Documente Academic
Documente Profesional
Documente Cultură
Julia A. Boss
3059 Hendricks Hill Drive
Eugene, OR 97403
Pursuant to Federal Rule of Evidence 201, I, pro se Plaintiff Julia Boss, request that the
Court take judicial notice of public court records that are adjudicative fact not subject to
reasonable dispute and the accuracy of which cannot reasonably be questioned (the "Request") ..
Please find attached as Exhibit A a true and correct copy of the Memorandum of Law and
Declaration of Jacob J. Waldman (with its Exhibit A) ("Waldman Decl."}.I Exhibit A to the
Waldman Deel. is "a true and correct copy of an e-mail chain between [Keller Rohrback] and
counsel for ESI, copying other counsel including counsel for Appellee Anthem, Inc., dated
- Page 1 of2 -
Case 3:17-cv-00699-BRM-LHG Document 148 Filed 04/13/18 Page 2 of 2 PageID: 2519
March 30, 2018-April 2, 2018."2 ExhibitA(the complete email chain) to Waldman Deel. was
entered in the docket of Case No. 16-cv-3399 as Dkt. Entry 55 to document an alleged factual
filed on April 3, 2018, in the Court of Appeal of the Second Circuit (Case No. 16-cv-3399, Dkt.
Entry 52).
Keller Rohrback has neither objected to the disclosure of a complete email chain for the
purpose of documenting an alleged factual misrepresentation nor requested that the paper be
stricken from the docket. Exhibit B to this Request is a true and correct copy of the docket of
This adjudicative fact illustrates that, when a party allegedly misrepresents to a Court a
appropriate and customary approach to challenge said misrepresentation and to bring it to the
Court's attention. This adjudicative fact only pertains to the admissibility of an email chain and
its entry in the docket at the time it was filed; it does not pertain to the issue of privilege.
Respectfully submitted,
Pro Se Plaintiff
- Page 2 of2 -
Case 3:17-cv-00699-BRM-LHG Document 148-3 Filed 04/13/18 Page 1 of 2 PageID: 2541
Julia A. Boss
3059 Hendricks Hill Drive
Eugene, OR 97403
RECEIVED
Pro Se Plaintiff
APR 13 2018
AT 8:30
UNITED STATES DISTRICT __ M
I, Pro Se Plaintiff Julia Boss, hereby certify that on this 11th day of April, 2018, I caused
2018 Order (Dkt. Entry 124) and April 9, 2018 Letter (Dkt. Entry 145), and this Certification of
Service to be served to all counsel and parties of record via sending it via FedEx to the Clerk's
Office (responsible under local rule for serving all counsel and parties via ECF on behalf of Pro
Se Plaintiff).
Respectfully submitted,
Pro Se Plaintiff
- Page 1of1 -
Case 3:17-cv-00699-BRM-LHG Document 148-1 Filed 04/13/18 Page 1 of 18 PageID: 2520
EXHIBIT A
1·1
.
i,
. .
Case 18-346, Document
Case 3:17-cv-00699-BRM-LHG 55-1,148-1
Document 04/09/2018, 2275216, Page2
Filed 04/13/18 Page 2ofof12
18 PageID: 2521
JOHN DOE 2, on behalf of themselves and all others similarly situated, BRIAN
CORRIGAN, STAMFORD HEALTH, INC., and BROTHERS TRADING CO.,
INC.
Plaintiffs-Appellants,
Consolidated Plaintiffs-Appellants
-v.-
Defendants-Appellees.
Case 18-346, Document
Case 3:17-cv-00699-BRM-LHG 55-1,148-1
Document 04/09/2018, 2275216, Page3
Filed 04/13/18 Page 3ofof12
18 PageID: 2522
held corporation owns more than 10% of the stock of Express Scripts Holding
Company.
Case 18-346, Document
Case 3:17-cv-00699-BRM-LHG 55-1,148-1
Document 04/09/2018, 2275216, Page4
Filed 04/13/18 Page 4ofof12
18 PageID: 2523
(together, "Appellants") Motion for Extension of Time for Filing Amicus Curiae
Briefs.
PRELIMINARY STATEMENT
First, Appellants indicate that, a full two months after filing their Notice of 1
Appeal, they have not yet persuaded a single amicus to file a brief on their behalf.
