Free Report re: Rule 26(f) Planning Meeting - District Court of Arizona - Arizona

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Eric G. Slepian Bar # 017495 SLEPIAN LAW OFFICE 3737 N. 7th Street, Ste. 106 Phoenix, Arizona 85014 Telephone (602) 266-3111 Attorney for Plaintiff UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Angela Jolicoeur, Plaintiff, vs. NO. CIV-04-0499-PHX-SRB PROPOSED JOINT CASE MANAGEMENT PLAN

Midland Credit Management Long Term Disability Plan, UnumProvident a/k/a UNUM Life Insurance Company of America, Defendants.

(Assigned to the Honorable Susan R. Bolton)

The parties submit this proposed case management plan pursuant to the Court's
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Order Setting Rule 16 Scheduling Conference filed on December 7, 2006.
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1.

The Nature of the Case, Setting Forth in Brief Statements the Factual and Legal Basis of the Plaintiff's Claims and Defendants' Defenses

This lawsuit concerns a dispute over Plaintiff's entitlement to Long Term
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Disability benefits under a group disability insurance plan and medical benefits under the Midland Credit Management Health and Welfare Benefit Plan. The parties agree that the Long Term Disability plan is subject to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et. seq. The plan further asserts that this Court has jurisdiction over this matter pursuant to 29 U.S.C.S.§ 1166.

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Case 2:04-cv-00499-SRB

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Defendant Midland Credit Management ("MCM") hired Plaintiff Angela Jolicoeur ("Jolicoeur") as an Account Manager on or about May 14, 2001. Effective February 1, 2001, Defendant Unum Life Insurance Company of America ("UNUM Life") issued a policy of group long-term disability insurance to MCM (hereafter, "the Plan"). At material times, Jolicoeur participated in the Plan. The Plan provides monthly benefits if a participant becomes "disabled" as defined by the Plan. On or about March 5, 2002, Jolicoeur began a leave of absence from MCM. In July 2002, Jolicoeur submitted a claim for long-term disability benefits, asserting that she had been disabled beginning March 5, 2002. UNUM Life paid long-term disability benefits through February 21, 2003. At that time, UNUM Life declined to pay further benefits because it determined that the information in the file no longer supported a

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finding of disability under the terms of the Plan. Jolicoeur disagrees with UNUM Life's decision. On March 12, 2004 she filed this action against the defendants seeking disability and medical benefits. 2. Elements of Proof and Scope of Review

Plaintiff's Statement: In determining the issues subject hereto, the Court must
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consider Defendants' conflict of interest and other motivations and/or improprieties in terminating benefits as set forth in Abatie v. Alta Health and Life Insurance Company, 458 F.3d 955 (9th Cir. 2006). If a question of fact exists, a bench trial is proper. Id. Defendant's Statement: To recover benefits under 29 U.S.C. § 1132(a)(1)(B) the plaintiff must prove that UNUM abused its discretion in denying benefits. See Abatie v.

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Alta Health and Life Insurance Company, 458 F.3d 955 (9th Cir. 2006) (abuse of discretion standard always applies where plan confers discretion upon administrator).

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In accordance with Kearney v. Standard Ins. Co., 175 F.3d 1084 (9th Cir. 1999), this Court will decide the merits of this case after a "paper trial" ­ that is, a bench trial based upon the administrative record. See also Abatie, 458 F.3d at 970. Discovery may be limited to production of the administrative record. Or the plaintiff may seek limited discovery related to the application of the standard of review only. 3. The Factual and Legal Issues Genuinely in Dispute

The following factual legal issues are in dispute: Plaintiff's Statement: (a) (b) (c) Whether Plaintiff is entitled to her Long Term Disability benefits. Whether Plaintiff was a qualified beneficiary under the subject health plan. Whether this Court should review the claim de novo.

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Defendant's Statement: (a) (b) Did UNUM abuse its discretion in denying the plaintiff benefits. What weight, if any, should the Court give to UNUM Life's "structural

conflict of interest" in assessing whether UNUM Life abused its discretion. 4. The Jurisdictional Basis of the Case, Citing Specific Statutes

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This Court has jurisdiction pursuant to ERISA, 28 U.S.C. §1132 and U.S.C. 1331. 5. Parties, If any, Which Have not Been Served, as Well as Parties Which Have Not Filed an Answer or Other Appearance, Including Fictitious Parties

All parties have been served. 6. None. 7. Whether There are Dispositive or Partially Dispositive Issues to be Decided by Pretrial Motions Names of Parties Not Subject to the Court's Jurisdiction

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Plaintiff's Statement: The Plaintiff and Defendants may file dispositive motions subsequent to the performance of additional discovery. Plaintiff is entitled to a bench trial. Defendant's Statement: This Court will decide the merits based upon motion

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practice. See, e.g., Kearney v. Standard Ins. Co., 175 F.3d 1084 (9th Cir. 1999) (court decides merits after a bench trial based upon the administrative record). At this point, UNUM Life does not expect any interim motions seeking partial disposition of the case. 8. Whether the Case is Suitable for Reference to Arbitration, to a Master, or to a United States Magistrate Judge for all Further Proceedings.

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No. 9. The Status of Related Cases Pending Before Other Judges of This Court or Before Other Courts Suggested Changes, if Necessary, and the Timing, Form, or Requirement for Disclosures Under Rule 26(A0 Federal Rules of Civil Procedure, Including a Statement of When Initial Disclosures Were Made or Will be Made

There are no related cases pending before this Court or other Courts. 10.

