Free Joint Case Management Statement - District Court of California - California

Case 3:07-cv-05105-SI

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SEYFARTH SHAW LLP Kari Erickson Levine (SBN 146101) [email protected] Eden Anderson (SBN 233464) [email protected] 560 Mission Street, Suite 3100 San Francisco, California 94105 Telephone: (415) 397-2823 Facsimile: (415) 397-8549 Attorneys for Defendants ARTHUR J. GALLAGHER & CO., JOSEPH INGE, and DANIEL J. McNAMARA BOHN & BOHN LLP ROBERT H. BOHN, ESQ. - State Bar #36283 152 North Third Street, Suite 200 San Jose, California 95112 Telephone: (408) 279-4222 Fax No.: (408) 295-2222 Attorneys for Plaintiff TAMMY GAW UNITED STATES DISTRICT COURT IN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA

TAMMY GAW, Plaintiff, v. ARTHUR J. GALLAGHER & CO.; JOSEPH INGE, an individual; DANIEL J. MCNAMARA, an individual; and DOES 1 to 20, inclusive, Defendants. /

Case No. CGC-07-465649 JOINT CASE MANAGEMENT STATEMENT

Date: January 18, 2008 Time: 2:00 p.m. Judge: Hon. Susan Illston Dept./Place: Courtroom 10, 19th Floor

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Plaintiff Tammy Gaw ("Plaintiff") and Defendant Arthur J. Gallagher ("Defendant"), (collectively "the parties") submit the following Joint Case Management Statement pursuant to this Court's Order Setting Initial Case Management Conference. /// /// ________________________________________________________________________________ Joint Case Management Statement - Case No. C 07 5105 SI

Case 3:07-cv-05105-SI

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1.

Jurisdiction and Service

Joint Position: The Court has determined, pursuant to its January 9, 2008 Order Denying Plaintiff's Motion for Remand, that subject matter jurisdiction is proper pursuant to 28 U.S.C. §1332, because the matter in controversy exceeds $75,000 and diversity of citizenship will exist between the remaining parties, after Plaintiff files an amended complaint that does not allege claims against the individual defendants. All parties have been served as of September 4, 2007. 2. Facts

Brief Chronology of the Facts Plaintiff's Position: On or about January 1, 2005, Plaintiff entered into an employment relationship with Defendants to work as a Producer, Area Vice President. During the course of said employment with Defendant, Plaintiff performed all of her duties in an exemplary manner, was always professional, courteous, prompt, prepared, and responsive to the job, and was repeatedly told by her superiors that she was meeting or exceeding the expectations and requirements of this job. During the course of Plaintiff's employment she witnessed her supervisor Joseph Inge engaging in unethical and illegal business practices in securing new accounts and handling client accounts for Defendants, including but not limited to violations of Insurance Code §791 et seq. On multiple occasions during the course of her employment Plaintiff reported Mr. Inge's unethical and illegal business practices to representatives of Defendant Arthur J. Gallagher & Co.

20 On or about July 28, 2005, Plaintiff reported her supervisor's unethical and illegal business practices 21 to the Area Chairman, Daniel J. McNamara. In response Mr. McNamara informed Plaintiff that if 22 23 24 25 26 27 28 she did not resign her employment would be terminated immediately. Alternatively, if Plaintiff agreed to resign she would be paid severance through August 31, 2005. Plaintiff was forced to resign her employment on August 1, 2005. On July 31, 2007, Plaintiff filed a complaint in the Santa Clara County Superior Court, alleging : (A) retaliation in violation of California public policy to protect privacy rights of insureds and to protect the public's need for fairness in insurance information practices pursuant to ________________________________________________________________________________ Joint Case Management Statement - Case No. C 07 5105 SI

