Davis v. The Prudential Insurance Company of America

Filing 34

OPINION AND ORDER: It is ORDERED that: (1) The motion to vacate the judgment (doc. no. 24 ) is granted. (2) The opinion (doc. no. 22 ) and judgment (doc. no. 23 ) are vacated, and this case is reopened. (3) The motion to amend (doc. no. 25 ) is granted. (4) Plaintiff Charles M. Davis is granted leave to file an amended complaint that meets ERISAs exhaustion pleading requirement within 21 days of this order. Signed by Honorable Judge Myron H. Thompson on 6/22/2018. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
CHARLES M. DAVIS,
Plaintiff,
v.
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA,
Defendant.

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)
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CIVIL ACTION NO.
2:14cv43-MHT
(WO)

OPINION AND ORDER
Plaintiff

Charles

M.

Davis

filed

suit

in

state

court against defendant Prudential Insurance Company of
America,
enrichment

claiming
based

on

breach

of

contract

Prudential’s

and

refusal

to

insurance claim for disability benefits.

unjust
pay

his

Prudential

removed the case to this federal court pursuant to 28
U.S.C.

§ 1441,

and

thereafter

brought

a

motion

dismiss the case for failure to state a claim.
court

granted

the

dismissal

motion

because

to
The

Davis’s

state claims were preempted by the Employee Retirement

Income

Security

§§ 1001 et seq.

Act

of

1974

(“ERISA”),

29

U.S.C.

See Davis v. The Prudential Ins. Co.

of Am., 2015 WL 5719628 (M.D. Ala. 2015) (Thompson,
J.).

However, the court gave Davis leave to file a

motion to vacate the judgment and amend his complaint
if a viable ERISA claim exists.
This case is now before the court on two motions
Davis has timely filed: a motion to vacate the judgment
granting Prudential’s motion to dismiss and a motion to
amend his complaint.

This court has federal-question

jurisdiction pursuant to 28 U.S.C. § 1331.

For the

reasons stated below, the motions will be granted with
leave for Davis to file a further amended complaint.

I.
This

case

arises

BACKGROUND
out

of

Prudential’s

Davis’s workplace disability claim.

denial

of

Davis worked as a

customer service representative at a bottling plant in
southeast Alabama for some time before stopping due to
2

severe headaches and visual dysfunction in mid-2012.
Based on these conditions, he filed a disability claim
with

the

provided

insurance
by

his

company

under

employer.

After

a

benefits
considering

plan
the

medical records in Davis’s file, the company denied his
claim.

Counsel for Davis wrote a letter to the company

in response to the decision.

Davis later filed suit

against the company.
Prudential argues that Davis’s motion to amend his
complaint should be denied because he did not exhaust
his administrative remedies prior to filing suit and
that his motion to vacate the judgment should be denied
because
denial.

no

manifest
Davis

injustice

contends

that

would
the

result
letter

from

its

from

his

counsel qualified as an appeal sufficient to satisfy
ERISA’s exhaustion requirement and that denial of the
motion to vacate would result in a manifest injustice.

3

II. LEGAL STANDARDS
Federal Rule of Civil Procedure 59(e) authorizes a
motion to alter or amend a judgment after its entry.
“[T]he

decision

committed

to

to

the

alter
sound

or

amend

the

discretion

of

judgment
the

is

district

judge.”

American Home Assur. Co. v. Glenn Estess &

Assocs.,

Inc.,

Cir. 1985).

763

F.2d

1237,

1238,

1238-1239

(11th

There are four basic grounds for granting

a Rule 59(e) motion: “(1) manifest errors of law or
fact

upon

discovered
manifest

which
or

the

judgment

previously

injustice

in

was

based;

unavailable

the

judgment;

(2)

newly

evidence;
and

intervening change in the controlling law.”

(4)

(3)
an

Jacobs v.

Elec. Data. Sys. Corp., 240 F.R.D. 595, 599 (M.D. Ala.
2007) (Thompson, J.) (citing 11 Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice &
Procedure § 2810.1 (3d ed. 2012)).

Further, a judgment

will not be amended or altered if to do so would serve

4

no useful purpose.

