Free Response - 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 RESPONSE TO DEFENDANTS SEPARATE STATEMENT OF FACTS IN SUPPORT OF DEFENDANTS MOTION FOR SUMMARY JUDGMENT ON STATUTE OF LIMITATIONS

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Plaintiffs hereby submit their response to Defendants Separate Statement of Facts in Support of Defendants Motion for Summary Judgment on the Statute of Limitations ( DSOF ) in accordance with Local Rule 56.1(a).
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Plaintiffs object to DSOF ¶ 1 as irrelevant because none of the documents in

evidence could have triggered the running of the statute of limitations. However, to the extent the documents may be relevant, Plaintiffs lack sufficient information to admit or deny DSOF ¶ 1 and move pursuant to Rule 56(f) for more time to conduct discovery in order to

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respond to Defendants motion for summary judgment. See Plaintiffs Motion to Conduct Additional Discovery Pursuant to Rule 56 of the Federal Rules of Civil Procedure. 2. Plaintiffs object to DSOF ¶ 2 as irrelevant because none of the documents in

evidence could have triggered the running of the statute of limitations. Plaintiffs also object and move to strike DSOF ¶ 2 under Rule 406 of the Federal Rules of Evidence. Defendants have failed to establish the frequency and regularity of the behavior. See United States v. Angwin, 271 F.3d 786, 799 (9th Cir. 2001) ( deciding whether certain conduct constitutes habit, courts consider three factors: (1) the degree to which the conduct is reflexive or semi-

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automatic as opposed to volitional; (2) the specificity or particularity of the conduct; and (3) the regularity or numerosity of the examples of the conduct. The burden of establishing that certain conduct qualifies as evidence of habit falls on the party wishing to introduce the evidence. ) (citations omitted). Subject to and without waiving any of Plaintiffs objections, to the extent the Court finds any of the documents relevant on Defendants motion for statute of limitations, Plaintiffs lack sufficient information to admit or deny DSOF ¶ 2 and move pursuant to Rule 56(f) for more time to conduct discovery in order to respond to Defendants motion for summary judgment. See Plaintiffs Motion to Conduct Additional Discovery Pursuant to Rule 56 of the Federal Rules of Civil Procedure. 3. Plaintiffs object to DSOF ¶ 3 as irrelevant because the January 1984 letter and

brochures cited by Defendants could not have triggered the running of the statute of limitations. Plaintiffs also object and move to strike DSOF ¶ 3 under Rule 406 of the Federal Rules of Evidence. Defendants have failed to establish the frequency and regularity of the behavior. See United States v. Angwin, 271 F.3d 786, 799 (9th Cir. 2001) ( deciding whether certain conduct constitutes habit, courts consider three factors: (1) the degree to which the conduct is reflexive or semi-automatic as opposed to volitional; (2) the specificity or

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particularity of the conduct; and (3) the regularity or numerosity of the examples of the conduct. The burden of establishing that certain conduct qualifies as evidence of habit falls on the party wishing to introduce the evidence. ) (citations omitted). Subject to and without waiving any of Plaintiffs objections, to the extent the Court finds that the January 1984 letter and brochures are relevant on Defendants motion for statute of limitations, Plaintiffs lack sufficient information to admit or deny DSOF ¶ 3 and move pursuant to Rule 56(f) for more time to conduct discovery in order to respond to Defendants motion for summary judgment. See Plaintiffs Motion to Conduct Additional Discovery Pursuant to Rule 56 of

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the Federal Rules of Civil Procedure. 4. Plaintiffs object to DSOF ¶ 4 as irrelevant because the January 1984 letter and

brochures cited by Defendants could not have triggered the running of the statute of limitations. Subject to and without waiving Plaintiffs objections, Plaintiffs admit DSOF ¶ 4. 5. Plaintiffs object to DSOF ¶ 5 as irrelevant because the January 1984 brochures

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cited by Defendants could not have triggered the running of the statute of limitations. Subject
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to and without waiving Plaintiffs objections, Plaintiffs admit that Plaintiff Barbara Allen recalls receiving the 1984 Brochures but could not remember when. (Barrett Decl., Doc. 340, Ex. B, pp. 17-21.) 6. Plaintiffs object and move to strike DSOF ¶ 6 as irrelevant because the January

1984 brochures cited by Defendants could not have triggered the running of the statute of limitations. Plaintiffs also object and move to strike DSOF ¶ 6 as offering legal conclusions and argumentative. The brochures speak for themselves. Subject to and without waiving any of Plaintiffs objections, to the extent the Court finds that the January 1984 letter and

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brochures are relevant on Defendants motion for statute of limitations, Plaintiffs lack
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sufficient information to admit or deny

DSOF ¶ 6 regarding the recipients of the

communication and move pursuant to Rule 56(f) for more time to conduct discovery in order to respond to Defendants motion for summary judgment. See Plaintiffs Motion to Conduct Additional Discovery Pursuant to Rule 56 of the Federal Rules of Civil Procedure. 7. Plaintiffs object to DSOF ¶ 7 as irrelevant because the May 1984 Signal

