Commonwealth Equity Services, LLC et al v. The Ohio National Life Insurance Company et al
| Margaret Benison, Commonwealth Equity Services, LLC d/b/a Commonwealth Financial Network, Commonwealth Equity Services LLC and Commonwealth Equity Services LLC doing business as Commonwealth Financial Network |
| Ohio National Life Assurance Corporation, The Ohio National Life Insurance Company and Ohio National Equities, Inc. |
| 1:2018cv12314 |
| November 5, 2018 |
| US District Court for the District of Massachusetts |
| Denise J Casper |
| Contract: Other |
| 28 U.S.C. § 1332 Diversity-Other Contract |
| Plaintiff |
Docket Report
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| Filing 41 STIPULATION of Dismissal by Commonwealth Equity Services LLC. (Donovan, Michael) |
| Filing 40 Judge Denise J. Casper: ELECTRONIC ORDER entered re: #30 Motion to Reopen Case. The Court DENIES the motion to reopen. Plaintiffs filed suit, D. 1, and moved to compel arbitration and stay the proceeding pursuant to Financial Industry Regulatory Authority ("FINRA") Rule 13200(a) and/or the arbitration agreement contained in the Selling Agreement, D. 21. This Court previously allowed the motion to compel arbitration and stay court proceedings on the basis that the parties had entered into a valid contract to arbitrate claims and that compelling arbitration for non-FINRA members was consistent with the FINRA rules. D. 28.Defendants Ohio National Life Insurance Company ("ONLIC") and Ohio National Life Assurance Corporation ("ONLAC") now seek interlocutory appeal moving to reopen the case and requesting this Court to certify its order for interlocutory appeal pursuant to 28 U.S.C. 1292(b). D. 30. ONLIC and ONLAC assert that "the key issue to be certified for appeal is whether a party that is not a FINRA member can be compelled to arbitration pursuant to an arbitration agreement that incorporates FINRA rules." D. 39 at 3."Interlocutory appeals under 1292(b) require an order (1) 'involv[ing] a controlling question of law,' (2) 'as to which there is substantial ground for difference of opinion,' and (3) for which 'an immediate appeal from the order may materially advance the ultimate termination of the litigation.'" Caraballo-Seda v. Municipality of Hormigueros, 395 F.3d 7, 9 (1st Cir. 2005) (citing 28 U.S.C. 1292(b)). The First Circuit has "repeatedly emphasized that 'interlocutory certification under 28 U.S.C. 1292(b) should be used sparingly and only in exceptional circumstances, and where the proposed intermediate appeal presents one or more difficult and pivotal questions of law not settled by controlling authority.'" Id. (quoting Palandjian v. Pahlavi, 782 F.2d 313, 314 (1st Cir. 1986)). It has described appeals under 1292(b) as "hen's-teeth rare." Camacho v. P.R. Ports Auth., 369 F.3d 570, 573 (1st Cir. 2004); see Lawson v. FMR, LLC, 724 F.Supp.2d 167, 168 (D. Mass. 2010). Even assuming arguendo that the first 1292(b) factor is satisfied here, the Court does not find that the latter two factors are met. For the reasons set forth in this Court's Memorandum and Order, D. 28 at 10-15, the Court does not agree that there is "substantial reasonable ground for difference of opinion" on the issue of compelling arbitration as to ONLIC and ONLAC given the circumstances, fully considered by this Court, in this case. Moreover, the Court does not conclude that allowing an interlocutory appeal will materially advance the termination of the litigation. See D. 34 at 15-16. Accordingly, this is not the extraordinary case where interlocutory appeal is warranted and the Court DENIES ONLIC and ONLAC's motion to reopen. D. 30. (Hourihan, Lisa) |
| Filing 39 REPLY to Response to #30 MOTION to Reopen Case filed by Ohio National Equities, Inc., Ohio National Life Assurance Corporation, The Ohio National Life Insurance Company. (Hansen, David) |
| Filing 38 Judge Denise J. Casper: ELECTRONIC ORDER entered D. #35 : Defendants' motion for leave to file a reply brief is ALLOWED to the following extent. Defendants may file a reply brief, not to exceed 10 pages, by July 18, 2019. To the extent that Plaintiffs' opposition to the motion for leave to file a reply brief sought leave for Plaintiffs to file a surreply brief, D. 36, that request is DENIED. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (McKillop, Matthew) |
