Free Motion for Miscellaneous Relief - District Court of Connecticut - Connecticut

Case 3:03-cv-00383-WIG

Document 163

Filed 06/08/2005

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT : : : MASTER CONSOLIDATED CASE : 3:03 CV 0383 (MRK) V. : BARRY BULAKITES, JAMES WINSLOW, : JOSHUA ADAMS CORP., NATIONWIDE : INS. CO. OF AMERICA f/k/a PROVIDENT. : MUT. INS. CO., LINCOLN NAT. LIFE INS. CO.: Defendants :
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WASLEY PRODUCTS, INC. AND PRECISION MOLDING COMPANY, INC. Plaintiffs,

GREGORY PRENTISS, JOHN RIZZI, RICHARD SEICH, and DOROTHY BROWN, individually and on behalf of the Wasley Products Inc. 401(k) Profit Sharing Plan Plaintiffs,

: : : : : : V. : WASLEY PRODUCTS, INC., ALAN A. : WASLEY, ANDREW BRADY, SANDI : DUMAS-LAFERRIERE, BARRY CONNELL, : BARRY L. BULAKITES, JAMES A. : WINSLOW, and JOSHUA ADAMS CORP. : Defendants : : WASLEY PRODUCTS, INC., ALAN A. : WASLEY, ANDREW BRADY, SANDI : DUMAS-LAFERRIERE, and BARRY CONNEL: Third Party Plaintiffs : : V. : NATIONWIDE LIFE INS. CO. OF AMERICA : AMERICA f/k/a PROVIDENT MUT. LIFE : INS. CO. and LINCOLN NAT. LIFE INS. CO. : Third Party Defendants :

THIS PLEADING PERTAINS TO BOTH CASES

JUNE 6, 2005

NATIONWIDE LIFE INSURANCE COMPANY OF AMERICA f/k/a PROVIDENT MUTUAL LIFE INSURANCE CO.'S MOTION FOR PHASED DISCOVERY

CTDOCS/1630379.1

Case 3:03-cv-00383-WIG

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Filed 06/08/2005

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The defendant Nationwide Life Insurance Company of America f/k/a Provident Mutual Life Insurance Company ("Nationwide") hereby respectfully objects to Section V.E.3 of the parties' proposed Case Management Plan (Rule 26(f) Report) and asks this Court to enter an order that the parties conduct discovery in phases in both Wasley Products, Inc. v. Bulakites, et al ("Wasley I") and Prentiss, et al v. Wasley Products, Inc., et al; Wasley Products, Inc., et al v. Nationwide, et al ("Wasley II") pursuant to the proposal set forth by Nationwide herein. Specifically, Nationwide requests this Court order that discovery be conducted in phases as follows: Phase One: Discovery on any party's claimed "fiduciary" status under ERISA and any related claims in Wasley I or Wasley II including (1) written discovery and (2) oral discovery. Phase Two: Discovery, including (1) written discovery and (2) oral discovery on all other issues raised in the complaints in Wasley I and Wasley II, including but not limited to the management and disposition of the Plans' funds by all the defendants. Nationwide requests that discovery in Phase One be propounded and completed before discovery under Phase Two commences. Nationwide has otherwise participated in the preparation of the parties' proposed Case Management Plan in a good faith effort to move this case forward. The current discovery schedule, as proposed by the parties, will however cause Nationwide to continue to engage in

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Case 3:03-cv-00383-WIG

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timely and costly discovery on all issues1 when its very status as a "fiduciary" remains in dispute and unresolved. Allowing the parties to first conduct discovery on the issue of the "fiduciary" status of all defendants in Wasley I and Wasley II2 before exploring all other issues raised in the various complaints will allow any party to move for summary judgment at the close of Phase One of discovery, earlier in the discovery process and before incurring additional expenses that may be avoided if successful in its motion. This will streamline the discovery process for all parties in the litigation with the result that unnecessary discovery will not be conducted. For all of the aforementioned reasons, Nationwide respectfully requests this Court order discovery be conducted in phases with Phase One exclusively focusing on "fiduciary" status and any related claims and Phase Two focusing on all other claims raised in the parties' complaints in Wasley I and Wasley II.

1 While the parties have agreed to make a good faith effort to schedule depositions on the issues of "fiduciary" status before undertaking depositions on other issues, the Case Management Plan submitted by some of the more involved parties would require Nationwide to respond to interrogatories and document requests on all issues, including those unrelated to "fiduciary" status, before depositions on "fiduciary" status under ERISA ever proceed. This would include responding to likely voluminous production requests regarding the management and disposition of the Plans' funds. As of the last interim report issued by the Special Master, there is no evidence that Nationwide mishandled any funds which were received by Nationwide from Wasley. Nationwide has already spent a great deal of time and resources responding to the Special Masters' requests. It would be now unjust to require Nationwide to respond again to discovery aimed at the disposition of Plans' funds before Nationwide has an opportunity to complete discovery on the issue of its status as a fiduciary and use that discovery material to attempt to remove itself from these matters. A finding by this Court that Nationwide is not a "fiduciary" and owes no duties to the various plaintiffs in Wasley I or Wasley II would negate the need for any further discovery as described by the parties in the proposed Case Management Plan as to Nationwide. 2 Including first party claims and third party claims in Wasley II.
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CTDOCS/1630379.1

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Filed 06/08/2005

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DEFENDANT, NATIONWIDE LIFE INSURANCE COMPANY OF AMERICA By: //S// Deborah S. Freeman [ct05257] Sara R. Simeonidis [ct25566] BINGHAM MCCUTCHEN LLP One State Street Hartford, CT 06103 (860) 240-2700 (860) 240-2800 (fax) Its Attorneys

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CTDOCS/1630379.1

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CERTIFICATION This is to certify that a copy of the foregoing Appearance has been served this 6th day of June, 2005, via first class mail, postage prepaid, to all counsel and pro se parties of record in these consolidated actions as follows: Thomas G. Moukawsher, Esq. Ian O. Smith, Esq. Moukawsher & Walsh 21 Oak Street, Suite 209 Hartford, CT 06106 Theodore J. Tucci, Esq. Jean E. Tomasco, Esq. Robinson & Cole LLP 280 Trumbull Street Hartford, CT 06103-3597 Steven J. Errante, Esq. Eric P. Smith, Esq. Lynch, Traub, Keefe & Errante, P.C. 52 Trumbull Street P.O. Box 1612 New Haven, CT 06506-1612 Joseph V. Meany, Jr. Cranmore, Fitzgerald & Meany 49 Wethersfield Avenue Hartford, CT 06114-1102 Albert Zakarian, Esq. Victoria Woodin Chavey, Esq. Eric Sussman, Esq. Day, Berry & Howard LLP CityPlace I Hartford, CT 06103 //S// Sara R. Simeonidis

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