Bowen v. Goodyear Tire & Rubber Company Inc

Filing 27

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 10/10/2013. (JLC)

FILED
2013 Oct-10 PM 03:19
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
STAN BOWEN,
Plaintiff,
v.
GOODYEAR TIRE & RUBBER
COMPANY, INC.,
Defendant.

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) Case No.: 4:12-CV-3749-VEH
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MEMORANDUM OPINION
I.

INTRODUCTION AND PROCEDURAL HISTORY
This case originated in the Circuit Court of Etowah County, Alabama. (Doc.

1-1 at 3). On October 30, 2012, Defendant Goodyear Tire & Rubber Company, Inc.
(“Goodyear”) removed the lawsuit to this court on the basis of federal question
jurisdiction under the Employee Retirement Income Security Act (“ERISA”) and the
doctrine of complete preemption. (Doc. 1 ¶¶ 9, 10). On January 4, 2013, the court
confirmed that it had subject matter jurisdiction over this dispute and denied Plaintiff
Stan Bowen’s (“Mr. Bowen”) request to remand the case. (Doc. 12).
Currently pending is Goodyear’s Motion for Summary Judgment (Doc. 13) (the
“Motion”) filed on June 18, 2013. The court has reviewed the parties’ respective

supporting and opposing materials. (Docs. 14-15, 20-22, 26). For the reasons
explained below, the Motion is due to be granted in part as modified herein and
otherwise denied.
II.

FACTUAL BACKGROUND1
Goodyear is a tire manufacturer with facilities throughout the United States.

AF No. 1.1.2 Goodyear owns and operates a tire manufacturing plant in Gadsden,
1

Keeping in mind that when deciding a motion for summary judgment the court must view
the evidence and all factual inferences in the light most favorable to the party opposing the motion,
the court provides the following statement of facts. See Optimum Techs., Inc. v. Henkel Consumer
Adhesives, Inc., 496 F.3d 1231, 1241 (11th Cir. 2007) (observing that, in connection with summary
judgment, a court must review all facts and inferences in a light most favorable to the non-moving
party). This statement does not represent actual findings of fact. See In re Celotex Corp., 487 F.3d
1320, 1328 (11th Cir. 2007). Instead, the court has provided this statement simply to place the
court’s legal analysis in the context of this particular case or controversy.
2

The designation “AF” stands for admitted fact and indicates a fact offered by Goodyear that
Mr. Bowen has admitted in his written submissions on summary judgment, in his affidavit testimony,
or by virtue of any other evidence offered in support of his case. Under appendix II of the court’s
uniform initial order (Doc. 5) entered on November 1, 2013, “[a]ll statements of fact must be
supported by specific reference to evidentiary submissions.” (Id. at 16). For Mr. Bowen, more
specifically, this means that “[a]ny statements of fact that are disputed by the non-moving party must
be followed by a specific reference to those portions of the evidentiary record upon which the dispute
is based.” (Id. at 17). Consequently, whenever Mr. Bowen, without referring to any evidence (see
generally Doc. 20-1 at 3-8), has inadequately asserted a dispute over a fact that Goodyear has
otherwise substantiated with an evidentiary citation, the court has reviewed the cited evidence and,
if it in fact fairly supports Goodyear’s factual assertion, has accepted Goodyear’s fact. On the other
hand, whenever Mr. Bowen has adequately disputed a fact offered by Goodyear, the court has has
reviewed the evidence cited by Mr. Bowen and, if it in fact fairly supports Mr. Bowen’s factual
assertion, has accepted Mr. Bowen’s version. The court’s numbering of admitted facts (e.g., AF No.
1) corresponds to the numbering of Goodyear’s statement of undisputed facts as set forth in Doc. 14
and responded to by Mr. Bowen in Doc. 20-1. A number following a decimal point corresponds to
the particular sentence within the numbered statement of facts. For example, (AF No. 1.2) indicates
that the second sentence of paragraph 1 of Goodyear’s statement of undisputed facts is the subject
of the court’s citation to the record. Any other facts referenced by the parties that require further
clarification are dealt with later in the court’s opinion.
2

