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

Case 4:07-cv-04408-CW

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DAVID P. STOEBERL (Mo. Bar No. 46024) [email protected] JULIE L. WATERS (Mo. Bar No. 55314) [email protected] CARMODY MACDONALD P.C. 120 South Central Avenue, Suite 1800 St. Louis, MO 63105 Tel: 314-854-8600 Fax: 314-854-8660 CARTER W. OTT (State Bar No. 221660) [email protected] DLA PIPER US LLP 153 Townsend Street, Suite 800 San Francisco, California 94107 Telephone: 415-836-2500 Facsimile: 415-836-2501 Attorneys for Plaintiff MIDWEST TRANSPORT, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION MIDWEST TRANSPORT, INC., a Delaware Corporation, Plaintiff, v. Date: March 25, 2008 FCE BENEFIT ADMINISTRATORS, INC., a California Corporation, et al. Time: 2:00 pm Location: Courtroom 2, 4th Floor Honorable Claudia Wilken CASE NO. C 07-4408CW JOINT CASE MANAGEMENT STATEMENT

22 AND RELATED CROSS CLAIMS 23 24 25 26 27 28
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Pursuant to the Northern District's Standing Order and the Court's order dated November 28, 2007 (Docket No. 29), plaintiff Midwest Transport, Inc. ("Midwest"), defendant and countercross-claimant, FCE Benefit Administrators, Inc. ("FCE Benefit") and defendant and cross1

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claimant, Califia Development Corp. ("CDC") submit this Joint Case Management Statement. 1. JURISDICTION AND SERVICE This is a civil action brought by Midwest against defendants FCE Benefit and CDC. Midwest alleges claims against FCE Benefit for Breach of Contract, Negligence, and Negligent

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Administrator Agreement between Midwest and FCE Benefit ("TPA Agreement") contains a 20 21 22 23 24 25 26 27 28 Venue is proper for the cross-claims as they are filed pursuant to Federal Rule of Civil Procedure 13(g). Personal and subject matter jurisdiction arise because the cross-claims relate to the same transactions that are the subject matter of the main action, and are therefore ancillary to Midwest's claims.
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Misrepresentation. Midwest alleges claims against CDC for Negligent Misrepresentation and Negligence. FCE Benefit alleges counterclaims against Midwest for Breach of Contract and Defamation. At this time, CDC asserts no claims against Midwest. CDC alleges cross-claims against FCE Benefit for Implied/Equitable Indemnity, Contribution, and Declaratory Relief. FCE Benefit alleges cross-claims against CDC for Implied/Equitable Indemnity, Contribution and Negligent Misrepresentation. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332, because there is complete diversity between Midwest, FCE Benefit, and CDC, and the amount in controversy exceeds the statutory limit. Venue is proper in the Northern District of California because FCE Benefit's corporate headquarters are located in this district and the acts described in Midwest's First Amended Complaint are substantially related to this district. Furthermore, the FCE Benefit Third Party

forum selection clause which states: Governing Law and Venue: This Agreement will be governed by the internal laws of the State of California expect to the extent preempted by ERISA, COBRA, or other applicable federal law and the venue for resolving any dispute under this Agreement will be San Mateo County, California.

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There are no issues regarding personal jurisdiction or venue. There are no other parties to be served at this time. 2. FACTS A. Midwest's Description of the Case

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Benefit's and CDC's representations, or the standard of care for TPAs or brokers. As a result, the 20 21 22 23 24 25 26 27 anyone else to terminate its medical benefits plan. FCE Benefit also wrongfully informed 28
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Midwest is a federal government contractor that delivers mail throughout the country for the U.S. Postal Service. In 2004, Midwest decided to provide a medical benefits plan for its employees to be designed, administered and implemented by a third party administrator ("TPA"). CDC approached Midwest to serve as a broker to solicit and select a TPA for Midwest's medical benefits plan. Through CDC, FCE Benefit bid for the contract to be Midwest's TPA. FCE Benefit and CDC specifically advised Midwest that FCE would design and implement this medical benefits plan in such a way that Midwest would never have to pay more than the dollar amount of certain fringe benefits it was required to pay its employees as a government contractor ("the Fringe Benefit"). Based upon these representations, Midwest entered into contracts with FCE Benefit. FCE Benefit thereafter put in place and administered the medical benefit plan. CDC continued to serve as the principal communication link between FCE Benefit and Midwest. FCE Benefit failed to administer the plan in accordance with the parties' contract, FCE

