McKown v. Symetra Life Insurance Company
| William M McKown |
| Symetra Life Insurance Company |
| 4:2013cv00982 |
| April 12, 2013 |
| US District Court for the District of South Carolina |
| Florence Office |
| Horry |
| R Bryan Harwell |
| Insurance |
| 28 U.S.C. § 1332 Diversity-Notice of Removal |
| Both |
Docket Report
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| Document Text |
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| Filing 78 STIPULATION of Dismissal With Prejudice by Symetra Life Insurance Company. (Rutledge, Peter) |
| Filing 77 NOTICE of Cancellation of Hearing: Jury Trial set for 12/15/2014 at 9:30 AM cancelled. (hcic, ) |
Filing 76
ORDER DISMISSING CASE without costs and without prejudice to the right of either party, upon good cause shown within sixty (60) days, to reinstate the action if settlement is not consummated. Signed by the Honorable R Bryan Harwell on 12/9/2014. (hcic, )
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| Filing 75 RESPONSE in Opposition re #74 MOTION in Limine to Exclude Defendant's Expert Response filed by Symetra Life Insurance Company.Reply to Response to Motion due by 12/18/2014 (Attachments: #1 Exhibit A Burke Christensen curriculum vitae, #2 Exhibit B Christensen Report dated 11/18/13, #3 Exhibit C Christensen Supplementary Opinion dated 12/3/2014)(Rutledge, Peter) |
| Filing 74 MOTION in Limine by William M McKown. Response to Motion due by 12/8/2014. (Attachments: #1 Supporting Documents)No proposed order.(Connor, Lawrence) Modified on 12/8/2014 to modify response due date per Order #55 (hcic, ). |
| Filing 73 Exhibit List (Amended) by Symetra Life Insurance Company. (Rutledge, Peter) (Main Document 73 replaced on 12/8/2014 with corrected document provided by filer) (hcic, ). |
| Filing 72 MOTION in Limine to Exclude Evidence and Testimony from Plaintiff's Expert Concerning Bad Faith or Waiver and Estoppel by Symetra Life Insurance Company. Response to Motion due by 12/8/2014. No proposed order.(Rutledge, Peter) Modified on 12/5/2014 to reset response due date per Order #55 (hcic, ). |
| Filing 70 Jury List. (mcam) |
| Filing 69 Panel Strike List. (mcam) |
| Filing 68 Minute Entry. Proceedings held before Honorable R Bryan Harwell: Jury Selection held on 12/4/2014; Lawrence Connor, IV, Peter Rutledge and Kurt Rozelsky present; 8 person jury; trial begins 12/15/14 @ 9:30 a.m. Court Reporter: Mary Schweinhagen.(mcam) |
| Filing 67 NOTICE of Hearing: Jury Trial set for 12/15/2014 at 9:30 AM in Florence #1, McMillan Federal Bldg, 401 W Evans St, Florence before the Honorable R Bryan Harwell. (hcic, ) |
| Filing 66 REQUEST TO STRIKE FOR CAUSE by Symetra Life Insurance Company. (Rutledge, Peter) |
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Filing 65
ORDER denying #59 Motion for Reconsideration. Signed by the Honorable R Bryan Harwell on 12/3/2014. (hcic, )
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| Filing 64 REPLY to Response to Motion re #59 MOTION for Reconsideration re #51 Order on Motion for Summary Judgment, Response filed by Symetra Life Insurance Company. (Rutledge, Peter) |
| Filing 63 Exhibit List Plaintiff's Proposed Exhibits by William M McKown. (Connor, Lawrence) |
| Filing 62 RESPONSE in Opposition re #59 MOTION for Reconsideration re #51 Order on Motion for Summary Judgment, Response filed by William M McKown.Reply to Response to Motion due by 12/12/2014 (Connor, Lawrence) |
| Filing 61 Proposed Voir Dire by Symetra Life Insurance Company. (Rutledge, Peter) |
| Filing 60 TEXT ORDER SHORTENING RESPONSE TIME TO #59 MOTION for Reconsideration. Plaintiff shall file a response no later than Tuesday, December 2, 2014. Signed by the Honorable R. Bryan Harwell on 12/1/2014. (blwi, ) |
