IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON ART SHY, et al., : Case No. 3:92-cv-00333 Plaintiffs, (DISTRICT JUDGE WALTER H. RICE) VS. NAVISTAR INTERNATIONAL CORPORATION, et al., Defendants. : RESPONSE IN OPPOSITION TO THE : SUPPLEMENTAL BENEFIT : COMMITTEE'S AMENDED MOTION TO : ENFORCE THE SETTLEMENT : AGREEMENT Now comes Defendant Navistar International Corporation ("Navistar" or "the Company"), and for its response in opposition to the Amended Motion to Enforce the Settlement Agreement filed on June 14, 2012 (Docket No. 407) by the Supplemental Benefit Committee of the Navistar International Transportation Corp. Retiree Supplemental Benefit Program (now known as the Navistar, Inc. Retiree Supplemental Benefit Program) ("SBC"), hereby states as follows: In late March of 2012, the SBC filed a Motion to Intervene in this case (Docket No. 394), as well as a Motion to Enforce the 1993 Settlement Agreement in this case (Docket No. 395). The SBC is not a party to this case, and is also not a party to the Settlement Agreement it seeks to enforce. In response, Navistar filed its Motion for Extension of Time To Respond to the Motion to Intervene and to Defer Briefing on the Motion to Enforce the Settlement Agreement Pending Resolution of the Motion to Intervene (Docket No. 401), and also its Memorandum in Opposition to the Motion to Intervene (Docket No. 404). As stated therein, it is Navistar's position that the SBC's Motion to Intervene in this case should be denied, and that briefing on the SBC's Motion to Enforce should be deferred pending resolution of the SBC's Motion to Case: 3:92-cv-00333-WHR Doc #: 408 Filed: 06/25/12 Page: 1 of 4 PAGEID #: 1749 Intervene. More specifically, it is Navistar's position that if the SBC believes that it has cognizable claims against Navistar, it should be required to properly assert those claims as a new action by filing a complaint in compliance with Fed. R. Civ. P. 8. 1 Further, for the reasons set forth in Navistar's Motion to defer briefing on the SBC's Motion to Enforce (Docket No. 404), Navistar should not be required to respond to the SBC's motion for substantive relief in a case to which the SBC is not a party. These same arguments apply with equal force to the instant "Amended Motion to Enforce the Settlement Agreement." Navistar maintains its position that this Amended Motion should be deferred pending resolution of the SBC's Motion to Intervene, and that the SBC's Motion to Intervene should be denied for the reasons summarized above and in prior pleadings addressing this issue. Finally, should the Court grant the SBC's Motion to Intervene, Navistar respectfully renews its request that the Court set a telephonic status hearing for the purpose of establishing a briefing schedule for resolving any matters then pending before the Court, including this "Amended" motion. 1 Contrary to Plaintiffs' statements in briefing the Motion to Intervene, Navistar's arguments do not undetrnine the exclusive jurisdiction clause in Section 15.4 of the Shy settlement agreement, which reserves to this Court exclusive jurisdiction over disputes relating to the interpretation or enforcement of the Shy agreement. If the claims being pursued by the SBC fall within that exclusive jurisdiction clause, then the SBC should comply with the clause and file a new and independent action with this Court. Navistar's point is that, under Fed. R. Civ. P. 8 as well as applicable precedent, the SBC's claims should be plead and filed as a separate action, and not through intervention in this case, which was terminated years ago. Again, as noted in Navistar's response to the Motion to Intervene, this process has been followed in the past. The only prior case involving a dispute by a non-party to the original Shy case, Miller et al. v. Bunn et al., No. 3:07 CV 00040, was filed as an independent action and was transferred to and resolved by this Court pursuant to Section 15.4 of the Agreement. 2 Case: 3:92-cv-00333-WHR Doc #: 408 Filed: 06/25/12 Page: 2 of 4 PAGEID #: 1750 Respectfully submitted, s/ David P. Pierce David P. Pierce (0061972) COOLIDGE WALL CO., L.P.A. 33 W. First Street, Suite 600 Dayton, OH 45402 Phone: 937-223-8177 Fax: 937-223-6705 E-mail: pierce@coollaw.com TRIAL ATTORNEY FOR DEFENDANTS NAVISTAR INTERNATIONAL CORPORATION, et al. OF COUNSEL: David Radelet, Esq. William R. Pokorny, Esq. FRANCZEK RADELET P.C. 300 South Wacker Drive, Suite 3400 Chicago, IL 60606 Phone: (312) 986-0300 Fax: (312) 986-9192 Admitted Pro Hac Vice as One of the Attorneys for Defendants Navistar International Corporation, et al. Laurence H. Levine, Esq. LAURENCE H. LEVINE LAW OFFICES 190 S. LaSalle Street, Suite 3120 Chicago, IL 60603 Phone: (312) 291-7000 Fax: (312) 291-7015 Admitted Pro Hac Vice as One of the Attorneys for Defendants Navistar International Corporation, et al. 3 Case: 3:92-cv-00333-WHR Doc #: 408 Filed: 06/25/12 Page: 3 of 4 PAGEID #: 1751 Cary R. Perlman, Esq. B. John Casey, Esq. LATHAM & WATKINS LLP 233 South Wacker Drive, Suite 5800 Chicago, IL 60606 Phone: (312) 876-7700 Fax: (312) 993-9767 Admitted Pro Hac Vice as Attorneys for Defendants Navistar International Corporation, et al. CERTIFICATE OF SERVICE I hereby certify that on the 25th day of June 2012 a copy of the foregoing Response In Opposition to the Supplemental Benefit Committee's Amended Motion to Enforce the Settlement Agreement was filed electronically. Notice of this filing will be sent to all parties by operation of the Court's CM/ECF and copies will be mailed via U.S. Mail, postage prepaid, to those parties to whom electronic notice has not been sent. Parties may access the filing through the Court's system. sl David P. Pierce David P. Pierce w:\wdox\client\009025\00378\00587022.doc 4 Case: 3:92-cv-00333-WHR Doc #: 408 Filed: 06/25/12 Page: 4 of 4 PAGEID #: 1752
