Opposition Brief — Stephens v. Instituto de Resseguros do Brasil

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No. 94-1201

In The

Supreme Court of the United States

October Term, 1994

KARL BLANKENBURG, JOHN CRUZ, CHARLES

FURLOTTE, ROBERT KUSCHEL, JOSEPH

LAUGHHUNN, ROBERT LEDBETTER, DAVID

MARGOLIS, DAVID McEACHIN, ROBERT STEPHENS,

JEROME WILSON, ROBERT UDELL, present or former

Trustees of the Pattern & Model Makers Association

of Warren & Vicinity Pension Fund (Defined Benefit)

and MID-CONTINENTAL CLAIM SERVICE AND

ADMINISTRATORS, INC., GARY NOVARA,

and LAURENCE BRESKIN,

Petitioners,

GARY CORBIN, in his capacity as a Trustee and

Fiduciary of The Pattern & Model Makers Association

of Warren & Vicinity Pension Fund (Defined Benefit),

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

R. LAN HunNTER

Counsel of Record

A. Reap Cone III

Dean & FULKERSON

Fifth Floor

801 West Big Beaver Road

Troy, Michigan 48084

(810) 362-1300

Attorneys for Respondent

COCKLE LAW GRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (#2) 342-2831

QUESTION PRESENTED

WHETHER THE EN BANC DECISION OF THE UNITED

STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

THAT ERISA DOES NOT MANDATE ABATEMENT OF

AN ACTION PROPERLY BROUGHT BY AN ERISA

TRUSTEE WHEN THAT TRUSTEE RESIGNS HIS OFFICE

AND A MOTION TO SUBSTITUTE A SUCCESSOR

TRUSTEE PREPARED TO GO FORWARD WITH THE

LITIGATION IS PENDING WAS CORRECT.

STATEMENT OF THE CASE

SUMMARY OF THE ARGUMENT

REASONS FOR- DENYING THE WRIT

CONCLUSION

TABLE OF CONTENTS

The Decision Of The Sixth Circuit Court Of

Appeals Accurately Reflects The Intent Of Con-

gress In ERISA As Well As Prior Decisions Of This

Court

The Decision Of The Sixth Circuit Court Of

Appeals Is Consistent With Prior Decisions Of This

Court And Does Not Conflict With The Cited Deci-

sions Of Either The Second Or Fifth Circuits .

ili

TABLE OF CITATIONS

Page

Cases CITED:

Central States Southeast and Southwest Areas Pension

Fund v. Central Transport, Inc., 472 U.S. 559, 105

oe cy ocean es veueseecssdevseecssty F

Flournoy v. Trust Company of Columbus (In Re

Weaver), 632 F.2d 461 (5th Cir. 1980).............. 10

Ingersoll-Rand v. McClendon, 498 U.S. 133, 112

eS re 7, 11

Mertens v. Hewitt Associates, 508 U.S. __, 113 S.Ct.

pO A Ge ie eS Gs | a 11

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 95

Se ee, ee SL. BOOP CISOFD. 2c cc cus cscceess 12

Pressroom Unions - Printers League Income Security

Fund v. Continental Assurance Co., 700 F.2d 889

(2nd Cir. 1983), cert. denied, 464 U.S. 845, 104

eed wie hweeae eo 4 es oe eee ee) 9 10

Shaw v. Delta Airlines, Inc., 463 U.S. 85, 77 L.Ed.2d

ee 11

STATUTES CITED:

ee caer cc eee e sexcdve ce een aes 5, 7, at

RR, eee 7

§ 502(a), 29 U.S.C. § 1332(a) (29 U.S.C.S. § 1332(a)) .... 12

= meee), 27 Wat. & EISEIGNS) «2 cc ccc ce wwe 2,3

TABLE OF CITATIONS —- Continued

RuLes CITED:

ee ae |: a ee er

Poe. Gow FE. Boe Ge (han nk oe bce ce cei chessaees 6,

ee ee ee ch a a a ere Ok hs ae 6,

ke eee ee. rr re PERT ae 5

APPENDIX:

District Court Civil Docket Sheet ............044d App.

No. 94-1201

In The

Supreme Court of the United States

October Term, 1994

KARL BLANKENBURG, JOHN CRUZ, CHARLES

FURLOTTE, ROBERT KUSCHEL, JOSEPH

LAUGHHUNN, ROBERT LEDBETTER, DAVID

MARGOLIS, DAVID McEACHIN, ROBERT STEPHENS,

JEROME WILSON, ROBERT UDELL, present or former

' Trustees of the Pattern & Model Makers Association

of Warren & Vicinity Pension Fund (Defined Benefit)

| and MID-CONTINENTAL CLAIM SERVICE AND

: ADMINISTRATORS, INC., GARY NOVARA,

and LAURENCE BRESKIN,

Petitioners,

GARY CORBIN, in his capacity as a Trustee and

Fiduciary of The Pattern & Model Makers Association

of Warren & Vicinity Pension Fund (Defined Benefit),

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

To The Honorable Supreme Court:

Respondent Gary Corbin respectfully requests that

the Court deny the Petition for Writ of Certiorari seeking

review of the decision of the United States Court of

Appeals for the Sixth Circuit in this case.

STATEMENT OF THE CASE

On May 30, 1991, Respondent Gary Corbin, a trustee

of a multi-employer defined benefit pension fund, filed a

civil action in the United States District Court for the

Eastern District of Michigan pursuant to § 502(a)(3) of the

Employee Retirement Income Security Act of 1974

(“ERISA”), 29 U.S.C. § 1132(a)(3). In his suit, Trustee

Corbin, acting on behalf of the participants and benefici-

aries of that Fund, alleged that defendants, current and

former trustees, as well as non-fiduciary service pro-

viders had committed a series of violations of ERISA,

resulting in substantial economic harm to the Fund and,

therefore, to the participants and beneficiaries of that

Fund. Pet. App. at 21a.

