Case 2:19-cv-00118 Document 9 Filed 05/29/19 Page 1 of 4 PageID #: 83 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION GREENBRIER HOTEL CORPORATION, et al. Case No. 2:19-cv-00118 Plaintiffs, v. ACE AMERICAN INSURANCE COMPANY (CHUBB), et al. Defendants. RESPONSE OF PLAINTIFFS TO SHOW CAUSE ORDER Plaintiffs, by counsel, and in response to the Show Cause Order [Doc. 8] regarding service of process on Defendants in this matter, respectfully state as follows: 1. On or about September 8, 2017, certain of the Plaintiffs and Defendants herein entered into a Tolling, Standstill and Non-Waiver Agreement (“Tolling Agreement”) in relation to earlier litigation that Plaintiffs had filed to obtain copies of insurance policies that Defendants had refused to provide. Pursuant to the terms of that Tolling Agreement, the parties agreed to toll any “statute of limitations, suit limitation clause, arbitration clause, or similar provision” from June 23, 2017 through the termination of that agreement.1 The claims covered by the Tolling Agreement arguably include those asserted by Plaintiffs in the instant matter, but present counsel for Plaintiffs was not aware of the existence of the Tolling Agreement when the Complaint in this matter was filed. 1 The Agreement is confidential by its terms and is therefore not attached. However, Plaintiffs will provide a copy to the Court for in camera review should the Court so order or request. Case 2:19-cv-00118 Document 9 Filed 05/29/19 Page 2 of 4 PageID #: 84 2. Upon learning of the Tolling Agreement, Plaintiffs’ counsel invoked the termination provision of the Tolling Agreement, but Plaintiffs and Defendants have subsequently agreed to extend the termination date of the Tolling Agreement in order to allow the parties to attempt to resolve the matters at issue in the Complaint. 3. Attached as Exhibit A is a letter agreement executed by counsel for Plaintiffs and counsel for Defendants which includes the following: [T]ermination of the September 8, 2017 Tolling, Standstill and Non-Waiver Agreement by the Justice-related parties will not be effective until 12:01 a.m. on July 1, 2019. This also confirms that our earlier agreements that none of the Plaintiffs in the Litigation will take any steps to effect service of the Complaint is extended until July 1, 2019. … [N]one of the Defendants in the Litigation will take any formal steps in the Litigation … until July 1, 2019. … [T]he time for Plaintiffs to effect service of the Complaint shall be tolled from May 31, 2019 through June 30, 2019. Exhibit A, p.1. 4. The parties have agreed to participate in a meeting on June 18, 2019 in Pittsburgh, Pennsylvania to discuss whether the matter can be resolved and the Complaint dismissed. 5. If that meeting is unsuccessful, Plaintiffs will proceed with service of process on Defendants on July 1, 2019. 6. Plaintiffs therefore respectfully request that the matter remain on the Court’s active docket. 2 Case 2:19-cv-00118 Document 9 Filed 05/29/19 Page 3 of 4 PageID #: 85 Respectfully submitted, GREENBRIER HOTEL CORPORATION, THE GREENBRIER SPORTING CLUB, INC., GREENBRIER SPORTING CLUB DEVELOPMENT COMPANY, INC., OLD WHITE CHARITIES, INC., OAKHURST CLUB LLC, GREENBRIER GOLF AND TENNIS CLUB CORPORATION, JUSTICE FAMILY GROUP, LLC, THE CHESAPEAKE & OHIO TRAVELER, INC., THE GREENBRIER RESORT & CLUB MANAGEMENT CO., GREENBRIER IA, INC., OLD WHITE CLUB CORPORATION, AND GREENBRIER MEDICAL INSTITUTE, LLC By counsel, /s/ Michael W. Carey MICHAEL W. CAREY, WVSB No. 635 JOHN A. KESSLER, WVSB No. 2027 DAVID R. POGUE, WVSB No. 10806 CAREY, SCOTT, DOUGLAS & KESSLER, PLLC 901 Chase Tower, 706 Virginia Street, East (25301) P.O. Box 913 Charleston, West Virginia 25323 Telephone: (304) 345-1234 Facsimile: (304) 342-1105 mwcarey@csdlawfirm.com jkessler@csdlawfirm.com drpogue@csdlawfirm.com and RICHARD A. GETTY, (Admitted Pro Hac Vice) DANIELLE HARLAN, (Admitted Pro Hac Vice) THE GETTY LAW GROUP, PLLC 1900 Lexington Financial Center 250 West Main Street Lexington, Kentucky 40507 Telephone: (859) 259-1900 Facsimile: (859) 259-1909 rgetty@gettylawgroup.com dharlan@gettylawgroup.com 3 Case 2:19-cv-00118 Document 9 Filed 05/29/19 Page 4 of 4 PageID #: 86 and LAURENCE J. ZIELKE, (Pro Hac Vice Admission pending) JANICE THERIOT, (Pro Hac Vice Admission pending) ZIELKE LAW FIRM, PLLC 462 S. 4th St. Suite 1250 Louisville, Kentucky 40202 Telephone: (502) 589-4600 lzielke@zielkefirm.com jtheriot@zielkefirm.com dhbpld2190 4 Case 2:19-cv-00118 Document 9-1 Filed 05/29/19 Page 1 of 2 PageID #: 87 THE GETTY LAW GROUP,LIC ATTORNEYS AT LAW 1900 Lexington Financial Center 250 West Main Street Lexington, Kentucky 40507 Telephone: (859) 259-1900 Facsimile: (859) 259-1909 Richard A. Getty, Managing Member Extension 217 E-Mail: rgetty@gettylawgroup.com Via dello Studio No. 8 50122 Florence, Italy Telephone: 011 39 055 290 394 Facsimile: 011-39-055-264-5596 - - - E-MAILED ONLY JDennis@moundcotton.com MBurke@RobinsKaplan.com May 24, 2019 James Dennis, Esq. Mound Cotton Wollan & Greengrass LLP One New York Plaza New York, New York 10004 and Matthew M. Burke, Esq. Robins Kaplan LLP 800 Boylston Suite 2500 Boston, Massachusetts 02199 Re: Greenbrier Hotel Corporation, et al. v. ACE American Ins. Co., et al., Case No. 2:19-cv-00118 (S.D. W. Va.) Gentlemen: This letter will memorialize the agreement among all parties to the referenced action (the "Litigation") that termination of the September 8, 2017 Tolling, Standstill and Non-Waiver Agreement by the Justice-related parties will not be effective until 12:01 a.m. on July 1, 2019. This also confirms that our earlier agreements that none of the Plaintiffs in the Litigation will take any steps to effect service of the Complaint is extended until July 1,2019. In addition, this confirms that our earlier agreements that none of the Defendants in the Litigation will take any formal steps in the Litigation is extended until July 1,2019. The Defendants also agree that the time for Plaintiffs to effect service of the Complaint shall be tolled from May 31, 2019 through June 30, 2019. EXHIBIT A - Case 2:19-cv-00118 Document 9-1 Filed 05/29/19 Page 2 of 2 PageID #: 88 THE GETTY LAW GROUPpu „ James Dennis, Esq. and Matthew M. Burke, Esq. May 24, 2019 Page 2 By signing below, counsel for the parties acknowledge and agree to the provisions set forth above. Have seen and agree: Richard A. Getty The Getty Law Group, PLLC / y es M. Dennis -Mound i Cotton Wollan & Greengrass LLP \-1 Matthew M. Burke Robins Kaplan LLP ragltrl 0893