They also do not claim that any purported potential amicus has expressed a need
for additional time or asked Appellants to make this motion, and they offer no ,
reason why a potential amicus, if it actually did need an extension, could not seek
the extension on its own behalf. Appellants' failure to persuade amici to file briefs
supporting their appeal is not "good cause" for additional time to try to do so.
1
Case 18-346, Document
Case 3:17-cv-00699-BRM-LHG 55-1,148-1
Document 04/09/2018, 2275216, Page5
Filed 04/13/18 Page 5ofof12
18 PageID: 2524
Second, Appellants offer no facts showing that they have been diligent in
approaching amici or in persuading them to file briefs. As such, the Court has no
way of knowing whether Appellants have made this motion simply to compensate
fiduciary under the Employee Retirement Income Security Act of 1974 ("ERISA")
is especially important, much less important enough to warrant extending the time
for Appellants to try to recruit amici. That Appellants have yet to persuade a single
amicus to participate suggests that amici do not consider the issue sufficiently
important.
this Court in the untenable position of potentially granting relief to entities that,
pursuant to Local Rule 29 .1 (a), might cause the Court to be conflicted. The Court
should not compromise its rules and practices for the sake of entertaining
am1c1.
amicus deadlines need not disrupt the operative briefing schedule for the parties,
that assurance rings hollow. Either the Appellees' will be prejudiced by having
their time shortened to process and account for any amicus submission, or else
2
Case 18-346, Document
Case 3:17-cv-00699-BRM-LHG 55-1,148-1
Document 04/09/2018, 2275216, Page6
Filed 04/13/18 Page 6ofof12
18 PageID: 2525
Appellees' deadline for filing their answering briefs will be extended. Neither
For these reasons, and those detailed herein, the motion should be denied.
BACKGROUND
Appellants' case has been proceeding for nearly two years. Plaintiffs John
Doe One and John Doe Two filed a complaint in the Southern District of New York
on May 6, 2016 (ECF No. 1, 16-cv-3399), and Plaintiffs Burnett, Farrell, and
Shullich filed a complaint on June 24, 2016 (ECF No. 1, 16-cv-4948). On August
1, 2016, the cases were consolidated, with No. 16-cv-3399 designated as the lead
case. The plaintiffs, along with Brian Corrigan, filed an amended complaint on
September 30, 2016 (ECF No. 41), and a second amended complaint on March 2,
2017 (ECF No. 78), after Appellees ESI and Anthem, Inc. ("Anthem") had moved
to dismiss. After a full round of briefing, the District Court (Ramos, J.) dismissed 1
Rather than file a third amended complaint, Appellants filed their Notice of
three days later (ECF No. 163). On March 7, pursuant to Local Rule 31.2(b), the
Court sua sponte placed this appeal on the Expedited Appeals Calendar, setting a
deadline of April 11 for Appellants' brief and May 16 for Appellees' brief.
3
Case 18-346, Document
Case 3:17-cv-00699-BRM-LHG 55-1,148-1
Document 04/09/2018, 2275216, Page7
Filed 04/13/18 Page 7ofof12
18 PageID: 2526
Appellants did not move under Local Rule 3 l .2(b)(2) to remove the case from the
On March 30, Appellants asked counsel for ESI via e-mail for consent to a
blanket extension of time for any amici who might file briefs in support of
Appellants. Mot. if 8. ESI responded the same day that it could not determine
whether to consent without knowing the identities of the potential amici, the topics
they plan to address, and the reasons they require additional time. 1 Appellants
declined to provide that information "until we are certain that the potential amici
definitely want to file. " 2 Appellants' motion states that ESI "would [not] consent
ARGUMENT
I '
this Court, indicate that extensions of time for briefing are disfavored. Local Rule
I
1
See Declaration of Jacob J. Waldman ("Waldman Deel.") Ex. 1 at 2.
2
Id. at 1.
3
See id.
4
Case 18-346, Document
Case 3:17-cv-00699-BRM-LHG 55-1,148-1
Document 04/09/2018, 2275216, Pages
Filed 04/13/18 Page 8of
of12
18 PageID: 2527
time to file a brief, and FRAP 26(b) requires "good cause" to "extend the time
prescribed by these rules." 4 In the March 7 notice placing this appeal on the
circumstances, the Court will not grant a motion to extend the time to file a brief."