Alabama. AF No. 1.2.
Mr. Bowen was employed by Goodyear at its Gadsden, Alabama plant
beginning on June 20, 1977. AF No. 2.1. He sustained an injury to his back on
August 7, 2003, which is the last day he worked at Goodyear. AF No. 2.2.
Goodyear has established a pension program (the “1950 Plan”) for the benefit
of its employees, including Mr. Bowen. (Doc. 15-2 at 2-85).3 The 1950 Plan
expressly provides that any application for pension benefits must be in writing. (Doc.
15-1 at 3 ¶ 3).4

More specifically, the 1950 Plan contains the following

administrative provision:
Each application for a pension or other benefit payable under the Plan,
each election of any Option provided for by the Plan, and each
designation of a Beneficiary of a Contingent Annuitant provided for by
the Plan, shall be in writing on a form provided by the Pension Board
and shall be made to the Pension Board or to such representative as it
may designate.
(Doc. 15-2 at 11 ¶ 7 (emphasis added)).
Goodyear has designated the following individuals and groups to act on behalf
of the 1950 Plan: (i) its Benefits Review Committee; (ii) its Pension Administration
personnel, which currently includes Duane Myatt, Gary Dannemiller, and Walter

3

The page references to Doc. 15-2 correspond with the court’s CM/ECF numbering system.

4

The page references to Doc. 15-1 correspond with the court’s CM/ECF numbering system.
3

Lutz; and (iii) the Xerox Pension Administration (“Xerox Pension”) employees,
which group currently consists of Ruth Moss, Sharon Wyatt, Vickie Parsons, Ellen
Stokes, Susan Hale, Candy Hoaglin, and Kelly Denny. (Doc. 15-1 at 3 ¶ 4). Xerox
Pension Administration handles the day to day administration of Goodyear’s pension
plans under the guidance of Goodyear’s Pension Administration Group. Id.
On August 4, 2004, Mr. Bowen applied for a disability pension under the 1950
Plan by completing and submitting an application to the Pension Board. (Doc. 15-1
at 4 ¶ 5); (see also Doc. 15-3 at 2-5).5 The application listed August 1, 2004, as the
effective date of Mr. Bowen’s retirement from Goodyear. (Doc. 15-3 at 2).
Goodyear’s Pension Department deemed Mr. Bowen eligible for a disability
pension on August 12, 2004. (Doc. 15-1 at 4 ¶ 6). Mr. Bowen’s disability pension
was then calculated, submitted to, and finally approved by the Pension Board. Id.
On March 28, 2005, Mr. Bowen initiated a lawsuit against Goodyear for
worker’s compensation benefits in the Circuit Court of Etowah County, Alabama
relating to his back injury. AF No. 7.1. The case number was CV-2005-000435. AF
No. 7.2.
The court in the worker’s compensation case awarded Mr. Bowen permanent
and total disability benefits on August 15, 2007. AF No. 8.1. The bench verdict
5

The page references to Doc. 15-3 correspond with the court’s CM/ECF numbering system.
4

issued by the court expressly stated that Goodyear could offset the worker’s
compensation award with the disability pension payments. AF No. 8.2.
On August 14, 2011, Mr. Bowen reached age 55, which is the age Goodyear
employees become eligible for a deferred vested pension under the 1950 Plan. AF
No. 9. Mr. Bowen has never submitted an application for a deferred vested pension
and continues to receive disability pension benefits under the 1950 Plan. (Doc. 15-1
at 4 ¶ 7). Further, Goodyear contends that once Mr. Bowen “retired and chose a form
of pension payment, that form of payment could not be changed.” (Doc. 14 at 4 ¶ 11;
id. at 4-5 ¶ 12); AF No. 12-2.
Mr. Bowen counters that Goodyear’s human resources department previously
had represented to him “that he could have his disability retirement converted to
regular retirement upon his reaching age 55 in August of 2011 . . . ” but that he has
been wrongfully refused such a requested conversion by Goodyear’s human resources
department and Howard Warren (“Mr. Warren”), the attorney who represented
Goodyear in Mr. Bowen’s worker’s compensation case. (Doc. 21-1 at 5 ¶ 10). Mr.
Bowen further states that Goodyear never has provided him with a copy of an
application for deferred pension benefits until it was produced as part of Goodyear’s
evidentiary submission in support of its Motion. (Doc. 21-1 at 7 ¶ 13).

