Malan v. Great-West Life & Annuity Insurance Company

1 Ray Bourhis (SBN 53196) [email protected] Matthew Bourhis (SBN 319382) [email protected] Ritsa Gountoumas (SBN 316713) [email protected] BOURHIS LAW GROUP, P.C.

1808 Wedemeyer Street San Francisco, CA 94129 Tel. (415) 392-4660 Fax. (415) 421-0259 Attorneys for Plaintiff RANDALL L. MALAN, D.D.S., M.S.

10 Cindy M. Rucker (SBN 272465) [email protected] MAYNARD, COOPER & GALE, LLP 1925 Century Park East, Suite 1700 Los Angeles, CA 90067 Tel. (323) 987-3356 Fax. (205) 254-1999 Attorneys for Defendant GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 18 FRESNO DIVISION RANDALL L. MALAN, D.D.S., M.S., ) ) Plaintiff, ) CASE NO. 1:22-cv-00100-JLT-BAM ) vs. ) JOINT STIPULATION EXTENDING 22 ) TIME FOR DEFENDANT GREAT-WEST GREAT-WEST LIFE & ANNUITY ) LIFE & ANNUITY INSURANCE INSURANCE COMPANY, ) COMPANY TO RESPOND TO ) COMPLAINT; ORDER Defendant. ) 25 ) Action Filed: January 24, 2022 ) 26 ) 1 Plaintiff RANDALL L. MALAN, D.D.S., M.S. (“Dr. Malan”) and Defendant GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY (“Great-West”), by and through undersigned counsel, hereby stipulate as follows: 4 WHEREAS, on December 15, 2021, Great-West initiated a lawsuit against Dr. Malan in the United States District Court for the District of Colorado, Case No. 1:21-cv-03367-RMR-STV (the “Colorado Lawsuit”) seeking, inter alia, a declaration that Dr. Malan is not disabled and entitled to benefits under his Great-West group disability income protection insurance certificate—Certificate No. 159880270 (the “Certificate”); 9 WHEREAS, on January 24, 2022, Dr. Malan initiated the above-captioned lawsuit against Great- West in the United States District Court for the Eastern District of California (the “California Lawsuit”) alleging, inter alia, that Great-West breached the Certificate in denying Dr. Malan’s claim for disability benefits, and further alleging that Great-West acted in an unreasonable and vexatious manner in handling and denying Dr. Malan’s claim (see Doc. 1); 14 WHEREAS, the Proof of Service of Summons in the California Lawsuit reflects that Great-West was served with the Complaint on January 26, 2022 (see Doc. 4), and Great-West’s responsive pleading is therefore due on or before February 16, 2022 per Fed. R. Civ. P. 12(a)(1)(A)(i); 17 WHEREAS, on February 1, 2022, Dr. Malan filed a motion to dismiss in the Colorado Lawsuit (the “Motion to Dismiss”), asserting that case should be dismissed as an improper anticipatory action, and also because the court lacks personal jurisdiction over Dr. Malan; 20 WHEREAS, Great-West has informed Dr. Malan that it intends to file a motion to dismiss, stay, or transfer in the California Lawsuit based upon the “first-filed rule”—see, e.g., Pacesetter Sys., Inc. v. Medtronic, Inc., 678 F.2d 93, 94–95 (9th Cir. 1982) (explaining first-filed rule is “a generally recognized doctrine of federal comity which permits a district court to decline jurisdiction over an action when a complaint involving the same parties and issues has already been filed in another district”); 25 WHEREAS, in an effort to avoid the expenses associated with briefing Great-West’s anticipated motion, and to conserve other resources, the Parties agree to a stay of Great-West’s deadline to respond to the Complaint in the California Lawsuit until twenty-one (21) days after Dr. Malan’s Motion to Dismiss is ruled upon in the Colorado Lawsuit, as such a ruling will necessarily impact how the California Lawsuit proceeds, if at all; 3 WHEREAS, this is the first extension of time requested for Great-West to file a responsive pleading, and Great-West has not previously received any extension to respond to the Complaint; and 5 WHEREAS, the filing of this Joint Stipulation does not constitute a waiver of any defenses that Great-West may have in this matter.

7 NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and between Dr. Malan and Great-West, through their respective counsel, that Great-West’s new deadline to respond to Dr. Malan’s Complaint (Doc. 1) shall be twenty-one (21) days after Dr. Malan’s Motion to Dismiss is ruled upon in the Colorado Lawsuit. Pursuant to L.R. 137 and L.R. 144, a proposed order approving this extension is contained within this Joint Stipulation.

12 IT IS SO STIPULATED: DATED: February 11, 2022 BOURHIS LAW GROUP, P.C., By: /s/ Ritsa Gountoumas (w/ permission) 15 RITSA GOUNTOUMAS 16 Attorneys for Plaintiff RANDALL L.

MALAN, D.D.S., M.S.

18 DATED: February 11, 2022 MAYNARD, COOPER & GALE, LLP, By: /s/ Cindy M. Rucker 20 CINDY M. RUCKER 21 Attorneys for Defendant GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY

1 ORDER 2 Pursuant to the Parties’ Joint Stipulation, IT IS SO ORDERED. Defendant Great-West Life & Annuity Insurance Company shall respond to Dr. Malan’s Complaint (Doc. 1) in the above-captioned lawsuit within twenty-one (21) days after the U.S. District Court for the District of Colorado issues a final ruling on Dr. Malan’s Motion to Dismiss in Case No. 1:21-cv-03367-RMR-STV. The parties shall file a joint status report every ninety (90) days informing this Court of the status of the Colorado case.

IT IS SO ORDERED.

9 Dated: February 11, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE

1 PROOF OF SERVICE || STATE OF CALIFORNIA ) COUNTY OF SAN FRANCISCO ) I am employed in the County of San Francisco, State of California. I am over the age of 21 and 4 not a party to the within action. My business address is Maynard, Cooper & Gale, LLP, Two Embarcadero Center, Suite 1450, San Francisco, California 94111. On the date indicated below, I served the foregoing document described as: JOINT STIPULATION EXTENDING TIME FOR DEFENDANT GREAT-WEST LIFE & 7 ANNUITY INSURANCE COMPANY TO RESPOND TO COMPLAINT; [PROPOSED ORDER] g the interested parties in this action by placing: [ ] the original document - OR- [X] a true and correct copy thereof enclosed in sealed envelopes addressed as follows: Ray Bourhis (SBN 53196) 1] [email protected] Matthew Bourhis (SBN 319382) [email protected] 13 Ritsa Gountoumas (SBN 316713) [email protected] 14 BOURHIS LAW GROUP, P.C.

1808 Wedemeyer Street 15 San Francisco, CA 94129 16 Tel. (415) 392-4660 Fax. (415) 421-0259 [x] BY CM/ECF ELECTRONIC SERVICE: The following are registered CM/ECF users with the 18 Court and have consented to service through the Court’s automatic transmission of a notice of 19 electronic filing.

20 I declare that I am employed in the office of a member who has been admitted to the bar of this Court at whose direction the service was made. I declare under penalty of perjury under the laws of the || State of California that the foregoing is true and correct.

22 Executed on February 11, 2022, in San Francisco, California.

24 gre \ 25 Sain Roberson