-LRL Retired Independent Guards Association of Nevada et al. v. Wackenhut Services, Inc. et al., No. 2:2008cv00849 - Document 148 (D. Nev. 2011)
Court Description: ORDER Granting 146 Motion for Leave to File Sur-Reply re 139 Emergency MOTION for Protective Order filed by William F. Cleghorn Signed by Magistrate Judge Lawrence R. Leavitt on 6/30/11. (Copies have been distributed pursuant to the NEF - MMM)
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-LRL Retired Independent Guards Association of Nevada et al. v. Wackenhut Services, Inc. et al. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Doc. 148 JACKSON LEWIS LLP Paul Trimmer Email: trimmerp@jacksonlewis.com Nevada Bar # 9291 3960 Howard Hughes Parkway, Suite 450 Las Vegas, NV 89169 Phone: 702.921.2460 Fax: 702.921.2461 René E. Thorne (admitted pro hac vice) Email: thorner@jacksonlewis.com Louisiana Bar # 22875 Jason M. Stein (admitted pro hac vice) Email: steinj@jacksonlewis.com Louisiana Bar # 30073 650 Poydras St., Ste. 1900 New Orleans, LA 70130 Phone: 504.208.1755 Fax: 504.208.1759 Ashley Abel (admitted pro hac vice) Email: abela@jacksonlewis.com South Carolina Bar # 10097 55 Beattie Place, Suite 800 Greenville, SC 29601 Phone: (864) 232-7000 Fax: (864) 235-1381 Attorneys for Defendant Benefits Administration Corporation 16 UNITED STATES DISTRICT COURT 17 DISTRICT OF NEVADA 18 19 RETIRED INDEPENDENT GUARDS ASSOCIATION OF NEVADA, ET AL 20 21 22 23 24 25 26 27 28 Plaintiffs, v. BOARD OF TRUSTEES, INDEPENDENT GUARDS ASSOCIATION OF NEVADAWACKENHUT SERVICES INCORPORATED PENSION TRUST FUND; and Case No.: 2:08-CV-00849-RLH-LRL BENEFIT ADMINISTRATION CORPORATION’S MOTION FOR LEAVE TO FILE SUR-REPLY IN OPPOSITION TO PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION FOR A PROTECTIVE ORDER INDEPENDENT GUARDS ASSOCIATION OF NEVADA, and WACKENHUT SERVICES INCORPORATED, Defendants. -1- JACKSON LEWIS LLP LAS VEGAS Dockets.Justia.com 1 2 BENEFIT ADMINISTRATION CORPORATION’S MOTION FOR LEAVE TO FILE SUR-REPLY IN OPPOSITION TO PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION FOR A PROTECTIVE ORDER 3 4 Defendant, Benefit Administration Corporation (“BAC” or “Defendant”), by and through its undersigned attorneys, Jackson Lewis LLP, Defendant BAC (“Defendant”) moves for leave to 5 file the attached Sur-reply in response to Plaintiffs’ Reply in Support of its Motion for Protective 6 7 order. The Sur-reply is necessary because Plaintiff’s Reply contains inaccuracies and 8 misstatements of law and fact regarding BAC’s Opposition and position. This Motion is made 9 and based on the attached Memorandum of Points and Authorities and any oral argument this 10 11 Court deems appropriate. Dated this June 10, 2011. 12 JACKSON LEWIS LLP 13 14 /s/ Jason M. Stein René Thorne (admitted pro hac vice) Louisiana Bar # 22875 Jason Stein (admitted pro hac vice) Louisiana Bar # 30073 650 Poydras St., Ste. 1900 15 16 17 Paul Trimmer Nevada Bar # 9291 3960 Howard Hughes Parkway, Suite 450 Las Vegas, NV 89169 New Orleans, LA 70130 18 19 20 Ashley Abel (admitted pro hac vice) South Carolina Bar # 10097 55 Beattie Place, Suite_800 Greenville, SC 29601 21 22 23 Attorneys for Defendant, Benefits Administration Corporation 24 25 26 27 28 JACKSON LEWIS LLP LAS VEGAS -2- BENEFIT ADMINISTRATION CORPORATION’S SUR-REPLY IN OPPOSITION TO PLAINTIFFS’ REPLY IN SUPPORT OF ITS MOTION FOR A PROTECTIVE ORDER 1 2 3 Benefit Administration Corporation (“BAC”) submits the following points to address the 4 inaccuracies and defective arguments Plaintiffs have presented in their Reply Memorandum (Doc. 5 No. 145): 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Plaintiffs have not and cannot deny that they failed to request or hold the required Rule 26-7 meet and confer conference, which alone requires denial of their motion. Plaintiffs have not and cannot deny that they failed