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III.

STANDARDS
A.

Summary Judgment

Summary judgment is proper only when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R . Civ. P.
56(c). All reasonable doubts about the facts and all justifiable inferences are resolved
in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th
Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). “Once the moving party has properly supported its motion for
summary judgment, the burden shifts to the nonmoving party to ‘come forward with
specific facts showing that there is a genuine issue for trial.’” International Stamp
Art, Inc. v. U.S. Postal Service, 456 F.3d 1270, 1274 (11th Cir. 2006) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
B.

Administrative Exhaustion Under ERISA

Ordinarily, if a plan participant failed to take advantage of an
available administrative appeal by pursuing it in compliance with a
reasonable filing deadline, she has failed to exhaust her administrative
remedies and that bars federal court review of her claim. See, e.g.,
Counts v. Am. Gen. Life & Accident Ins. Co., 111 F.3d 105, 108 (11th
Cir. 1997); Gallegos v. Mt. Sinai Med. Ctr., 210 F.3d 803, 809-10 (7th
Cir. 2000); Terry v. Bayer Corp., 145 F.3d 28, 40-41 (1st Cir. 1998)….
The administrative exhaustion requirement is not found in the
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ERISA statute itself. Instead, it is a court-imposed, policy-based
requirement first recognized by this Circuit in Mason v. Continental
Group, Inc., 763 F.2d 1219, 1226-27 (11th Cir. 1985). We created the
administrative exhaustion requirement, and we are still in the process of
shaping it insofar as new factual scenarios are concerned. See generally
HCA Health Serv. of Ga., Inc. v. Employers Health Ins. Co., 240 F.3d
982, 992 (11th Cir. 2001); Perrino v. S. Bell Tel. & Tel. Co., 209 F.3d
1309, 1311, 1315-18 (11th Cir. 2000); Counts, 111 F.3d at 108-09;
Variety Children’s Hosp., Inc. v. Century Med. Health Plan, Inc., 57
F.3d 1040, 1042 (11th Cir. 1995); Byrd v. MacPapers, Inc., 961 F.2d
157, 160-61 (11th Cir. 1992); Harrison v. United Mine Workers of
Am.1974 Benefit Plan & Trust, 941 F.2d 1190, 1193 (11th Cir. 1991);
Springer v. Wal-Mart Assocs. Group Health Plan, 908 F.2d 897, 901
(11th Cir. 1990); Curry v. Contract Fabricators Inc. Profit Sharing
Plan, 891 F.2d 842, 846-47 (11th Cir.1990), abrogated on other
grounds by Murphy v. Reliance Standard Life Ins. Co., 247 F.3d 1313,
1314 (11th Cir. 2001); Merritt v. Confederation Life Ins. Co., 881 F.2d
1034, 1035 (11th Cir. 1989); Mason, 763 F.2d at 1226-27.
Watts v. BellSouth Telecommunications, Inc., 316 F.3d 1203, 1207-08 (11th Cir.
2003).
III.

ANALYSIS
A.