See 11 Charles Alan Wright, Arthur

R. Miller & Mary Kay Kane, supra, § 2810.1, at 128.
Federal Rule of Civil Procedure 15(a) states that
the

court

pleading]

“should
when

freely

justice

give

so

leave

[to

requires.”

amend

a

“Generally,

‘[w]here a more carefully drafted complaint might state
a claim, a plaintiff must be given at least one chance
to

amend

the

complaint

dismisses

the

action

before

with

the

district

prejudice.’”

court

Bryant

v.

Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (quoting
Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991)).

A

“substantial ground” is required to deny leave, such as
“undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,
[or] futility of amendment.”

Reese v. Herbert, 527

F.3d 1253, 1263 (11th Cir. 2008) (quoting Burger King
Corp. v. Weaver, 169 F.3d 1310, 1319 (11th Cir. 1999)).
5

“[T]he[] ‘same standards [for granting a motion to
amend] apply when a plaintiff seeks to amend after a
judgment of dismissal has been entered by asking the
district

court

to

vacate

its

order

of

dismissal

pursuant to Fed. R. Civ. P. 59(e).” Spanish Broad. Sys.
Of Fla., Inc. v. Clear Channel Commc’ns, Inc., 376 F.3d
1065, 1077 (11th Cir. 2004) (quoting Thomas v. Town of
Davie, 847 F.2d 771, 773 (11th Cir. 1988)).

III. DISCUSSION
The resolution of Davis’s motions to vacate the
judgment

and

for

leave

obviously interrelated.

to

amend

the

complaint

are

Unless the proposed amended

complaint states a viable claim, vacating the judgment
would serve no purpose and cause no manifest injustice.
Thus, the court will first determine whether the motion
to

amend

should

be

granted,

motion to vacate.

6

then

will

turn

to

the

A.

Motion to Amend

Prudential argues that the proposed amendment of
Davis’s

complaint

is

futile

because

Davis

never

exhausted his administrative remedies by appealing the
adverse determination, and because he cannot exhaust
his administrative remedies since the time for doing so
has passed.

Davis responds that he did exhaust his

administrative remedies because the letter sent by his
counsel qualified as an appeal sufficient to exhaust,
or at minimum there is a disputed issue of fact as to
whether he exhausted that should be resolved at a later
stage of litigation, after discovery.
The standard for denying a motion to amend on the
basis of futility is akin to that of granting a motion
to dismiss. “A proposed amendment may be denied for
futility when the complaint as amended would still be
properly dismissed.”

Coventry First, LLC v. McCarty,

605 F.3d 865, 870 (11th Cir. 2010)) (internal quotation
marks omitted); see also Burger King Corp v. Weaver,
7

169 F.3d 1310, 1320 (11th Cir. 1999) (“This court has
found that denial of leave to amend is justified by
futility when the complaint as amended is still subject
to

dismissal.”)

Thus,

the

court

(internal
must

quotation

assess

marks

whether

the

omitted).
proposed

amended complaint would survive dismissal.
“The law is clear in this circuit that plaintiffs
in ERISA actions must exhaust available administrative
remedies before suing in federal court.”

Counts v. Am.

Gen. Life & Acc. Ins. Co., 111 F.3d 105, 108 (11th Cir.
1997).1

However, the law is less clear as to what

requirement

governs

when

considering

dismissal

for

failure to exhaust administrative remedies in an ERISA
case.

Federal Rule of Civil Procedure 12(b) does not

enumerate exhaustion as a basis for dismissal.

Which

1. A district court has the sound discretion “to
excuse the exhaustion requirement when resort to
administrative remedies would be futile or the remedy
inadequate.” Counts, 111 F.3d at 108.
Davis does not
argue that either exception applies here.
8

part

of

Rule

12(b)

applies

can

have

serious

implications: the district court is empowered to act as
the factfinder and determine disputed facts on certain
types

of

dismissals,

subject-matter

such

jurisdiction

as

factual

under

challenges

subpart

(b)(1)

to
of

Rule 12, but not on others, such as dismissals for
failure to state a claim under subpart (b)(6) of Rule
12.
Some courts have dismissed ERISA claims for failure
to exhaust under Rule 12(b)(6).

See, e.g., Bickley v.