to notify Defendants that Mr. Johns could not host depositions at his office (which BAC identified as the location for Plaintiffs’ and their counsels’ convenience) before moving for a protective order. Plaintiffs have not and cannot deny that they failed to submit a declaration which complies with LR 26-7 which unequivocally states, “Discovery motions will not be considered unless a statement of moving counsel is attached thereto certifying that, after personal consultation and sincere effort to do so, counsel have been unable to resolve the matter without court action.” LR-26-7 (emphasis added). They also failed to submit an affidavit attesting for the need for an emergency decision on their motion for protective order as LR 26-7 requires. Plaintiffs have not and cannot deny that still they have failed to submit any evidence to support their conclusory claims of medical and financial inability to attend their depositions in Las Vegas, which the law requires, as demonstrated in BAC’s Opposition Memorandum. Plaintiffs present blatantly false information when they claim that BAC that did not provide Plaintiffs ample time to create a deposition plan by noticing the depositions on May 16, 2011 without prior notice as demonstrated in BAC’s Opposition Memorandum, which BAC requested beginning in March. No matter how much effort BAC would have put into trying to reach agreeable dates (which efforts already were more than reasonable), Plaintiffs were never going to voluntarily agree to appear for depositions. The entire history of their actions, including their recent pleadings, demonstrates that they believe BAC is not entitled to take their depositions. To the extent that Plaintiffs’ counsel claims that BAC did not consider his caseload when setting depositions for two weeks straight, the deposition schedule was a product of Plaintiffs’ counsel’s refusal to cooperate and his informing BAC during the March 31 teleconference that he was available in June for depositions and Plaintiffs’ counsel never raised any issue concerning the two-week block of depositions prior to the motion for protective order. 28 JACKSON LEWIS LLP LAS VEGAS -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Plaintiffs have not addressed the law BAC presented in its Opposition Memorandum which requires actual evidence of hardship for them to meet their burden of proof for their request for a protective order. The fact that Plaintiffs allegedly are on fixed incomes is a nonsensical argument given that they have presented zero evidence to demonstrate the amount of those fixed incomes. Plaintiffs have not addressed the law BAC presented in its Opposition Memorandum which states that Plaintiffs are not entitled to provide discovery through means other than their depositions only. BAC Opposition Memorandum demonstrates that it has every right to take depositions of Plaintiffs in Las Vegas even if only to address their credibility in preparation for trial which seems particularly important given counsel’s claims that they are easily confused. Dieng v. Hilton Grand Vacations Co., LLC, No. 2:10-cv-01723LDG-PAL (D. Nev. March 1, 2011)(Magistrate Judge Leen explaining the law and denying motion for protective order), attached hereto as Ex. A. To the extent that Plaintiffs claim that depositions of the Nevada Plaintiffs should proceed first, this is yet another issue Plaintiffs never raised with BAC as it should have prior to filing their motion for protective order, which could have been resolved, and has zero bearing on the current papers. To the extent that Plaintiffs claim that the depositions are intended to harass, it is a mystery that Plaintiffs would take this position given that they: (1) never articulate why BAC should not be entitled to face Plaintiffs first-hand during depositions to assess their credibility; (2) have provided no