Ninth Circuit precedent. Prudential has chosen to litigate even this issue. Prudential's Response and CrossMotion are procedurally defective and substantively incorrect. Mr. Perrin's motion should be granted and Prudential's Cross-Motion should be denied.
11.

Prudential's Response and Cross-Motion are Untimely
Mr. Perrin filed his Motion to Amend or Alter the Judgment on December 5,

2005. Under the most liberal reading of the computation of time, Prudential's response was still due no later than December 22,2005. [Local Rule 7.2(c) requires a response in 10 days; 3 days are added under FRCP 6(e) and intervening weekends and holidays are not counted FRCP 6(a)] Nonetheless the Response and "Cross-Motion" were filed on December 23,2005. Extensions of time must be ordered, if at all, "before the expiration of the time prescribed". Local Rule Civil 7.3. No request for an extension was requested or ordered. The untimeliness of the cross-motion is even greater. By cross-motion Prudential attempts to request the Court to alter or amend the Judgment. Such a request

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must be made within 10 days of the Judgment and the last day for that request would have been December 5,2005. Because they were untimely Prudential's Response and Cross-Motion should be stricken and Prudential should be deemed to have consented to Perrin's Motion (Local Rule Civil 7.2(i)).

111.

Prudential's Response and Cross-Motion are Substantively Incorrect
A.

The Rate of Interest
Prudential acknowledges that the Ninth Circuit Case of In Re Nucorl,

E n e m . Inc. v. Fredman, 902 F.2d. 729 (9th Cir. 1990) is the relevant case law. Nucorp held that Courts should apply the Federal interest rate immediately prior to the date of Judgment for pre-Judgment interest. Here that rate was 4.34%. Prudential then seizes on additional language from Nucorp that said "unless the equities of a particular case demand a different rate." From this Prudential argues that 4.34% is inequitable and that the rate should be 2.2 1%, the rate in effect at Mr. Perrin's death. Prudential consistently ranks at about number 50 in the Forbes List of America's Fortune 500 Corporations. Undoubtedly Prudential, like other large insurance corporations and financial services companies earn more on their investments than they do on their premiums. If Prudential seriously suggests that 4.34% is inequitable on money Prudential promised to pay Dale Perrin's beneficiaries when he

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died then Prudential should disclose their average investment return for the last 4 years so that the equities can be openly examined. Mr. Perrin suggests that 4.34% can hardly be deemed "inequitable".

B.

The Date Interest ~ e g i n s '
Prudential suggests that interest begin on the date of the claim,

September, 2003, instead of the date of death. This issue was previously litigated and decided. The "claim" as shown in Pemnsl pleadings on pre-judgment interest was automatic from the time of his death since Pemn was part of the reserves when the death occurred. The Life insurance contract was to pay upon his death, not upon when a claim was eventually decided. There is no acceptable logic or equity in a beginning date for interest being tied to the bureaucratic process of a claim. The essence of the issue is that the insurance company promised to pay a benefit upon the death of a certain individual and should not be allowed to hold that money and gain the profit therefrom in the interim period of time that it takes for the claims process to run its course.

1

Prudential's Cross-Motion requests the Court to reconsider its previous decision that interest would start on the date of death, December 8,2001. This is not a proper subject for a Motion to Alter or Amend. The date interest begins was fully briefed and decided pursuant to Perrins' Motion for entry of judgment and for pre-judgment interest. Prudential's simply wants a second bite at the apple on an issue that the Court has already ruled on.

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IV.

Conclusion Perrins' Motion to insert the applicable Federal interest rate of 4.34% into the

Judgment should be granted. Prudential's Cross-Motion should be denied. Respectfully submitted this 27th day of December, 2005.

By Is Stephen A. U'Ren Stephen A. U'Ren Attorney for Plaintiffs

Filed electronically this 27th day of December, 2005. Courtesy copy of the foregoing delivered this 27th day of December, 2005 to: Honorable Roger G. Strand Judge of the District Court Sandra Day OtConnor US Courthouse, Ste. 622 401 W. Washington St. SPC 57 Phoenix AZ 85003-2 156 By Is Stephen A. U'Ren

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