Free Reply to Response to Motion - District Court of Arizona - Arizona

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L AW OF F I C E S M O H R , H A C K E T T, P E D E R S O N , B L A K L E Y & R A N D O L P H , P . C .
2800 NORTH CENTRAL AVENUE, SUITE 1100 P H O E N I X , A R I Z O N A 8 5 0 0 4 -1 0 4 3 T E L E P H O N E ( 6 0 2 ) 2 4 0 -3 0 0 0 F A C S I M I L E ( 6 0 2 ) 2 4 0 -6 6 0 0 (AZ BAR FIRM NO. 0046600)

Robert C. Hackett (AZ Bar No. 001588) ([email protected]) Daniel P. Beeks (AZ Bar No. 012628) ([email protected])

Attorneys for Defendant Metropolitan Life Insurance Company

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Sybol Terrell-Sims, a married woman,

) ) Plaintiff, ) ) v. ) ) American Express Company, (MetLife), ) a New York Corporation, and ) ) Metropolitan Life Insurance Co., a ) Tennessee Company, ) ) Defendant. ) )

No. CV 03-1340 PHX SRB DEFENDANT METLIFE'S REPLY IN SUPPORT OF ITS MOTION FOR DISMISSAL OR SANCTIONS AND RESPONSE TO MOTION TO COMPLY WITH ORDER STAYING LITIGATION

Defendant Metropolitan Life Insurance Company ("MetLife") submits the following reply in support of its motion for dismissal or sanctions ("the Motion"), and requests that the complaint filed by plaintiff Sybol Terrell-Sims ("Plaintiff") be dismissed, or alternatively that Plaintiff be sanctioned for failing to appear at the pretrial conference. MetLife also responds to Plaintiff's Motion to compel MetLife to comply with the Court's March 28, 2005 order staying the litigation, and requests that the request be denied. MetLife's combined reply and response are supported by the following memorandum of points and authorities.

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MEMORANDUM OF POINTS AND AUTHORITIES MetLife has moved to dismiss or alternatively for sanctions after Plaintiff failed to appear at the pretrial conference in this case scheduled for December 19, 2005. Although Plaintiff contends that she was confused as to the scheduling of the pretrial conference, and that someone in the clerk's office misled her, the documented facts do not support any such confusion. Despite the fact that Plaintiff received MetLife's decision on the administrative appeal of the denial of her claim in August of last year, Plaintiff further requests that the Court stay the litigation until MetLife sends her the same letter in a sealed envelope. Such a request is beyond the parties' stipulated order, and in any event, Plaintiff has waived any claim to stay the litigation. Procedural History Relevant to Motion to Dismiss or Alternatively for Sanctions 1. On March 4, 2005, the Court issued an order setting the pretrial

conference for December 19, 2005 at 9:30 a.m.. This order required the parties to file a joint proposed pretrial order by December 12, 2005. 2. On December 13, 2005, MetLife's attorney sent Plaintiff an e-mail which

stated, in relevant part, that "The pretrial conference is currently set for December 19, 2005 at 9:30 a.m."1 3. On December 14, 2005, MetLife's attorney sent Plaintiff another e-mail,

which stated, in relevant part, that e-mail again stated that "The pretrial conference is scheduled for Monday."2 4. On December 15, 2005, MetLife's attorney e-mailed a revised draft of the

pretrial statement to Plaintiff.3 The very first sentence of the revised draft stated:
See Exhibit "A" to MetLife's January 5, 2006 filing, docket number 70. See Exhibit "B" to MetLife's January 5, 2006 filing, docket number 70. 3 Plaintiff claims she did not receive this e- mail, See Plaintiff's January 26, 2006 filing, docket number 73, at 3:6-10, and states that she was not afforded the opportunity to review the finalized document. A copy of the December 15, 2005 e- mail from MetLife's attorney t o
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff is attached hereto as Exhibit "A." Plaintiff's response e-mail dated December 16, 2005 at 11:49 a.m. is attached hereto as Exhibit "B." 4 See Exhibit "C" to MetLife's January 5, 2006 filing, docket number 70.
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Pursuant to this Court's orders dated December 2, 2003 and March 4, 2005, plaintiff Sybol Terrell-Sims ("Plaintiff") and defendant Metropolitan Life Insurance Company ("MetLife") submit the following separate proposed pretrial order to be considered at the pretrial conference scheduled for December 19, 2005 at 9:30 a.m. before Judge Bolton. 5. On December 16, 2005, MetLife's attorney sent an e-mail to the Court

enclosing the pretrial statement. Plaintiff sent a copy of this e-mail to Plaintiff. This email stated: Please find attached the joint proposed pretrial order in this case. The pretrial conference is set for Monday, December 19 at 9:30 a.m. 4 6. conference. 7. On December 22, 2005, the Court issued an order requiring Plaintiff to On December 19, 2005, Plaintiff failed to appear at the pretrial

