Free Motion for Miscellaneous Relief - 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 Plaintiffs Motion to Conduct Additional Discovery Pursuant to Rule 56 of the Federal Rules of Civil Procedure

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Pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, Plaintiffs hereby move the Court for an order permitting Plaintiff to conduct discovery on certain aspects of Defendants affirmative defense of the statute of limitations in the event the Court denies Plaintiffs motion for partial summary judgment on the statute of limitations, or determines that the documents relied on by Defendants (i.e., the January 1984 letter and brochures, the May 1984 SPD or the 1996 SPD) are relevant to the statute of limitations. This motion is supported by the accompanying Declaration of Jennifer Kroll in Support of Plaintiffs

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Motion to Conduct Additional Discovery Pursuant to Rule 56 of the Federal Rules of Civil Procedure ( Kroll Decl. ) and the record before this Court. Rule 56(f) of the Federal Rules of Civil Procedure provides: When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. In their motion for summary judgment, Defendants have claimed that the 1984 letter and brochures, the May 1984 Summary Plan Description and/or the 1996 Summary Plan Description triggered the running of the statute of limitations. Plaintiffs served interrogatories directed to the statute of limitations defense on November 15, 2005 as follows:

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INTERROGATORY NO. 14: In your Answer, you assert affirmative defenses. With respect to each such affirmative defenses, please state each and every fact upon which you rely or intend to rely to support your affirmative defenses. Please identify: a. each and every person known or believed by you to have personal or testimonial knowledge of any fact upon which you rely or intend to rely with respect to your answers to these interrogatories, and b. each and every document upon which you intend to rely to support any fact asserted in your answers to these interrogatories INTERROGATORY NO. 15: In your Motion for Reconsideration at p. 15, lines 19-22, you claim, the applicable statute of limitations may bar part or all of some putative class members claims for damages . . . . With regard to such assertion, identify each Plaintiff and Putative Class Member who you believe may have some or all of his or her claims for damages barred by any statute of limitations and with regard thereto, please state and identify: a. The part or portion of such claim you believe is barred, b. The applicable statute of limitations upon which you intend to rely to support your assertion as to each such person you identify herein,

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c. d.

Each and every person known or believed by you to have personal or testimonial knowledge of any fact asserted in your answers to these interrogatories, and Each and every document upon which you intend to rely to support any fact asserted in your answers to these interrogatories together with the identity of the custodian of any document identified herein

(Kroll Decl. Exh. A.) In response to Plaintiffs interrogatories, Defendants did not identify the witnesses who produced declarations in support of Plaintiffs motion for summary judgment. (Kroll Decl. Exh. B.) On June 28, 2006, Defendants identified Craig Chapman in their initial disclosures as someone who had knowledge of communications to participants. (Kroll Decl. Exh. C.) Defendants did not identify James McLeod. (Id.) On November 15, 2006, Plaintiffs noticed a Rule 30(b)(6) depositions that identified

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the following topics of examination: 14. Communications made to Plan participants regarding SBA and Social Security offsets and Plan amendments, including any and all communications regarding inter alia: Amendment IV to the Garrett Severance Plan; Amendment IX to the Garrett Retirement Plan; imposition of a Social Security offset to credit for service earned prior to 1984; 1993 Retirement Plan changes; imposition of fees on SBA benefits, and 2000 amendments to the Retirement Plan; Any verbal or written instructions or directions given to Company or Plan employees with respect to communications with class members regarding benefits under the Plans

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(Kroll Decl. Exh. D.) On March 20, 2007, Plaintiffs noticed the declaration of Craig Chapman. (Kroll Decl. ¶ 6.) During the pendency of the partial settlement negotiations and in response to Defendants claimed need to prepare for the depositions, the depositions were

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continued. (Kroll Decl. ¶ 7.)

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As set forth in Plaintiffs opposition to Defendants motion for summary judgment, Plaintiffs do not believe that any of these documents triggered the running of the statute of limitations and are therefore irrelevant. However, if the Court finds that the 1984 letter and brochures, the May 1984 Summary Plan Description and/or the 1996 Summary Plan Description could have triggered the running of the statute of limitations, although Plaintiffs have diligently pursued discovery on these issues, Plaintiffs do not yet have affidavits or

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other admissible evidence available to respond to Defendants contentions regarding the method, manner and recipients of communications upon which Defendants have relied for their motion for summary judgment on the statute of limitations, and accordingly, cannot respond to certain of Defendants statements of fact in support of Defendants motion. (Kroll Decl. ¶ 9.) Plaintiffs intend to explore in discovery the method and manner of communications and recipients of communications. Plaintiffs believe that if the Court determines that the January 1984 letter and brochures, the May 1984 SPD and/or the 1996 SPD are relevant, Plaintiffs may establish genuine issues of material fact with respect to Defendants motion for summary judgment after further discovery. (Kroll Decl. 10.) Plaintiffs expect to conduct the depositions and additional discovery after the Partial Settlement becomes final in accordance with the scheduling order, (Doc. 322 p. 3 ¶ F), and

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believe that if the Court does not grant Plaintiffs motion for summary judgment on the statute of limitations and if the Court determines that the documents relied on by Defendants are relevant to the statute of limitations, Plaintiffs, after conducting depositions and additional discovery, will have evidence necessary to respond to portions of Defendants motion for summary judgment that address the method, manner and recipients of communications of the documents relied on by Defendants. (Kroll Decl. ¶ 11.) Accordingly, Plaintiffs respectfully request that, to the extent the Court determines not to grant Plaintiffs motion for summary judgment or does not deny Defendants motion

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for summary judgment, a ruling on Defendants motion for summary judgment be continued under Rule 56(f) of the Federal Rules of Civil Procedure.

Respectfully submitted this 11th day of January, 2008.

MARTIN & BONNETT, P.L.L.C.
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By: s/Susan Martin Susan Martin Daniel L. Bonnett Jennifer L. Kroll 3300 North Central Avenue, Suite 1720 Phoenix, AZ 85012-2517 (602) 240-6900 Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on January 11, 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 One Newark Center, 18th Floor Newark , NJ 07102-5211 Christopher Landau Eleanor R. Barrett Kirkland & Ellis LLP 655 Fifteenth Street, N.W. Washington, D.C. 20005 Attorneys for the Defendants s/.J. Kroll

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