Goodyear’s Administrative Exhaustion Defense

Goodyear contends in its Motion that it is entitled to summary judgment
because Mr. Bowen failed to exhaust his administrative remedies under the 1950
Plan. As Goodyear more specifically articulates in its initial brief:
The plaintiff submitted an application for a disability pension to
Goodyear’s Pension Board on August 4, 2004, which the Pension Board
approved. (Dannemiller Aff. ¶ 5.) In 2011, the plaintiff apparently
decided that he wanted to transfer to a deferred vested pension because
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these benefits would not offset the worker’s compensation benefits he
was also receiving from Goodyear. Instead of submitting an application
for a deferred vested pension to the Pension Board, the plaintiff asked
Howard Warren, who represented Goodyear in the plaintiff’s worker’s
compensation case, if he could transfer from a disability pension to a
deferred vested pension.
The 1950 Pension Plan expressly states that any application for
pension benefits “shall be in writing on a form provided by the Pension
Board and shall be made to the Pension Board or to such representative
as it may designate”. (Ex. 1 to Dannemiller Aff., p. 10, ¶ 7.) It is
undisputed that the plaintiff did not submit an application for a deferred
vested pension as required by the Plan. There is also no dispute that
Howard Warren has not at any time been designated by the Pension
Board to act as its representative nor did the Pension Board have any
knowledge of any possible discussions that Howard Warren might have
had concerning the 1950 Pension Plan. (Dannemiller Aff. ¶ 4.) Because
the plaintiff did not submit an application for a deferred vested pension
to Goodyear, he failed to exhaust the administrative remedies provided
by the Plan. See, e.g., Bickley, 461 F.3d at 1330 (affirming district
court’s dismissal with prejudice of plaintiff’s ERISA claims for failure
to exhaust administrative remedies); Harrison v. United Mine Workers
of America 1974 Benefit Plan & Trust, 941 F.2d 1190, 1192 (11th Cir.
1990)(affirming summary judgment on plaintiffs’ ERISA claims for
failure to exhaust administrative remedies because “[i]t is undisputed by
the parties that the appellants failed to take the most rudimentary
administrative steps to obtain their benefits. The appellants never
submitted applications for benefits to the Plan...”).
(Doc. 14 at 7-8).
In opposing Goodyear’s Motion, while Mr. Bowen generally agrees that an
ERISA plaintiff must exhaust available administrative remedies, citing to Springer
v. Wal-Mart Associates’ Group Health Plan, 908 F.2d 897 (11th Cir. 1990), he

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nevertheless maintains that he falls into an exception to ERISA’s administrative
exhaustion requirement because he can show that “an administrative appeal would
be futile or the remedy inadequate.” (Doc. 20-2 at 2-3).
As this court explained the character of Mr. Bowen’s complaint when
determining that his state court initiated lawsuit was subject to complete ERISA
preemption and denying his Motion To Remand:
A review of Mr. Bowen’s complaint reveals that he has asserted
claims for fraud in the inducement, outrage, intentional infliction of
emotional distress, and outrage in the willful and intentional
withholding of regular retirement benefits. (Doc. 1-1 at 3, 5, 6, 7).
Additionally, while Mr. Bowen does reference the status of his worker’s
compensation benefits within his complaint, he does not assert a
statutory claim for benefits (or for retaliation) under the Alabama
Workers’ Compensation Act, Ala. Code § 25-5-1, et seq.
Instead, the gravamen of Mr. Bowen’s allegations contained in his
lawsuit stem from the alleged wrongful loss of his regular retirement
benefits. (See, e.g., Doc. 1-1 ¶ 2 at 3 (complaining that a Goodyear
representative told Mr. Bowen that “when he reache[d] age 55, he could
apply for regular retirement benefits and get those full benefits” and that
his “disability retirement benefits would cease at that point because he
could not get disability retirement at the same time he got regular
retirement”); Doc. 1-1 ¶ 4 at 6 (“Accordingly, Plaintiff desires his
regular retirement weekly benefits beginning as of August of 2011, but
the defendant Goodyear has not paid same and refuses to pay same and
refuses to continue to pay Plaintiff his full weekly permanent total
benefits, pursuant to the law of Alabama.”); id. ¶ 2 at 6 (maintaining that
Goodyear’s “aforesaid wrongful misconduct” constitutes “the tort of
intentional infliction of emotional distress”); id. ¶ 2 at 7 (contending that
Goodyear has “willfully and intentionally refused to allow Plaintiff Stan
Bowen to receive his regular retirement benefits, also known as vested
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pension, also known as deferred vested pension . . . .”)); cf. Raye v.
Employer’s Ins. of Wausau, 345 F. Supp. 2d 1313, 1316 (S.D. Ala.
2004) (Steele, J.) (“The plaintiff has indeed demanded recovery of
worker’s compensation benefits, but he has done so under the rubric of
common-law claims of outrage and negligence, not under the [Alabama
Workers’ Compensation] Act itself.”).
(Doc. 11 at 9-10 (footnotes omitted) (emphasis added)).
Thus, the heart of Mr. Bowen’s lawsuit is that he has been wrongfully denied
regular retirement benefits under the 1950 Plan–undoubtedly an ERISA-covered
claim. However, absent from his state court complaint (which has never been
amended) is any allegation that Mr. Bowen has exhausted his administrative
remedies, any recitation of facts which demonstrates that Mr. Bowen has satisfied the
administrative exhaustion requirement, or any assertion that adhering to the
exhaustion requirement is futile in this instance.
As the Eleventh Circuit explained when it upheld the district court’s
administrative exhaustion ruling in Variety Children’s Hosp., Inc. v. Century Medical
Health Plan, Inc., 57 F.3d 1040 (11th Cir. 1995):
Count I is a straight-forward claim under ERISA for the benefits
under the plan. Variety, however, neither pleaded nor recited facts
showing that it had exhausted its administrative remedies under the plan.
We have repeatedly held that plaintiffs must exhaust their
administrative remedies under a covered benefits plan prior to bringing
an ERISA claim in federal court. Byrd v. MacPapers, Inc., 961 F.2d
157, 160-61 (11th Cir.1992); Springer v. Wal-Mart Associates’ Group
10

