Free Objection - District Court of Arizona - Arizona

1 Jay A. Zweig (011153) Jeffrey B. Kuykendal (021878) 2 GALLAGHER & KENNEDY, P.A. 2575 E. Camelback Road 3 Phoenix, Arizona 85016-9225 (602) 530-8407 4 Attorneys for Defendants 5 6 7 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA NO. CV 04-0525-PHX-RCB DEFENDANTS' OBJECTIONS TO PLAINTIFF'S MOTION FOR LEAVE TO FILE SUPPLEMENTAL DECLARATION OF PLAINTIFF AND DECLARATION OF STUART H. SANDHAUS IN SUPPORT OF OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

8 Constance Ann Maynard, an individual,
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9 10 vs.

Plaintiff,

11 CNA Group Life Assurance Company, an Illinois Corporation; Continental Casualty 12 Company, an Illinois Corporation; Hewitt Associates, L.L.C., an Illinois Limited 13 Liability Company; and Hewitt Long Term Disability Plan, 14 15 16 17 Defendants.

(% #

Defendants CNA Group Life Assurance Company and Continental Casualty

18 Company (collectively "CNA") and Defendants Hewitt Associates, L.L.C. and Hewitt 19 Long Term Disability Plan (collectively "Hewitt") respond and object to Plaintiff's 20 Motion for Leave to File Supplemental Declaration of Plaintiff and Declaration of 21 Stuart H. Sandhaus in Support of Opposition to Defendants' Motion for Summary 22 Judgment ("Plaintiff's Motion for Leave"). Plaintiff's Motion for Leave is untimely
Case 2:04-cv-00525-RCB Document 100 Filed 10/24/2005 Page 1 of 3

1 and contains impermissible information. Accordingly, for the reasons stated herein 2 and for the same reasons expressed in Defendants' Motion to Strike filed October 11, 3 2005, Defendants object to Plaintiff's Motion for Leave. 4 Plaintiff's request is untimely. Defendants filed their Motion for Summary

5 Judgment on June 8, 2005. Plaintiff requested and received two extensions to respond 6 to the motion for summary judgment. See July 14, 2005 Order & August 25, 2005 7 Order. Briefing concluded October 11, 2005, when Defendants filed their reply to 8 Plaintiff's response to the Motion for Summary Judgment. At no time before 9 Plaintiff's Motion for Leave did Plaintiff indicate that she was unable to adequately
1 10 assist her counsel and would need to supplement the record. Rather, Plaintiff waited

11 until a week after receiving Defendants' reply and accompanying documents to seek 12 such leave. Defendants dispute that Plaintiff has demonstrated good cause to 13 supplement the record after briefing has concluded and four months after Defendants 14 filed their Motion for Summary Judgment. 15 Even if Plaintiff's request were timely and proper, Plaintiff seeks to introduce,

16 for the first time, affidavits that were obviously not before the plan administrator 17 when it denied Plaintiff's claims for LTD benefits. The Court has determined that 18 this matter will be reviewed under an abuse of discretion standard. See March 28, 19 2005 Order. The law is well-settled that under an abuse of discretion standard, the 20 It is worth noting that Plaintiff signed her affidavit four days before the deadline for 21 Defendants to reply to Plaintiff's response to Defendants' Motion for Summary Judgment, however, Plaintiff did not inform Defendants or their counsel that she would 22 seek to supplement the record. Case 2:04-cv-00525-RCB Document 100 -2-Filed 10/24/2005 Page 2 of 3
1

1 scope of review by the Court is limited to the administrative record. See Taft v. The
th 2 Equitable Life Assurance Society, 9 F.3d 1469, 1472 (9 Cir. 1993) ("[p]ermitting a

3 district court to examine evidence outside the administrative record would open the 4 door to the anomalous conclusion that a plan administrator abused its discretion by 5 failing to consider evidence not before it.") Accordingly, Defendants respectfully 6 request that the Court deny Plaintiff's Motion for Leave. 7 8 9 10 11 RESPECTFULLY SUBMITTED this 24th day of October, 2005. GALLAGHER & KENNEDY, P.A. By:/s/ Jeffrey B. Kuykendal Jay A. Zweig Jeffrey B. Kuykendal 2575 E. Camelback Road Phoenix, Arizona 85016-9225 Attorneys for Defendants

12 Electronically filed this 24th day of October, 2005, with electronic copies to: 13 David F. Gomez, Esq. 14 Michael J. Petitti, Jr., Esq. GOMEZ & PETITTI, P.C. 15 2525 E. Camelback, Suite 860 Phoenix, Arizona 85016 16 Co-Counsel for Plaintiff 17 COPY of the foregoing mailed this 24th day of October, 2005, to: 18 Stuart H. Sandhaus, Esq. 19 STUART H. SANDHAUS, A.P.C. Los Rios Historic District 20 31901 Los Rios Street San Juan Capistrano, California 92675 21 Co-Counsel for Plaintiff 22 /s/ Jan Vigorito
1307460/130-2669

Case 2:04-cv-00525-RCB

Document 100 -3-Filed 10/24/2005

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