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

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David B. Rosenbaum, Atty. No. 009819 Dawn L. Dauphine, Atty. No. 010833 OSBORN MALEDON, P.A. 2929 North Central Avenue, Suite 2100 Phoenix, AZ 85012-2794 Telephone: (602) 640-9000 [email protected] [email protected] Michael L. Banks, Pro Hac Vice William J. Delany, Pro Hac Vice Azeez Hayne, Pro Hac Vice MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103 Telephone: (215) 963-5000 [email protected] [email protected] [email protected] Howard Shapiro, Pro Hac Vice PROSKAUER ROSE LLP 909 Poydras Street, Suite 1100 New Orleans, LA 70112-4017 Telephone: (504) 310-4088 [email protected] Attorneys for Defendants 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, No. CV04-0424 PHX ROS Christopher Landau, P.C., Pro Hac Vice Craig S. Primis, P.C., Pro Hac Vice Eleanor R. Barrett, Pro Hac Vice KIRKLAND & ELLIS LLP 655 Fifteenth Street, N.W. Washington, D.C. 20005-5793 Telephone: (202) 879-5000 [email protected] [email protected] [email protected] Amy Covert, Pro Hac Vice PROSKAUER ROSE LLP One Newark Center, 18th Floor Newark, NJ 07102 Telephone: (973) 274-3258 [email protected]

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1-PH/2832922.8

DEFENDANTS' RESPONSE IN OPPOSITION TO PLAINTIFFS' RULE 56(f) MOTION

Honeywell Retirement Earnings Plan, Honeywell Secured Benefit Plan, Plan Administrator of Honeywell Retirement Earnings Plan, and Plan Administrator of Honeywell Secured Benefit Plan,

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I.

INTRODUCTION Defendants moved for summary judgment on the Three Remaining Claims on

December 10, 2007 arguing that class members received brochures in January 1984 and a summary plan description ("SPD") in May 1984 that caused the statute of limitations to run more than two decades before Plaintiffs filed suit. (Doc. No. 340) Defendants also referenced a 1996 SPD in further support of their argument. (Id. at 13-14.) Plaintiffs did not contest these facts, choosing instead to file a Rule 56(f) motion requesting a continuance to obtain discovery "regarding the method, manner and recipients" of the 1984 communications and the 1996 SPD. (Doc. No. 373 at 4.) A Rule 56(f) movant bears the burden of: (1) establishing that the evidence sought exists and would preclude summary judgment, (2) explaining why it cannot immediately present specific facts creating a material dispute of fact, and (3) demonstrating that it pursued its previous discovery opportunities diligently. Plaintiffs failed to do any of these things. Plaintiffs nowhere identify what evidence they expect to uncover through additional discovery or how such evidence might preclude summary judgment. They offer no facts to contradict Defendants' evidence, nor any explanation for why they could not introduce testimony from their own clients ­ the recipients of the documents ­ to do so. Plaintiffs' failure is telling and strongly suggests that discovery would not yield any contrary evidence. Indeed, their previous admissions in this case establish that class members did receive the 1984 brochures. Discovery regarding the 1996 SPD would be similarly fruitless. Such discovery could not preclude summary judgment because it could not create a dispute of fact regarding the distribution of the 1984 communications. And, far from demonstrating that plaintiffs "diligently pursued discovery on these issues," (Doc. No. 373 at 4), the record shows that Defendants disclosed James McLeod, a class member over whom Defendants had no control, as a potentially relevant witness more than a year before they filed their motion for summary judgment. But Plaintiffs do not explain why they did not interview or take discovery from him in that year. The Court should deny the Rule 56(f) motion for all of these reasons.
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II.

RELEVANT FACTS Plaintiffs alleged in their Complaint that: Participants were notified through a plan description dated January 1, 1984 about new benefit formulas and requirements under the newly merged retirement plan ("January 1984 Signal Retirement Plan Document").