written discovery responses or documents; and (3) have claimed that over 500 class members did not receive annual funding notices and that BAC should be penalized when the maximum penalty for such failure could reach tens of millions of dollars.1 Plaintiffs’ pejorative claims that BAC is “wolfishly steal[ing” their rights through contrived staggered discovery is utterly baseless. BAC never conspired with the Board to stagger discovery to cause harm or delay and Plaintiff present zero evidence otherwise. Plaintiffs misstate the law when they claim that their testimony alone is sufficient for the Court to render judgment for them or even create a genuine issue of material fact to defeat summary judgment which they assert, apparently, as a way to keep this litigation alive. To the contrary, the law requires only that a “plan administrator shall use measures reasonably calculated to ensure actual receipt of the material by plan, participants, beneficiaries and other specified individuals.” Comm. Workers of America v. Commcast Cable Comm., No. 2:05cv950, 2008 U.S. Dist. LEXIS 20334, at *6-14 (W.D. Pa. March 12, 2008) (collecting cases around the country and explaining the standard on motion for summary judgment). Whether Plaintiffs actually received the documents is of no moment, and, even if the individual Plaintiffs testify that they never received the alleged 25 26 27 28 JACKSON LEWIS LLP LAS VEGAS 1 ERISA Section 502(c) and corresponding regulations potentially allow up to $110 per day per participant for a failure to provide annual funding notice assuming Plaintiffs can prove that BAC served as the Plan administrator and the conduct meets the Ninth Circuit’s test for a penalty ($110 per day for 577 alleged class members equals $63,470 per day as a maximum potential penalty). -4- missing documents, that would not save them from summary judgment. Id. In fact, courts routinely grant summary judgment, where as Defendants will do here, a defendant submits testimony that it followed a reasonable procedure for providing the documents allegedly not received. Id. Here, as Defendants have explained to Plaintiffs, Defendants sent the alleged missing documents to the addresses on file for the same location that Plaintiffs receive their pension checks through first class mail, return receipt requested, which meets the required standard under ERISA. Id. Plaintiffs have not presented any evidence that the distribution procedure was insufficient. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Regardless, Plaintiffs miss the point which is that their failure to provide discovery, take discovery, follow court rules, and act with candor requires dismissal as a sanction the Ninth Circuit Court of Appeals encourages without regarding to the strength or weakness of their claims. It is noteworthy that Plaintiffs again failed to follow court rules by filing their Reply Memorandum after the Court-ordered June 9, 2011 deadline without requesting leave to file or explaining the reason for their failure and now have requested oral argument in their reply without following procedural rules for such a request. Plaintiffs have submitted no evidence to support their unfounded claim that they requested Defendants’ depositions on several occasions. BAC invites Plaintiffs to discuss their need for depositions and from whom and when. BAC also invites Plaintiffs to explain why they believe are entitled to depositions in addition to the written discovery requests (which they failed to serve until after BAC filed its motion for sanctions and are too late) when they claim BAC is not entitled to depositions in addition to written discovery.2 Yet another example of Plaintiffs’ disingenuousness is their citation to attorney Stein’s email in which he states that the BAC will work in good faith regarding discovery and to reach a revised briefing