Free Response - District Court of Arizona - Arizona

APPENDIX B
Case 2:03-cv-01815-JAT Document 35-3 Filed O8/O2/2005 Page1 0f3

1 Eric G. Slepian Bar # 017495
2 SLEPIAN LAW OFFICE
3737 N. 7th Street, Ste. 106
3 Phoenix, Arizona 85014
Telephone (602) 266-3111
4 Attorney for Plaintiff
5
6 UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
7
8 Michelle Zenko,
9 Plaintiff, NO. CV-03-1815-PHX-JAT
I0 vs. JOINT MOTION FOR A CONTINUANCE
OF THE SHOW CAUSE HEARING
H Motorola, Inc., a Delaware
I2 Corporation, The Motorola Long Term
Disability Plan,
is
M Defendants.
is
A Final Pretrial Conference was set for the above referenced matter for August
I6
W 8, 2005 at 11:00 a.m. On July 13, 2005 this Court vacated the Pretrial Conference and
,8 set a Show Cause hearing, for the same date and time, directing counsel to show
I9 cause why they should not be sanctioned for failure to comply with this Court’s March
20 21, 2005 Order setting a Final Pretrial Conference. PIaintiff’s attorney requests a
Z1 continuance as he will be out of the state on this date. Defendants counsel joins in the
22
request.
23
I 24 In support of the Motion for a Continuance, the parties offer and explanation as
25 to why the Joint Pretrial Statement was not filed with the Court. First and foremost, the
26 parties did not intentionally fail to comply with an Order of this Court. Second, by way o
27 background, the parties note that Plaintiffs claim is brought pursuant to ERISA. Plainti
28
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C e 2:03-cv-01815-JAT Document 35-3 Filed 08/02/2005 Page 2 of 3

I seeks to enforce the terms of a Long Term Disability contract. Defendant denies that
2 there are any monies due and owing to Plaintiff. The subject contract contains an offse
3 provision in the event Plaintiff receives Social Security Disability benefits. During
4 litigation, the parties determined that Plaintiff’s monthly benefit under the contract is no
5 an enormous sum of money (however, when considered over the life of the contract,
j the total benefit is substantial). With this information, the attorneys aggressively
8 discussed settlement and agreed to a compromise on the monies owed to date, with a
9 reinstatement of benefits. The parties contemplated that Defendant would perform a
'O prompt Continuing Disability Review to determine entitlement to ongoing benefits} The
H Court was advised that the attorneys believed that the material terms had been agreed
I; upon, and that the parties anticipated the execution of a settlement document.
M Thereafter, additional information was sought by Plaintiff, and provided by
is Defendant. The purposes of the exchange of information was for the advancement of
*6 the execution of the settlement documents. Unfortunately, the settlement documents V
W have not been executed as the parties do not agree to the breadth of the release to be
I; incorporated into the settlement agreement. lt was not until July 13, 2005 that PIaintiff’s
20 counsel realized that the parties would not be able to come to an agreement as to the
2] wording of the settlement document.
22 At this time, Defendant has indicated that it intends to file a Motion to Enforce a
23 Settlement based on the verbal discussions between counsel. Plaintiff remains
ii agreeable to a settlement, but not on the terms proposed by Defendant. lt is disputed
26
27 —-; ~;——.
1 A copy of the proposed settlement agreement is not annexed hereto as it contains a non-disclosure
28 clause and refers to confidential settlement terms.
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