Three (3) of the named defendants were current

trustees of the then seven (7) member Board of Trustees.

When the action was brought, there was a vacancy on the

Board of Trustees which had existed for several months.

On December 20, 1991, for reasons unrelated to this

litigation, Respondent resigned his position as a trustee

of the Fund. Pet. App. at 21a. The course of the litigation,

however, continued unabated with extensive discovery

being conducted by deposition, interrogatory and docu-

ment production. There were discovery disputes, some of

which were referred to a Magistrate. Several motions,

including Petitioners’ motion for summary judgment,

were filed after December 20, 1991. App. at pp.8-17.

On February 25, 1992, both trustee vacancies on the

Fund were filled. One of those vacancies was filled by

Paul Gard. Pet. App. at 3a.

On March 19, 1992, Petitioners filed a motion to

dismiss arguing that since Trustee Corbin had resigned

he no longer had standing pursuant to ERISA § 502(a)(3),

29 U.S.C. § 1132(a)(3) to prosecute the civil action. Pet

App. at 3a.

Within three (3) working days, on March 24, 1992,

Mr. Corbin filed a motion to add or substitute his suc-

cessor trustee, Paul Gard, as a party-plaintiff under the

provisions of Fed. R. Civ. P. 25(c). His motion was accom-

panied by Mr. Gard’s affidavit swearing he was the suc-

cessor to Mr. Corbin, that he desired to pursue the

allegations of the amended complaint on behalf of and for

the benefit of the plan and that he was prepared to act as

a party-plaintiff. The Petitioners protested Mr. Gard’s

substitution arguing there had been no “transfer of inter-

est” within the meaning of Fed. R. Civ. P. 25(c). Pet. App.

at 4a.

On March 26, 1992, the District Court held a hearing

at which a number of pending motions including Peti-

tioners’ motion to dismiss and Trustee Corbin’s Rule 25(c)

motion to add or substitute Trustee Gard were scheduled

to be heard. After a brief oral argument on the motion to

dismiss, the court rendered an oral ruling. In its ruling,

the court determined that it had lost jurisdiction on the

date of Mr. Corbin’s resignation because he lost his stand-

ing as a fiduciary on that date. Moreover, the court

decided to ignore the motion to substitute Mr. Gard

despite finding that Mr. Gard had standing under ERISA

to bring a claim. The court concluded by holding that

Rule 25(c) could not be used to restore jurisdiction after it

had been lost unless it survived as a matter of substantive

law. Because the Court found ERISA did not preclude

abatement, it granted the motion to dismiss. Pet. App. at

4a-5a.

A timely appeal was filed by Mr. Corbin on April 29,

1992.

A divided panel of the Court of Appeals affirmed the

District Court’s dismissal. A subsequent petition for

rehearing en banc was granted and after briefing and oral

argument, the full court reversed and remanded to the

District Court with instructions to substitute Mr. Gard.!

Pet. App. at 5a, 10a.

In its opinion, the Court of Appeals first noted that

Trustee Corbin had standing to bring his action from the

inception of the District Court action. Thus, the court had

jurisdiction of the action when it was filed. Citing the

“common law of trusts” and hornbook law, the court

noted that an action brought by a trustee is not normally

abated on the trustee’s failure to continue in office. If a

trustee left office, the action would be revived in the

name of the successor representative. Finally, the court

noted that ERISA neither makes the action of an ERISA

trustee personal to that individual nor requires that the

! The District Court ordered the substitution of Mr. Gard

for Mr. Corbin on November 17, 1994.

action be abated without any chance of revival when the

original trustee leaves office. Pet. App. at 6a-7a.

Citing 29 U.S.C. § 1001(b), the en banc panel of the

Court of Appeals addressed Congress’s aversion to an

abatement rule in ERISA cases. Congressional unwilling-

ness to require abatement was particularly strong when,

as here, a new lawsuit commenced by a successor trustee,

participant or beneficiary suing in their own capacity

would have been met by a substantial statute of limita-

tions defense. The Court of Appeals found the District

Court’s decision to abate an ERISA proceeding inapposite

to the Congressional policy and to this Court’s deter-

mination that the purpose of ERISA was to protect the

well-being and security of the millions of employees cov-

ered by or otherwise affected by ERISA protected benefits

(citing Central States Southeast and Southwest Areas Pension

Fund v. Central Transport, Inc., 472 U.S. 559 at 569 (1985)).

Pet. App. at 7a-8a.

The Court of Appeals found that the District Court

decision was at odds with the Federal Rules of Civil

Procedure. The court cited Rule 17(a)’s provision that an

action should not be dismissed on the basis that it was

not prosecuted in the name of the real party in interest

until a reasonable time had been allowed for joinder or

substitution of the real party in interest. It also cited the

relation back provisions of that Rule, where applicable,

noting that only three (3) working days had passed

between the defendants’ objection to Plaintiff Corbin’s

standing and the filing of his motion to add or substitute

Mr. Gard. Pet. App. at 9a.

Relying on the fact that subject matter jurisdiction

was not irretrievably lost the instant that Plaintiff Corbin

resigned his trusteeship and that once jurisdiction validly

exists among the original parties it remains intact after

substitution, the court found that the substituted party

stepped into the place of the original party.

The court went on to find that the “stepping in” of a

successor trustee related back to when the predecessor

trustee had standing to sue, relying on Rule 17(a) and

Rule 15(c) of the Federal Rules of Civil Procedure. Finally,

the court, citing Rule 15(a)’s provision that leave to

amend is to be freely given when justice requires, found

that, if Congress meant what it said in ERISA, justice

required granting the substitution of a fully qualified

plaintiff. Pet. App. at 9a-10a.