Companies, Inc. Summary Plan Description cited by Defendants could not have triggered the
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running of the statute of limitations. Plaintiffs also object and move to strike DSOF ¶ 7 under Rule 406 of the Federal Rules of Evidence. Defendants have failed to establish the frequency and regularity of the behavior. See United States v. Angwin, 271 F.3d 786, 799 (9th Cir. 2001) ( deciding whether certain conduct constitutes habit, courts consider three factors: (1) the degree to which the conduct is reflexive or semi-automatic as opposed to volitional; (2) the specificity or particularity of the conduct; and (3) the regularity or numerosity of the examples of the conduct. The burden of establishing that certain conduct qualifies as evidence of habit falls on the party wishing to introduce the evidence. ) (citations omitted). Subject to and without waiving any of Plaintiffs objections, to the extent the Court finds that the May 1984 SPD is relevant on Defendants motion for summary judgment, Plaintiffs lack sufficient information to admit or deny DSOF ¶ 7 and move

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pursuant to Rule 56(f) for more time to conduct discovery in order to respond to Defendants motion for summary judgment. See Plaintiffs Motion to Conduct Additional Discovery Pursuant to Rule 56 of the Federal Rules of Civil Procedure. 8. Plaintiffs object to DSOF ¶ 8 as irrelevant because the 1996 AlliedSignal

Summary Plan Description cited by Defendants could not have triggered the running of the statute of limitations. Subject to and without waiving any of Plaintiffs objections, to the extent the Court finds that the May 1984 SPD is relevant on Defendants motion for

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summary judgment, Plaintiffs lack sufficient information to admit or deny DSOF ¶ 7 and move pursuant to Rule 56(f) for more time to conduct discovery in order to respond to Defendants motion for summary judgment. See Plaintiffs Motion to Conduct Additional Discovery Pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiffs assert that to the extent it may be relevant, the 1996 SPD speaks for itself. 9. Plaintiffs object to DSOF ¶ 9 as irrelevant because the 1996 AlliedSignal

Summary Plan Description cited by Defendants could not have triggered the running of the statute of limitations. 10. Plaintiffs object to DSOF ¶ 10 as irrelevant because the 1996 AlliedSignal

Summary Plan Description cited by Defendants could not have triggered the running of the statute of limitations. Plaintiffs also object and move to strike DSOF ¶ 10 under Rule 406 of the Federal Rules of Evidence. Defendants have failed to establish the frequency and

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regularity of the behavior. See United States v. Angwin, 271 F.3d 786, 799 (9th Cir. 2001)
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( deciding whether certain conduct constitutes habit, courts consider three factors: (1) the degree to which the conduct is reflexive or semi-automatic as opposed to volitional; (2) the specificity or particularity of the conduct; and (3) the regularity or numerosity of the examples of the conduct. The burden of establishing that certain conduct qualifies as evidence of habit falls on the party wishing to introduce the evidence. ) (citations omitted). Subject to and without waiving any of Plaintiffs objections, to the extent the Court finds that the April 1996 SPD is relevant on Defendants motion for summary judgment, Plaintiffs lack sufficient information to admit or deny DSOF ¶ 10 and move pursuant to Rule 56(f) for more time to conduct discovery in order to respond to Defendants motion for summary judgment. See Plaintiffs Motion to Conduct Additional Discovery Pursuant to Rule 56 of

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the Federal Rules of Civil Procedure.
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11.

Plaintiffs object to DSOF ¶ 11 as irrelevant because the 1996 AlliedSignal

Summary Plan Description cited by Defendants could not have triggered the running of the statute of limitations. Subject to and without waiving Plaintiffs objections, Plaintiffs admit DSOF ¶ 11. 12. 13. Plaintiffs admit DSOF ¶ 12. Plaintiffs admit DSOF ¶ 13 but further state that the tolling agreement further

provides that nothing in this agreement shall be construed as an admission by Former Garrett Employees that any actions or claims are barred by the statute of limitations or would be barred by the statute of limitations in the absence of this agreement. Martin, Doc. 167, Exh. A, pp. 1-2.) 14. 15. 16. Plaintiffs admit DSOF ¶ 14. Plaintiffs admit DSOF ¶ 15. Plaintiffs object to DSOF ¶ 16 as irrelevant. Plaintiffs further object to DSOF (Decl. of Susan

¶ 16 as stating a legal conclusion. The effect of the Plan document as to any participant is a legal conclusion. The Plan document itself states that with respect to merged plans, it was intended that the benefits, options, rights and features available to each participant who was previously covered by a merged plan at the time of its merger be determined with reference to the terms and provisions of such merged plan in effect at the time of the merger.

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(Decl. Of Amy Promislo, Doc. 16, Exh. P, at HW 0000540.)
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Respectfully submitted this 11th day of January, 2008. MARTIN & BONNETT, P.L.L.C. By: s/Susan Martin Susan Martin Daniel L. Bonnett
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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 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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