liabilities of the plan exceeded the dollar amount of the Fringe Benefit by approximately $700,000. Neither FCE Benefit nor CDC communicated any problems with the plan in this regard until after the damage had occurred. After substantial liability came to light, on March 9, 2007, FCE Benefit unilaterally terminated the TPA contract and Midwest's medical benefits plan without giving notice to Midwest, a requirement under the governing documents. Midwest never authorized CDC or

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Midwest employees that it was Midwest ­ not FCE Benefit ­ that unilaterally terminated the medical benefits plan. As a result of the foregoing conduct by FCE Benefit and CDC, Midwest has been damaged including incurring legal expenses in responding to inquiry by the Department of Labor,

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 number of employees who would participate in the Health & Welfare Plan of Midwest Transport, 20 21 22 23 24 25 26 27 Midwest in at least one written, unprivileged publications to its employees has stated that FCE 28
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a state insurance regulator and a Medicare contractor. Midwest denies FCE Benefit's claim that Midwest breached the parties' agreement, defamed FCE Benefit, misrepresented any information to FCE Benefit, or failed to adjust benefits upon any recommendations by FCE Benefit. Midwest also asserts that the communications claimed by FCE Benefit to be defamatory are privileged. B. FCE Benefit's Description of the Case

At all times material hereto, FCE Benefit performed all of its contractual duties owed to Midwest pursuant to the TPA Agreement. Midwest, through CDC, requested that FCE Benefit terminate its Health & Welfare Plan and Trust. Midwest, on several occasions, failed to comply with various covenants and obligations under the TPA Agreement, Health & Welfare Plan and Trust Agreement. Midwest and/or CDC (the admitted agent of Midwest) misrepresented the

Inc.; the amount of contributions that would be made to the Plan, and the status of certain employees being enrolled in the Plan. Midwest failed to exercise its duty, authority and responsibility to decrease or delete benefits under the Health & Welfare Plan and Trust based upon recommendations of FCE Benefit. Such failures to comply constitute a breach of contract. Midwest in at least one written, unprivileged publication to its employees characterized FCE Benefit as providing "health insurance." FCE Benefit does not provide "health insurance."

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Benefit "cancelled our insurance." Midwest in at least one written, unprivileged publication to its employees has stated that FCE Benefit failed to do what it promised. Midwest has also, through written publications to its employees, impugned FCE Benefit by claiming that FCE Benefit is the cause of Midwest's failure to provide and pay for medical and health care benefits which it

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Midwest. Midwest prevented FCE Benefit's performance under the TPA Agreement by failing to 20 21 22 23 24 25 26 27 available to it in the time it has been a party to the action. 28
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voluntarily agreed to provide to its employees. The foregoing statements were false and were of the nature to impugn and injure FCE Benefit's business and reputation. This action is preempted by the Employee Retirement and Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. Midwest failed to mitigate its damages in this action. Midwest's own conduct was the cause, in whole or in part, of its alleged damages in this action. CDC's conduct was the cause, in whole or in part of Midwest's alleged damages in this action. Midwest's action is barred and/or FCE Benefit's conduct is excused on the basis that Midwest fraudulently or negligently made material misrepresentations. Such fraudulent or negligent material misrepresentations include, but are not limited to, the number of employees who would enroll in the Health & Welfare Plan of Midwest Transport, Inc.; the amount of contributions that would be made to the plan; and the status of certain employees who were enrolled in the Plan. FCE Benefit's full or partial performance under the contract was impossible given the conduct of

adhere to its own obligations and duties under the Agreement. C. CDC's Description of the Case