Caremark RX, Inc., 461 F.3d 1325, 1329 n.7 (11th Cir.
2006) (implying that dismissal for failure to exhaust
was

granted

under

Rule

12(b)(6)

by

observing

that

district court’s consideration of documents external to
complaint was appropriate under that rule, pursuant to
certain exceptions); Muller v. Am. Mgmt. Ass'n Int'l,
315 F. Supp. 2d 1136, 1140 (D. Kan. 2003) (Murguia, J.)
(holding that plaintiff sufficiently alleged exhaustion
of administrative remedies on ERISA claim under Rule
9

12(b)(6)).
explained

In

contrast,

that,

in

the

cases

Eleventh

subject

Circuit

to

the

has

Prison

Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), the
exhaustion

issue

should

be

decided

on

a

generic

or

non-enumerated Rule 12(b) motion to dismiss, “subject
to

the

rules

and

practices

applicable

analogous Rule 12(b) motion.”

to

the

most

Bryant v. Rich, 530 F.3d

1368, 1375-76 (11th Cir. 2008); but see id. at 1379-81
(Wilson,

J.,

dissenting)

(taking

position

that

exhaustion should be decided on summary judgment); cf.
Jones v. Bock, 549 U.S. 199, 216 (2007) (unanimously
concluding that “failure to exhaust is an affirmative
defense

under

the

PLRA,

and

that

inmates

are

not

required to specially plead or demonstrate exhaustion
in

their

complaints.”).2

In

deciding

a

Rule

12(b)

2. Exhaustion of administrative remedies in ERISA
cases may also be the subject of a motion for summary
judgment.
See, e.g., Counts, 111 F.3d 105 (affirming
district court’s grant of summary judgment on failure
to exhaust ERISA claim); Perrino v. S. Bell Tel. & Tel.
Co., 209 F.3d 1309, 1311 (11th Cir. 2000) (same).
10

motion

based

on

failure

to

exhaust

remedies--in

contrast

with

a

motion

12(b)(6)--the

district

court

in

a

empowered,

as

jurisdictional

with

a

issues,

motion
to

act

under

prisoner

to
as

non-judicial

dismiss
the

Rule

case

is

based

on

factfinder

determine disputed facts as to exhaustion.

and

See Bryant,

530 F.3d at 1373-74.
In
question

any
of

case,
the

the

proper

court

need

subpart

of

not

resolve

Rule

12(b)

the
under

which to analyze exhaustion in ERISA cases, as it makes

Arguably, summary judgment is the proper way to address
exhaustion of administrative remedies in an ERISA case.
See Bryant v. Rich, 530 F.3d 1368, 1379–80 (11th Cir.
2008) (“Our usual practice is to consider affirmative
defenses, such as failure to exhaust administrative
remedies or statute of limitations, on summary judgment
pursuant to Federal Rule of Civil Procedure 56.”);
Fortner v. Thomas, 983 F.2d 1024, 1028 (11th Cir. 1993)
(“[G]enerally, the existence of an affirmative defense
will not support a rule 12(b)(6) motion for failure to
state a claim.”); see also Paese v. Hartford Life &
Acc. Ins. Co., 449 F.3d 435, 446 (2d Cir. 2006)
(holding
“that
a
failure
to
exhaust
ERISA
administrative remedies is not jurisdictional, but is
an affirmative defense”).
11

no

difference

here:

the

complaint

would

survive

dismissal under Rule 12(b)(6), and, even if empowered
to determine disputed facts on the basis of submitted
evidence,
because

the

court

further

would

factual

not

dismiss

development

the

is

complaint

required

to

resolve the issue.
The

court

first

evaluates

the

proposed

complaint under the Rule 12(b)(6) approach.
the

face

of

the

complaint,

the

amended

Looking at

proposed

amended

complaint states that Davis applied for benefits under
Prudential’s plan; the insurance company denied Davis’s
application

for

benefits

on

March

13,

2013;

after

receiving additional medical records, it again denied
Davis’s claim on April 3; Davis, through counsel, filed
an appeal dated July 3, within the 180-day window set
forth by the company to appeal a decision; and the
company did not send a written response to the appeal.
See Proposed Amended Complaint (doc. no. 25-1) at 2-3.

