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Case 2:10-cv-09198-JVS -RNB Document 346 Filed 10/02/12 Page1of5 Page ID #:15245
JONATHAN A. SHAPIRO (257199)
WILMER CUTLER PICKERING HALE AND DORR LLP
950 Page Mill Road
Palo Alto, CA 94304
Tel: (650) 858-6101
Fax: (650) 858-6100 jonathan.shapiro @ wilmerhale.com
ANDREA J. ROBINSON (PRO HAC VICE)
TIMOTHY J. PERLA (PRO HAC VICE)
WILMER CUTLER PICKERING HALE AND DORR LLP
60 State Street
Boston, MA 02109
Tel: (617) 526-6000
Fax: (617) 526-5000 andrea.robinson @ wilmerhale.com timothy.perla@ wilmerhale.com
Attorneys for Defendant Life Insurance Company of the Southwest
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
JOYCE WALKER, KIM BRUCE HOWLETT, and MURIEL SPOONER, on behalf of themselves and all others similarly situated,
Plaintiffs, vi:
LIFE INSURANCE COMPANY OF THE SOUTHWEST, a Texas corporation,
Defendant.
CASE NO.: CV 10-9198 JVS (RNBx)
LIFE INSURANCE COMPANY OF THE SOUTHWEST’S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE A SUBSTITUTED SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO CLASS CERTIFICATION
Judge: Hon. James V. Selna Date: Sept. 18, 2012 Time: 1:30p.m. Courtroom: 10C
MOTION TO SUBSTITUTE SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO CLASS CERTIFICATION, 10-
9198-JVS(RNBx)
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Case 2:10-cv-09198-JVS -RNB Document 346 Filed 10/02/12 Page2of5 Page ID #:15246
NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE A SUBSTITUTED SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO CLASS CERTIFICATION
TO THE COURT, PLAINTIFFS, AND ALL COUNSEL OF RECORD:
PLEASE TAKE NOTICE THAT Defendant Life Insurance Company of the Southwest (“LSW’’) respectfully requests leave to file a substituted supplemental memorandum, declarations and exhibits thereto, attached hereto as Exhibits 1, 2, 3, and 4,' in support of its opposition to class certification to replace the memorandum filed as Dkt. 340 on September 25, 2012.
On September 18, 2012, this Court held a hearing on Plaintiffs’ Motion For Class Certification. At the conclusion of the hearing, the Court granted Plaintiffs leave to file a supplemental memorandum addressing a particular issue within seven days (by September 25). The Court also granted LSW leave to respond within seven days.” Thus, LSW understood its filing deadline to be October 2.
However, at approximately 11:30 am PDT on September 25, the Court issued minutes for the September 18 hearing stating:
Counsel shall file the supplemental submission discussed on the record not
' Exhibit 1 is the proposed supplemental memorandum; Exhibit 2 is the proposed Declaration of Timothy Perla in support thereof; Exhibit 3 is the proposed Declaration of Joel Fleming in support of the proposed supplemental memorandum; Exhibit 4 is the exhibits to the Fleming Declaration. In relevant part, the transcript states:
MR. FREIBERG: Okay, will do. Your Honor, further submissions with respect to this motion --
THE COURT: How much time do you want for your five percent showing?
MR. BROSNAHAN: Ten days.
THE COURT: How about seven.
MR. BROSNAHAN: Thank you.
MR. SHAPIRO: Can we have seven also?
THE COURT: Yes.
MR. SHAPIRO: Thank you. Tr. 66:20-67:7.
Sie MOTION TO SUBSTITUTE SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO CLASS CERTIFICATION, 10- 9198-JVS(RNBx)
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Case 2:10-cv-09198-JVS -RNB Document 346 Filed 10/02/12 Page3of5 Page ID #:15247
later than September 25. The above referenced motion shall stand submitted upon the filing of the supplemental briefs.
Dkt. 338.
Because this Order did not reflect LSW’s October 2 response deadline, LSW promptly sought clarification. At approximately 1:30 pm PDT, on September 25, counsel for LSW sent an email to the Courtroom Deputy Clerk requesting clarification of whether
LSW’s submission was due on September 25 or on October 2.
LSW did not receive a response to this email on September 25. Thus, at approximately 11:30 pm PST on September 25, in order to ensure that LSW did not miss a Court deadline for its submission, LSW filed a supplemental memorandum in support of its opposition to class certification. Dkt. 340. Because this filing was nearly simultaneous with Plaintiffs’ submission, LSW’s submission could not respond
specifically to Plaintiffs’ submission.
On September 26, 2012, the Court issued amended minutes stating, “Plaintiff shall file the supplemental submission discussed on the record not later than September 25, 2012 and defendants shall have until October 2, 2012 to respond.” Dkt. 341.
In order to afford LSW an opportunity to respond to arguments raised in Plaintiffs’ submission, in accordance with the Court’s instruction during the September 18 hearing (and LSW’s understanding of that instruction), LSW respectfully requests that the attached memorandum, declarations and exhibits be substituted for the memorandum that LSW filed on September 25, located at Docket No. 340.
Counsel for LSW met and conferred with Plaintiffs’ counsel concerning this
motion, and Plaintiffs do not assent.
~9. MOTION TO SUBSTITUTE SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO CLASS CERTIFICATION, 10- 9198-JVS(RNBx)
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Case 2:10-cv-09198-JVS -RNB Document 346 Filed 10/02/12 Page4of5 Page ID #:15248
DATED: October 2, 2012 Respectfully submitted,
WILMER CUTLER PICKERING HALE AND DORR LLP
By: /s/ Jonathan A. Shapiro Jonathan A. Shapiro
Andrea J. Robinson Timothy J. Perla
Attorneys For Defendant Life Insurance Company of the Southwest
o MOTION TO SUBSTITUTE SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO CLASS CERTIFICATION, 10- 9198-JVS(RNBx)
Case 2:10-cv-09198-JVS -RNB Document 346 Filed 10/02/12 Page5of5 Page ID #:15249
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PROOF OF SERVICE
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I am a resident of the Commonwealth of Massachusetts, over the age of eighteen
3 || years, and not a party to the within action. My business address is Wilmer Cutler Pickering Hale and Dorr LLP, 60 State Street, Boston, Massachusetts 02109. On October
4 || 2, 2012, I served the within document(s):
5 MOTION FOR LEAVE TO FILE SUBSTITUTED SUPPLEMENTAL : MEMORANDUM IN OPPOSITION TO CLASS CERTIFICATION I placed the document(s) listed above in a sealed envelope with postage t thereon fully prepaid, in the United States mail addressed as set forth below. 8 I personally caused to be hand delivered the document(s) listed above to 9 the person(s) at the address(es) set forth below. 10 I emailed the document(s) listed above to the person(s) at the address(es) set forth below. 11 I electronically filed the document(s) listed above via the CM/ECF 12 system. 13 Brian P. Brosnahan 14 (bbrosnahan @ kasowitz.com) 15 Charles N. Freiberg j (cfreiberg @ kasowitz.com) 16 Jacob N. Foster c (jfoster@ kasowitz.com) KASOWITZ, BENSON, TORRES & FRIEDMAN LLP 18 101 California Street, Suite 2300 San Francisco, CA 94111 19 0 Harvey R. Levine (Ismh @ levinelaw.com) 21 LEVINE & MILLER 55 550 West C. Street, Suite 1810 San Diego, CA 92101-8596 23 o /s/ Joel A. Fleming 5 Joel A. Fleming 26
ois
MOTION TO SUBSTITUTE SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO CLASS CERTIFICATION, 10-
9198-JVS(RNBx)