SUMMARY OF THE ARGUMENT

Although ERISA provides a listing of those individ-

uals who may bring suit to enforce its provisions, it does

not specifically provide for when or if an action is abated

upon the resignation of a properly constituted trustee

plaintiff. The common law of trusts, Congressional intent

in ERISA and the provisions of Fed. R. Civ. P. 15(a) and

successor trustee to replace the resigning trustes without

abating the underlying action.

Petitioners have failed to cite a single decision of a

Court of Appeals or of this Court which conflicts with the

decision below. To the contrary, this Court’s decisions in

Central States and Ingersoll-Rand v. McClendon support

that decision.

REASONS FOR DENYING THE WRIT

The Decision Of The Sixth Circuit Court Of Appeals

Accurately Reflects The Intent Of Congress In ERISA

As Well As Prior Decisions Of This Court.

When Gary Corbin filed this action in his represes‘a-

tive capacity as an ERISA fund trustee, he met all of the

statutory standing requirements of ERISA embodied in 29

U.S.C. § 1132(e). Similarly, when he moved for the substi-

tution of Paul Gard, the trustee who succeeded him on

the fund, Mr. Gard also met all of the standing and

jurisdictional requirements of ERISA. Although Mr. Cor-

bin resigned his position as a trustee in December, 1991,

no objection to his standing was raised by anyone until

March, 1992. It is also true that due to the inaction of the

remaining fund trustees, there were no replacement

trustees appointed for the vacancies that existed on the

fund until February 25, 1992. Finally, the record reveals

that the majority of the case activities which took place in

the District Court occurred between the dates of Mr.

Corbin’s resignation and the Petitioners’ motion to dis-

miss. See docket sheet attached as Appendix A to this

Brief. The Court of Appeals reviewed these facts and

found the intent of Congress expressed in 29 U.S.C.

§ 1001(b) (as well as by this Court in Central States) was

that ERISA’s goal and purpose was to protect the retire-

ment benefits of covered individuals, a goal consistent

with the common law of trusts.

Further, the court found that the provisions of Fed. R.

Civ. P. 17(a), prohibiting dismissal of an action not pros-

ecuted in the name of the real party in interest until a

reasonable time had been allowed for objection and/or a

substitution, were violated by the District Court’s dis-

missal of this action. Moreover, the relation-back provi-

sions of Fed. R. Civ. P. 17(a) and 15(a) and (c) were

consistent with continuation of an ERISA action without

abatement when one trustee leaves and another takes his

place. The Court of Appeals’ decision is narrowly con-

structed, conforms to the facts of the case, does not create

any broad-based mandate for non-ERISA actions and is

consistent with ERISA and with the provisions of the

Federal Rules of Civil Procedure.

Petitioners can show no harm from the decision of

the Court of Appeals. On the contrary, as the Sixth Circuit

noted, because of the impact of the statute of limitations,

the majority of the violations asserted in this litigation

would be barred if the decision of the District Court is

sustained. In contrast, Petitioners’ advocacy of a decision

favoring abatement of an ERISA fiduciary action rings

hollow where the alleged malefactors would be the only

beneficiaries. Further, if the allegations of the action are

ultimately sustained, the fund participants and benefici-

aries will substantially benefit from a healthier and stron-

ger fund, exactly as Congress intended. In summary,

there simply are no policy implications favoring the posi-

tion espoused by the Petitioners here.

Petitioners’ unsupported protestations notwithstand-

ing, there is no wide ranging impact of this decision upon

the Federal Rules of Civil Procedure. The decision of the

Court of Appeals is not in any way a nullification of Fed.

R. Civ. P. 12(h)(3), nor is there created any obligation on

the part of the judiciary to “cure jurisdictional defects” as

asserted by Petitioners.

The Decision Of The Sixth Circuit Court Of Appeals Is

Consistent With Prior Decisions Of This Court And

Does Not Conflict With The Cited Decisions Of Either

The Second Or Fifth Circuits.

Petitioners have misconstrued the decision of the

Second Circuit Court of Appeals in Pressroom Unions -

Printers League Income Security Fund v. Continental Assur-

ance Co., 700 F.2d 889, 890 (2nd Cir. 1983), cert. denied,

464 U.S. 845, 104 S.Ct. 148 (1983). In Pressroom Union, an

ERISA fund filed an action seeking recovery for the

improper behavior of certain fiduciaries and non-fiduci-

aries of the fund. The District Court dismissed the action

on the grounds that the fund was not a party authorized

to bring suit under ERISA. On the subsequent motion for

reconsideration, the court reiterated its position.?

Affirming the District Court’s action, the Court of

Appeals for the Second Circuit explicitly found the Dis-

trict Court was without subject matter jurisdiction from

the inception of the fund’s complaint because the fund

2 In its decision on the request for reconsideration the court

noted that in its original decision it had, in a footnote, stated

that “the fund has not identified such a party or indicated that

any party is willing to be so substituted. Since this court lacks

jurisdiction over the fund’s claims, I can hardly retain jurisdic-

tion while the fund searches for a substitute plaintiff. Prior to the

dismissal of this action, a proper plaintiff might have moved to inter-

vene, but no such application has been made.” 3 EBC 1950 (D.Ct.

S.D.N.Y., 1982) (emphasis supplied)

never had standing to bring the action. In the present

case, both the original plaintiff and the proposed substi-

tuted plaintiff had standing to bring and prosecute the

action in the name of the beneficiaries and participants of

the fund. Thus, the Pressroom Union case not only is

factually inapposite, but in no way conflicts with the

decision of the Court of Appeals for the Sixth Circuit in

this case.

Similarly, Petitioners’ efforts to identify Flournoy v.