(Doc. No. 1 at ¶ 38.) They reiterated this assertion in support of their motion for summary judgment, (Doc. No. 24 at ¶ 20), and again in their Amended Complaint. (Doc. No. 47 at ¶ 39.) Plaintiffs' summary judgment filing, moreover, clarifies that the "January 1984 Signal Retirement Plan Document" is the same as the 1984 brochures on which Defendants relied in support of their summary judgment motion. (Compare Doc. No. 24 at ¶ 20 (citing Doc. No. 16, Ex. G) with Doc. No. 340-1; Ex. A.) Defendants informed Plaintiffs no later than August 5, 2004 that they intended to argue that the statute of limitations barred Plaintiffs' claims. (Doc. No. 31 at 38; see also Doc. No. 78.) Furthermore, Defendants notified Plaintiffs in June 2006 that they intended to argue that the January 1984 brochures gave class members "actual or constructive knowledge of the injuries underlying their claims." (Doc. No. 186 at 13.) On October 5, 2006, Defendants sent Plaintiffs two lists of individuals Defendants believed were class members. (January 25, 2008 Declaration of Azeez Hayne, Esq. at ¶ 2.) One of the lists identified Mr. McLeod as a class member. (Id.) In November 2006 Plaintiffs' noticed the Rule 30(b)(6) depositions of Defendants. In response, Defendants informed Plaintiffs "that they needed to conduct interviews with certain class members in order to prepare for the depositions . . . ." (Doc. No. 275 at 2.) Specifically, on December 5, 2006, Defendants informed Plaintiffs that "James McLeod, former Director of Compensation and Benefits, Garrett" and sixteen other identified former employees "may be class members that the Honeywell Defendants seek to interview and debrief for purposes of the defense of this case." (Hayne Decl. at ¶ 3.) In February 2007, the parties reached an agreement to allow Defendants to interview these individuals. (Doc. No. 275 at 2.)

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III.

ARGUMENT When moving for relief under Rule 56(f), "[t]he burden is on the party seeking