| Filing 37 MEMORANDUM in Opposition re #30 MOTION to Reopen Case to Plaintiffs' Cross-Motion for Leave to File SurReply filed by Ohio National Equities, Inc., Ohio National Life Assurance Corporation, The Ohio National Life Insurance Company. (Hansen, David) |
| Filing 36 RESPONSE to Motion re #35 MOTION for Leave to File a Reply in Support of Motion to Reopen the Case And Cross-Motion For Leave To File Sur-Reply filed by Margaret Benison, Commonwealth Equity Services LLC. (Donovan, Michael) |
| Filing 35 MOTION for Leave to File a Reply in Support of Motion to Reopen the Case by Ohio National Equities, Inc., Ohio National Life Assurance Corporation, The Ohio National Life Insurance Company.(Hansen, David) |
| Filing 34 Opposition re #30 MOTION to Reopen Case filed by Margaret Benison, Commonwealth Equity Services LLC. (Attachments: #1 Exhibit 1, #2 Exhibit 2)(Donovan, Michael) |
| Filing 33 Judge Denise J. Casper: ELECTRONIC ORDER entered granting #32 Motion for Extension of Time to File Response/Reply re #30 MOTION to Reopen Case Responses due by 5/21/2019 (Hourihan, Lisa) |
| Filing 32 Assented to MOTION for Extension of Time to 5/21/2019 to File Response/Reply as to #30 MOTION to Reopen Case by Margaret Benison, Commonwealth Equity Services LLC.(Tauches, Jason) |
| Filing 31 MEMORANDUM in Support re #30 MOTION to Reopen Case filed by Ohio National Life Assurance Corporation, The Ohio National Life Insurance Company. (Attachments: #1 Exhibit A-Motion to Certify Order and MOL)(Berluti, Robert) |
| Filing 30 MOTION to Reopen Case by Ohio National Life Assurance Corporation, The Ohio National Life Insurance Company.(Berluti, Robert) |
| Filing 29 Judge Denise J. Casper: ORDER entered. Procedural Order Administratively Closing Case(Hourihan, Lisa) |
| Filing 28 Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER. Plaintiffs' motion to compel arbitration and stay court proceedings, D. 21, is ALLOWED.(McKillop, Matthew) |
| Filing 27 Electronic Clerk's Notes for proceedings held before Judge Denise J. Casper: Motion Hearing held on 2/8/2019 re #21 MOTION to Compel filed by Commonwealth Equity Services LLC, Margaret Benison. Arguments. Court takes under advisement #21 Motion to Compel FINRA Arbitration. (Court Reporter: Linda Walsh at lwalshsteno@gmail.com.)(Attorneys present: Michael Donovan and Jason Tauches for the plaintiffs. Robert Berluti and Marion Little for the defendants.) (Hourihan, Lisa) |
| Filing 26 REPLY to Response to #21 MOTION to Compel Arbitration filed by Margaret Benison, Commonwealth Equity Services LLC. (Tauches, Jason) |
| Filing 25 Judge Denise J. Casper: ELECTRONIC ORDER entered granting #24 Motion for Leave to File Reply by Margaret Benison, Commonwealth Equity Services LLC; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Hourihan, Lisa) |
| Filing 24 MOTION for Leave to File Reply by Margaret Benison, Commonwealth Equity Services LLC. (Attachments: #1 Proposed Reply)(Tauches, Jason) |
| Filing 23 MEMORANDUM in Opposition re #21 MOTION to Compel FINRA Arbitration and Stay Court Proceedings filed by Ohio National Equities, Inc., Ohio National Life Assurance Corporation, The Ohio National Life Insurance Company. (Attachments: #1 Exhibit FINRA Guidance, #2 Exhibit Declaration of Thomas DeGaetano, #3 Exhibit Declaration of Lori Dashewich)(Berluti, Robert) |
| Filing 22 MEMORANDUM of Law in Support re #21 MOTION to Compel Arbitration and Stay Proceedings filed by Margaret Benison, Commonwealth Equity Services LLC. (McKillop, Matthew) (Additional attachment(s) added on 1/9/2019: #1 Exhibit Ex. A 2018-11-05 Ltr to Ohio National,, #2 Exhibit Ex. B 2018-11-06 Ltr from Ohio National to Commonwealth,, #3 Exhibit Ex. C 2018-12-20 Respondent's Statement of Preliminary Answer & Statement of Non-Arbitrability) (McKillop, Matthew). |
| Filing 21 Motion to Compel by Margaret Benison, Commonwealth Equity Services LLC. (Tauches, Jason) Modified on 1/7/2019 (McKillop, Matthew). |
| Filing 20 ELECTRONIC NOTICE Resetting Hearing on Motion to Compel Arbitration. Motion Hearing set for 2/8/2019 02:00 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) |