Trust Company of Columbus (In Re Weaver), 632 F.2d 461

(5th Cir. 1980) as conflicting with the Court of Appeals

decision in this case is without merit. In Flournoy, a

Chapter XIII bankruptcy proceeding, a trustee brought a

Truth-In-Lending Act claim on behalf of the wage earner

against a creditor. Finding that the District Court erred in

holding the trustee lacked standing to bring the Truth-In-

Lending Act claim, the Court of Appeals noted that it was

the goal of Congress to use private suits to enforce the

Truth-In-Lending Act and that if a trustee could not bring

such actions, the plaintiff would be barred by the statute

of limitations.

Petitioners’ reference to Flournoy is puzzling because

there is no issue of substitution, there is no question of

relating back or any other issue involved in this case

other than the authority of a trustee to bring an action on

behalf of another party. If anything, Flournoy supports the

decision of the Sixth Circuit here because it relies on the

intention of Congress to secure compliance with the

Truth-In-Lending Act through private suits against credi-

tors.

“We conclude that the trustee was authorized to

bring these truth-in-lending actions on behalf of

the wage earners. Such a holding, we believe, is

consistent with the language of Chapter XIII,

furthers the purposes of the Truth-In-Lending

Act and promotes judicial economy.” 632 F.2d at

465

Petitioners reliance on Mertens v. Hewitt Associates,

508 U.S. __, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993) is also

inappropriate. Their citation to Mertens deals with the

issue of whether or not liability can be established under

ERISA where there is no specific language providing for

the asserted liability. The issue in the present case, how-

ever, is the question of whether or if a trustee’s properly

filed ERISA action is instantly abated when that trustee

resigns his position with the fund. There is no language

in ERISA or in Mertens dealing with that specific issue.

There is, however, a basic purpose section in which Con-

gress set out its goals and intentions (§ 1001(b)). This

Court, in Central States, acknowledged Congress’ purpose

and noted Congress’ reliance on the common law of

trusts to define the general scope of plan fiduciary’s

authority and responsibility, see 472 U.S. 570.

This Court has acknowledged the importance of pri-

vate actions enforcing ERISA. See Ingersoll-Rand v.

McClendon, 498 U.S. 133, 137, 112 L.Ed.2d 474, 482-483

(1990), where a unanimous court reiterated:

“ERISA is a comprehensive statute designed to

promote the interests of employees and their

beneficiaries in employee benefit plans.

Shaw v. Delta Airlines, Inc., 463 U.S. 85, 90, 77

L.Ed.2d 490, 103 S.Ct. 2890 (1983).

eae ee

‘The statute imposes participation, funding and

vesting requirements on pension plans. It also

sets various uniform standards, including rules

concerning reporting, disclosure and fiduciary

responsibility for both pension and welfare

plans.’ Id., at 91, 77 L.Ed.2d 490, 103 S.Ct. 2890

(citation omitted)

As part of this closely integrated regulatory system

Congress included various safeguards to preclude

abuse and ‘to completely secure the rights and expec-

tations brought into being by this landmark reform

legislation.’ S.REP. No. 93-127, p.36 (1973). Prom-

inent among these safeguards are three (3) pro-

visions of particular relevance to this case... ;

and § 502(a), 29 U.S.C. § 1332(a) (29 U.S.C.S.

§ 1332(a)), a ‘carefully integrated’ ‘civil enforce-

ment scheme’ that ‘is one of the essential tools for

accomplishing the stated purposes of ERISA.’ Pilot

Life Ins. Co. v. Dedeaux, 481 U.S. 41, 52, 54, 95

L.Ed.2d 39, 107 S.Ct. 1549 (1987), (emphasis sup-

plied).”

It is apparent that the instant abatement of a properly

brought ERISA trustee action due to the resignation of

the plaintiff trustee is inconsistent with the purpose of

ERISA as stated by Congress and found by this Court.

Consistent with the Federal Rules of Civil Procedure and

ERISA, the appropriate procedure is to permit a reason-

able period of time in which to substitute a properly

constituted party with standing to continue the action

unabated and, thereby, protect the rights of the very

individuals Congress sought to protect when it passed

ERISA.

Contrary to their assertions, Petitioners have failed to

identify any decision by any Court of Appeals which is

contrary to these principles.

CONCLUSION

There is no basis on the facts of this case, in the

provisions of ERISA or in the provisions of the Federal

Rules of Civil Procedure to justify the decision of the

District Court to instantly abate the properly brought

ERISA action of Trustee Gary Corbin against the Peti-

tioners here. The period of time between Petitioners’

objection to his standing and the motion to substitute a

fully qualified successor trustee was minimal. There has

never been a showing of harm to the Petitioners from the

proposed substitution. There has, however, been demon-

strated substantial harm to the participants and benefici-

aries of the fund if that substitution is not permitted. The

en banc decision of the United States Court of Appeals

for the Sixth Circuit was carefully and narrowly drawn

and supported by the facts, as well as the precedent of

this Court. It does not conflict with the decisions of any

other circuit. There is, therefore, no basis upon which a

petition of certiorari is appropriate.

Respondent Gary Corbi prays that this Court deny

Petitioners’ Petition for Writ of Certiorari because the

case presents no issue appropriate for this Court's review,

and because the lower court’s holdings were not in error.

