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

R ANDOLPH G . B ACHRACH
ATTORNEY AT LAW 5103 E. THOMAS ROAD PHOENIX, ARIZONA 85018 (602) 852-9540
(AZ #12621 - CA #93278)

Attorney for Plaintiff

United States District Court
FOR THE DISTRICT OF ARIZONA

DAVID L. MAZET, Plaintiff, vs. HALLIBURTON COMPANY LONGTERM DISABILITY PLAN; and, HARTFORD LIFE & ACCIDENT INSURANCE COMPANY, Defendants.
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No.: CV 04 0493 PHX FJM MOTION TO REINSTATE AND TO STAY PLAINTIFF'S ACTION PENDING REMAND TO PLAN ADMINISTRATOR

Following the dismissal of his appeal "for lack of jurisdiction" by the U.S.C.A. (9th Cir.), Plaintiff moves for the reinstatement and stay of his lawsuit pending remand to the Plan Administrator, per this Court's Order and Judgment. This Motion is supported by the attached Memorandum of Points & Authorities. MEMORANDUM OF POINTS & AUTHORITIES I. Dismissal of Plaintiff's Appeal.

The U.S.C.A. (9th Cir.) has issued its Order (filed 12-5-06) dismissing Plaintiff's Appeal "for lack of jurisdiction." Plaintiff has given notice to the Court of the dismissal. (Docket # 48.) The dismissal was pursuant to the granting of Defendants' Motion to Dismiss. (Exhibit 1, attached.) The Motion to Dismiss was filed after Plaintiff had filed his opening brief in the Court of Appeals and one (1) year after Plaintiff filed his Notice of Appeal. ...

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RANDOLPH G. BACHRACH
ATTORNEY AT LAW 5103 E. THOMAS ROAD PHOENIX, ARIZONA 85018 S (602) 852-9540

Plaintiff filed his Notice of Appeal because his lawsuit was dismissed. Because of the dismissal of his lawsuit, Plaintiff reasonably believed that the appeal was ripe and that the Court of Appeals would accept jurisdiction. The basis of the lawsuit was the denial of the Plan's "any occupation" disability benefits to Plaintiff, i.e., benefits owed after the initial "own occupation" benefit period during the first 24 months following disability. During the lawsuit, Plaintiff raised a collateral issue with respect to the incorrect calculation by the Plan of Plaintiff's "predisability earnings." As to that issue, this Court Ordered: We remand this case to the Plan administrator solely to determine if Plaintiff's predisability wages were properly determined and if he was underpaid during the initial 24-month period. Defendants confessed in their Motion to Dismiss that they, too, initially assumed that the case was ripe for appeal: When Mazet filed his opening brief on August 18, 2006, it became clear to Hartford and the plan that the district court's judgment was not final and appealable. They therefore filed this motion [to dismiss]. (See Exh. 1, pg. 4.) Defendants further acknowledge that Plaintiff will not be prejudiced by the dismissal of the appeal: "Once Hartford makes a decision on remand, Mazet will be able to seek review by the district court, and then in this Court if necessary." (See Exh. 1, pg. 6; also, see pg. 9.) II. Reinstatement of Plaintiff's lawsuit is appropriate.

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The reinstatement of Plaintiff's lawsuit is appropriate because he is not required to commence a new action under these circumstances. Here, the Court of Appeals has dismissed Plaintiff's appeal "for lack of jurisdiction." In doing so, the Court of Appeals agreed with Defendants that ". . . this appeal [lacks] an appealable, final judgment as required by 28 U.S.C. § 1291." (See Exh. 1, pg. 9.) Under these circumstances, in which the Court of Appeals has found that there is not yet a final appealable judgment, reinstatement of Plaintiff's lawsuit is appropriate. Moreover, it is not clear from this Court's Order granting summary judgment to Defendants that it was the intent of the Court that Plaintiff's action be dismissed by the Clerk
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RANDOLPH G. BACHRACH
ATTORNEY AT LAW 5103 E. THOMAS ROAD PHOENIX, ARIZONA 85018 S (602) 852-9540

of the Court. The Order contains no such language with respect to the dismissal of Plaintiff's lawsuit pending remand to the Plan Administrator. To the extent the Court agrees that the dismissal of Plaintiff's lawsuit was merely a clerical error, reinstatement is appropriate for that reason, also. III. Following reinstatement, Plaintiff requests a stay of his lawsuit.