additional discovery to proffer sufficient facts to show that the evidence sought exists, and that it would prevent summary judgment." Nidds v. Schindler Elevator Corp., 113 F.3d 912, 921 (9th Cir. 1997) (citation omitted). Stated differently, a court should deny a Rule 56(f) motion when the requested discovery would be "fruitless." Jones v. Blanas, 393 F.3d 918, 930-31 (9th Cir. 2004). The movant must also demonstrate "why [it] cannot immediately provide `specific facts' demonstrating a genuine issue of material fact." Mackey v. Pioneer Nat'l Bank, 867 F.2d 520, 524 (9th Cir. 1989). In addition, the moving party must have "diligently pursued its previous discovery opportunities." Qualls v. Blue Cross of Ca., Inc., 22 F.3d 839, 844 (9th Cir. 1994); see also Cornwell v. Electra Central Credit Union, 439 F.3d 1018, 1026-27 (9th Cir. 2006). Because Plaintiffs have failed to establish any of these requirements, the Court should deny Plaintiffs' Rule 56(f) motion. Plaintiffs do not identify the evidence they seek or how such evidence would preclude summary judgment. Instead they simply assert that "Plaintiffs may establish genuine issues of material fact with respect to Defendants' motion for summary judgment after further discovery." (Doc. No. 373 at 4 (emphasis added).) Plaintiffs' unsupported "belie[f]" that they will "have evidence necessary to respond to portions of Defendants' motion for summary judgment . . . after conducting depositions and additional discovery" cannot carry their burden. (Id.) The Court should deny Plaintiffs' Rule 56(f) motion for this reason alone. Nidds, 113 F.3d at 921 (moving party bears burden of demonstrating that requested discovery would preclude summary judgment). Plaintiffs also failed to carry their burden of explaining why they "cannot immediately provide `specific facts' demonstrating a genuine issue of material fact." Mackey, 867 F.2d at 524. Defendants presented evidence that the 1984 communications and 1996 SPD were broadly distributed to class members. It follows that the class members themselves must possess knowledge regarding the distribution of the documents. Indeed, Plaintiffs apparently had sufficient factual support to assert on three separate
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occasions that the 1984 brochures notified participants of the challenged amendments. (Doc. No. 1 at ¶ 38; Doc. No. 24 at ¶ 20; Doc. No. 47 at ¶ 39.) Nevertheless, Plaintiffs have not offered even circumstantial evidence that their clients did not receive those documents, nor attempted to explain why they could not have done so. This deficiency bars Plaintiffs' Rule 56(f) motion. Mackey, 867 F.2d at 524. Plaintiffs also offer no reason to believe that discovery into the "method, manner and recipients of the communications" on which Defendants rely would create a genuine issue of material fact that would preclude the entry of judgment in defendants' favor. (Doc. No. 373 at 4.) Instead, they rely on the unsubstantiated assertion that "Plaintiffs may establish genuine issues of material fact with respect to Defendants' motion for summary judgment after further discovery." (Id. (emphasis added).) In fact, there are several reasons to believe that they could not. Plaintiffs' failure to offer the testimony of any class member contesting their receipt of the documents strongly suggests that discovery would be "fruitless." Jones, 393 F.3d at 930-31 (affirming denial of Rule 56(f) motion where the requested discovery related to facts within plaintiff's "own control" and therefore would be unlikely to yield additional evidence). Indeed, Plaintiffs have relied on the 1984 brochures throughout the litigation, and admitted in three separate filings that the 1984 brochures informed "Participants" of the relevant amendments. (Doc. No. 1 ¶ 38, Doc. No. 24 ¶ 20; Doc. No. 47, ¶ 39.) Having done so, they should not now be allowed to dispute that participants received that information. Moreover, any discovery into the "method, manner and recipients" of the 1996 SPD, (Doc. No. 373 at 4), would be unavailing. Such discovery could not create any dispute of fact regarding the 1984 communications upon which Defendants' motion rests. Thus, discovery regarding the 1996 SPD cannot preclude summary judgment on any of Plaintiffs' claims and the Court should deny Plaintiffs' Rule 56(f) motion. Nidds, 113 F.3d at 921. Finally, the Court should deny Plaintiffs' request for discovery regarding the 1984 communications because Plaintiffs did not diligently pursue their previous discovery opportunities. Plaintiffs argue that they could not have taken discovery from Mr. McLeod
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regarding the 1984 communications because "Defendants did not identify James McLeod" as a relevant witness. (Id. at 3.) But Defendants clearly informed Plaintiffs on December 5, 2006 that Mr. McLeod and sixteen other class members were "persons who may be class members that the Honeywell Defendants wish to interview and de-brief for purposes of developing defenses and evaluating witnesses who may be relevant to testify in response to Plaintiffs' deposition notices." (Hayne Decl. at ¶ 3.) Plaintiffs did not explain why they could not interview or depose Mr. McLeod in the ensuing year before or in the month after Defendants filed their motion. Plaintiffs did not establish that they diligently pursued their previous discovery opportunities, therefore, and the Court should deny their Rule 56(f) motion. See Panatronic USA v. AT&T Corp., 287 F.3d 840, 846 (9th Cir. 2002) (affirming denial of Rule 56(f) motion where plaintiff "had ample opportunity to conduct discovery"); Chance v. Pac-Tel Teletrac Inc., 242 F.3d 1151, 1161 (9th Cir. 2001) (affirming denial of Rule 56(f) motion where plaintiff knew identity of additional witnesses seven months before summary judgment but failed to explain why he did not take discovery during that period); Byrd v. Guess, 137 F.3d 1126, 1135 (9th Cir. 1998) abrogated on other grounds (affirming denial where plaintiff did not explain failure to take necessary discovery within 13 month period); Hauser v. Farrell, 14 F.3d 1338, 1341 (9th Cir. 1994) overruled on other grounds (affirming denial of Rule 56(f) motion where plaintiff did not explain failure to depose witness in 27 months between the complaint and the discovery cutoff); Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986) (affirming denial of Rule 56(f) motion where plaintiff obtained new information in August 1985 but did not take any relevant discovery before summary judgment in December 1985). The Court should reject Plaintiffs' counterfactual attempt to recast their own lack of diligence as Defendants' fault. Plaintiffs argue that they took no discovery from Mr. McLeod because (1) Defendants did not identify Mr. McLeod as a relevant witness when responding to Plaintiffs' interrogatories in March 2006 and (2) Defendants identified Craig Chapman, but not Mr. McLeod, as "someone who had knowledge of
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communications to participants" in their initial disclosures in June 2006. (Doc. No. 373 at 3.) Plaintiffs' finger-pointing is misdirected. Defendants had not yet identified Mr. McLeod as a potential witness in March and June 2006. When Defendants did identify him as a potentially relevant witness, however, they informed Plaintiffs of this fact in December 2006 ­ more than one year before filing their motion for summary judgment. Plaintiffs' failure to interview or depose Mr. McLeod (a class member who they represented) for over one year had nothing to do with anything Defendants did or did not do.
IV.

CONCLUSION For the reasons detailed above, Defendants respectfully request that the Court deny

Plaintiffs' Rule 56(f) motion. Respectfully submitted this 25th day of January, 2008. OSBORN MALEDON By: /s/David B. Rosenbaum David B. Rosenbaum Dawn L. Dauphine Osborn Maledon, P.A. 2929 North Central Avenue, Suite 2100 Phoenix, AZ 85012-2794 Michael L. 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 70112-4017
Amy Covert PROSKAUER ROSE LLP One Newark Center, 18th Floor Newark, NJ 07102-5211

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Christopher Landau, P.C. Craig S. Primis, P.C. Eleanor R. Barrett KIRKLAND & ELLIS LLP 655 Fifteenth Street, N.W. Washington, DC 20005-5793

Attorneys for Defendants

CERTIFICATE OF SERVICE I do certify that on January 25, 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 all CM/ECF registrants.

s/ Kelly Dourlein

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