The opinion of the court was delivered by: James Ware United States District Judge
JOINT APPLICATION TO VACATE SUMMARY JUDGMENT HEARING DATE and [PROPOSED] ORDER THEREON ORDER REFERRING THE CASE FOR A SETTLEMENT WITH CONFERENCE
Hearing Date: May 4, 2009
Complaint Filed: July 3, 2008
Plaintiff, Rick M. Greenberg, pro se, and Defendants, Life Insurance Company of North America ("LINA") and Arrow Electronics ("Arrow"), through their counsel of record as identified above, hereby jointly request that the Court vacate the date currently set for the hearing on cross-motions for summary judgment in this matter, of May 4, 2009. As grounds therefore, the parties state:
1. The current date of May 4, 2009 for cross-motions for summary judgment was set by the Court in its Order Vacating Hearing and Vacating Case Management Conference, issued November 25, 2008. In setting a hearing date for cross-motions for summary judgment, the Court properly understood from the parties' Joint Report of Rule 26 Conference that this ERISA benefits dispute is to be resolved via cross-motions for summary judgment, or cross-2 motions under Rule 52, and thus conducting "a bench trial on the record." E.g., Caplan v. CNA 1084, 1094-95 (9th Cir. 1999)(en banc).
Dispute Resolution Program, despite the fact that the parties had jointly requested a Settlement Fin. Corp., 544 F.Supp.2d 984 (N.D. Cal. 2008), citing Kearney v. Standard Ins. Co., 175 F.3d 4
2. The parties are informed, and thereby submit, that when the Case Management Conference date was vacated, this matter went off the calendar of the Court's Alternative Conference before a United States Magistrate Judge and had filed the required Notice of Need for an ADR Telephone Conference on October 7, 2008. This matter has now been set for an Conference before a Magistrate Judge.
of the prayers for relief contained in Plaintiff's Complaint. In January, 2009, Defendants filed their joint Answer to the Complaint, and LINA filed a Counterclaim for reimbursement of certain sums previously paid to Plaintiff as benefits under the ERISA plan.
4. On March 6, 2009, approximately fifty (50) days later, Plaintiff filed a Motion to Strike Portions of Defendant Life Insurance Company of North America's Counterclaim and April 27, 2009.
Rules, the parties' briefing of their cross-motions for summary judgment must be completed before the time that the Court hears argument on Plaintiff's pending motion, and before the parties can schedule and conduct a Settlement Conference.
6. The parties submit that proper briefing of the ultimate issues for judgment in the case will necessarily depend upon the Court's ruling on the Plaintiff's motion to amend, and therefore would have to be rewritten by reply or surreply memoranda. Thus, the current schedule virtually guarantees duplication of efforts and inconvenience for the parties and for the Court. Moreover, the parties submit that the overall interest in judicial economy would be ADR Telephone Conference on March 25, 2009, and the parties still desire a Settlement
3. In December, 2008, the Court granted the Defendants' Motion to Strike several Motion to Amend Plaintiff's Prayers for Relief. That ...