Although this action was filed in August 2007, CDC was not named as a defendant until Midwest filed its amended complaint in late December 2007. CDC filed an answer and crossclaim in January 2008 and most recently filed its answer to FCE Benefit's counter cross-claim on March 7, 2008. Consequently, CDC's description of the case is based on the limited information

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CDC is an insurance broker. Midwest requested CDC, among other insurance brokers, solicit potential TPA's regarding the implementation of a medical benefits plan. FCE Benefit submitted a proposal to be the TPA for Midwest's medical benefits plan, which was accepted by Midwest. CDC fulfilled its obligation, if any, to Midwest by soliciting potential TPA's for Midwest's plan.

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 concerning the medical benefits plan. 20 21 22 23 24 25 26 27 1. 28
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The terms of the plan were negotiated by Midwest and FCE Benefit. CDC never represented to Midwest that FCE Benefit would design and implement the medical benefits plan in such a way that Midwest would never have to pay more than the dollar amount of certain fringe benefits it was required to pay its employees as a government contractor, CDC never misrepresented the number of employees who would participate in the Health & Welfare Plan of Midwest Transport, Inc., the amount of contributions that would be made to the Plan, or the status of certain employees being enrolled in the Plan. CDC was not required to monitor nor was it responsible for monitoring the implementation or operation of the medical benefit plan. CDC did advise Midwest that, if requested, it would assist with certain communications with FCE Benefit and would consult with Midwest as appropriate regarding the medical benefits program once it was implemented. CDC, however, did not make recommendations to Midwest

In or about March 2007, Midwest informed CDC that it wanted to terminate its medical benefits plan but wanted a recommendation from FCE Benefit concerning timing. Thereafter, FCE Benefit unilaterally terminated Midwest's medical benefits plan without notice. CDC did not request that FCE Benefit terminate Midwest's medical benefits plan. Nevertheless, Midwest could have reactivated the plan, according to FCE Benefit, but decided not to do so. D. Principle Facts in Dispute Whether FCE Benefit ever advised or represented to Midwest that FCE 6

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Benefit would design, implement and administer the medical benefits plan in such a way that Midwest would never have to pay more than the Fringe Benefit amount. 2. benefits plan. Whether FCE Benefit properly communicated problems with the medical

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 recommendations of FCE Benefit. 20 21 22 23 24 25 26 27 28
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3. 4.

Whether FCE Benefit performed all of its contractual duties owed to Midwest. Whether Midwest, on several occasions, failed to comply with various

covenants and obligations under the TPA Agreement, Health & Welfare Plan and Trust Agreement. 5. Whether Midwest and/or CDC misrepresented the amount of employees who

would participate in the Health & Welfare Plan. 6. Whether Midwest and/or CDC misrepresented the amount of contributions

that would be made to the Plan. 7. Whether Midwest and/or CDC misrepresented the status of certain employees

being enrolled in the Plan. 8. Whether Midwest failed to exercise its duty, authority and responsibility to

decrease or delete benefits under the Health & Welfare Plan and Trust based upon

9. insurance." 10. 11. promised.

Whether Midwest improperly characterized FCE Benefit as providing "health

Whether Midwest falsely stated that FCE Benefit "cancelled our insurance." Whether Midwest falsely stated the FCE Benefit failed to do what it

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12.

Whether Midwest falsely stated that FCE Benefit is the cause of Midwest's

failure to provide and pay for medical and health care benefits which it voluntarily agreed to provide for its employees. 13. Whether FCE Benefit owes Midwest a duty of care. Whether FCE Benefit met its duty of care, in any. Whether Midwest has suffered any damages as a result of any conduct by

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 government contractors. 20 21 22 23 24 25 26 27 25. 28
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14. 15. FCE Benefit. 16.