12

Both parties have also submitted evidence on the
issue of exhaustion.

Prudential’s response to Davis’s

motion to amend contains four exhibits: a March 13,
2013,

letter

from

the

insurance

company

to

Davis

denying his claim (doc. no. 28-1); an April 8 letter
from

the

company

to

Davis,

again

denying

his

claim

after the receipt of additional documents (doc. no. 282); a July 3 letter from Davis’s then-attorney King to
the

company’s

claim

manager

(doc.

no.

28-3);

and

a

Prudential telephone call log from December 21, 2013,
which

allegedly

recorded

an

interaction

between

the

insurance company and Davis’s counsel (doc. no. 28-4).
Davis’s

reply

also

attaches

the

same

three

letters.

not

consider

See Exhibits (doc. nos. 31-1 to 31-3).
Ordinarily,
matters

outside

a

district
the

court

pleadings

dismissal under Rule 12(b)(6).3

may
when

considering

However, “[t]he court

3. A court may consider matters outside the
pleadings in its discretion if it gives the parties
13

may consider a document attached to a motion to dismiss
... if the attached document is (1) central to the
plaintiff's

claim

“‘undisputed’

and

means

(2)

that

the

document is not challenged.”

undisputed,”
authenticity

where
of

the

Day v. Taylor, 400 F.3d

1272, 1276 (11th Cir. 2005).4
The three letters between Prudential and Davis’s
counsel

are

identified

in

central
the

to

proposed

Davis’s
amended

claim:

they

complaint

as

are
the

operative denials of the claim by the insurance company
and as Davis’s appeal.
“undisputed,”

because

The letters are also clearly
the

company

and

Davis

have

notice of its intent to convert the motion into one for
summary judgment. See Fed. R. Civ. P. 12(d).
4. Because, as explained below, further factual
development is required to resolve the exhaustion issue
and there has been no discovery at this point, the
court declines to approach the exhaustion issue through
the lens of summary judgment at this time.
See Jones
v. City of Columbus, 120 F.3d 248, 253 (11th Cir. 1997)
(“The law in this circuit is clear: the party opposing
a motion for summary judgment should be permitted an
14

submitted

identical

disputed

their

consider

these

standard.

See

copies,

and

authenticity.

Thus,

documents

under

Day,

F.3d

400

neither

the
at

the
Rule

1276.

side

has

court

may

12(b)(6)
However,

Prudential’s fourth exhibit, the telephone call log,
does not meet the Day requirements.

The log is not

central to Davis’s claim: it is not one of the key
documents comprising his denial or alleged appeal, nor
is it referenced or described in the proposed amended
complaint.

Rather, the log is provided as extrinsic

evidence to support the insurance company’s defense of
exhaustion.

Under Day, then, this exhibit could not be

considered on a Rule 12(b)(6) motion.
Taken together, the allegations of the complaint
and the documents central to Davis’s claim establish
the following.

Prudential first denied Davis’s claim

in a March 2013 letter.

In the letter, the insurance

adequate opportunity to complete discovery prior
consideration of the motion.” (citation omitted)).
15

to

company notified Davis that appealing once within 180
days from receipt of the letter would be considered
exhausting

his

administrative

remedies,

in

that

he

could subsequently file either an ERISA lawsuit or a
“voluntary” second appeal.
no.

28-1)

at

10.

Prudential

appeal

“should”

include

number

or

number,

claim

Mar. 13, 2013 Letter (doc.
stated

name,

his

also

social

control

number,

that

his

security

reasons

for

disagreeing with the denial, and medical evidence or
information to support his appeal.
After

sending

received

two

Davis’s

doctors

disability.

the

additional

March

2013

capacity

evaluating

After

reviewing

Id. at 9-10.
letter,

Prudential

questionnaires

the
these

extent

of

documents,

from
his
the

insurance company again denied the claim in an April
2013 letter to Davis.
no. 28-2).

See Apr. 8, 2013 Letter (doc.

In this letter, it indicated that it did

not consider the additional medical records to be an

16

appeal,

and

appealing.

restated

the

180-day

deadline

for

See id. at 3.