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Insurance Code §791 et seq.; (B) wrongful termination; and (C) intentional infliction of emotional distress. Defendant's Position: After she was laid off by her former employer, Plaintiff was hired by Gallagher in December 2004 as a "Producer," responsible for producing new insurance business. She was terminated seven months later after a series of bungled client presentations and having failed to bring in sufficient business to support her hefty six figure salary. While other producers were closing deals, Plaintiff had just three client accounts, the revenue from which was insubstantial. Plaintiff was one of many employees terminated in or around August 2005. Two years after her termination, Plaintiff filed a Complaint, alleging three causes of action: (1) Whistleblower Retaliation; (2) Wrongful Retaliatory Discharge In Violation of Public Policy; and (3) Intentional Infliction of Emotional of Emotional Distress. The substance of her allegations is that a colleague purportedly took a client file from his prior place of employment without the permission of the client, and then stole the client from Plaintiff. Plaintiff alleges she complained about her colleague's claimed conduct on July 28, 2005, and was then terminated. In reality, Plaintiff never complained of any purported illegal activity during her employment. She first raised allegations of wrongdoing when she filed suit. Moreover, as to the client that Plaintiff alleges her colleague purportedly stole from her, the evidence establishes that Plaintiff herself was receiving 86% of the commissions from that client's small amount of business. Further, there is no evidence that the client's files were impermissibly taken by Plaintiff's colleague.

20 Principal Factual Issues In Dispute 21 Plaintiff's Position: Plaintiff asserts the following factual issues are in dispute: 22 23 24 25 26 27 28 (A) Whether Plaintiff performed her duties as required by her job description and to the reasonable expectations of her employer; (B) Whether Plaintiff reported her supervisor's alleged unethical and illegal business practices to representatives of Defendant Arthur J. Gallagher & Co., including but not limited to the Area Chairman, Daniel J. McNamara.; (C) Whether Plaintiff was terminated for objecting to and/or reporting conduct she presumably believed to be unlawful; (D) The existence of and amount Plaintiff's claimed damages. ________________________________________________________________________________ Joint Case Management Statement - Case No. C 07 5105 SI

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Defendant's Position: There are no factual issues which would preclude summary judgment. 3. Legal Issues

The parties reserve the right to raise additional legal issues and defenses other than those stated below. Plaintiff's Position: Legal issues include: (A) Whether the retaliatory action taken against Plaintiff by Defendant was in violation of California public policy to protect privacy rights of insureds and to protect the public's need for fairness in insurance information practices pursuant to Insurance Code §791 et seq.; (B) Did Defendant terminated or forced Plaintiff's resignation in violation of California public policy. Defendant's Position: (A) Is there a causal connection between Plaintiff's termination and the alleged "protected activity," where the decision to terminate Plaintiff and others in Defendant's San Francisco office occurred before any alleged "protected activity"?; and (B) Even if Plaintiff's allegations are presumed true, does the conduct of which she complains violate a public policy which is fundamental and substantial and which inures to the public benefit? See Gantt v. Sentry Ins., 1 Cal. 4th 1083, 1090 (1992); Foley v. Interactive Data Corp., 47 Cal. 3d 654, 669-670 (1988). 4. Motions

Joint Position: Plaintiff's Motion to Remand was denied on January 8, 2008. There are no pending motions. Defendant intends to file a Motion for Summary Judgment or, in the Alternative,

20 Motion for Summary Adjudication at the conclusion of discovery. 21 5. 22 23 24 25 26 27 28 Plaintiff's Position: Pursuant to the Court's January 9, 2008 Order Denying Plaintiff's Motion for Remand, Plaintiff will file an amended complaint no later than January 18, 2008. Plaintiff does not anticipate any other amendments at this time, but reserves the right to amend if newly discovered facts necessitate. Defendant's Position: Defendant Gallagher does not presently anticipate any amendments, but reserves its right to assert additional defenses or assert counter-claims if a basis therefore ________________________________________________________________________________ Joint Case Management Statement - Case No. C 07 5105 SI Amendment of Pleadings

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becomes evident in discovery. 6. Evidence Preservation

Plaintiff's Position: All relevant evidence has been preserved. Defendant's Position: All relevant evidence has been preserved. Custodians of relevant evidence received a litigation hold at the outset of litigation, advising them to preserve any materials relating to Plaintiff and her claims. There have been no ongoing erasures of e-mails, and e-mail during the period of Plaintiff's employment has been preserved. 7. Disclosures