A stay of Plaintiff's lawsuit, following reinstatement, is needed to permit Plaintiff to accomplish the purpose of this Court's remand Order without prejudice to his rights of appeal with respect to the summary judgment. The Court of Appeals has dismissed Plaintiff's appeal based upon its view that the Order granting summary judgment was, in effect, a partial summary judgment which did not dispose of all claims and issues raised in the lawsuit. For that reason, there was a lack of jurisdiction based on the absence of a final judgment. In these circumstances, as noted in the case law cited by the Court of Appeals in its Order (dismissing the appeal), Plaintiff is not "required to commence a new civil action." In Williamson v. Unum Life Ins. Co. of America, 160 F.3d 1247, 1252 (9th Cir. 1998), the Court held: [I]mplicit in a district court's order of remand to a plan fiduciary is an understanding that after a new decision by the plan fiduciary, a party seeking judicial review in the district court may do so by a timely motion filed in the same civil action, and is not required to commence a new civil action. 160 F.3d 1247, at 1252 (citing, Petralia v. AT&T Global Information Solutions Co., 114 F.3d 352, 355 (1st Cir. 1997). IV. Conclusion.

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It is clear that both parties mistakenly believed at the time Plaintiff's lawsuit was dismissed and at the time of filing of the Notice of Appeal, that a final appealable Order existed upon which the Court of Appeals had jurisdiction. Defendants discovered the error after Plaintiff filed his Opening Brief, a full year after the Notice of Appeal. Defendants also acknowledge that no prejudice should result to Plaintiff's appeal rights resulting from this error. Plaintiff believes that the dismissal of his lawsuit (which was not specifically ordered by this Court in its judgment) was very likely the result of clerical error. Thus, Plaintiff requests that the Court reinstate his lawsuit and issue a stay to allow Plaintiff to accomplish
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the purpose of this Court's remand Order. Following the decision by the Plan Administrator, Plaintiff will do one of the following: 1) if the decision of the Plan Administrator resolves all ("predisability earnings") questions to the satisfaction of Plaintiff, he will move to dismiss his action with prejudice; or, 2) if the decision of the Plan Administrator does not resolve all ("predisability earnings") questions to the satisfaction of Plaintiff, he will move for further review by this Court. Following any further order(s) which this Court may enter in the event of the latter situation, Plaintiff intends to file his appeal from all issues and claims as finally decided by this Court, as may be necessary and appropriate. Respectfully submitted: DATED: December 13, 2006 RANDOLPH G. BACHRACH Attorney at Law

RANDOLPH G. BACHRACH

ATTORNEY AT LAW 5103 E. THOMAS ROAD PHOENIX, ARIZONA 85018 S (602) 852-9540

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By s/Randolph G. Bachrach Randolph G. Bachrach 5103 E. Thomas Road Phoenix, Arizona 85018 Attorney for Plaintiff I hereby certify that on December 13, 2006 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:
Thomas Klinkel Scott Bennett LEWIS & ROCA, LLP 40 N. Central Ave. Phoenix, Arizona 85004-3329 Attorneys for Defendants

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s/Randolph G. Bachrach

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EXHIBIT 1
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United States District Court
FOR THE DISTRICT OF ARIZONA

DAVID L. MAZET, Plaintiff, vs. HALLIBURTON COMPANY LONGTERM DISABILITY PLAN; and, HARTFORD LIFE & ACCIDENT INSURANCE COMPANY, Defendants.
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No.: CV 04 0493 PHX FJM [PROPOSED] ORDER TO REINSTATE PLAINTIFF'S LAWSUIT

The motion by Plaintiff for the reinstatement and stay of his lawsuit pending remand to the Plan Administrator being before the Court, and good cause appearing therefor, IT IS ORDERED that Plaintiff's lawsuit shall be reinstated. IT IS FURTHER ORDERED that Plaintiff's reinstated lawsuit shall be stayed pending completion of the review by and determination of the Plan Administrator with respect to the issues subject to this Court's remand Order. IT IS FURTHER ORDERED that, within thirty (30) days following the final determination by the Plan Administrator with respect to all issues subject to this Court's remand Order, Plaintiff shall either move to dismiss his lawsuit or move for further review of the issues decided upon remand.

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