In July 2013, Davis’s attorney sent a letter back
to

Prudential.

noting

his

In

receipt

the
of

July

the

letter,

insurance

the

attorney,

company’s

April

letter, took issue with the denial of benefits, stating
“It is hard to understand your denial in view of the
last paragraph of Dr. Richardson’s June 4th letter and
Dr. Green’s report.”
28-3) at 2.
its

July 3, 2013 Letter (doc. no.

He also asked Prudential to confirm that

decision

was

final,

explaining

that

Davis

had

requested that the attorney sue the insurance company
for his disability benefits.5
submit

any

additional

Davis’s attorney did not

medical

records

or

explicitly

identify the letter as an “appeal.”

5. In the letter, Davis’s counsel referred to him
once as “Mr. Morgan.” Id. This appears to have been a
typo, as he clearly referred to Davis by name, claim
number, and date of birth earlier in the letter.
17

To determine whether Davis’s July letter plausibly
constituted

an

appeal,

the

court

must

analyze

Prudential’s March letter setting forth how to appeal.
See

Watts

v.

BellSouth

Telecommc’ns,

Inc.,

316

F.3d

1203, 1205-06 (11th Cir. 2003) (analyzing exhaustion in
terms of “the administrative remedies the [ERISA] Plan
provides”).

The letter stated that an appeal “must” be

made in writing by Davis or his representative within
180 days of the date of receipt of its letter.
13, 2013 letter (doc. no. 28-1) at 9.
explained

that

an

claimant’s

name,

control

number

or

disagreement

claim
the

appeal

number,
denial,

The letter then

“should”

number,
an
and

and

include

medical
Id.

the

social-security

explanation

information to support his appeal.

March

of

evidence

his
or

The use of the

word “should” before these latter items is critical: In
modern

American

usage,

the

word

‘should’

does

not

necessarily convey that one must do something; rather
‘should,’ in the manner that Prudential used it in the
18

March 2013 letter, only “expresses a sense of duty.”
Garner’s

Modern

American

(emphasis added).
not

strictly

Usage

744

(3d

ed.

2009)

Thus, the letter recommended but did

require

the

inclusion

of

these

latter

types of information.
Considered
letter

from

in

the

light

Davis’s

constitute an appeal.

of

attorney

this
was

language,

the

sufficient

to

The attorney submitted the July

2013 letter in writing within 180 days of Prudential’s
March 2013 letter denying Davis disability benefits;
thus Davis met all of the stated requirements.
letter

also

information:
reasons

included
Davis’s

for

explanation

his
of

extremely brief.

most

name,

of
claim

disagreement.

the

reasons

for

the

recommended

number,
The

The

and

the

attorney’s

disagreement

was

Nevertheless, it was sufficient to

communicate the reason for the appeal.
The only information from the recommended list not
included was the control number and medical records.
19

In

this

particular

significant.

case,

these

omissions

were

not

With Davis’s name, claim number, and date

of birth, it is highly unlikely that Prudential would
have trouble identifying his control number, which is
printed

on

the

front

company

sent

number.

See Apr. 8, 2013 Letter (doc. no. 28-2) at 2;

Davis

of

each

along

letter

with

his

the

name

insurance
and

Mar. 13, 2013 Letter (doc. no. 28-1) at 2.

claim

As to the

medical records, Davis’s attorney identified the two
key

medical

appeal,

records

which

the

that

letter

formed

the

suggests

provided to the insurance company.

basis

had

for

already

the
been

Thus, the failure

to submit new copies of these records did not prejudice
Prudential’s efforts to consider the appeal.

Finally,

while Davis’s attorney did not explicitly state that
his letter was an appeal, the insurance company’s March
letter did not require that the letter be labelled as
such.

20

Admittedly, the July letter from Davis’s attorney
was

poorly

written.

However,

it

clearly

disputed

Prudential’s decision and gave a specific reason for
doing so.
2.

The

See July 3, 2013 Letter (doc. no. 28-3) at
letter

also

stated

that,

“If”

Prudential’s

decision was final, the attorney would be filing suit
for Davis’s disability benefits.

Id.

By doing so, the

attorney conveyed--albeit awkwardly--that he sought a
change in Prudential’s decision for the reason stated,
and requested a final decision.
not

state

that

he

intended

to

Importantly, he did
sue

regardless

of

Prudential’s actions: instead, he made clear that his
intent to sue was contingent on the insurance company’s
response to his request for a final decision.

