Healy v. Milliman Inc

Opinion

1 2 3 4 5

THE HONORABLE JOHN C. COUGHENOUR UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON 7 JAMES HEALY, on behalf of himself and all 8 others similarly situated, Case No. 2:20-cv-01473-JCC

9 Plaintiff, STIPULATED MOTION AND [PROPOSED] 10 ORDER TO STAY PROCEEDINGS vs. PENDING APPEAL 11 NOTE ON MOTION CALENDAR: 12 MILLIMAN, INC., d/b/a INTELLISCRIPT, APRIL 16, 2024

13 Defendant. 14

15 The parties respectfully submit this joint request that the Court enter an order to stay 16 proceedings pending the resolution of Plaintiff’s Petition Seeking Permission to Appeal, which 17 Plaintiff will file on April 19, 2024, and the Ninth Circuit's acceptance of review and any decision 18 on appeal. In support of this stipulated motion, the parties state: 19 1. Plaintiff filed this class action lawsuit on October 5, 2020. 20 3. On April 29, 2022, the Court granted in part and denied in part Plaintiff’s motion 21 for class certification, certifying two classes, including the inaccuracy class. Dkt. No. 126. 22 4. After the classes were certified but before notice was sent, Plaintiff conducted 23 additional discovery regarding whether inaccuracy class members had suffered an injury for 24 purposes of Article III standing. 25 5. On September 8, 2023, Plaintiff moved to modify the class definition based on 26 the evidence he had developed. Dkt. 166. 27 STIPULATED MOTION AND [PROPOSED] ORDER TO 1 6. On September 21, 2023, Milliman filed a Motion for Partial Summary 2 Judgment/Motion to Decertify Inaccuracy Class. Dkt. 167. 3 7. The Court held oral argument on Plaintiff’s Motion to Modify the Class Definition 4 and Defendant’s Motion for Partial Summary Judgment/Motion to Decertify Inaccuracy Class. 5 Dkt. 197. 6 8. Following oral argument, the Court ordered the parties to submit supplemental 7 briefing regarding class-wide standing for both the inaccuracy and reinvestigation classes. Dkt. 8 198. The parties timely filed their briefs as the Court ordered. See Dkt. Nos. 203-214. 9 9. On February 22, 2024, the Court entered an Order granting in part and denying 10 in part Defendant’s motion for summary judgment and/or to decertify the inaccuracy class, 11 dismissing the class for lack of class-wide standing. Dkt. 216 at 6:20-25. In the Order, the Court 12 directed the parties to meet and confer and provide the Court with a joint status report 13 containing a proposed revised case management schedule within fourteen days of the Order. 14 10. The parties met and conferred on March 1, 2024, during which, Plaintiff’s 15 counsel informed Milliman’s counsel that Plaintiff intended to file a motion for reconsideration 16 and clarification of the Court’s order. On March 5, 2024, the parties filed a stipulated motion to 17 extend the deadline to submit a joint status report until after the motion for reconsideration 18 and clarification had been resolved, which the Court granted. Dkts. 217, 218. 19 11. On April 9, 2024, the Court entered an Order that: 20 CLARIFIES: its dismissal of the inaccuracy class is pursuant to Rule 56. Further, this is a dismissal without prejudice. And for the 21 reasons described in Plaintiff’s motion for reconsideration, (see id. at 9), the Court CERTIFIES that an interlocutory appeal of this issue 22 is appropriate under 28 U.S.C. § 1292(b). 23 See Dkt. 227 (in relevant part). 24 12. Section 1292(b), which relates to interlocutory appeals, provides that 25 “application for an appeal hereunder shall not stay proceedings in the district court unless the 26 district judge or the Court of Appeals…shall so order.” 27 STIPULATED MOTION AND [PROPOSED] ORDER TO 1 13. While the filing of an interlocutory appeal does not automatically stay 2 proceedings in the district court, the district court has broad discretion to decide whether a stay 3 is appropriate to “promote economy of time and effort for itself, for counsel, and for litigants.” 4 Filtrol Corp. v. Kelleher, 467 F.2d 242, 244 (9th Cir. 1972) (quotations and citations omitted); see 5 Clinton v. Jones, 520 U.S. 681, 706 (1997) (“The District Court has broad discretion to stay 6 proceedings as an incident to its power to control its own docket.”). “A trial court may, with 7 propriety, find it is efficient for its own docket and the fairest course for the parties to enter a 8 stay of an action before it, pending resolution of independent proceedings which bear upon the 9 case.” Mediterranean Enterprises, Inc. v. Ssangyong Corp., 708 F.2d 1458, 1465 (9th Cir. 1983) 10 (citation omitted); see also Deming v. First Franklin, No. 09-5418RJB, 2010 WL 2326170, at *1 11 (W.D. Wash. June 7, 2010) (granting stay of proceedings pending 28 U.S.C. § 1292(b) 12 interlocutory appeal based on efficiency and economy of judicial resources); Hill v. Glebe, No. 13 14-5330 RJB-JCC, 2015 WL 1538771, at *2 (W.D. Wash. Apr. 7, 2015) (finding the same). 14 14. Here, the parties agree that a stay of the entire matter pending the Ninth 15 Circuit’s acceptance of review and any decision on appeal could serve the interests of fairness 16 and “promote economy of time and effort” for the Court and the parties. Kelleher, 467 F.2d at 17 244. In that regard, Milliman agrees to the proposed stay for the sole purpose of avoiding the 18 expenditure of additional litigation costs. Milliman does not agree with or support Plaintiff’s 19 intention to appeal the Court’s Order. 20 15. The parties propose that they meet and confer and provide the Court with a joint 21 status report either within seven days after the Ninth Circuit’s acceptance of review and any 22 decision on appeal, or after the Ninth Circuit has declined interlocutory review. 23 24 25 26 27 STIPULATED MOTION AND [PROPOSED] ORDER TO 1 STIPULATED TO AND DATED this 16th day of April, 2024. 2 TERRELL MARSHALL LAW GROUP PLLC WILLIAMS, KASTNER & GIBBS PLLC