Respectfully submitted,

R. IAN HunrTER,

Counsel of Record

A. Reap Cone III

DEAN & FULKERSON

Fifth Floor

801 West Big Beaver Road

Troy, Michigan 48084

(810) 362-1300

Attorneys for Respondent

Dated: February 9, 1995

App. 1

Docket as of May 4, 1992 2:44 pm CLOSED

U.S. District Court

for the Eastern District of Michigan (Detroit)

CIVIL DOCKET FOR CASE #: 91-CV-72595

Corbin v. Blankenburg, et al Filed: 5/30/91

Assigned to: it

Judge George E. Woods —— a Sate Fas

Demand: $0,000 Juris iction: Federa

: Question

Lead Docket: None

Dkt# in other court: None

Cause: 29:1132 E.R.I.S.A. - Employee Benefits

GARY CORBIN, in his A. Read Cone, III

capacity as a Trustee and [COR LD NTC ret]

fiduciary of the Pattern & Roberto L. Mercado

Model Makers Associatio [COR NTC ret]

of Warren & Vicinity Robert I. Hunter

Pension Fund [COR NTC ret]

plaintiff Dean & Fulkerson

801 W. Big Beaver Road

Fifth Floor

Troy, MI 48084

313-362-1300

KARL BLANKENBURG H. David Kelly, Jr.

defendant [COR LD NTC]

Novara, Tesija,

2000 Town Center

Suite 2370

Southfield, MI 48075-1135

313-354-0380

JOHN CRUZ H. David Kelly, Jr.

defendant (See above)

[COR LD NTC]

App. 2

CHARLES FURLOTTE

defendant

ROBERT KUSCHEL

defendant

JOSEPH LAUGHHUNN

defendant

ROBERT JOE LEDBETTER

defendant

DAVID MARGOLIS

defendant

DAVID MCEACHIN

defendant

ROBERT STEPHENS

defendant

JEROME WILSON

defendant

ROBERT UDELL

defendant

H. David Kelly, Jr.

(See above)

[COR LD NTC]

H. David Kelly, Jr.

(See above)

[COR LD NTC]

H. David Kelly, Jr.

(See above)

[COR LD NTC]

H. David Kelly, Jr.

(See above)

[COR LD NTC]

H. David Kelly, Jr.

(See above)

[COR LD NTC]

H. David Kelly, Jr.

(See above)

[COR LD NTC]

H. David Kelly, Jr.

(See above)

[COR LD NTC}

H. David Kelly, Jr.

(See above)

[COR LD NTC]

H. David Kelly, Jr.

(See above)

[COR LD NTC]

App. 3

MID-CONTINENTAL Lorrey J. Cochran

CLAIM SERVICE AND [COR LD NTC]

ADMINISTRATORS, Ronald A. Weglarz

INCORPORATED [COR LD NTC]

defendant Novara, Tesija,

2000 Town Center

Suite 2370

Southfield, MI 48075-1135

313-354-0380

GARY NOVARA Lorrey J. Cochran

defendant (See above)

[COR LD NTC]

Ronald A. Weglarz

(See above)

[COR LD NTC]

LAURENCE BRESKIN Lorrey J. Cochran

defendant (See above)

[COR LD NTC]

Ronald A. Weglarz

(See above)

[COR LD NTC]

5/30/91 1 COMPLAINT filed, si — Receipt # 267939

- Date Fee Received: 5/30/91 (ip) [Entry

date 06/04/91]

6/6/91 2 AMENDED complaint # 1 by plaintiff

Gary Corbin to remedy breaches of

fiduciary duty under the Employee

Retirement Income Security Act of 1974

with exhibits and proof of mailing. (Ip)

[Entry date 06/07/91]

7/2/91 3 MOTION by defendants for a more defi-

nite statement with brief and proof of

mailing. (Ip) [Entry date 07/03/91]

7/9/91

7/11/91

7/12/91

7/22/91

App. 4

ORDER by Judge George E. Woods, refer-

ring motion for a more definite statement

by defendant [3-1] to Magistrate Marcia

G. Cooke, for hearing and determination

(Ip) [Entry date 07/10/91]

SCHEDULE: hearing on motion for a

more definite statement by defendant

{3-1] set for 9:30 8/6/91 before Magistrate

Marcia G. Cooke (rt)

NOTICE by Magistrate/Judge Cooke of

hearing on motion for a more definite

statement by defendant [3-1], and for a

response to be filed (Ip) [Entry date

07/15/91]

AMENDED notice of hearing on motion

for a more definite statement by defen-

dant [3-1], and for a response to be filed

(Ip) [Entry date 07/15/91]

ACKNOWLEDGMENT of service of sum-

mons and complaint by defendant David

Margolis — received on (no date specified)

(SB) [Entry date 07/23/91]

ACKNOWLEDGMENT of service of sum-

mons and complaint by defendant David

McEachin — received on (no date speci-

fied) (SB) [Entry date 07/23/91]

ACKNOWLEDGMENT of service of sum-

mons and complaint by defendant Mid-

Continental — received on (no date speci-

fied) (SB) [Entry date 07/23/91]

7/22/91

App. 5

ACKNOWLEDGMENT of service of sum-

mons and complaint by defendant Gary

Novara — received on (no date specified)

(SB) [Entry date 07/23/91]

ACKNOWLEDGMENT of service of sum-

mons and complaint by defendant Robert

Stephens — received on (no date specified)

(SB) [Entry date 07/23/91]

ACKNOWLEDGMENT of service of sum-

mons and complaint by defendant Robert

Udell - received on (no date specified)

(SB) [Entry date 07/23/91]

ACKNOWLEDGMENT of service of sum-

mons and complaint by defendant Jerome

Wilson — received on (no date specified)

(SB) [Entry date 07/23/91]

ACKNOWLEDGMENT of service of sum-

mons and complaint by defendant John

Cruz — received on (no date specified)

(SB) [Entry date 07/23/91]

ACKNOWLEDGMENT of service of sum-

mons and complaint by defendant Lau-

rence Breskin - received on (no date

specified) (SB) [Entry date 07/23/91]

ACKNOWLEDGMENT of service of sum-

mons and complaint by defendant Karl

Blankenburg - received on (no date set)

(SB) [Entry date 07/23/91]

ACKNOWLEDGMENT of service of sum-

mons and complaint by defendant Joseph

7/22/91

7/30/91

8/21/91

8/29/91

App. 6

Laughhunn - received on (no date speci-

fie [sic]) (SB) [Entry date 07/23/91]

ACKNOWLEDGMENT of service of sum-

mons and complaint by defendant Robert

Kuschel — received on (no date specified)