| Filing 59 MOTION for Reconsideration re #51 Order on Motion for Summary Judgment, by Symetra Life Insurance Company. Response to Motion due by 12/2/2014. (Attachments: #1 Memo in Support of Motion to Alter or Amend)No proposed order.(Rutledge, Peter) Modified on 12/2/2014 to adjust response due date per Text Order 60 (hcic, ). |
| Filing 58 NOTICE of Informal Telephone Conference: Telephone Conference set for 12/1/2014 at 4:00 PM before the Honorable R Bryan Harwell. Plaintiff's counsel should have all parties on the line before calling Chambers at 843-676-3800. (hcic, ) |
| Filing 57 DELETION OF DOCKET ENTRY NUMBER 56. Reason: Trial briefs should not be filed in ECF. They should be emailed directly to Chambers. (hcic, ) |
| Filing 55 SIXTH AMENDED CONFERENCE AND SCHEDULING ORDER. Pretrial Briefs due by 12/2/2014, proposed voir dire due on or before 12/2/2014. Attorneys shall meet any time during the week of December 1, 2014, for the purpose of exchanging and marking all exhibits. Motions in Limine due by 12/5/2014. Responses to Motions in limine must be filed by 12/8/2014. Proposed verdict forms, jury instructions, or deposition designations due by 12/5/2014. Jury Selection Deadline 12/4/2014. Signed by the Honorable R Bryan Harwell on 11/25/2014. (hcic, ) |
| Filing 54 TEXT ORDER granting in part and denying in part #53 Motion to Amend/Correct Scheduling Order. Signed by the Honorable R Bryan Harwell on 11/25/2014. (hcic, ) |
| Filing 53 MOTION to Amend/Correct #35 Scheduling Order,, by Symetra Life Insurance Company. Response to Motion due by 12/11/2014. Proposed order is being emailed to chambers with copy to opposing counsel.(Rutledge, Peter) |
| Filing 52 CALENDAR NOTICE of Hearing: Jury Selection set for 12/4/2014 at 9:30 AM in Florence #1, McMillan Federal Bldg, 401 W Evans St, Florence before the Honorable R Bryan Harwell. (hcic, ) |
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Filing 51
ORDER granting in part and denying in part #45 Motion for Summary Judgment. Defendant's motion is GRANTED as to Plaintiff's claims for breach of contract and bad faith refusal to pay life insurance benefits, as well as Plaintiff's demands for punitive damages and attorney's fees. Defendant's motion is DENIED as to Plaintiff's claim for breach of implied contract. Signed by the Honorable R Bryan Harwell on 11/20/2014. (hcic, )
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| Filing 50 REPLY to Response to Motion re #45 MOTION for Summary Judgment Response filed by Symetra Life Insurance Company. (Rutledge, Peter) |
| Filing 49 RESPONSE in Opposition re #45 MOTION for Summary Judgment Response filed by William M McKown.Reply to Response to Motion due by 11/10/2014 (Attachments: #1 Affidavit Affidavit of Plaintiff William M. McKown)(Connor, Lawrence) |
| Filing 48 TEXT ORDER granting #47 Motion to Stay deadlines in current scheduling order pending a decision on the motion for summary judgment. Signed by Honorable R Bryan Harwell on 10/27/2014.(tmcb, ) |
| Filing 47 MOTION to Stay re #35 Scheduling Order,, by Symetra Life Insurance Company. Response to Motion due by 11/10/2014. No proposed order.(Rutledge, Peter) |
| Filing 46 Additional Attachments to Main Document #45 MOTION for Summary Judgment . First attachment description: Exhibit D Universal Life Insurance Statement dated 9/18/2009 . (Attachments: #1 Exhibit D Universal Life Insurance Statement 9.18.09, #2 Exhibit E Life Insurance Cash Value Insufficient Notice, #3 Exhibit F Plaintiff's Answers to Defendant's First Interrogs, #4 Exhibit G Letter Symetra to Wm McKown 2/22/2010, #5 Exhibit H Discharge Summary 12/23/2009, #6 Exhibit I Transcript of Symetra/Wm. McKown phone conversation 1/4/2010, #7 Exhibit J Letter Symetra to SC DOI 4/5/2010, #8 Exhibit K Photocopied check 2/23/2010 $3,986.57, #9 Exhibit L Discharge Summary 2/9/2010, #10 Exhibit M Letter Symetra to Wm. McKown 3/17/2010, #11 Exhibit N Letter Symetra to Wm. McKown 2/24/2010, #12 Exhibit O Excerpt depo of Wm. McKown and Def's Ex. 13 to McKown depo, #13 Exhibit P Letter Symetra to Wm. McKown 2/22/2010)(Rutledge, Peter) |