schedule which Plaintiffs apparently cite to insinuate BAC has failed to do something it promised. (Doc. 145, p. 7). To the contrary, that e-mail relates to the potential need for BAC to receive additional discovery if Plaintiffs present information in their supplemental class certification memorandum which they had not previously raised and does not relate in any manner to the issues before the Court 20 21 22 23 24 25 26 27 28 JACKSON LEWIS LLP LAS VEGAS 2 BAC does not concede that Plaintiffs are entitled to responses to their written discovery, which it believes Plaintiffs served too late. However, BAC is willing to discuss Plaintiffs’ position concerning whether their discovery requests are incurably tardy which is BAC’s current position. If Plaintiffs are entitled to written discovery responses, the question becomes why they should also be entitled to take Defendants depositions, which presumably will cover the same items as the written discovery. -5- 1 2 3 4 At the end of the day, Plaintiffs still have not presented any evidence that BAC served as the Plan’s administrator as that term is meant under ERISA or that Plaintiffs did not receive the alleged missing documents, much less that there were not sent in a manner reasonably calculated to reach Plaintiffs. Dated this July 10th, 2011. 5 6 JACKSON LEWIS LLP 7 /s/ Jason Stein______ ___ Paul Trimmer Nevada Bar # 9291 3960 Howard Hughes Parkway, Suite 450 Las Vegas, NV 89169 8 9 10 René Thorne (admitted pro hac vice) Louisiana Bar # 22875 Jason Stein (admitted pro hac vice) Louisiana Bar # 30073 650 Poydras St., Ste. 1900 New Orleans, LA 70130 11 12 13 Ashley Abel (admitted pro hac vice) South Carolina Bar # 10097 55 Beattie Place, Suite_800 Greenville, SC 29601 14 15 16 Attorneys for Defendant, Benefits Administration Corporation 17 18 19 20 21 22 23 6-30-11 24 25 26 27 28 JACKSON LEWIS LLP LAS VEGAS -6- 1 CERTIFICATE OF SERVICE 2 Pursuant to Fed. R. Civ. P. 5(b), I hereby certify that the service of the foregoing 3 MOTION FOR LEAVE TO FILE SUR-REPLY was made this date by depositing a true copy 4 of the same for mailing, at Las Vegas, Nevada, addressed to: 5 6 7 8 9 10 11 12 13 Elizabeth Rosenfeld Jeffrey L. Cutler Wohlner Kaplon Phillips Young & Cutler 15456 Ventura Blvd., Suite 500 Sherman Oaks, CA 91403 Phone: 818-501-8030 ext. 313 Fax: 818-501-5306 Email: rosenfield@wkpyc.com Email: jcutler@wkpyc.com Athan T. Tsimpedes Law Offices of Athan T. Tsimpedes 1420 New York Ave., NW, 7th Floor Washington, DC 20005 Phone: 202-638-2100 Fax: 202-449-3499 Email: atsimpedes@comcast.net Larry C. Johns Law Office of Larry C. Johns 3017 W. Charleston Blvd., #30 Las Vegas, Nevada 89102 Phone: 702-387-5003 Fax: 702-387-5018 Email: lcjohns100@embarqmail.com David Amesbury Amesbury Schutt & Herr 703 S. Eighth Street Las Vegas, Nevada 89101 Phone: 702-385-5570 Fax: 702-385-4234 Email: David@amesbury-schutt.com 14 15 Attorneys for Plaintiffs, and all other individuals similarly situated Attorneys for Defendant, Independent Guards of Nevada, Local No. 1 16 17 18 19 20 21 22 23 24 25 26 Scott M. Mahoney Mark J. Ricciardi Fisher & Phillips LLP 3800 Howard Hughes Parkway,Suite 950 Las Vegas, Nevada 89169 Phone: 702-252-3131 Fax: 702-252-7411 Email: dclark@laborlawyers.com Email: smahoney@laborlawyers.com Email: mricciardi@laborlawyers.com Andrew S. Brignone Adam P. Segal Brownstein Hyatt Farber Schreck, LLP 100 City Parkway, Suite 1600 Las Vegas, Nevada 89106 Phone: 702-382-2101 Fax: 702-382-8135 Email: abrignone@bhfs.com Email: asegal@bhfs.com Attorneys for Independent Guards Association of Nevada-Wackenhut Services Incorporated Pension Trust Fund Attorneys for Wackenhut Services Incorporated Dated this 10th day of June, 2011. 27 28 JACKSON LEWIS LLP LAS VEGAS /s/ Rae Christakos An employee of JACKSON LEWIS LLP -7-
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