(SB) [Entry date 07/23/91]

ACKNOWLEDGMENT of service of sum-

mons and complaint by defendant

Charles Furlotte — received on (no date

specifie [sic]) (SB) [Entry date 07/23/91]

RESPONSE by plaintiff to motion for a

more definite statement by defendant

[3-1] with brief and proof of mailing. (Ip)

[Entry date 08/01/91]

ORDER by Magistrate Marcia G. Cooke

denying motion for a more definite state-

ment by defendant [3-1], and denying

request for sanctions and deadline for

answer to amended complaint [2-1] (It)

[Entry date 08/23/91]

ANSWER by defendants Karl Blanken-

burg, John Cruz, Charles Furlotte, Robert

Kuschel, Joseph Laughhunn, Robert Joe

Ledbetter, David Margolis, David

McEachin, Robert Stephens, Jerome

Wilson, Robert Udell to complaint [1-1]

with proof of mailing. (Ip) [Entry date

09/04/91]

AFFIRMATIVE defenses by Karl Blanken-

burg, John Cruz, Charles Furlotte, Robert

9/5/91

9/25/91

App. 7

Kuschel, Joseph Laughhunn, Robert Joe

Ledbetter, David Margolis, David

McEachin, Robert Stephens, Jerome

Wilson, Robert Udell (Ip) [Entry date

09/04/91]

ANSWER by Mid-Continental, Gary

Novara, and Laurence Breskin to com-

plaint [1-1] (Ip) [Entry date 09/09/91]

AFFIRMATIVE defenses by Mid-Conti-

nental, Gary Novara, and Laurence

Breskin (Ip) [Entry date 09/09/91]

AMENDED answer by defendants Karl

Blankenburg, John Cruz, Charles Furlotte,

Robert Kuschel, Joseph Laughhunn,

Robert Joe Ledbetter, David Margolis,

David McEachin, Robert Stephens, Jer-

ome Wilson, Robert Udell to amended

complaint by Gary Corbin [2-1] (Ip)

[Entry date 09/09/91]

AFFIRMATIVE defenses by Karl Blanken-

burg, John Cruz, Charles Furlotte, Robert

Kuschel, Joseph Laughhunn, Robert Joe

Ledbetter, David Margolis, David

McEachin, Robert Stephens, Jerome

Wilson, Robert Udell (Ip) [Entry date

09/09/91]

PROOF of mailing of pleadings 23 and 24.

(Ip) [Entry date 09/09/91]

SCHEDULE: deadline for discovery set

for 2/3/92, deadline for filing dispositive

9/25/91]

12/2/91

12/27/91

12/30/91

1/2/92

1/6/92

App. 8

motions set for 2/14/92, final pretrial

conference set for 1:00 4/14/92, non-jury

trial set for 8:30 5/4/92 before Judge

George E. Woods (rh)

PRETRIAL order by Judge George E.

Woods (Ip) [Entry date 09/27/91]

RESCHEDULED NOTICE of taking depo-

sition of Gary Corbin 12/17/91 at 10:00

am NSI with proof of mailing (ld) [Entry

date 12/03/91]

PROOF of mailing of plaintiff’s request

for production of documents. (mc) [Entry

date 12/30/91]

PROOF of mailing of copy of plaintiff’s

first request for production of documents

and first request fpr [sic] production o9f

[sicj} documents (1054) [Entry date

01/02/92]

PROOF of mailing of plaintiff’s objections

to defendants’ first interrogatories,

request for production of documents and

request for admissions (1076) [Entry date

01/03/92]

MOTION by defendants’ to compel

answers to interrogatories over plaintiff’s

objections with brief, attachments and

proof of mailing (1054) [Entry date

01/07/92]

1/8/92 32

1/10/92 33

1/13/92 -

1/13/92 34

1/21/92 35

1/22/92 36

App. 9

PROOF of mailing of plaintiff’s answer

and response to defendants’ first inter-

rogatories and request for production of

documents and request for admissions

(1076) [Entry date 01/09/92]

ORDER by Judge George E. Woods refer-

ring motion to compel answers to inter-

rogatories over plaintiff’s objections by

defendant [31-1] to Magistrate Marcia G.

Cooke for hearing and determination

(1099) [Entry date 01/13/92]

SCHEDULE: by Magistrate Marcia G.

Cooke hearing on motion to compel

answers to interrogatories over plaintiff's

objections by defendant [31-1] set for

10:30 1/24/92, and deadline for response

to motion to compel answers to inter-

rogatories over plaintiff’s objections by

defendant [31-1] set for 1/21/92 (1087)

NOTICE of hearing on motion to compel

answers to interrogatories over plaintiff's

objections by defendant [31-1] (1054)

[Entry date 01/15/92]

RESPONSE by defendant Jerome Wilson

to motion to compel answers to inter-

rogatories over plaintiff’s objections by

defendant [31-1] with brief and attach-

ments. (1054)

PROOF of mailing plaintiff’s first set of

interrogatories and second request for

1/23/92

1/24/92

1/31/92

2/5/92

KY 4

App. 10

production of documents (1099) [Entry

date 01/23/92]

PROOF of mailing notice of taking depo-

sitions (1092)

MOTION hearing held on motion to com-

pel answers to interrogatories over plain-

tiff’s objections by defendant [31-1] -

disposition: granted in part and denied in

part —- Magistrate Marcia G. Cooke -

Court Reporter: Tape MC-92-8 (1087)

MOTION by plaintiff Gary Corbin to

extend discovery to 4/14/92, deadline for

filing motions to 3/16/92 with brief and

proof of mailing. (1052) [Entry date

01/27/92]

ORDER by Magistrate Marcia G. Cooke

granting in part and denying in part

motion to compel answers to interrogatories

over plaintiff’s objections by defendant

[31-1] (1099)

