Bryant et al v. Community Bankshares, Inc. et al

Filing 31

MEMORANDUM OPINION AND ORDER that: 1. Plaintiffs are granted leave to amend their Complaint on or before 3/1/2013; and 2. Defendants' 23 Motion to Dismiss is DENIED AS MOOT with leave to re-file following the amendment of Plaintiffs' Complaint. Signed by Honorable Judge Mark E. Fuller on 2/20/2013. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
DAVE BRYANT, et al.,
Plaintiffs,
v.
COMMUNITY BANKSHARES, INC.,
et al.,
Defendants.

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CASE NO. 2:12-cv-562-MEF
(WO—Do Not Publish)

M EMORANDUM O PINION AND O RDER
I. INTRODUCTION
This cause comes before the Court on Defendants Community Bankshares, Inc.,
Steve Adams, Edwin B. Burr, Elton Collins, Wesley A. Dodd, Jr., and Mary Wilkerson’s
(collectively, “Defendants”) Motion to Dismiss (Doc. #23). In their motion, Defendants
contend that Plaintiffs Dave Bryant (“Mr. Bryant”) and Vikki Bryant (“Vikki Bryant”)
(collectively, “Plaintiffs” or the “Bryants”) have failed to properly plead either: (1) that they
have met the administrative exhaustion requirements of ERISA, or (2) that they have a
legally sufficient excuse for not meeting them. Plaintiffs concede that they did not exhaust
their administrative remedies or plead an excuse to exhaustion in their Complaint (Doc. #1),
but in response to Defendants’ motion to dismiss, they submitted an affidavit to support their
futility argument. (See Affidavit of Dave G. Bryant (“Bryant Aff.”), Doc. #28, at 12–15.)
In that affidavit, Mr. Bryant gives testimony that supports Plaintiffs’ argument that
attempting to exhaust their administrative remedies would have been futile, which, if proved,

would excuse them from ERISA’s strict administrative exhaustion requirement.
After careful consideration of the parties’ arguments and the relevant law, the Court
finds that Plaintiffs are due to be allowed leave to amend the Complaint to more adequately
plead exhaustion or excuse, and therefore, Defendants’ motion is due to be DENIED AS
MOOT with leave to re-file.

II. JURISDICTION AND VENUE
The court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1331
(federal question) and 29 U.S.C. §1132(e)(1) (ERISA). The parties contest neither personal
jurisdiction nor venue, and the court finds sufficient factual bases for both.

III. DISCUSSION
Plaintiffs submitted an affidavit of Mr. Bryant with their Memorandum in Opposition
to Defendants’ Motion to Dismiss, in which he testifies to matters relevant to the issue of
whether Plaintiffs qualify for the futility exception to ERISA’s exhaustion requirement. (See
Bryant Aff., Doc. #28, at 12–15.) Defendants contend that Plaintiffs’ affidavit cannot be
considered by the Court on a Rule 12(b)(6) motion. (Doc. #29, at 1–2.) Anticipating this
argument, Plaintiffs have requested that the Court grant them leave to amend their Complaint
to plead administrative exhaustion or futility. (Doc. #28, at 5–6, 8.)
Under Federal Rule of Civil Procedure 15, following the period in which amendment
is allowed as a matter of course, a party may amend its pleading only with the opposing
party’s written consent or leave of court. Fed. R. Civ. P. 15(a)(2). The Court is to “freely

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give leave when justice so requires.” Id. In this case, the Court finds that justice requires
giving Plaintiffs an opportunity to amend the Complaint to put one or both of the issues
raised by Defendants’ Motion to Dismiss—administrative exhaustion and futility—squarely
before the Court for resolution.

IV. CONCLUSION
Accordingly, it is hereby ORDERED that
1.

Plaintiffs are granted leave to amend their Complaint on or before March
1, 2013; and

2.

Defendants’ Motion to Dismiss (Doc. # 23) is DENIED AS MOOT with
leave to re-file following the amendment of Plaintiffs’ Complaint.

Done this the 20th day of February, 2013.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE

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