| Filing 45 MOTION for Summary Judgment by Symetra Life Insurance Company. Response to Motion due by 11/10/2014. (Attachments: #1 Memo in Support, #2 Exhibit A Excerpts from American States Life Insurance Policy, #3 Exhibit B Discharge Summary and Admission Note, #4 Exhibit C John J. O'Brien deposition transcript)No proposed order.(Rutledge, Peter) See #46 for additional attachments (mcot, ). |
| Filing 44 RULE 26(a)(3)PRETRIAL DISCLOSURES by William M McKown. Objections to PreTrial Disclosures due by 11/3/2014.(Connor, Lawrence) |
| Filing 43 RULE 26(a)(3)PRETRIAL DISCLOSURES by Symetra Life Insurance Company. Objections to PreTrial Disclosures due by 11/3/2014.(Rutledge, Peter) |
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Filing 42
ORDER denying #36 Motion to Amend/Correct Complaint. Signed by the Honorable R Bryan Harwell on 10/14/2014. (hcic, )
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| Filing 41 TEXT ORDER granting #40 Motion for Extension of Time. The Parties have jointly requested an extension of the deadline to file motions, currently set for October 15, 2014, to October 22, 2014. The Court hereby GRANTS the joint motion. The new deadline for filing motions is 10/22/2014. The remaining deadlines set forth in the Fifth Amended Scheduling Order remain in effect. Signed by the Honorable R. Bryan Harwell on 10/14/2014.(blwi, ) |
| Filing 40 Consent MOTION for Extension of Time to File Motions by William M McKown, Symetra Life Insurance Company. Response to Motion due by 10/30/2014. No proposed order.(Rutledge, Peter) |
| Filing 39 RESPONSE in Opposition re #36 MOTION to Amend/Correct Motion to Amend Complaint Response filed by Symetra Life Insurance Company.Reply to Response to Motion due by 10/6/2014 (Attachments: #1 Exhibit A American States Life Ins Policy (excerpts), #2 Exhibit B Discharge Summary and Admission Note, #3 Exhibit C Deposition transcript John J. O'Brien, #4 Exhibit D Universal Life Ins Statement, #5 Exhibit E Life Ins Cash Value Insufficient Notice, #6 Exhibit F Plaintiff's Answers to Def's First Interrogs, #7 Exhibit G Letter Symetra to McKown 12/21/09, #8 Exhibit H Discharge Summary 12.23.09, #9 Exhibit I Transcript phone conversation Symetra/Wm. McKown 1/4/10, #10 Exhibit J Letter Symetra to SC DOI 4/5/10, #11 Exhibit K Photocopy Symetra check dated 2/23/10 payable to Wm McKown, #12 Exhibit L Discharge Summary dated 2/9/10, #13 Exhibit M Letter Symetra to Wm McKown 3/17/10, #14 Exhibit N Letter Symetra to Wm McKown 2/24/10, #15 Exhibit O Excerpt Wm McKown depo and Def's Ex 13 to McKown depo)(Rutledge, Peter) |
| Filing 38 TEXT ORDER shortening time to respond to Plaintiff William M. McKown's Motion to Amend Complaint #36 . Defendant shall file its response by September 26, 2014. Signed by the Honorable R. Bryan Harwell on 9/18/2014. (blwi, ) |
| Filing 36 MOTION to Amend/Correct Complaint by William M McKown. Response to Motion due by 9/26/2014. (Attachments: #1 Memo in Support)No proposed order.(Connor, Lawrence) Modified on 9/16/2014 to edit text (hcic, ). (Additional attachment(s) added on 9/16/2014: #2 Proposed Amended Complaint) (hcic, ). Modified on 9/16/2014, additional attachment added as provided by filer (hcic, ). Modified on 9/19/2014, modified response due date per Text Order 38 (hcic, ). |