Initial disclosures have been exchanged. 11. Proposed Deadlines Plaintiff's Statement:

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(a) (b) (c) (d) (e)

Amendment of Pleadings: May 1, 2007 Discovery cutoff: November 1, 2007 Dispositive Motions: December 15, 2007 Disclosure of Expert Testimony, if any: September 15, 2007 Scheduling of the final Pretrial Conference:

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Thirty days after determination of dispositive motions or December 30, 2007 whichever is later. Defendant seeks to impose an obligation on Plaintiff to identify documents that should be included in the Administrative record before conducting any discovery. Plaintiff is entitled to discovery concerning Defendant's conflict of interest and whether Defendant failed to include pertinent records in the claim file to identifying the appropriate Administrative record. Abatie v. Alta Health and Life Insurance Company, 458 F.3d 955 (9th Cir. 2006). Defendant's Statement: A. B. Amendment of the Pleadings: May 1, 2007 Production and Review of the Administrative Record: UNUM Life has

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previously disclosed a copy of the administrative record for the plaintiff's review. The plaintiff will notify the defendants by April 30, 2007 of her position as to the following issues: (1) whether the plaintiff believes that any additional documents should be added to the administrative record; (2) whether the plaintiff believes that any documents contained in the administrative record should be omitted; and (3) whether the plaintiff

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believes that any discovery beyond the administrative record should be conducted and on what grounds. The parties will thereafter work together to resolve any issues. C. Filing of Administrative Record: By July 30, 2007, the parties will file a

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joint administrative record with the Court (or if agreement cannot be reached, the parties
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may file a motion regarding the same).
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D.
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Motion for Discovery: Also by July 30, 2007, the plaintiff may file a motion

for permission to take discovery related to the standard of review. E. Briefing Schedule for Legal Issues/Merits of the Case: The primary legal

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issue in this matter is whether UNUM Life abused its discretion in denying benefits. If a joint administrative record is timely filed and the plaintiff does not seek to conduct discovery beyond the administrative record, UNUM Life proposes that dispositive motions (whether under Fed. R. Civ. P. 52, 56, or both) be filed no later than August 13, 2007. Response memoranda will be due September 17, 2007. And reply memoranda will be due October 5, 2007. If the plaintiff does seek and is permitted discovery beyond the administrative record, the above deadlines will be suspended. The parties will work together with the Court to prepare a new scheduling order and may seek a status conference to address any outstanding issues. 12. The Scope and Discovery and Whether Discovery Should be Conducted in Phases or Should Be Limited to or Focused Upon Particular Issues

Plaintiff's Statement: Plaintiff does not believe discovery should be conducted in phases. Defendant's Statement: UNUM Life contends that discovery, if permitted at all in ERISA cases, is extremely limited. Accordingly, it has suggested the procedure set

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forth in Section 11, above. 13. Suggested Changes, if any, in the Limitations On Discovery Imposed By The Federal Rules of Civil Procedure.

Plaintiff's Statement: Plaintiff does not believe that any change to the Federal Rules of Civil Procedure is warranted.

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Defendant's Statement: UNUM Life contends that discovery, if permitted at all in ERISA cases, is extremely limited. Accordingly, it has suggested the procedure set forth in Section 11, above.

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14.

Estimated Date That the Case Will be Ready for Trial and the Estimated Length of Trial

Plaintiff's Statement: Plaintiff believes that this matter will be ready for bench trial
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by February 1, 2008.
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Defendant's Statement: In this ERISA case, the Court will decide the merits based upon motion practice. See, e.g., Kearney v. Standard Ins. Co., 175 F.3d 1084 (9th Cir. 1999) (court decides merits after a bench trial based upon the administrative record). 15. Whether a Jury Trial Has Been Requested and Whether the Request for a Jury Trial is Contested

The parties agree that under ERISA there is no right to a jury trial. Nevill v. Shell Oil Co., 835 F.2d 209 (9th Cir. 1987); Blau v. Del Monte Corp., 748 F.2d 1348 (9th Cir 1985).

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16.
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The Prospects for Settlement, Including Any Request to Have a Settlement Conference Before Another United States District Court Judge or Magistrate Judge, or Other Requests of the Court for Assistance in Settlement Efforts.

The parties may engage in mediation at the appropriate time. DATED this 23rd day of March, 2007. THE SLEPIAN LAW FIRM

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By

s/Eric G. Slepian Eric G. Slepian 3737 N. 7th Street, Suite 106 Phoenix, Arizona 85014 Attorney for Plaintiff

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LEWIS AND ROCA, LLP By s/Ann-Martha Andrews___ Ann-Martha Andrews 40 North Central Avenue Phoenix, AZ 85004-4429 Attorney for UNUM Life Insurance Co.

LITTLER MENDELSON By s/R. Shawn Oller ________ R. Shawn Oller, Esq. 2425 E. Camelback Road, Ste. 900 Phoenix, AZ 85016 Attorney for Midland Credit Management

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CERTIFICATE OF SERVICE I hereby certify that on March 23, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF Registrants: Ann-Martha Andrews, Esq. Lewis & Roca, LLP 40 North Central Avenue Phoenix, AZ 85004-4429 Attorney for Defendant UNUM Life Insurance Co. R. Shawn Oller, Esq. Littler Mendelson 2425 E. Camelback Road, Ste. 900 Phoenix, AZ 85016 Attorney for Defendant Midland Credit Management s/ Genesia Conover SLEPIAN LAW OFFICE

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