show cause as to why this litigation should not be dismissed as a result of her failure to appear at the pretrial conference. 8. On December 29, 2005, Plaintiff served (but did not file) a motion to

proceed with the bench trial which was then scheduled for January 10, 2006. In this motion, Plaintiff alleged that she did not appear at the pretrial conference because she did not know what time the pretrial conference was scheduled to take place, and that someone in the Clerk's office had mistakenly informed her that the Court did not have anything calendared for this case on that date. 9. On January 5, 2006, MetLife responded to Plaintiff's motion to proceed

with the January 10, 2006 bench trial, and also moved for dismissal or sanctions. 10. On January 6, 2006, the Court issued an order requiring Plaintiff to

respond to MetLife's motion for dismissal or sanctions no later than January 26, 2006. 11. On January 26, 2006, Plaintiff filed the required response, along with a

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motion seeking to compel MetLife to comply with the terms of the Court's March 28, 2005 order staying the litigation. Plaintiff's Excuses for Not Attending the Pretrial Conference Are Not Credible Despite all of the above documented instances of written notice of the date and time of the pretrial conference, Plaintiff claims she was not sure when the pretrial conference was to be held. She claims that she drove downtown, and was within five minutes of the courthouse at approximately 8:00 a.m. on December 19, 2005, when she called the clerk's office to confirm the time of the conference. She further claims that someone named "Erma" mistakenly informed her that Judge Bolton did not have anything on her calendar for the present case on that date. Plaintiff's actions beg the question ­ if she didn't know when the pretrial conference was scheduled, why did she drive all the way downtown on December 19, 2005? The answer is obvious -- she had read one or more of the above messages telling her when it was scheduled. The next question is whether Plaintiff is credible when she claims that someone in the Clerk's office gave her incorrect information. As explained in MetLife's motion to dismiss, the pretrial conference was displayed on Judge Bolton's computerized calendar on the morning of December 19, 2005. As such, it is unlikely that a clerk would have told Plaintiff that Judge Bolton did not have anything on her calendar that day relating to this case. Plaintiff's allegations of incorrect advice from the Clerk's office are simply not credible. The more plausible conclusion is that Plaintiff knew of the pretrial conference, but chose not to attend, thereby wasting the time of the Court and MetLife's counsel. Plaintiff Should Be Sanctioned for Her Failure to Attend the Pretrial Conference Plaintiff bears the burden of proof to explain her failure to comply with the

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Court's pretrial orders. See, e.g., In re Air Crash Disaster at Detroit Metro. Airport, 130 F.R.D. 652, 654 (E.D. Mich. 1989). It is not an abuse of discretion to dismiss a pro se litigant's litigation based on the failure to appear for pretrial conferences, especially if the litigant has a history of failing to comply with court orders and discovery deadlines in the past. See, e.g., Lucien v. Breweur, 9 F.3d 26, 29 (7th Cir. 1993) (Judge Posner); Hall v. Flynn, 829 F. Supp. 1401, 1403 (N.D.N.Y. 1993). Here Plaintiff has failed to appear at her deposition, failed to timely prepare the Pretrial Statement, and failed to appear at the pretrial conference. This history justifies dismissal. The fact that Plaintiff is representing herself does not entitle her to any special lenience. See, e.g. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) ("Pro se litigants must follow the same rules of procedure that govern other litigants."); Jacobsen v. Filler, 790 F.2d 1362, 1364-66 (9th Cir. 1986) ("pro se litigants in the ordinary civil case should not be treated more favorably than parties with attorneys of record."). If the Court is not inclined to dismiss Plaintiff's claim, MetLife requests that this Court impose a monetary sanction on Plaintiff for her failure to timely prepare the joint pretrial statement, and her failure to attend the final pretrial conference. As explained in MetLife's motion, such a sanction should be at least $1,000 in order to compensate MetLife for: (1) the extra fees it incurred as a result of Plaintiff's failure to timely prepare the Pretrial Statement; (2) the fees it will incur in the future for its attorneys to prepare for and attend any rescheduled t pretrial conference; and (3) for fees incurred in opposing a motion to proceed to trial on January 10, 2006. Response to Motion to Enforce Stay of Litigation Plaintiff's first attorney, Phillip A. Austin, filed this litigation in 2003, before MetLife had completed its administrative appeal of Plaintiff's claim. Such an

administrative appeal was required by the Plan documents as well as the ERISA statutes. As a result, MetLife asserted the defense that t his premature filing resulted in a failure to exhaust administrative remedies. See, e.g., Sarraf v. Standard Ins. Co., 102