| Filing 19 Judge Denise J. Casper: ELECTRONIC ORDER entered granting #18 Motion to Continue Hearing on Motion to Compel Arbitration (Hourihan, Lisa) |
| Filing 18 Joint MOTION to Continue Hearing on Plaintiffs' Motion to Compel Arbitration to February 7th or February 8th by Ohio National Equities, Inc., Ohio National Life Assurance Corporation, The Ohio National Life Insurance Company.(Hansen, David) |
| Filing 17 ELECTRONIC NOTICE Setting Hearing on Motion to Compel Arbitration. Motion Hearing set for 1/29/2019 02:00 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) |
| Filing 16 Electronic Clerk's Notes for proceedings held before Judge Denise J. Casper: Scheduling Conference held on 12/17/2018. Plaintiff to file Motion to Compel Arbitration by 1/4/19. Defendants to file response by 1/18/19. Hearing set for 1/29/19 at 2:00PM. Initial disclosures due 30 days after ruling on the motion to compel arbitration. Amendment to the pleadings to be filed 45 days after ruling on the motion to compel arbitration. Remainder of schedule to be set after ruling on the motion to compel arbitration. (Court Reporter: Debra Joyce at joycedebra@gmail.com.)(Attorneys present: Michael Donovan for the plaintiff. Robert Berluti and Christopher Hogan for the defendants.) (Hourihan, Lisa) |
| Filing 15 CERTIFICATION pursuant to Local Rule 16.1 of the Ohio National Parties. (Hogan, Christopher) |
| Filing 14 REPORT of Rule 26(f) Planning Meeting. (Hogan, Christopher) |
| Filing 13 CERTIFICATION pursuant to Local Rule 16.1 . (Manchel, Steven) |
| Filing 12 Judge Denise J. Casper: ELECTRONIC ORDER entered granting #10 , #11 Motions for Leave to Appear Pro Hac Vice Added Christopher J. Hogan, Marion H. Little, Jr.. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (McKillop, Matthew) |
| Filing 11 MOTION for Leave to Appear Pro Hac Vice for admission of Marion H. Little, Jr., Esq. Filing fee: $ 100, receipt number 0101-7440747 by Ohio National Equities, Inc., Ohio National Life Assurance Corporation, The Ohio National Life Insurance Company. (Attachments: #1 Exhibit A-Little Affidavit)(Berluti, Robert) |
| Filing 10 MOTION for Leave to Appear Pro Hac Vice for admission of Christopher J. Hogan, Esq. Filing fee: $ 100, receipt number 0101-7440719 by Ohio National Equities, Inc., Ohio National Life Assurance Corporation, The Ohio National Life Insurance Company. (Attachments: #1 Exhibit Exhibit A-Hogan Affidavit)(Berluti, Robert) |
| Filing 9 Document disclosure by Ohio National Equities, Inc..(Hansen, David) |
| Filing 8 Document disclosure by Ohio National Life Assurance Corporation.(Hansen, David) |
| Filing 7 Document disclosure by The Ohio National Life Insurance Company.(Hansen, David) |
| Filing 6 Judge Denise J. Casper: ORDER entered. Standing Order Re: Courtroom Opportunities for Relatively Inexperienced Attorneys(Hourihan, Lisa) |
| Filing 5 NOTICE of Scheduling Conference Scheduling Conference set for 12/17/2018 02:45 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) |
| Filing 4 ANSWER to #1 Complaint,,, by Ohio National Equities, Inc., Ohio National Life Assurance Corporation, The Ohio National Life Insurance Company.(Berluti, Robert) |
| Filing 3 Summons Issued as to Ohio National Equities, Inc., Ohio National Life Assurance Corporation, The Ohio National Life Insurance Company. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Pacho, Arnold) |
| Filing 2 ELECTRONIC NOTICE of Case Assignment. Judge Denise J. Casper assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Donald L. Cabell. (Finn, Mary) |
| Filing 1 COMPLAINT against All Defendants Filing fee: $ 400, receipt number 0101-7397814 (Fee Status: Filing Fee paid), filed by Margaret Benison, Commonwealth Equity Services, LLC d/b/a Commonwealth Financial Network. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F, #7 Exhibit G part 1, #8 Exhibit G part 2, #9 Exhibit H, #10 Exhibit I, #11 Exhibit J, #12 Exhibit K, #13 Exhibit L, #14 Exhibit M, #15 Exhibit N, #16 Exhibit O, #17 Exhibit P, #18 Exhibit Q, #19 Exhibit R, #20 Exhibit S, #21 Exhibit T, #22 Civil Cover Sheet, #23 Category Form)(Manchel, Steven) (Attachment 22 replaced on 11/6/2018) (Pacho, Arnold). (Attachment 23 replaced on 11/6/2018) (Pacho, Arnold). Modified on 11/6/2018 to flatten pdfs (Pacho, Arnold). |
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