Joint Position: The parties have agreed to exchange Initial Disclosures on January 18, 2008. 8. Discovery

Joint Position: No discovery has occurred to date. The parties agree that discovery will proceed according to the Federal Rules of Civil Procedure ("FRCP"). The parties anticipate that written discovery and depositions will be completed approximately 30 days before trial. The parties believe the limitations on discovery set forth in the FRCP are appropriate, do not request discovery in separate phases, and do not request changes in the limits on discovery. 9. Class Actions

Not Applicable. 10. Related Cases

Not applicable. 20 11. 21 Plaintiff's Position: Plaintiff seeks recovery of lost salary, commissions, bonuses, stock 22 23 24 25 26 27 28 options and other benefits, counseling expenses, attorney fees and pre-judgment interest, as well as general damages and punitive damages in amounts presently unascertained. Defendant's Position: Other than its costs and attorneys' fees, Defendant does not seek any other recovery and has not filed any counter-claim at this time. 12. Settlement and ADR Relief

Joint Position: The parties have complied with the requirements of Local Rule 3-5 and ________________________________________________________________________________ Joint Case Management Statement - Case No. C 07 5105 SI

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16-8 and have been ordered to complete a Court administered Early Neutral Evaluation ("ENE") by April 7, 2008. The parties agree that a productive settlement can only take place after some initial discovery has been conducted and will prepare for the ENE accordingly. 13. Consent to Magistrate Judge For All Purposes

Joint Position: The parties do not consent to have a magistrate judge conduct proceedings. 14. Other References

Joint Position: The parties do not believe the case is suitable for reference to binding arbitration, a special master, or the Judicial Panel on Multidistrict Litigation. 15. Narrowing of Issues

Joint Position: The parties are not aware of any issues that could be narrowed by agreement. As to bifurcation, Defendant will likely seek that liability and damages phases of trial be bifurcated. 16. Expedited Schedule

Joint Position: The parties do not believe this case can be handled on an expedited basis. 17. Scheduling

Joint Position: The parties suggest the following schedule for future proceedings: Trial: Pre-Trial Disclosures: Discovery Cutoff (expert): Last day for hearing dispositive motions: March 16, 2009 February 19, 2009 February 19, 2009 February 19, 2009 February 5, 2009 December 17, 2008

20 Discovery Cutoff (non-expert): 21 Expert Witness Disclosure: 22 23 24 25 26 27 28 18. Trial Joint Position: Plaintiff has demanded a jury trial. The parties anticipate that trial may last at least five days. 19. Disclosure of Non-party Interested Entities or Persons

The following disclosures have been made by the Parties: Plaintiff's Position: Plaintiff represents that there are no persons, associations of persons, ________________________________________________________________________________ Joint Case Management Statement - Case No. C 07 5105 SI

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firms, partnerships, corporations (including parent corporations) or other entities that have a financial interest in the subject matter in controversy or in a party to the proceeding, or that have a nonfinancial interest in that subject matter or in a party that could be substantially affected by the outcome of this proceeding. Defendant's Position: Defendant has complied with the requirements of Local Rule 3-16. There are no persons, associations of persons, firms, partnerships, corporations (including parent corporations) or other entities that have a financial interest in the subject matter in controversy or in a party to the proceeding, or that have a non-financial interest in that subject matter or in a party that could be substantially affected by the outcome of this proceeding. 20. Other matters as may facilitate just, speedy and inexpensive disposition

Joint Position: Other than as addressed above, the parties are not aware of any other matters as may facilitate the just, speedy, and inexpensive disposition of this matter. DATED: January 11, 2008 SEYFARTH SHAW LLP

/s/ Kari Erickson Levine Eden Anderson Attorneys for Defendants ARTHUR J. GALLAGHER & CO., JOSEPH INGE, AND DANIEL J. MCNAMARA
BOHN

By

20 DATED: January 11, 2008 21 22 23 24 25 26 27 28

& BOHN, LLP

/s/ Robert H. Bohn, Sr. Attorneys for Plaintiff TAMMY GAW

By

________________________________________________________________________________ Joint Case Management Statement - Case No. C 07 5105 SI