Free Motion to Continue - District Court of California - California

Case 3:08-cv-00023-IEG-NLS

Document 20

Filed 05/07/2008

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DRINKER BIDDLE & REATH LLP 50 Fremont Street, 20th Floor San Francisco, CA 94105

JASON P. GOSSELIN (admitted pro hac vice) HEATH M. LYNCH (admitted pro hac vice) DRINKER BIDDLE & REATH LLP One Logan Square 18th & Cherry Streets Philadelphia, PA 19103-6996 Telephone: (215) 988-2700 Fax: (215) 988-2757 Email: [email protected] Email: [email protected] Attorneys for Plaintiff THE LINCOLN NATIONAL LIFE INSURANCE COMPANY UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA THE LINCOLN NATIONAL LIFE INSURANCE COMPANY, Plaintiff, v. H. THOMAS MORAN, II, CourtAppointed Receiver of LYDIA CAPITAL, LLC, Defendant. Case No. 08-CV-00023-IEG-NLS PLAINTIFF'S EX PARTE APPLICATION FOR CONTINUANCE OF MAY 19, 2008 EARLY NEUTRAL EVALUATION CONFERENCE AND PERMISSION TO PARTICIPATE VIA TELEPHONE

Pursuant to Civ.L.R. 83.3(h), Plaintiff THE LINCOLN NATIONAL LIFE INSURANCE COMPANY ("LINCOLN"), hereby respectfully applies ex parte for an order continuing the Early Neutral Evaluation Conference (the "Conference") scheduled for May 19, 2008 at 2:00 p.m. in the Chambers of Magistrate Judge Nita L. Stormes. Lincoln moreover requests that the Court permit Lincoln to participate in the Conference by telephone.

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PLAINTIFF'S EX PARTE APPLICATION

CASE NO. 08-CV-00023-IEG-NLS

Case 3:08-cv-00023-IEG-NLS

Document 20

Filed 05/07/2008

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DRINKER BIDDLE & REATH LLP 50 Fremont Street, 20th Floor San Francisco, CA 94105

ARGUMENT IN SUPPORT OF EX PARTE APPLICATION OF THE PLAINTIFF On April 7, 2008, Magistrate Judge Stormes issued a Notice and Order setting the date and time of the Conference. Counsel for the Receiver has submitted an unopposed application to continue the Conference until [CONFIRM DATE] to allow the parties to respond to written discovery requests. Lincoln supports the Receiver in that request. The parties have had extensive discussions relative to a possible resolution, but believe further discussions would be most fruitful following preliminary discovery. For the same reasons, the Conference is likely to be more helpful after the exchange of preliminary discovery, and Lincoln accordingly requests continuance of the same. Lincoln moreover requests permission for its representative, Stephanie Farabow, Esq., to participate in the Conference via telephone. Specifically, because Ms. Farabow has direct responsibility for the pending litigation and is the only Lincoln employee with sufficient knowledge to ensure fruitful discussions with opposing counsel and with the Court, it is necessary for her to participate in the Conference. Ms. Farabow, however, is responsible for the care of her three young children. Because Ms. Farabow's child care responsibilities render overnight travel to California from her North Carolina residence very difficult, Lincoln respectfully requests permission to participate in the Conference via telephone, whether or not the Court grants the requested continuance. Finally, no prejudice to Defendant will result should this application be granted. Jason P. Gosselin, co-counsel for Lincoln, notified Shannon K. Emmons, counsel for Defendant, that Lincoln intended to apply to the Court for continuance of the Conference and for permission to appear by telephone. Ms. Emmons did not object to Lincoln's intended application, provided that Lincoln agreed not to object to a similar application, if made by Defendant.

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SF1\398817\1

PLAINTIFF'S EX PARTE APPLICATION

CASE NO. 08-CV-00023-IEG-NLS

Case 3:08-cv-00023-IEG-NLS

Document 20

Filed 05/07/2008

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DRINKER BIDDLE & REATH LLP 50 Fremont Street, 20th Floor San Francisco, CA 94105

CONCLUSION For the reasons above, Plaintiff moves this Court to grant its application for an order continuing the Early Neutral Evaluation Conference and permitting Lincoln to participate via telephone. Respectfully submitted, Dated: May 7, 2008 DRINKER BIDDLE & REATH LLP Heath M. Lynch JASON P. GOSSELIN (admitted pro hac vice) HEATH M. LYNCH (admitted pro hac vice) H. CHRISTIAN L'ORANGE (State Bar No. 71730) S. FEY EPLING (State Bar No. 190025) DRINKER BIDDLE & REATH LLP 50 Fremont Street, 20th Floor San Francisco, California 94105-2235 Telephone: (415) 591-7500 Facsimile: (415) 591-7510 Email: [email protected] Email: [email protected] Attorneys for Plaintiff THE LINCOLN NATIONAL LIFE INSURANCE COMPANY

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SF1\398817\1

PLAINTIFF'S EX PARTE APPLICATION

CASE NO. 08-CV-00023-IEG-NLS

Case 3:08-cv-00023-IEG-NLS

Document 20

Filed 05/07/2008

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DRINKER BIDDLE & REATH LLP 50 Fremont Street, 20th Floor San Francisco, CA 94105

CERTIFICATE OF SERVICE I, Heath M. Lynch, do hereby certify that today, May 7, 2008, I electronically filed the foregoing Ex Parte Application for Continuance of May 19, 2008 Early Neutral Evaluation Conference and Permission to Participate by Telephone, of Plaintiff The Lincoln National Life Insurance Company, with the Clerk of Court using the CM/ECF system, which will send notice of such filing to CM/ECF participants. A true and correct copy of the foregoing is also being provided to the following person by first class mail, postage prepaid, at the following address:

Shannon K. Emmons, Esq. PHILLIPS McFALL McCAFFREY McVAY & MURRAH, P.C. Corporate Tower, 13th Floor 101 North Robinson Avenue Oklahoma City, OK 73102 Counsel for Defendant H. Thomas Moran, II, as Court-Appointed Receiver of Lydia Capital, LLC

/s/ Heath M. Lynch Heath M. Lynch

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PLAINTIFF'S EX PARTE APPLICATION

CASE NO. 08-CV-00023-IEG-NLS