Free Response in Opposition to Motion - District Court of Arizona - Arizona

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SUSAN MARTIN (AZ#014226) DANIEL L. BONNETT (AZ#014127) JENNIFER KROLL (AZ#019859) MARTIN & BONNETT, P.L.L.C. 3300 N. Central Avenue, Suite 1720 Phoenix, Arizona 85012-2517 Telephone: (602) 240-6900 [email protected] [email protected] [email protected] Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Barbara Allen; Richard Dippold; Melvin Jones; ) Donald McCarty; Richard Scates and Walter G. ) West, individually and on behalf of all others ) similarly situated, ) ) Plaintiffs, ) ) vs. ) ) Honeywell Retirement Earnings Plan; Honeywell ) Secured Benefit Plan; Plan Administrator of ) Honeywell Retirement Earnings Plan; and Plan ) Administrator of Honeywell Secured Benefit ) Plan, ) ) Defendants. ) ) No. CV04-0424 PHX ROS

OPPOSITION TO DEFENDANTS REQUEST FOR DENIAL OR CONTINUANCE OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT ON STATUTE OF LIMITATIONS UNDER 56(F)

Plaintiffs hereby oppose Defendants Request for Denial or Continuance of Plaintiffs Motion for Summary Judgment on Statute of Limitations Under 56(f). (Doc. 371.) As set forth below, Defendants motion fails to meet the criteria under Rule 56(f) of the Federal Rules of Civil Procedure. Defendants bear the burden of proof on the affirmative defense of the statute of limitations. Defendants moved for summary judgment on the statute of limitations defense arguing only that three documents triggered the running of the statute of limitations: a 1984 brochure; a 1984 Summary Plan Description and a 1996 Summary Plan Description. Given that in order to trigger the statute, Defendants must prove that they put Plaintiffs on notice

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or constructive notice of their claims and that Defendants unmistakably repudiated Plaintiffs claims, Defendants effort to postpone a ruling on Plaintiffs motion for summary judgment dismissing the statute of limitations defense in order to establish what [class members] knew, and when they knew it... 1 is without merit. In opposing the motion for class certification, Defendants attempted to claim that benefit calculation worksheets and materials and presentations from some 1995 Phoenix area meetings, along with other communications, triggered the running of the statute of limitations. (Doc. 146, 186.) When Plaintiffs moved for summary judgment on the statute of limitations defense, Plaintiffs addressed the evidence on which Defendants had previously relied. (Doc. 343.) However, Defendants motion for summary judgment on the statute of limitations defense (filed the same day as Plaintiffs motion), (Doc. 340), abandoned their claims that any company generated communications other than a 1984 brochure, a 1984 SPD and a 1996 SPD, constituted notice or repudiation of Plaintiffs claims.2 In view of the fact that Defendants abandoned any argument that benefit statements or meeting presentation materials or other documents were legally sufficient to trigger the running of the statute, Defendants Rule 56(f) motion s claimed need to conduct discovery on who received such documents lacks merit and provides no basis for delaying a summary judgment ruling on the statute of limitations defense. Not only are the documents legally irrelevant, but for the reasons set forth in detail in Plaintiffs opposition to Defendants renewed motion to serve a questionnaire, (Doc. 378), Defendants motion also fails to satisfy their burden to show why absent class members should be called upon to respond to
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Doc. 371, Decl. of Eleanor Barrett, ¶ 5.