| Filing 35 FIFTH AMENDED CONFERENCE AND SCHEDULING ORDER. Motions due by 10/15/2014, Rule 26(a)(3) Disclosures due by 10/15/2014, Jury Selection Deadline 12/1/2014, ADR Statement due by 8/30/2014, Mediation Due by 9/30/2014. Motions in limine must be filed at least three weeks prior to the date set for jury selection. Responses to motions in limine shall be filed within seven (7) days after the motion is filed. Parties shall furnish the Court pretrial briefs seven (7) days prior to the date set for jury selection. Signed by the Honorable R Bryan Harwell on 7/10/2014. (hcic, ) |
| Filing 34 TEXT ORDER granting #33 Motion to Amend/Correct Scheduling Order. Signed by the Honorable R Bryan Harwell on 7/10/2014. (hcic, ) |
| Filing 33 Consent MOTION to Amend/Correct #31 Scheduling Order,, by William M McKown, Symetra Life Insurance Company. Response to Motion due by 7/28/2014. Proposed order is being emailed to chambers with copy to opposing counsel.(Rutledge, Peter) |
| Filing 32 NOTICE of Request for Protection from Court Appearance by Peter A Rutledge for July 21 - 25, 2014 (Rutledge, Peter) |
| Filing 31 FOURTH AMENDED CONFERENCE AND SCHEDULING ORDER. Motions due by 7/25/2014, Rule 26(a)(3) Disclosures due by 7/25/2014, Jury Selection Deadline 10/1/2014, ADR Statement due by 6/11/2014, Mediation Due by 7/11/2014. Motions in limine must be filed at least three weeks prior to the date set for jury selection. Responses to motions in limine shall be filed within seven (7) days after the motion is filed. Parties shall furnish the Court pretrial briefs seven (7) days prior to the date set for jury selection. Signed by The Honorable R Bryan Harwell on 5/14/2014. (hcic, ) |
| Filing 30 TEXT ORDER granting #29 Motion to Amend/Correct Scheduling Order. Signed by The Honorable R Bryan Harwell on 5/14/2014. (hcic, ) |
| Filing 29 Consent MOTION to Amend/Correct #28 Scheduling Order,, by William M McKown, Symetra Life Insurance Company. Response to Motion due by 5/30/2014. Proposed order is being emailed to chambers with copy to opposing counsel.(Rutledge, Peter) |
| Filing 28 THIRD AMENDED CONFERENCE AND SCHEDULING ORDER. Motions due by 4/25/2014, Rule 26(a)(3) Disclosures due by 6/10/2014, Jury Selection Deadline 8/5/2014, ADR Statement due by 4/27/2014, Mediation Due by 5/27/2014. Motions in limine must be filed at least three weeks prior to the date set for jury selection. Responses to motions in limine shall be filed within seven (7) days after the motion is filed. Parties shall furnish the Court pretrial briefs seven (7) days prior to the date set for jury selection. Signed by the Honorable R Bryan Harwell on 2/20/2014. Signed by the Honorable R Bryan Harwell on 3/27/201. (hcic, ) |
| Filing 27 TEXT ORDER granting #25 Motion to Amend/Correct Scheduling Order. Signed by the Honorable R Bryan Harwell on 3/27/2014. (hcic, ) |
| Filing 26 NOTICE of Request for Protection from Court Appearance by Lawrence Sidney Connor, IV for September 1-September 15, 2014 (Connor, Lawrence) |
| Filing 25 Consent MOTION to Amend/Correct #23 Scheduling Order,, by William M McKown, Symetra Life Insurance Company. Response to Motion due by 4/14/2014. Proposed order is being emailed to chambers with copy to opposing counsel.(Rutledge, Peter) |
| Filing 24 TEXT ORDER granting #22 Motion to Amend/Correct Scheduling Order. Signed by the Honorable R Bryan Harwell on 1/9/2014. (hcic, ) |
| Filing 23 SECOND AMENDED CONFERENCE AND SCHEDULING ORDER. Discovery due by 3/14/2014, Motions due by 3/28/2014, Rule 26(a)(3) Disclosures due by 6/10/2014, Jury Selection Deadline 8/5/2014, ADR Statement due by 4/27/2014, Mediation Due by 5/27/2014. Motions in limine must be filed at least three weeks prior to the date set for jury selection. Responses to motions in limine shall be filed within seven (7) days after the motion is filed. Parties shall furnish the Court pretrial briefs seven (7) days prior to the date set for jury selection. Signed by the Honorable R Bryan Harwell on 1/9/2014. (hcic, ) Modified on 1/10/2014 to correct filing date (hcic, ). |