Whether Midwest requested termination of its Medical Benefits Plan.

17. Whether FCE Benefit is liable for the expense of developing a new plan. 18. Whether FCE Benefit is liable for any costs incurred in responding to governmental agencies concerning the medical benefits plan. 19. Whether FCE Benefit is liable for any costs incurred related to any claims by Midwest or its employees. 20. Whether any party, other than Midwest, is responsible for the payment of medical benefits which Midwest promised to provide to its employees. 21. Whether CDC holds itself out to be in the business of selling TPA's to

22 it. 23.

Whether Midwest selected FCE Benefit based on CDC's representations to

Whether CDC advised or represented to Midwest that the cost of the

medical benefits plan that FCE Benefit would design, implement and administer would not exceed the fringe dollar obligation. 24. Whether CDC owes Midwest a duty of care. Whether CDC met its duty of care, if any. 8

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26.

Whether CDC asserted to Midwest that it would handle communications

with FCE Benefit and/or continue to advise Midwest concerning the benefits plan once implemented. 27. Whether FCE Benefit selected insurers that failed to provide complete

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 36. 20 21 22 23 24 25 26 27 administration of Midwest's benefit plan. 28
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stop-loss coverage. 28. 29. Whether CDC properly communicated with Midwest. Whether CDC had any duty to advise Midwest concerning any problem

with the benefit program. 30. Whether Midwest has suffered any damage, including the alleged

"Uninsured Claims," as a result of any failure to communicate by CDC. 31. Whether any employee of CDC contacted FCE Benefit to request

termination of Midwest's benefit plan. 32. 33. 34. 35. Whether Midwest desired to terminate its benefit plan. Whether FCE Benefit unilaterally terminated the plan without notice. Whether Midwest could have reactivated the plan but decided to not do so. Whether CDC is liable for the expense of developing a new plan. Whether CDC is liable for any costs incurred in responding to

governmental agencies concerning the benefit plan. 37. Whether CDC is liable for any costs incurred related to any purported

claims by any employees of Midwest concerning the benefit plan. 3. LEGAL ISSUES A. B. Whether FCE Benefit breached its contract(s) with Midwest. Whether FCE Benefit acted negligently in its design, implementation and

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C.

Whether FCE Benefit and CDC negligently misrepresented facts relating to the

medical benefit plan to Midwest. D. E. Whether CDC acted negligently as Midwest's broker. Whether CDC or Midwest was responsible for the selection of FCE Benefit as the

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 4. MOTIONS 20 21 22 23 24 25 26 27 Dismiss FCE Benefit's Counterclaim for Indemnity. On December 24, 2007, Midwest filed its 28
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TPA for Midwest's medical benefit plan. F. G. Whether Midwest breached its contract(s) with FCE Benefit. Whether Midwest and/or CDC made misrepresentations with respect to the

number of employees who would enroll in the Health & Welfare Plan of Midwest Transport, Inc.; the amount of contributions that would be made to the plan; and the status of certain employees who were enrolled in the Plan. H. I. J. K. L. M. Whether the communications FCE Benefit claims are defamatory are privileged. Whether Midwest defamed FCE Benefit. Whether Midwest failed to mitigate its damages. Whether Midwest, through CDC, terminated its medical benefits plan. Whether FCE Benefit terminated the plan without notice. Whether Midwest could have reactivated the plan but decided not to.