SCHEDULE: by Judge George E. Woods

deadline for discovery set for 3/20/92,

deadline for filing dispositive motions set

for 3/27/92, final pretrial conference set

for 1:00 5/12/92, non-jury trial set for

8:30 6/1/92 (1057)

PROOF of mailing of plaintiff’s supple-

mental answers. (1052) [Entry date

02/06/92]

2/5/92 41

2/10/92 42

2/10/92 43

2/13/92 -

2/18/92 44

2/18/92 45

App. 11

ORDER by Judge George E. Woods grant-

ing motion to extend discovery to

4/14/92 by Gary Corbin [38-1] (1052)

[Entry date 02/06/92]

MOTION by defendants for summary

judgment with brief, attachments and

notice of hearing (date to be set by the

court) (1092) [Entry date 02/11/92]

MOTION by defendants to vacate order

extending discovery, or to enter protec-

tive order staying discovery pending the

court’s ruling on defendants’ motion for

summary judgment with brief, attach-

ments, proof of mailing and notice of

hearing (date to be set by the court)

(1092) [Entry date 02/11/92]

SCHEDULE: by Judge George E. Woods

hearing on motion for summary judgment

by defendant [42-1] set for 2:00 3/9/92

(1057)

MOTION by plaintiff Gary Corbin for

order compelling discovery, and for sanc-

tions for defendants’ contempt of court’s

order extending discovery dated 2/4/92

with brief, exhibits and proof of mailing

(1054)

RESPONSE by plaintiff Gary Corbin to

motion to vacate order extending discov-

ery by defendants [43-1], motion to enter

2/19/92 46

2/21/92 47

2/25/92 48

2/26/92 49

2/26/92 50

2/26/92 52

App. 12

protective order staying discovery pend-

ing the court’s ruling on defendant's

motion for summary judgment by defen-

dant [43-2] with exhibits and proof of

mailing. (1054)

AFFIDAVIT of Janice Szalay (1054) [Entry

date 02/20/92]

ORDER by Judge George E. Woods deny-

ing motion to vacate order extending dis-

covery by defendant [43-1] with proof of

mailing. (1054) [Entry date 02/24/92]

ORDER by Judge George E. Woods, refer-

ring motion for order compelling discov-

ery by Gary Corbin [44-1], motion

sanctions for defendants’ contempt of

court’s order extending discovery dated

2/4/92 by Gary Corbin [44-2] to Magis-

trate Marcia G. Cooke (1092) [Entry date

02/26/92]

RESPONSE by plaintiff Gary Corbin to

motion for summary judgment by defen-

dant [42-1] with brief, affidavit and proof

of mailing. (1052) [Entry date 02/27/92]

EXHIBITS filed by plaintiff Gary Corbin

(1052) [Entry date 02/27/92]

REPLY by defendant to motion response

by Gary Corbin [45-1] with attachment

and proof of mailing. (1052) [Entry date

03/02/92]

2/26/92 53

2/27/92 51

2/28/92 -

3/3/92 54

App. 13

AFFIDAVITS by defendants Karl Blank-

enburg, John Cruz, Robert Kuschel,

Charles Furlotte, Robert Joe Ledbetter,

Joseph Laughhunn, David McEachin,

David Margolis, Mid-Continental, Robert

Udell, Jerome Wilson, Robert Stephens,

Laurence Breskin regarding response

reply [52-1] (1052) [Entry date 03/02/92]

NOTICE of deadline for response to

motion for order compelling discovery

[44-1] and for sanctions for defendants’

contempt of court’s order extending dis-

covery dated 2/4/92 by Gary Corbin

[44-2] (1054) [Entry date 02/28/92]

SCHEDULE: by Magistrate Marcia G.

Cooke hearing on motion for order com-

pelling discovery by Gary Corbin [44-1],

motion for sanctions for defendants’ con-

tempt of court’s order extending discov-

ery dated 2/4/92 by Gary Corbin [44-2]

set for 9:30 3/12/92, and deadline for

response to motion for order compelling

discovery by Gary Corbin [44-1], motion

for sanctions for defendants’ contempt of

court’s order extending discovery dated

2/4/92 by Gary Corbin [44-2] set for

3/5/92 (1087)

RESPONSE by defendant to motion for

order compelling discovery by Gary Cor-

bin [44-1], motion for sanctions for defen-

dants’ contempt of court’s order

3/5/92

3/9/92

3/10/92

App. 14

extending discovery dated 2/4/92 by

Gary Corbin [44-2] with affidavit and

proof of mailing. (1052) [Entry date

03/04/92]

PROOF of mailing of Notice of Taking

Deposition (1081) [Entry date 03/06/92]

MOTION by defendants’ to strike affi-

davit of Dean G. Holefca with brief,

attachment, proof of mailing and notice of

hearing without date (1081) [Entry date

03/06/92]

REPLY brief by defendants’ to motion

response by Gary Corbin to defendants’

motion to summary judgment [49-1] with

attachments and proof of mailing (1081)

[Entry date 03/06/92]

REPLY by plaintiff Gary Corbin to defen-

dant Karl Blankenburg response to

motion to compel discovery and for con-

tempt sanction [54-1] with exhibits and

proof of mailing (1081) [Entry date

03/10/92] [Edit date 03/10/92]

RESPONSE by plaintiff Gary Corbin to

motion to strike affidavit of Dean G.