While

the letter was not a model of good legal writing, the
court cannot conclude based on the letter alone that
Davis failed to appeal.
Davis’s July letter stands in contrast to those of
others that have been deemed not to constitute appeals
21

under

ERISA.

In

American

Dental

Association

v.

WellPoint Health Networks, Inc., the court held that a
letter

to

because

a

plan

the

administrator

plaintiff,

a

doctor

was

not

an

appeal

trying

to

recoup

benefits for one of his patients, “did not challenge
the partial denial of benefits nor ... request that
[the defendant] perform any kind of review,” but rather
“sought only information.”

494 F. App’x 43, 46 (11th

Cir. 2012) (per curiam).

Unlike Davis, the plaintiff

there did not contest the denial of benefits, provide
reasons for doing so, nor ask for a final confirmation
of that determination; rather, the thrust of his letter
stated, “Please provide me with documentation of the
data

used

to

calculate

expenses].”

Id.

at

out-of-circuit

case

cited

Dental,

the

[the

45.

plaintiff’s

reimbursement
Similarly,

approvingly
letter

at

by
issue

in

of
an

American
merely

“requested general information on the various benefit
plans,” and did not seek the status of the disability
22

plan

under

which

the

plaintiff

later

brought

suit.

Powell v. AT&T Commc’ns, Inc., 938 F.2d 823, 827 (7th
Cir.

1991).

In

another

instructive

case

cited

in

American Dental, the court deemed that a plaintiff’s
letter stating that he would bring an appeal “soon” did
not exhaust a plan’s administrative remedies because
the letter “was not itself a request for a review.”
Edwards v. Briggs & Stratton Retirement Plan, 639 F.3d
355, 364 (7th Cir. 2011).

By contrast, Davis’s July

letter stated that he intended to bring suit soon, and
immediately requested review, that is, a confirmation
of Prudential’s determination in light of his statement
of the problem with the decision.
Prudential argues that a call with Davis’s attorney
after receipt of the July 2013 letter shows that Davis
knew

that

the

insurance

letter as an appeal.

company

did

not

regard

the

However, as previously indicated,

under Rule 12(b)(6), it would be improper for the court
to consider the submitted telephone call log.
23

That said, if as in the PLRA exhaustion context,
the court were to act as the factfinder on exhaustion,
the

court

could

considering

the

consider
call

the

log,

call

the

log.

court’s

But

even

decision

on

exhaustion would remain the same.
The relevant log entry, dated July 16, 2013--after
Davis’s attorney sent his July 3 letter--reads: “Called
Attorney re: letter received. Advised that decision has
been

made

and

that

EE

could

appeal

the

decision.

Attorney ... advised he will contact EE and advise.”
Call Log (doc. no. 28-4) at 10.

The meaning of this

note is ambiguous.

While Prudential argues that the

note

did

shows

appeal,
mentioned
insureds

that

another

it

consider

interpretation

earlier,
an

not

the

optional

insurance

second

is

the

possible.6

company

appeal;

letter

thus,

offers
this

an
As
its

note

6.
Also, even if the Prudential employee who made
the call did not consider the letter an appeal, it is
not clear that his view would be determinative of
whether the letter was an appeal.
24

could be read as communicating to Davis’s attorney that
the company had received his appeal letter and was not
changing its decision, and that Davis had the option to
file another appeal.
Davis’s

attorney’s

illuminating.

In addition, the description of
statement

is

not

particularly

It merely says that the attorney advised

he would contact “EE”--presumably Davis, although the
meaning

of

“advise.”
attorney

the

abbreviation

is

nowhere

stated--and

It does not state, for example, that Davis’s
confirmed

his

understanding

that

letter would not be treated as an appeal.
the

note

hearsay

and
and

the

attorney’s

Prudential

exceptions apply.

has

statement
not

the

July

Furthermore,
are

shown

arguably
that

any

Given the ambiguity of the brief

note in the call log, the court cannot determine its
meaning without additional factual development.

