August 29, 2013
THE UNITED STATES LIFE INSURANCE COMPANY IN THE CITY OF NEW YORK, Plaintiff,
PETER SFAKIANOS, M.D. and DOES 1-10, Defendants.
MICHAEL K. BRISBIN SBN 169495), DENNIS J. RHODES (SBN 168417), WILSON, ELSER, MOSKOWITZ, EDELMAN& DICKER LLP, San Francisco, CA, Attorneys for Plaintiff, THE UNITED STATES LIFE INSURANCE, COMPANY IN THE CITY OF NEW YORK.
MARK A. CAMPBELL, MURPHY, CAMPBELL, ALLISTON AND QUINN, Sacramento, CA, Attorneys for Defendant, PETER SFAKIANOS, M.D.
STIPULATION OF THE PARTIES FOR AN ORDER VACATING THE RULING ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION LR 143 FRCP 54(b)
JOHN A. MENDEZ, District Judge.
The Parties, Plaintiff The United States Life Insurance Company in the City of New York ("Plaintiff"), and Defendant Peter Sfakianos, M.D. ("Defendant"), through their attorneys of record, hereby stipulate that, pursuant to Fed.R.Civ.P. 54(b), the Court enter an Order vacating the January 9, 2013 ruling and the subsequent order entered January 23, 2013, on Plaintiff's motion for summary judgment.
In support of their joint motion, the Parties state as follows:
1. This case involves a claim for long term disability benefits submitted by Defendant to Plaintiff. Plaintiff initiated this declaratory relief action on January 27, 2011.
2. On January 9, 2013, this Court granted partial summary judgment in favor of Plaintiff with respect to the issue of total disability. The issue of residual disability was determined to be a question of fact and thus left for trial.
3. The Parties subsequently attended a mandatory settlement conference on June 25, 2013, conducted by the Honorable Kendall J. Newman.
4. During the settlement conference, the Parties engaged in good faith settlement discussions in an effort to minimize the cost of trial and to preserve judicial economy.
5. The Parties' discussions during the settlement conference resulted in a Settlement Agreement that allows the Parties to avoid protracted litigation.
6. As part of the agreement, the Parties agreed to ask this Court to vacate and withdraw its January 9, 2013 ruling and the subsequent Order Re Plaintiff's motion for summary judgment.
7. There has been no final disposition in this matter, nor has a final judgment been entered in favor of or against any party in this case.
According to Fed.R.Civ.P. 54(b), "any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the Parties does not end the action as to any of the claims or Parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the Parties' rights and liabilities." In other words, "pursuant to Federal Rule of Civil Procedure 54(b), a partial summary judgment order is subject to vacation at any time prior to final judgment." Persistence Software, Inc. v. Object People, Inc., 200 F.R.D. 626, 627, 2001 U.S. Dist. LEXIS 12534 (N.D. Cal. 2001); see also United States Gypsum Co. v. P. Award Metals, Inc., 2006 U.S. Dist. LEXIS 47237 (N.D. Cal. July 3, 2006). In this case, the court's January 9, 2013 ruling and the subsequent order was clearly interlocutory in nature. Therefore, the "order is subject to vacation at any time prior to final judgment." Id.
Courts within the Ninth Circuit have, at the joint request of litigants, commonly granted requests to vacate interlocutory orders including partial summary judgment. See United States Gypsum Co., 2006 U.S. Dist. LEXIS 47237 (granting joint motion to vacate interlocutory summary judgment and enter dismissal order pursuant to terms of settlement agreement); Sony Pictures Entm't Inc. v. Fireworks Entm't Group, Inc., 2002 U.S. Dist. LEXIS 28457 (C.D. Cal. Nov. 5, 2002) (vacating previous interlocutory orders "[i]n the interests of justice and in view of the settlement of the parties"); Persistence Software, Inc., 200 F.R.D. 626, 627, 2001 U.S. Dist. LEXIS 12534, *4 ("in light of defendants' statement of non-opposition and in light of the parties' complete settlement of this case, as well as the companion case... the court finds that no other considerations justify the denial of plaintiff's motion to vacate."); De La O v. Arnold-Williams, 2008 U.S. Dist. LEXIS 68334 (E.D. Wash. Aug. 28, 2008) (granting joint motion to vacate interlocutory orders). Additionally, the Ninth Circuit vacated its own previous decision pursuant to a settlement prior to an en banc hearing in Animal League Defense Fund v. Veneman, 490 F.3d 725 (9th Cir. 2007) vacating Animal League Defense Fund v. Veneman, 469 F.3d 826, 835 (9th Cir. 2006).
Based on the foregoing, the Parties respectfully request that the January 9, 2013 ruling and the Order issued January 23, 2013, on Plaintiff's motion for Summary Judgment be vacated and withdrawn.
IT IS SO ORDERED.
Pursuant to the stipulation of the parties, the ruling and Order granting in part and denying in part Plaintiff's motion for summary judgment is hereby vacated.