| Filing 22 Consent MOTION to Amend/Correct #15 Scheduling Order,,, by William M McKown, Symetra Life Insurance Company. Response to Motion due by 1/27/2014. Proposed order is being emailed to chambers with copy to opposing counsel.(Rutledge, Peter) |
| Filing 21 DEFENDANT'S ID OF EXPERT WITNESSES by Symetra Life Insurance Company.(Rutledge, Peter) |
| Filing 20 DELETION OF DOCKET ENTRY NUMBER 18. Reason: Deleted at filer's request. Corrected Filing Document Number #19 . Filed the same day as original filing: 10/11/2013. (hcic) |
| Filing 19 PLAINTIFF'S ID OF EXPERT WITNESSES by William M McKown.(Connor, Lawrence) |
| Filing 17 AFFIDAVIT of Records Custodian by Symetra Life Insurance Company. (Attachments: #1 Exhibit A BB&T Affidavit, #2 Exhibit B Mease Dunedin Affidavit, #3 Exhibit C Manor Care Affidavit)(Rutledge, Peter) (Attachment 2 replaced on 9/3/2013 with corrected document as requested by and provided by filer) (hcic, ). |
| Filing 16 TEXT ORDER granting #14 Motion to Amend/Correct Scheduling Order. Signed by the Honorable R Bryan Harwell on 8/22/2013. (hcic, ) |
| Filing 15 FIRST AMENDED CONFERENCE AND SCHEDULING ORDER. Plaintiffs ID of Expert Witness due by 10/14/2013, Defendants ID of Expert Witnesses Due by 11/12/2013, Records Custodian Affidavit due by 11/12/2013, Discovery due by 1/13/2014, Motions due by 1/27/2014, Rule 26(a)(3) Disclosures due by 4/11/2014, Jury Selection Deadline 6/6/2014, ADR Statement due by 2/26/2014, Mediation Due by 3/28/2014. Motions in limine must be filed at least three weeks prior to the date set for jury selection. Responses to motions in limine shall be filed within seven (7) days after the motion is filed. Parties shall furnish the Court pretrial briefs seven (7) days prior to the date set for jury selection. Signed by the Honorable R Bryan Harwell on 8/22/213. (hcic, ) |
| Filing 14 Consent MOTION to Amend/Correct #7 Scheduling Order,,, by William M McKown, Symetra Life Insurance Company. Response to Motion due by 9/9/2013. Proposed order is being emailed to chambers with copy to opposing counsel.(Rutledge, Peter) |
| Filing 13 PLAINTIFF'S ID OF EXPERT WITNESSES by William M McKown. (Attachments: #1 Exhibit CV of Expert)(Connor, Lawrence) |
| Filing 12 Local Rule 26.03 Answers to Interrogatories by Symetra Life Insurance Company.(Rutledge, Peter) |
| Filing 11 Joint Rule 26(f) Report by William M McKown, Symetra Life Insurance Company.(Rutledge, Peter) |
| Filing 10 Local Rule 26.01 Answers to Interrogatories by William M McKown.(Connor, Lawrence) |
| Filing 9 TEXT ORDER: Having reviewed the Complaint, in light of Defendant's response to the Court's TEXT SUA SPONTE ORDER TO SHOW CAUSE, the Court is satisfied that the amount in controversy exceeds the jurisdictional amount and it has diversity jurisdiction over this matter pursuant to 28 U.S.C. 1332. Signed by Honorable R. Bryan Harwell on 4/30/2013. (dsho, ) |
| Filing 8 RESPONSE TO ORDER TO SHOW CAUSE by Symetra Life Insurance Company. (Attachments: #1 Exhibit A. Declarations Page)(Rutledge, Peter) |
| Filing 7 CONFERENCE AND SCHEDULING ORDER. Rule 26(f) Conference Deadline 5/6/2013, 26(a) Initial Disclosures due by 5/20/2013, Rule 26 Report due by 5/20/2013, Motions to Amend Pleadings due by 7/15/2013, Plaintiffs ID of Expert Witness due by 8/14/2013, Defendants ID of Expert Witnesses Due by 9/13/2013, Records Custodian Affidavit due by 9/13/2013, Discovery due by 11/12/2013, Motions due by 11/27/2013, Rule 26(a)(3) Disclosures due by 2/10/2014, Jury Selection Deadline 4/7/2014, ADR Statement due by 12/28/2013, Mediation Due by 1/27/2014. Motions in limine must be filed at least three weeks prior to the date set for jury selection. Responses to motions in limine shall be filed within seven (7) days after the motion is filed. Parties shall furnish the Court pretrial briefs seven (7) days prior to the date set for jury selection. Signed by Honorable R Bryan Harwell on 4/16/2013. (hcic, ) |