Holefca by defendant [56-1] with brief,

attachments and proof of mailing (1081)

[Entry date 03/12/92] [Edit date

03/12/92]

PROOF of mailing - notice of taking

deposition (1081) [Entry date 03/12/92]

3/10/92

3/12/92

App. 15

PROOF of mailing - notice of taking

deposition of David Margolis (1081)

[Entry date 03/12/92]

MOTION hearing held on motion for

order compelling discovery by Gary Cor-

bin [44-1], motion for sanctions for defen-

dants’ contempt of court’s order

extending discovery dated 2/4/92 by

Gary Corbin [44-2] - disposition: Granted

- Magistrate Marcia G. Cooke - Court

Reporter: Tape MC-92-35 (1087)

PROOF of mailing - plaintiff’s supple-

mental answers to defendants first set of

interrogatories, request for production of

docuiments [sic] and request for admis-

sion (1081) [Entry date 03/16/92]

SUPPLEMENTAL response to defendants’

reply brief by Gary Corbin [58-1] with

proof of mailing (1081) [Entry date

03/16/92] [Edit date 03/16/92]

NOTICE by defendant of hearing on

motion for summary judgment by defen-

dant [42-1] (1081) [Entry date 03/16/92]

ORDER by Magistrate Marcia G. Cooke

granting motion for sanctions for defen-

dants’ contempt of court’s order extend-

ing discovery dated 2/4/92 by Gary

Corbin [44-2] (1081) [Entry date

03/16/92]

3/13/92 -

3/13/92 66

3/16/92 67

3/17/92 68

3/17/92 69

3/17/92 70

App. 16

SCHEDULE: by Judge George E. Woods

hearing on motion for summary judgment

by defendant [42-1] set for 2:00 3/19/92

(1057)

PROOF of mailing - plaintiff’s notices of

taking deposition for Laurence Breskin,

David Margolis, Gary Novara and Jerome

Wilson (1081) [Entry date 03/17/92]

REPLY by defendants’ Karl Blankenburg,

John Cruz, Robert Kuschel, Charles Fur-

lotte, Robert Joe Ledbetter, Joseph

Laughhunn, David McEachin, David Mar-

golis, Mid-Continental, Robert Udell, Jer-

ome Wilson, Robert Stephens, Laurence

Breskin and Gary Novara to motion

response by Gary Corbin [59-1] with

attachment and proof mailing (1081)

[Entry date 03/18/92]

MOTION by plaintiff Gary Corbin for an

order extending discovery with brief,

exhibits and proof of mailing (1081)

[Entry date 03/20/92]

ANSWER by defendants’ to supplement

response regarding the suspension of

benefits issue [63-1] (1081) [Entry date

03/20/92)

NOTICE by plaintiff Gary Corbin of hear-

ing on motion for an order extending dis-

covery by Gary Corbin [68-1] (1081)

[Entry date 03/24/92]

3/19/92

3/23/92

3/24/92

App. 17

SCHEDULE: by Judge George E. Woods

hearing on motion to strike affidavit of

Dean G. Holefca by defendant [56-1] set

for 2:00 3/26/92, motion for summary

judgment by defendant [42-1] set for 2:00

3/26/92 (1057)

MOTION by defendant to dismiss claims

of plaintiff with attachments, brief, notice

of hearing and proof of mailing (1081)

[Entry date 04/02/92] [Edit date

04/02/92]

STATEMENT by defendants’ of appeal of

paragraph 5 of the order in relation to

production of documents with attach-

ments and proof of mailing (1081) [Entry

date 03/31/92] [Edit date 03/31/92]

MOTION by plaintiff Gary Corbin to add

or substitute party plaintiff with brief and

notice of hearing (1081) [Entry date

04/02/92]

RESPONSE brief by plaintiff Gary Corbin

to motion to dismiss claims of plaintiff by

defendant [75-1] (1081) [Entry date

04/02/92]

PROOF of mailing by plaintiff Gary Cor-

bin of response of plaintiff Gary Corbin to

defendants’ motion to dismiss claims of

plaintiff, notice of hearing, motion to add

or substitute party plaintiff with brief in

support (1081) [Entry date 04/02/92]

3/25/92

3/26/92

3/31/92

4/3/92

App. 18

PROOF of mailing on notice of taking

depositions. (1033) [Entry date 04/03/92]

RESPONSE by defendants in opposition

to motion for order extending discovery

[68-1] (1033) [Entry date 04/03/92]

MEMORANDUM by defendant in sup-

port of motion response [79-1], with

exhibits (1033) [Entry date 04/03/92]

PROOF of mailing on documents #79 and

#80. (1033) [Entry date 04/03/92]

RESPONSE by defendants to motion to

add or substitute party plaintiff [74-1],

with proof of mailing. (1033) [Entry date

04/03/92]

AFFIDAVIT of Paul D Gard (1054) [Entry

date 04/07/92]

ORDER by Judge George E. Woods grant-

ing defendant’s motion to dismiss and

dismissing complaint. (1118) [Entry date

04/01/92]

JUDGMENT entered by Judge George E.

Woods granting defendants’ motion to

dismiss, dismissing complaint with proof

of mailing. (1118) [Entry date 04/01/92]

RESPONSE by plaintiff Gary Corbin to

defendants’ appeal of portions of Magis-

trate Judge Marcia Cook’s order dated

3/12/92, with proof of mailing. (appeal

4/8/92

4/29/92

5/4/92

App. 19

not docketed) (1033) [Entry date

04/14/92]

MOTION by defendants’ for relief from

order in reply to response of plaintiff

Gary Corbin to defendants’ appeal of por-

tions of magistrate Cooke’s order date

3/12/92 with brief, notice of hearing and

proof of mailing (1081) [Entry date

04/16/92]

APPEAL by plaintiff Gary Corbin of

order [72-1] to USCA - FEE: paid -

Receipt #: 278923 (1045) [Entry date

05/04/92]

PROOF of mailing of notice of appeal by

plaintiff Gary Corbin to USCA, A. Read

Cone/Robert I. Hunter, Lorrey Cochran/

Ronald A. Weglarz and Sandra Kelly

(1045)

CERTIFIED copy of appeal notice by Gary

Corbin [86-1] and docket transmitted to

USCA (1045)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.