Here, Appellants fail to offer any justification, much less "good cause,'' to grant a
Pursuant to Local Rule 31.2, the Court expedited briefing for this appeal.
\
Having prevailed in the District Court, ESI is eager to resolve this appeal and
pursuant to Rule 31.2(b), now seek nonetheless to delay resolution of this appeal ,
or, at the very least, reduce substantially ES I's ability to respond to Appellants'
briefing schedule.
Appellants' main purported justification for their motion is that none of the 1
potential amici has completed the "organizational process" necessary for them
4
Although FRAP 29(a)( 6) does not prescribe a standard for determining
when an extension of time is appropriate for filing an amicus brief, the Advisory
Committee Notes to FRAP 29 specify that "Rule 26(b) grants general authority to
enlarge the time prescribed in these rules for good cause shown."
5
Case 18-346, Document
Case 3:17-cv-00699-BRM-LHG 55-1,148-1
Document 04/09/2018, 2275216, Page9
Filed 04/13/18 Page 9ofof12
18 PageID: 2528
candid, however, and concedes that none of the amici who have supposedly
cause" for giving Appellants extra time to do so-especially given that they have
had more than two months since they noticed their appeal, and nearly two years
since they initiated their lawsuit, to recruit amici. Appellants do not even claim
that any purported potential amicus has expressed a desire for additional time or
asked Appellants to make this motion. Indeed, there is no reason that, if potential
recruit amici. They nowhere specify the dates on which they contacted whatever
persuade potential amici to file briefs. Further still, because Appellants provide no
should at the very least be supplying facts indicating that their demand for
6
Case 18-346, Document
Case 3:17-cv-00699-BRM-LHG 55-1,148-1
Document 04/09/2018, 2275216, PagelO
Filed 04/13/18 Page 10ofof12
18 PageID: 2529
additional time does not arise from their own unjustified delay. Tellingly, however,
Appellants also fail to offer any reason that the subject matter of the appeal
that "fiduciary status in employee benefit plans" covered by ERISA is one of the
"important issues raised in this appeal." Mot. 1. Apart from this conclusory
reverse the District Court's ruling on the issue. Indeed, the facts that (i) Appellants
have concededly failed to persuade any parties to commit to filing an amicus brief
and (ii) no potential amicus has requested more time on its own behalf strongly I
suggest that the potential amici do not consider the issues raised in this appeal to be 1
establishing "good cause" for the Court to revise its briefing schedule by means of
a blanket extension of time for unnamed amici to file briefs concerning unspecified
issues. 5
5
If the Court is nonetheless inclined to grant Appellants' motion, the Court
should also extend the deadline for Appellees' briefs from May 16 to May 30 in
order to maintain the same interval between the due dates for amici and Appellees.
Appellants' assertion that reducing ESI's time to respond to the amici by two
weeks leaves "ample time to review" is conclusory and incorrect. Mot. 6.
7
Case 18-346, Document
Case 3:17-cv-00699-BRM-LHG 55-1,148-1
Document 04/09/2018, 2275216, Pagell
Filed 04/13/18 Page 11ofof12
18 PageID: 2530
Local Rule 29 .1 (a) requires that this Court "deny leave to file an amicus
proceeding and the amicus curiae or its counsel, the filing of the brief might cause
the recusal of the judge." Here, Appellants are purporting to seek relief on behalf
of various potential amici, without disclosing to the Court the identity of any of the
potential amici. This request therefore puts the Court in a position where it could
various anonymous entities with whom the Judge or Judges determining this
motion-or the Judges on the ultimate merits panel-might have a relationship that
amounts to a disabling conflict. There is no reason for the Court to put itself in
Appellants have not explained why potential amici cannot, on their own behalves,
declare their potential interest and seek any additional time they may need.
Notably, Appellants' assertion is at odds with the Advisory Committee Notes for
FRAP 29, which explain that an amicus brief ordinarily must be filed within seven
days of the brief of the party being supported in order to enable the opposing party
to "have sufficient time to review arguments made by the amicus and address them
in the party's responsive pleading." If the deadline for amicus briefs is extended
from seven days after the Appellants' brief to 21 days after the Appellants' brief, it
follows that the Appellees should receive an extra 14 days as well. The result, of
course, would be to protract the parties' briefing, which is inconsistent with the
expedition ordered by this Court and undesirable.