3 By: /s/ Jennifer Rust Murray By: /s/ Jeffery M. Wells 4 Beth E. Terrell, WSBA #26759 Jeffery M. Wells, WSBA #45840 Email: bterrell@terrellmarshall.com Email: jwells@williamskastner.com 5 Jennifer Rust Murray, WSBA #36983 Daniel Brown, WSBA #22028 Email: jmurray@terrellmarshall.com Email: dbrown@williamskastner.com 6 Adrienne D. McEntee, WSBA # 34061 Rodney L. Umberger, WSBA #24948 Email: amcentee@terrellmarshall.com Email: rumberger@williamskastner.com 7 Blythe H. Chandler, WSBA #43387 601 Union Street, Suite 4100 Email: bchandler@terrellmarshall.com Seattle, Washington 98101-2380 8 936 North 34th Street, Suite 300 Telephone: (206) 628-6600 9 Seattle, Washington 98103-8869 Facsimile: (206) 628-6611 Telephone: (206) 816-6603 10 Attorneys for Defendant FRANCIS MAILMAN SOUMILAS, P.C. 11 James A. Francis, Admitted Pro Hac Vice 12 Email: jfrancis@consumerlawfirm.com 13 John Soumilas, Admitted Pro Hac Vice Email: jsoumilas@consumerlawfirm.com 14 Lauren KW Brennan, Admitted Pro Hac Vice Email: lbrennan@consumerlawfirm.com 15 Travis Martindale-Jarvis, Admitted Pro Hac Vice Email: tmartindale@consumerlawfirm.com 16 1600 Market Street, Suite 2510 Philadelphia, Pennsylvania 19103 17 Telephone: (215) 735-8600 18 Attorneys for Plaintiff 19

20 21 22 23 24 25 26 27 STIPULATED MOTION AND [PROPOSED] ORDER TO 1 ORDER 2 3 IT IS SO ORDERED. 4 5 DATED this 16th day of April 2024. 6 A 7 8

9 THE HONORABLE JOHN C. COUGHENOUR 10

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 STIPULATED MOTION AND [PROPOSED] ORDER TO