There are no motions currently pending. Midwest, FCE Benefit and CDC may file motions for summary judgment at or before the close of discovery. 5. AMENDMENT OF PLEADINGS Midwest originally filed its Complaint on August 27, 2007. On October 10, 2007, Midwest filed a motion with the Clerk of the Court to Amend its Complaint. On December 11, 2007, the Court granted Midwest's Motion to Amend Complaint and Midwest's Motion to

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Amended Complaint. On January 3, 2008, FCE Benefit filed its Answer to the First Amended Complaint and Counterclaim for Breach of Contract and Defamation. On January 25, 2008, CDC filed its Answer to Midwest's First Amended Complaint and its Cross-Claim Against FCE Benefit. FCE Benefit filed its Answer to CDC's Cross-Claim and Counter Cross-Claim on

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 8. DISCOVERY 20 21 22 23 24 25 26 27 Benefit's design, implementation, and administration of the plan, including any and all stop loss 28
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February 19, 2008. CDC filed its Answer to FCE Benefit's Counter Cross-Claim on March 10, 2008. Midwest does not currently know if it will need to add or dismiss parties. The parties must commence discovery before Midwest can make this assessment. 6. EVIDENCE PRESERVATION The parties have agreed to preserve all evidence relevant to the issues reasonably evident in this action, including but not limited to such writings and recordings as defined by Fed. R. Evid. 1001(d). Furthermore, the parties shall interdict any document destruction program and ongoing erasures of emails, voicemail and other electronically-recorded material relating to the issues raised in this case. 7. DISCLOSURES Midwest and FCE Benefit will serve initial disclosures on or before March 24, 2008. CDC will serve initial disclosures on or before April 8, 2008.

The parties have agreed on a discovery plan. To date, there has been no discovery. Midwest anticipates serving discovery as soon as it is able to do so under the Federal Rules of Civil Procedure. (1) Changes that should be made in the timing, form, or requirements for disclosures

under 26(a): No changes are anticipated at this time. (2) Subjects on which discovery is needed include: Any documents relating to FCE

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insurance and any communications including denial and payment of any claims by stop loss insures; communications between and among any of the parties to this lawsuit, including Midwest, CDC, and stop loss insurance carriers; and any and all reports and financial documents relating to FCE Benefit's administration of the plan.

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 10. RELATED CASES 20 21 22 23 24 25 26 27 Benefit against claims being asserted by Midwest; for apportionment of damages based upon the 28
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(3)

Any issues relating to the disclosure or the discovery of electronically stored

information, including the form in which the discovery should be produced: None are anticipated at this time. (4) Issues relating to claims of privilege or protection, whether the court should

include such an agreement in its orders: There may be confidential health care information and proprietary information which will require the issuance of a protective order. (5) What changes should be made in the limitations of discovery, what limitations

should be imposed: No changes are anticipated at this time. (6) time. 9. CLASS ACTIONS Not applicable. Other orders that should be entered by the Court: None are anticipated at this

Not applicable at this time. 11. RELIEF A. Midwest seeks a judgment against defendants for monetary damages, interest, and

attorneys' fees. B. FCE Benefit seeks judgment against Midwest for damages, attorneys' fees,

interest, and costs. FCE Benefit seeks an order requiring CDC to defend and indemnify FCE

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relative fault of CDC; damages, attorneys' fees, interest, and costs. C. CDC seeks an order requiring FCE Benefit to defend and indemnify CDC against

claims asserted by Midwest; an apportionment of damages based upon the respective fault of Midwest and FCE Benefit; a judicial determination of the comparative fault of Midwest and FCE

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 (Docket No. 8). On October 1, 2007, the Clerk reassigned this case to the Oakland Division and 20 21 22 23 24 25 26 27 The parties have not yet identified any issues that can be narrowed by motion or 28
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Benefit for damages claimed by Midwest, if any are found to exits; a judicial determination of the amount that FCE Benefit is obligated to indemnify CDC, if CDC is compelled to pay any sum as a result of any damages judgment; damages; attorney's fees; interest and costs. 12. SETTLEMENT AND ADR At present, Midwest, FCE Benefit, and CDC believe it will be necessary to develop the facts through discovery before the parties may engage in meaningful settlement discussions. The parties recommend that the Court refer this case for mediation for approximately five months from now to allow the parties to conduct certain discovery. FCE Benefit proposes that the parties engage in Early Neutral Evaluation. 13. CONSENT TO MAGISTRATE JUDGE FOR ALL PURPOSES The parties do not consent to proceeding before a Magistrate Judge for all purposes. On September 27, 2007, FCE Benefit filed a Motion Requesting Reassignment to a District Judge.