| Filing 6 ANSWER to Complaint (Notice of Removal) by Symetra Life Insurance Company. (Rutledge, Peter) Modified on 4/16/2013 to correct event type. (hcic, ) |
| Filing 4 TEXT SUA SPONTE ORDER TO SHOW CAUSE: The Defendant removed this case from State court pursuant to 28 U.S.C. 1441 and 1446. Under 1441(a), a defendant is permitted to remove a case to federal court if the court would have had original jurisdiction over the matter. District courts have original jurisdiction " where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between... citizens of different States. " 28 U.S.C. 1332(a)(1). In the instant case, although coded as a federal question action in CMECF, the Defendant bases federal jurisdiction upon diversity jurisdiction pursuant to 1332. However, the Plaintiff did not specify any monetary amount of damages or clearly allege the jurisdictional amount in the Complaint, and the Defendants notice of removal fails to allege facts adequate to establish that the amount in controversy exceeds the jurisdictional amount. Thus, the amount in controversy is unclear, and this Court may lack diversity jurisdiction. Removal statutes are strictly construed against removal, and any doubts concerning the propriety of removal must be resolved in favor of retained state court jurisdiction. Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993). In addition, " [t]he party seeking removal bears the burden of demonstrating that removal jurisdiction is proper. " In Re Blackwater Security Consulting, LLC, 460 F.3d 576, 583 (4th Cir. 2006) (citation omitted). This includes establishing compliance with the removal statute requirements. See Marler v. Amoco Oil Co., 793 F. Supp. 656, 658-59 (E.D.N.C. 1992). Courts must narrowly interpret removal jurisdiction because of the significant federalism concerns that are raised by removing proceedings from state court. Id. Thus, all doubts are resolved in favor of remand. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); see also Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994). THEREFORE, IT IS HEREBY ORDERED that, not later than five calendar days from the filing of this Order, Defendant shall brief the Court and SHOW CAUSE why this case should not be remanded to the State court for the foregoing reasons. Plaintiff shall file a response not later than five calendar days thereafter and, in that response, include a clarification as to whether Plaintiff intended to pursue, at the time of filing the original complaint, damages in excess of the jurisdictional amount of $75,000. If Plaintiff did not intend to pursue damages adequate to satisfy the jurisdictional threshold at the time of filing and if Plaintiff stipulates to such limitation having a binding effect, the Court will remand this matter to state court. Failure by to comply with this order may result in dismissal without prejudice of Plaintiff's case. Signed by Honorable R. Bryan Harwell on 4/15/2013. (dsho, ) |
| Filing 3 Local Rule 26.01 Answers to Interrogatories with jury demand by Symetra Life Insurance Company.(hcic, ) |
| Filing 1 NOTICE OF REMOVAL from Horry County Court of Common Pleas, case number 2013-CP-26-1478 (filing fee $350 receipt number 0420-4662725), filed by Symetra Life Insurance Company. (Attachments: #1 State Court Documents)(hcic, ) |
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| Plaintiff: William M McKown | |
| Represented By: | Lawrence Sidney Connor, IV |
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| Defendant: Symetra Life Insurance Company | |
| Represented By: | Peter A Rutledge |
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