Davis

has requested an opportunity for discovery on the issue
of whether the July letter constitutes an appeal; the

25

court agrees that discovery would likely be helpful to
determining the issue.
In sum, the court finds that the proposed amended
complaint would not be subject to dismissal.
alleged
filed

sufficient

an

appeal,

facts,
and

accepted

accordingly,

as

Davis has

true,

that

he

that

he

exhausted

Prudential’s administrative remedies, and the evidence
submitted

by

otherwise.

Prudential

does

not

convince

the

court

The court reserves any final determination

of whether Davis in fact exhausted his administrative
remedies, as well as whether he is ultimately entitled
to relief, for a later stage in the litigation, after
the parties have had a full opportunity for discovery.
B.

Exhaustion Pleading Requirement

A plaintiffs bringing an ERISA claim must plead
either

the

exhaustion

of

administrative

that exhaustion was futile or impossible.

remedies

or

See Byrd v.

MacPapers, Inc., 961 F.2d 157, 160-61 (11th Cir. 1992).
26

However, failure to plead exhaustion is not necessarily
fatal, as an ERISA plaintiff may amend a complaint to
plead

exhaustion.

See,

e.g.,

id.

at

158

(allowing

plaintiff to amend her complaint to meet the exhaustion
pleading
amended

requirement
complaint

for

Davis

an

ERISA

attached

claim).
to

his

In
motion

the
to

amend, he pled that he “filed a [timely] appeal” of
Prudential’s denial of his disability benefits but did
not

state

This

that

technical

his

actions

deficiency

amounted
in

to

pleading

exhaustion.
should

not

prevent Davis from going forward with his claim.

See

Dean v. United States, 278 F.3d 1218 (11th Cir. 2002)
(recognizing that Rule 15 “contemplates that parties
may

correct

alleged
court

in

will

technical
the

deficiencies

original

grant

Davis’s

pleading”).
motion

to

or

expand

facts

Therefore,
vacate

and

the
his

motion to amend, but will grant further leave to amend
his complaint to plead exhaustion expressly.

27

C. Motion to Vacate
As discussed earlier, a Rule 59(e) motion to alter
or amend a judgment after its entry may be granted if
the court finds “manifest injustice in the judgment.”
Jacobs,

240

Wright,

Arthur

Practice

&

F.R.D.
R.

at

599

Miller

Procedure

(citing
&

Mary

§ 2810.1

11

Kay

(3d

ed.

Charles
Kane,

Alan

Federal

2012)).

In

support of his motion to vacate, Davis contends that,
if the court does not allow vacate the judgment, he may
be prevented from pursuing his ERISA claim due to the
statute

of

limitations.

Prudential

argues

that

the

motion should be denied because the original dismissal
was correct and Davis’s proposed amended complaint does
not

present

a

viable

claim,

so

no

injustice

would

result from the denial of the motion to vacate the
dismissal.

The insurance company does not take issue

with Davis’s contention that the statute of limitations
could preclude his claim.

28

As noted above, Davis’s proposed amended complaint
presents a viable claim; denial of the opportunity to
pursue that claim would cause a manifest injustice, so
the dismissal must be vacated.
entered

a

dismissal

In addition, the court

without

prejudice

and

simultaneously granted express authorization to Davis
to move to amend the complaint to state a claim under
ERISA and to set aside the dismissal.
(doc. no. 23).
was

for

the

See Judgment

The entry of the judgment at that time
court’s

convenience;

the

court

instead

could have postponed entry of judgment until after the
time for filing an amended complaint had passed, in
which

case

necessary.

no

motion

to

vacate

would

have

been

Under all of these circumstances, it would

be unjust to deny the motion to vacate.
the court will grant the motion to vacate.

* * *
Accordingly, it is ORDERED that:
29

Accordingly,

(1) The motion to vacate the judgment (doc. no. 24)
is granted.
(2) The opinion (doc. no. 22) and judgment (doc.
no. 23) are vacated, and this case is reopened.
(3) The motion to amend (doc. no. 25) is granted.
(4) Plaintiff Charles M. Davis is granted leave to
file an amended complaint that meets ERISA’s exhaustion
pleading requirement within 21 days of this order.
DONE, this the 22nd day of June, 2018.
/s/ Myron H. Thompson____
UNITED STATES DISTRICT JUDGE

30