to the Honorable Claudia Wilken for all further proceedings. (Docket No. 12). 14. OTHER REFERENCES The parties do not believe that this case is suitable for binding arbitration. However, as noted above, the parties recommend appointment of a settlement judicial officer at a date after the completion of discovery. 15. NARROWING OF ISSUES

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agreement. 16. EXPEDITED SCHEDULE This case is not suitable for expedited scheduling. 17. SCHEDULING

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 days. 20 21 22 23 24 25 26 27 Court on September 27, 2007. (Docket No. 9). 28
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A.

The parties have jointly agreed to the following proposed schedule: Last day for fact discovery: March 23, 2009 Last day for Plaintiff to identify expert witnesses: March 23, 2009 Last day to depose Plaintiff's experts: April 24, 2009 Last day for Defendants to identify expert witnesses: May 4, 2009 Last day to depose Defendants' expert witnesses: June 5, 2009 Last day to identify rebuttal expert witnesses: June 22, 2009 Last day to depose rebuttal expert witnesses: July 24, 2009 Last day to file dispositive motions: September 25, 2009 Trial: January 11, 2010

18. TRIAL The case will be tried to a jury. The parties estimate the trial will last approximately six

19. DISCLOSURE OF NON-PARTY INTERESTED ENTITIES OR PERSONS Midwest is not aware of any non-parties who have a financial interest, or may be substantially affected by the outcome of this case. FCE Benefit is not aware of any non-parties who have a financial interest, or may be substantially affected by the outcome of this case. Midwest filed a certificate to that effect with the Clerk of the Court on January 17, 2008. (Docket No. 27). Similarly, FCE Benefit filed a certificate to that effect with the Clerk of the

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CDC is not aware of any non-parties who have a financial interest, or may be substantially affected by the outcome of this case. CDC filed a certificate to that effect with the Clerk of the Court on March 10, 2008. 20. SUCH OTHER MATTERS

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None. Dated: March 19, 2008 CARMODY MACDONALD P.C. By: /s/ David P. Stoeberl DAVID P. STOEBERL Attorneys for Plaintiff Midwest Transport, Inc.

/s/ Robert D. Eassa ROBERT D. EASSA Attorneys for Defendant FCE Benefit Administrators, Inc.

/s/ John H. Stephens JOHN H. STEPHENS Attorneys for Defendant Califia Development Corp.

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1 2 3 4 5 6 7 8 9 10 11 12 UNITED STATES DISTRICT COURT 13 NORTHERN DISTRICT OF CALIFORNIA 14 OAKLAND DIVISION 15 16 17 Plaintiff, 18 v. 19 20 21 22 CASE MANAGEMENT ORDER 23 The Case Management Statement is hereby adopted by the Court as the Case Management 24 25 26 27 28
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DAVID P. STOEBERL (Mo. Bar No. 46024) [email protected] JULIE L. WATERS (Mo. Bar No. 55314) [email protected] CARMODY MACDONALD P.C. 120 South Central Avenue, Suite 1800 St. Louis, MO 63105 Tel: 314-854-8600 Fax: 314-854-8660 CARTER W. OTT (State Bar No. 221660) [email protected] DLA PIPER US LLP 153 Townsend Street, Suite 800 San Francisco, California 94107 Telephone: 415-836-2500 Facsimile: 415-836-2501 Attorneys for Plaintiff MIDWEST TRANSPORT, INC.

MIDWEST TRANSPORT, INC., a Delaware Corporation,

CASE NO. C 07-4408CW

FCE BENEFIT ADMINISTRATORS, INC., a California Corporation, et al.

Order for the above-referenced case and the parties to comply with this Order. Dated: ___________________ __________________________________ Honorable Claudia Wilken United States District Judge 16