Spivey v. Cigna Corporation et al

Filing 56

MEMORANDUM OPINION AND ORDER: It is hereby ORDERED as follows: 1. The 55 Motion for Leave to File a Reply is GRANTED. 2. The 32 Motion to Suspend, Alter or Vacate the Court's Order Dismissing Cigna Corporation Pending Completion of Limited Discovery on Agency Jurisdiction is DENIED as further set out in the opinion and order. Signed by Honorable Judge W. Harold Albritton, III on 12/12/2013. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
RYAN D. SPIVEY,

)
)
Plaintiff,
)
v.
)
)
LIFE INSURANCE COMPANY OF NORTH )
AMERICA AND UNITED TECHNOLOGIES)
CORPORATION WELFARE BENEFITS
)
PLAN,
)
Defendants.
)

2:13cv461-WHA
(wo)

MEMORANDUM OPINION AND ORDER
I. PROCEDURAL HISTORY
This cause is before the court on a Motion to Suspend, Alter or Vacate the Court’s Order
Dismissing Cigna Corporation Pending Completion of Limited Discovery on Agency Jurisdiction
(Doc. #32), and a Motion for Leave to File a Reply to Cigna’s Supplemental Brief (Doc. #55).
The Plaintiff, Ryan D. Spivey (“Spivey”), filed a Complaint in this case on June 28, 2013
bringing claims under the Employee Retirement Income Security Act (AERISA@).
Cigna Corporation (“Cigna”) was originally named as a Defendant in this case and moved
for dismissal on the basis of a lack of personal and subject matter jurisdiction, improper venue, and
failure to state a claim. Defendant Life Insurance Company of North America (“LINA”), moved
to dismiss Defendant Cigna Group Insurance on the basis of a lack of subject matter jurisdiction,
lack of personal jurisdiction, improper venue, insufficient service of process, and failure to state a
claim. LINA and Defendant United Technologies Corporation Welfare Benefits Plan moved to
dismiss Count II of the Complaint for failure to state a claim. The court granted the Motion to
Dismiss Count II, and dismissed Cigna and Cigna Group Insurance, finding lack of personal

jurisdiction over those defendants.
Spivey has now asked the court to vacate its previous ruling and allow him to conduct
discovery to demonstrate that personal jurisdiction exists over Cigna.
The court held oral argument on the pending motion, gave the parties an opportunity to
attempt to come to a resolution on the scope of some disputed discovery, and then allowed for
additional briefing on the issue of jurisdictional discovery.
After oral argument, LINA stated in a letter to Spivey that “to the extent Plaintiff seeks
compensation information for the individuals involved in the termination of Plaintiff's claim,
narrowly tailored and designed to elicit the information produced in Melech, LINA will agree to
provide non-privileged responsive information regarding compensation of those individuals who
were involved in the termination at issue if an appropriate Confidentiality Agreement and
Protective Order is in place.” Ex. A to Doc. #54.
II. DISCUSSION
Although Spivey labels his filing as a “Motion to Suspend, Alter or Vacate,” the court
interprets this to be a motion to reconsider its previous ruling that personal jurisdiction does not
exist over Cigna in this case. A motion to reconsider may fall within either Federal Rule of Civil
Procedure 59(e) (motion to alter or amend a judgment) or Federal Rule of Civil Procedure Rule
60(b) (motion for relief from judgment). “A motion to reconsider is not a vehicle for rehashing
arguments the court has already rejected or for attempting to refute the basis for the court's earlier
decision.” Parker v. Midland Credit Mgmt., Inc., 874 F.Supp.2d 1353, 1359 (M.D. Fla. 2012).
Spivey=s evidence in opposition to Cigna=s evidence at the Motion to Dismiss stage was an
affidavit from his attorney in which the attorney states that A[b]ased upon personal belief,
experience and prior dealings with Cigna Corporation@ the following list of allegations Awas set
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forth within the Plaintiff=s Complaint.@ (Doc. #22 at &2).

