Ball v. Unum Group Corporation et al
MEMORANDUM OPINION AND ORDER that: 1. The 20 Motion for Leave to Amend Answer and Defendants' 22 Supplemental Motion for Leave to Amend are DENIED as further set out in the opinion and order. 2. The Plaintiff's 24 Motion to Strike is DENIED as moot as further set out in the opinion and order. Signed by Honorable Judge W. Harold Albritton, III on 6/8/2011. (dmn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
UNUM GROUP CORPORATION, et al.,
CIVIL ACTION NO. 03:10cv572-WHA
MEMORANDUM OPINION AND ORDER
I. Facts and Procedural History
This cause is before the court on a Motion for Leave to Amend Answer (Doc. #20) and
Defendants’ Supplemental Motion for Leave to Amend (Doc. #22), filed by the Defendants, and
a Plaintiff’s Motion to Strike (Doc. #24).
The Plaintiff, Allen Ball, originally filed a Complaint in the Circuit Court of Macon
County, Alabama on June 4, 2010. The Complaint alleges claims for denial of benefits under a
disability insurance policy, and for fraud and bad faith.
On July 6, 2010, the case was removed by the Defendants to federal court on the basis of
diversity subject matter jurisdiction, pursuant to 28 U.S.C. § 1332, 1441, 1446. No Motion to
Remand was filed, and it appears that the court has diversity subject matter jurisdiction in this
The Defendants filed an Answer to the Complaint on July 7, 2010, admitting that the
Plaintiff purchased a disability policy, identifying the policy by number, and admitting the dates
during which premiums were paid. See Doc. #1, p.2. The Answer also included various
affirmative defenses. There is no mention of the Employee Retirement Income Security Act of
1974 (“ERISA”) in the Notice of Removal or in the Answer.
The parties filed a Report of Parties’ Planning Meeting in which they requested that
certain deadlines be set by the court, including a November 15, 2010 deadline for the Defendants
to amend the pleadings. See Doc. #14.
On August 17, 2010, the court entered a Uniform
Scheduling Order, setting November 15, 2010 as the deadline for the Defendants to amend the
pleadings. See Doc. #15, § 4.
The Defendants’ Motion for Leave to Amend Answer, filed on March 14, 2011, seeks to
add three paragraphs, including an invocation of complete preemption under ERISA, a request
for dismissal for failure to exhaust administrative remedies, and a request to strike the right to a
jury trial because the claims are ERISA claims. The Defendants state that the insurance policy
identified in the Complaint appears on its face to be an individual disability insurance policy, and
that it was not until the Plaintiff’s January 19, 2011 deposition that the Defendants became aware
that the policy was part of a package of insurance benefits made available to employees, thereby
potentially raising ERISA issues.
Nearly four months after the deadline for amendment of the pleadings, the Defendants
seek to transform this case from one bringing claims for damages, subject to state law defenses,
to a case subject to ERISA defenses and standards. The Defendants do not contend that their
request is jurisdictional. Instead, they concede that they seek to add affirmative defenses.
The Circuits which have addressed the issue have concluded that, in a case bringing a
claim for benefits, ERISA affirmative defenses may be waived if not timely raised. See Saks v.
Franklin Covey Co., 316 F.3d 337, 349-50 (2d Cir. 2003); Wolf v. Reliance Standard Life Ins.
Co., 71 F.3d 444, 448-49 (1st Cir. 1995); Dueringer v. Gen. Am. Life Ins. Co., 842 F.2d 127,
129-30 (5th Cir. 1988); Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1497 (9th Cir.
1986); see also Butero v. Royal Maccabees Life Ins. Co., 174 F.3d 1207, 1212 (11th Cir. 1999)
(characterizing defensive preemption as an affirmative defense). In Wolf, the plaintiff filed a
claim for disability benefits in state court, and the case was removed to federal court on the basis
of diversity jurisdiction. 71 F.3d at 446. The district court denied out-of-time requests to
dismiss and to strike the jury demand based on ERISA. The First Circuit affirmed, concluding
that ERISA affirmative defenses are waivable in a benefits-due action, and that it is within a
district court’s discretion to find prejudice to the plaintiff in an amendment which changes the
theory of the case and requires additional discovery, research, and preparation. Id. at 450.
In this case, because the affirmative defenses they seek to add are waivable if not timely
pled, the Defendants must meet the standard for amendment of the pleadings. The Defendants
have argued that this court should allow their untimely amendment because “[t]o the extent the
Defendants could have raised these affirmative defenses prior to the Court’s deadline for
amending the pleadings, counsel for Defendants asserts that the failure to do so was caused by
excusable neglect.” See Doc. #22, p. 2.
A district court is required to issue a scheduling order to “limit the time to join other
parties, amend the pleadings . . . . ” Fed. R. Civ. P. 16(b)(3)(A). A scheduling order “may be
modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The good
cause standard precludes modification unless the schedule cannot “‘be met despite the diligence
of the party seeking the extension.’” Sosa v. Airprint Systems, Inc., 133 F.3d 1417 (11th Cir.
1998) (quoting Fed. R. Civ. P. 16 advisory committee's note). These rules are important to
protect the integrity of scheduling orders, and enforcement is necessary if the orders are not to be
In this case, based on the parties’ request, the court set a deadline for the Defendants’
amendment of the pleadings of November 15, 2010. That scheduling order was entered on
August 17, 2010, and the Defendants were, therefore, free to take the Plaintiff’s deposition for
nearly three months before the amendment deadline. The Defendants seek to add affirmative
defenses nearly four months after that deadline passed. The insurance policy at issue, and the
premium payments, were specifically referenced in the Answer, indicating that the information
needed to discern that this case potentially implicated ERISA issues was available to the
Defendants through the exercise of diligence. The Defendants do not purport to have acted
diligently, but instead merely state that their conduct in failing to timely-amend was excusable
neglect. Accordingly, the Defendants in this case have not met their burden to show good cause,
and their motions are due to be DENIED on that basis.
The Defendants state that the Plaintiff will suffer no prejudice by allowing the
amendment because the Plaintiff has conducted no discovery, there have been no legal rulings,
and the Motion for Leave to Amend was filed before the end of discovery. Although lack of
prejudice is not a reason which would authorize modification of a scheduling order, allowing the
Defendants to interject an entirely new basis for defending the claims against them, including
exhaustion of remedies, would prejudice the Plaintiff by requiring additional research and
For the reasons discussed, it is hereby ORDERED as follows:
1. The Motion for Leave to Amend Answer (Doc. #20) and Defendants’ Supplemental
Motion for Leave to Amend (Doc. #22) are DENIED.
2. The Plaintiff’s Motion to Strike (Doc. #24) is DENIED as moot.
Done this 8th day of June, 2011.
/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE
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