8
Case 18-346, Document
Case 3:17-cv-00699-BRM-LHG 55-1,148-1
Document 04/09/2018, 2275216, Page
Filed 04/13/18 Page12
12of
of12
18 PageID: 2531
CONCLUSION
For the foregoing reasons, ESI respectfully requests that the Court deny
Appellants' motion.
Michael B. Carlinsky
Andrew S. Corkhill
Jacob J. Waldman
51 Madison Avenue, 22nd Floor
New York, NY 10010-1601
Telephone: (212) 849-7000
Facsimile: (212) 849-7100
9
Case 18-346, Document
Case 3:17-cv-00699-BRM-LHG 55-2,
Document 04/09/2018,
148-1 2275216,Page
Filed 04/13/18 Pagel
13ofof618 PageID: 2532
Consolidated Plaintiffs-
Appellants
v.
Defendants-Appellees.
Appellants' Motion for Extension of Time to File Amicus Curiae Briefs, and to place
1
Case 18-346, Document
Case 3:17-cv-00699-BRM-LHG 55-2,
Document 04/09/2018,
148-1 2275216,Page
Filed 04/13/18 Page2
14ofof618 PageID: 2533
chain between counsel for Appellants and counsel for ESI, copying other counsel
including counsel for Appellee Anthem, Inc., dated March 30, 2018 - April 2, 2018.
I declare under penalty of perjury that the foregoing is true and correct.
2
Case 18-346, Document
Case 3:17-cv-00699-BRM-LHG 55-2,
Document 04/09/2018,
148-1 2275216,Page
Filed 04/13/18 Page3
15ofof618 PageID: 2534
EXHIBIT A
Case 18-346, Document
Case 3:17-cv-00699-BRM-LHG 55-2,
Document 04/09/2018,
148-1 2275216,Page
Filed 04/13/18 Page4
16of
of618 PageID: 2535
Jacob Waldman
Jeff,
.i
It would be misleading to file a motion that includes the information we asked for-such as the reason additional is
required-and then simply represent that we did not consent to the motion. As indicated below, at this point we do
know what we are being asked to consent to. Ii
I
Best, I
I·
!'
Jacob II
Jacob:
It has been our practice to agree on an across-the-board basis to the filing of amicus :,'
briefs by both sides. We are not willing to share the information you seek until we are
certain that the potential amici definitely want to file. We will file a motion or application
requesting an extension for potential amici. We will represent that you have not
consented to that motion.
Jeff
Jeffrey Lewis
Partner
Keller Rohrback L.L.P.
1
Case 18-346, Document
Case 3:17-cv-00699-BRM-LHG 55-2,
Document 04/09/2018,
148-1 2275216,Page
Filed 04/13/18 Page5
17 of
of 618 PageID: 2536
Email: jlewis@kellerrohrback.com
CONFIDENTIALITY NOTE: This e-mail contains information belonging to the law firm of Keller Rohrback L.L.P., which may
be privileged, confidential and/or protected from disclosure. The information is intended only for the use of the
individual or entity named above. If you think that you have received this message in error, please e-mail the sender. If
you are not the intended recipient, any dissemination, distribution or copying is strictly prohibited.
Jeff,
Before we can make any determination we need to know who the amici are, what they are planning to address, and "YhY
they need additional time. '
Best,
Jacob
2
Case 18-346, Document
Case 3:17-cv-00699-BRM-LHG 55-2,
Document 04/09/2018,
148-1 2275216,Page
Filed 04/13/18 Page6
18of
of618 PageID: 2537
We are in communication with several potential amici with regard to our
appeal. They have indicated to us that they would like a bit more time to
file- any amicus briefs that they may file. As a result, we are going to
request that the court grant potential amici an additional 14 days. (We are
not going to seek additional time for our opening brief.) Will your clients
consent to this?
Jeff
Jeffrey Lewis
Partner
Email: jlewis@kellerrohrback.com
CONFIDENTIALITY NOTE: This e-mail contains information belonging to the law firm of Keller Rohrback
L.L.P., which may be privileged, confidential and/or protected from disclosure. The information is
intended only for the use of the individual or entity named above. If you think that you have received
this message in error, please e-mail the sender. If you are not the intended recipient, any dissemination,
distribution or copying is strictly prohibited.