Among the allegations identified in

the affidavit as being contained in the Complaint is a statement that Cigna entities are alter egos of
one another and that the Cigna entities state that they are not proper parties in cases to avoid the
production of documents related to control over the personnel who manage ERISA claims. (Doc.
#22 at p.2). The court concluded that evidence presented by Spivey was insufficient. See Doc.
#30 at p.7 (stating, that “[t]he affiant, however, does not state that the allegations identified are
facts within his personal knowledge, but merely states that the statements were set forth in the
Complaint.”) (citing Gen. Elec. Credit Corp. v. Scott's Furniture Warehouse Showroom, Inc., 699
F. Supp. 907, 910 (N.D. Ga.1988)).
In finding that personal jurisdiction does not exist over Cigna in this case, the court
considered the affidavit of Franklin C. Barlow, which states that Cigna Corporation is a holding
company, that it does not offer insurance products to the public, it does not do business in the State
of Alabama, has no office in Alabama, does not pay income tax in Alabama, has no employees in
Alabama, and does not conduct business through any of its subsidiaries in Alabama. (Doc. #11-2
at &&3,5). The court also considered a decision in which similar evidence was presented, and in
which the court found that Cigna is not subject to personal jurisdiction in Alabama. See Melech v.
Life Ins. Co. of N. Am., No. 10-573-KD-M, 2011 WL 1047716 (S.D. Ala. March 1, 2011) (Report
and Recommendation adopted in No. 10-573-KD-M, 2011 WL 995821 (March 18, 2011)).
In the motion now pending before the court, Spivey requests that the court reconsider its
earlier finding. Plaintiff attaches discovery requests and further asks for the opportunity to
conduct a Rule 30(b)(6) deposition of Cigna. In support of his argument that he is entitled to such
discovery, he relies on the same affidavit of his counsel which the court found insufficient in its
previous Memorandum Opinion and Order. (Doc. #32 at p.4, 5).
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At the oral argument on the motion, counsel for Spivey stated that he wants to discover the
compensation structure, including pay and incentives, for the claims handlers involved in this case,
but will not be able to do so without Cigna in the case.
In Spivey’s supplemental briefing, he points to some evidence other than his own counsel’s
affidavit. Spivey argues that depositions taken in other cases suggest that the performance of
claims personnel is measured at least occasionally by how many claims they can close on a
periodic basis. Spivey argues, therefore, that he needs to do discovery to find whether the
individuals who handled his claim closed it due to pressure to meet organizational objectives tied
to company profitability. Of course, even this argument does not establish that such evidence is
only discoverable with Cigna in the case, or, more important, that Cigna is properly a defendant in
this case. Spivey also points the court to Anderson v. Unum Life Ins. Co. of Am., 414 F. Supp. 2d
1079 (M.D. Ala. 2006), and argues that in this case, as in Anderson, the actual decision maker is
not the entity which has the plan’s grant of authority, requiring a de novo standard of review. He
also contends that the discovery identified in the letter from Defense counsel, including the
evidence produced in the Melech case, is insufficient to address the issues of discretionary
authority and specific conflict.
In his most recent filing, Spivey states that LINA has failed to respond to discovery
requests which he included as part of the motion to set aside Cigna’s dismissal.
In response to Spivey’s briefs, LINA states that it has advised Spivey in writing that it will
provide compensation information for the claims personnel who made the ultimate decision to
terminate Spivey’s claim, subject only to the receipt of discovery requests and pursuant to a
Protective Order, and will not object based on custody or control. LINA contends that issues
raised by Spivey such as the scope of conflict discovery and the standard of review are premature
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at this point. LINA points out that in other decisions in which the jurisdictional issue was raised
as to Cigna, including cases in which jurisdictional discovery was allowed, personal jurisdiction
has not been found over Cigna. See, e.g., Nat’l Production Workers Union Trust v. Cigna Corp.,
No. 05-C-5415m 2007 WL 1468555, at *5 (N.D. Ill. May 16, 2007).