In opposition to Plaintiffs motion for summary judgment on the statute of limitations, Defendants likewise did not contend that any documents, other than the three upon which they relied in their own motion for summary judgment, triggered the running of the statute of limitations. See, e.g., Defendants opposition to Plaintiffs motion for summary judgment, (Doc. 369, p 9), claiming that [t]he 1995 presentation to approximately 1,000 active employees working in the Phoenix area, Pls. Mot. 10, did not address, much less affirmatively deny, plaintiffs specific interest-rate projection claims.
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Defendants inquiries. As the Ninth Circuit has held on numerous occasions: To prevail under ...Rule [56(f)], parties opposing a motion for summary judgment must make (a) a timely application which (b) specifically identifies (c) relevant information, (d) where there is some basis for believing that the information sought actually exists. VISA Int'l Serv. Ass'n v. Bankcard Holders of Am., 784 F.2d 1472, 1475 (9th Cir.1986). The burden is on the party seeking additional discovery to proffer sufficient facts to show that the evidence sought exists, and that it would prevent 1130 summary judgment. Chance v. Pac-Tel Teletrac Inc., 242 F.3d 1151, 1161 n. 6 (9th Cir.2001). The district court does not abuse its discretion by denying further discovery if the movant has failed diligently to pursue discovery in the past, or if the movant fails to show how the information sought would preclude summary judgment. Cal. Union Ins. Co. v. Am. Diversified Sav. Bank, 914 F.2d 1271, 1278 (9th Cir.1990) (citations omitted). Employers Teamsters Local Nos. 175 and 505 Pension Trust Fund v. Clorox Co. 353 F.3d 1125, 1129 -30 (9th Cir. 2004). See also Tatum v. City and County of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006); Jones v. Blanas, 393 F.3d 918, 930 (9th Cir. 2004); 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2740 (3d ed.1998). Even if Defendants could establish that discovery on matters they do not rely on for their statute of limitations defense could be legally relevant to that defense, the Rule 56(f) motion seeking absent class member discovery would still be without merit. Defendants conducted discovery as to the six named Plaintiffs. In the nearly four years since the lawsuit was filed, Defendants have had ample opportunity to conduct a review of their own records and witnesses. In addition, Plaintiffs agreed to allow Defendants to contact and interview current and former officers and directors, human resources employees, benefits personnel and certain managerial personnel who are class members, in order for Defendants to develop information pertinent to Defendants defenses. See Exhibit 1, hereto. See also Doc. 389, Exh. 2 to Decl. of Azeez Hayne. If additional information relevant to Defendants affirmative defense existed, Defendants have had every opportunity to locate and present it. As the Court noted in granting the motion for class certification: Much of Defendants evidence is based on speculation, and they are largely in possession of the evidence that the statute of limitations will defeat the class action.
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(Doc. 226, pp. 14-15.) Under Rule 56(f), the party seeking the continuance must show that it lacks the facts essential to resist the summary judgment motion. McCormick v. Fund American

Companies, Inc., 26 F.3d 869, 885 (9th Cir. 1994) (affirming denial of Rule 56(f) motion where evidence sought would have made no difference on summary judgment, because the allegedly omitted material would not have altered the total mix of information available... ). Nothing in Defendants motion or supporting declaration justifies a delay in resolving Plaintiffs motion for summary judgment dismissing the statute of limitations defense. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that Defendants motion under Rule 56(f), (Doc. 371), be denied. . Respectfully submitted this 31st day of January, 2008. MARTIN & BONNETT, P.L.L.C. By: s/Susan Martin Susan Martin Daniel L. Bonnett Jennifer L. Kroll 3300 North Central Avenue Suite 1720 Phoenix, AZ 85012-2517 Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on January 31, 2008, 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: David B. Rosenbaum Dawn L. Dauphine Osborn Maledon, P.A. 2929 North Central Ave., Suite 2100 Phoenix, AZ 85012-2794 Michael Banks Azeez Hayne Morgan Lewis & Bockius LLP 1701 Market Street Philadelphia, PA 19103 Howard Shapiro Proskauer Rose LLP 909 Poydras Street, Suite 1100 New Orleans, LA 70112 Amy Covert Proskauer Rose LLP th One Newark Center, 18 Floor Newark , NJ 07102-5211 Christopher Landau Eleanor R. Barrett Craig Primis Kirkland & Ellis LLP 655 Fifteenth Street, N.W. Washington, D.C. 20005 Attorneys for the Defendants s/ J. Kroll

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