3
Case 3:17-cv-00699-BRM-LHG Document 148-2 Filed 04/13/18 Page 1 of 3 PageID: 2538
EXHIBITB
Case 3:17-cv-00699-BRM-LHG Document 148-2 Filed 04/13/18 Page 2 of 3 PageID: 4/11/18,
18-346 Summary
253910:58 AM
If you view the Full Docket you will be charged for 5 Pages $0.50
General Docket
Court of Appeals, 2nd Circuit
04/02/2018 49 MOTION, to extend time, on behalf of Appellant Brothers Trading Co., Inc., Karen Burnett, Brian Corrigan, John Doe
1, John Doe 2, Brendan Farrell and Robert Shullich, FILED. Service date 04/02/2018 by CM/ECF. [2270037] [18-346]
[Entered: 04/02/2018 07:46 PM]
04/03/2018 50 DEFE:CTIVE DOCUMENT, Motion to extend time, [49], on behalf of Appellants Brothers Trading Co., Inc., Ka.ren
Burnett, Brian Corrigan, John Doe 1, John Doe 2, Brendan Farrell and Robert Shullich, FILED,[2270085] [18.:346] :
•
[Entered: 04/03/2018 08:47 AM]
04/03/2018 51 ATTORNEY, Jeffrey Lewis for Brothers Trading Co., Inc. Karen Burnett Brendan Farrell Brian Corrigan John Doe 2
John Doe 1 Stamford Health, Inc. Robert Shullich, in case 18-346, [48], ADDED.[2270092] [18-346] [Entered:
04/03/2018 08:53 AM]
04/03/2018 MOTION, to extend time, on behalf of Appellant Brothers Trading Co., Inc., Karen Burnett, Brian Corrigan, John Doe
1, John Doe 2, Brendan Farrell, Robert Shullich and Stamford Health, Inc., FILED. Service date 04/03/2018 by
CM/ECF. [2270771] [18-346] [Entered: 04/03/2018 03:22 PM] '
04/03/2018 53 CURED DEFECTIVE Motion to extend time [filll, on behalf of Appellant Brothers Trading Co., Inc., Karen
Burnett, Brian Corrigan, John Doe 1, John Doe 2, Brendan Farrell, Robert Shullich and Stamford Health, Inc., FILED.
[2270777] [18-346] [Entered: 04/03/2018 03:27 PM]
04/09/2018 55 OPPOSITION TO on behalf of Appellee Express Scripts, Inc., FILED. Service date 04/09/2018 by •
CM/ECF. [2275216] [18-346] [Entered: 04/09/2018 06:29 PM]
04/09/2018 56 MOTION, to seal document, on behalf of Appellant Brothers Trading Co., Inc., Karen Burnett, Brian Corrigan, John ,
Doe 1, John Doe 2, Brendan Farrell, Robert Shullich and Stamford Health, Inc., FILED. Service date 04/09/2018 by
CM/ECF. [2275225] [18-346] [Entered: 04/09/2018 08:21 PM]
.
• 04/10/2018 60 NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Appellant Brothers Trading Co., Inc., K'.,aren ·.
Burnett, Brian Corrigan, John Doe 1, John Doe 2, Brendan Farrell, Robert Shullich and Stamford Health, Inc., FILED.
Service date 04/10/2018 by CM/ECF. [2276234] [18-346] [Entered: 04/10/2018 06:27 PM] .
04/11/2018 61 ATIORNEY, Gretchen Obrist for Brothers Trading Co., Inc. Karen Burnett Brendan Farrell Brian Corrigan John Doe 2 •
John Doe 1 Stamford Health, Inc. Robert Shullich, in case 18-346, [§Q], ADDED.[2276324] [18-346] [Entered: •
04/11/2018 09:12 AM] ,
'
04/11/2018 63 MOTION ORDER, granting motion to seal brief and special appendix, subject to Appellants also filing redacted, '
'
copies of both the brief and special appendix within two weeks of the date of this filed by Appellant John
Doe 2, John Doe 1, Brian Corrigan, Stamford Health, Inc., Brothers Trading Co., Inc., Karen Burnett, Brendan Farrell ·
and Robert Shullich, by DAL, FILEO. [2276722][63] [18-346] [Entered: 04/11/2018 01:15 PM] j •
-·--·------------- · - - - - -