As previously noted, the instant request to conduct discovery comes after the court has
already ruled on a Motion to Dismiss for lack of jurisdiction. Essentially, Spivey seeks to vacate
that ruling, and conduct discovery to establish that Cigna is a proper defendant in this case, so that
Spivey will have full access to merits discovery. Upon consideration of all of the briefing, oral
argument, and admissible evidence presented, bearing in mind that the Eleventh Circuit has
recognized a “qualified right to conduct jurisdictional discovery,” Posner v. Essex Ins. Co., 178
F.3d 1209, 1214 n.7 (11th Cir. 1999), the court concludes that Spivey has not met his burden to
show that he is entitled to jurisdictional discovery in this case.
Spivey’s supplemental brief focuses on discovery that he wants to obtain to prove standard
of review and conflict of interest, rather than discovery which would contradict Franklin Barlow’s
affidavit as to Cigna’s relationship to LINA. In some instances, Spivey’s briefing ignores the
jurisdictional issue altogether. See, e.g., Doc. #48 at p.20 (identifying testimony offered in
another case as being by “Cigna’s and/or LINA’s own employees.”). The standard of review
argument he advanced is based on the Anderson case, which involved entities other than Cigna,
and so does not identify evidence discoverable in this case. Furthermore, after the oral argument
on Spivey’s motion, during which counsel for Spivey stated that he wants to discover the
compensation structure, including pay and incentives, for the claims handlers involved in this case,
LINA has stated that “to the extent Plaintiff seeks compensation information for the individuals
involved in the termination of Plaintiff's claim, narrowly tailored and designed to elicit the
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information produced in Melech, LINA will agree to provide non-privileged responsive
information regarding compensation of those individuals who were involved in the termination at
issue if an appropriate Confidentiality Agreement and Protective Order is in place.” Ex. A to
Doc. #54. At this point in the litigation, arguments that Spivey will not be able to obtain other
discovery he needs to prove standard of review and specific conflict are premature, and in any
event, do not demonstrate that there is a basis for finding that discovery will establish personal
jurisdiction over Cigna in this case.
While Spivey has forecast that there will be discovery disputes, those disputes can be
settled in the normal course of the litigation of this case. Furthermore, while he states that LINA
has not been responsive to the proposed discovery attached to the Motion to Vacate, the court does
not consider the attached requests as a discovery request within the meaning of the Federal Rules
of Civil Procedure. Discovery will proceed in accordance with the Rules, and the Uniform
Scheduling Order to be entered by the court.
Although conflict and standard of review discovery issues are not before the court at this
time, the court does note that LINA has shown that it issued the insurance policy and that it is the
entity responsible for adjudicating and paying claims for benefits under the policy. Counsel for
Spivey has never made it clear to the court why full discovery relating to standard of review and
conflict of interest cannot be obtained through appropriate discovery, and any relief to which
Spivey may be entitled under applicable ERISA law recovered, without having Cigna as a named
party, even if there were personal jurisdiction over Cigna. In any event, there is no personal
jurisdiction over Cigna, it has been dismissed without prejudice, and it is time for this case to move
on.

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III. CONCLUSION
Finding that Spivey has not established a basis for vacating the court’s previous order, or
any basis for a finding by the court that discovery will lead to evidence which contradicts the
admissible evidence in the record regarding Cigna and LINA’s corporate relationship which was
relied upon in that previous order, it is hereby ORDERED as follows:
1.

The Motion for Leave to File a Reply (Doc. #55) is GRANTED.

2.

The Motion to Suspend, Alter or Vacate the Court’s Order Dismissing Cigna
Corporation Pending Completion of Limited Discovery on Agency Jurisdiction (Doc.
#32) is DENIED.

Done this 12th day of December, 2013.

/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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