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F.3d 991, 993 (9th Cir. 1996) (dismissal is appropriate if plaintiff fails to exhaust administrative appeals); Alloco v. Metropolitan Life Ins. Co., 256 F. Supp. 2d 1023, 1032-33 (D. Ariz. 2003) (granting summary judgment to MetLife where plaintiff had failed to exhaust administrative appeals). In order to avoid such a dismissal, on March 3, 2005, the parties signed a stipulation to stay the litigation as against MetLife so that Plaintiff could submit any additional documents her new attorney believed supported the claimed disability, and MetLife could then reconsider this administrative appeal. On March 28, 2006, the Court entered the stipulated order. This order provided that the stay expired ten days after MetLife sent notice of its decision on the administrative appeal. On August 2, 2005, MetLife's appeal department sent a letter denying the administrative appeal to Plaintiff's former attorney, Phillip A. Austin. The appeals department, which is separate from the department that originally denied Plaintiff's claim, apparently overlooked the fact that the claim had been in litigation for some time, and that Plaintiff had hired a new attorney. As a result, the appeals department sent the denial letter to Mr. Austin, and did not send a copy to either Plaintiff's new attorney, or to MetLife's Arizona attorney. Mr. Austin forwarded the letter to Plaintiff, who in turn forwarded it to her new attorney. Plaintiff's second attorney received the denial letter on August 24, 2005.5 In light of the delay in Plaintiff's new attorney receiving the denial letter, later that day, MetLife's attorney sent an e-mail to Plaintiff's new attorney advising her that the stay did not expire until ten days after she had actually received the denial letter.6 Therefore, the stay expired by its own terms in early September, 2005. Plaintiff has requested that the litigation remain stayed until she receives the denial letter in a sealed envelope.

5

See e-mail from Elizabeth A. Faullkner dated August 24, 2006 attached hereto as Exhibit "C." 6 See e-mail to Elizabeth A. Faulkner dated August 24, 2006, attached hereto as Exhibit "D."
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This strange request is not well taken. Neither the stipulation nor the order required a sealed envelope. In any event, Plaintiff waived any contention that the litigation remained stayed until she received the letter in a sealed envelope by demanding that the trial go forward on January 10, 2006 in her December 29, 2005 motion. Plaintiff obviously did not believe that the stipulation for a stay required her to receive the denial letter in a sealed envelope before the stay expired when she requested that trial proceed when MetLife was going to have difficulty making travel arrangements for its witnesses. Having failed in her request to have the trial go forward last month, Plaintiff cannot now claim the litigation remains stayed. Although her position is not clear, it appears that Plaintiff wants the litigation stayed so she can determine whether MetLife actually considered all of the new medical records her attorney submitted in connection with the administrative appeal.7 Any

concerns Plaintiff has regarding whether all of Plaintiff's medical records were considered by MetLife in connection with the appeal can be resolved in the course of the litigation. If the litigation is not dismissed, MetLife will produce a copy of the entire administrative record, upon which the Court will base its decision whether MetLife abused its discretion in denying the administrative appeal. Plaintiff and the Court will then be able to see that all of the records that her doctors and attorneys submitted were considered in connection with the appeal. F. Conclusion Plaintiff failed to attend the pretrial conference despite repeated written notices of when it was scheduled. Her attempts to explain away her failure to attend are not credible. As a result, MetLife requests that this Court exercise its discretion under Rule 16(f) to either dismiss this litigation, or to award monetary sanctions to MetLife. MetLife also requests that the Court deny Plaintiff's request to stay the litigation
See Plaintiff's January 26, 2006 filing, docket number 73, at 6:1-4; 6:19-22. Document 74 7 Filed 02/06/2006 Page 7 of 8

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until MetLife sends her a sealed envelope containing the letter denying her administrative appeal. This request is not supported by the stipulated stay order, and any concerns Plaintiff has about the completeness of the administrative record considered by MetLife in deciding her administrative appeal can be resolved in preparing for this Court's bench trial. DATED: February 6, 2006 MOHR, HACKETT, PEDERSON, BLAKLEY & RANDOLPH, P.C. By /s/ Daniel P. Beeks Robert C. Hackett Daniel P. Beeks Suite 1100 2800 North Central Avenue Phoenix, Arizona 85004-1043 Attorneys for Defendant Metropolitan Life Insurance Company COPIES of the foregoing mailed February 6, 2006 to: The Honorable Susan R. Bolton United States District Court of Arizona 401 West Washington, SPC 50 Phoenix, AZ 85003-0001 Sybol Terrell-Sims P.O. Box 93428 Phoenix, Arizona 85070 Plaintiff

/s/ Daniel P. Beeks

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