Health Plan, 908 F.2d 897, 899 (11th Cir. 1990); Mason v. Continental
Group, Inc., 763 F.2d 1219, 1227 (11th Cir. 1985), cert. denied, 474
U.S. 1087, 106 S. Ct. 863, 88 L.Ed.2d 902 (1986). The district court’s
dismissal of Count I without prejudice subject to Variety’s exhaustion
of its administrative remedies was not error.
Variety Children’s, 57 F.3d at 1042 (footnote omitted) (emphasis added).
The Eleventh Circuit also observed in Variety Children’s:
We agree with the district court that Variety’s attempt to
circumvent this requirement by alleging in its Corrected Amended
Complaint that it had complied with “all conditions precedent” or in the
alternative that “such conditions have been waived or excused” does not
address the exhaustion requirement. Furthermore, Variety also failed to
plead that exhaustion is waived because it would be futile. See Curry
v. Contract Fabricators, Inc. Profit Sharing Plan, 891 F.2d 842, 846
(11th Cir. 1990).
57 F.3d at 1042 n.2 (emphasis added).
Here, Mr. Bowen’s ERISA-driven complaint is similarly deficient to the
pleading of the plaintiff in Variety Children’s because of its silence about the status
of administrative exhaustion. Further, to the extent that Mr. Bowen contends that this
court should consider his futility contentions contained in his responsive brief, the
Eleventh Circuit has made it clear that “[a] plaintiff may not amend her complaint
through argument in a brief opposing summary judgment.” Gilmour v. Gates,
McDonald and Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (citing Shanahan v. City

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of Chicago, 82 F.3d 776, 781 (7th Cir. 1996)).6
6

The court notes that Gilmour dealt with a plaintiff who was attempting to assert a new
claim at the summary judgment stage. Gilmour, 382 F.3d 1314-15. To the extent that Gilmour is
not directly on point as to the type of amendment by briefing sought here by Mr. Bowen, the court
finds that the opinion should, nonetheless, persuasively apply in this instance, especially given
Variety Children’s holding that a plaintiff must adequately address administrative exhaustion in his
pleadings when his claim arises under ERISA.
Additionally, a more recent decision by the Eleventh Circuit cites to Gilmour and confirms
that a district court’s consideration of any critical amendment asserted merely as part of the briefing
process is disfavored:
The current practice in some district courts—especially in the summary
judgment setting—is to ignore what the respective parties alleged in their complaint
and answer and to consider their claims and defenses as depicted in the memoranda
they filed in support of or in opposition to a motion for summary judgment. As is the
situation here, the claims and defenses presented in the memoranda supporting or
opposing summary judgment are not presented in the complaint and answer with the
specificity required by the Federal Rules of Civil Procedure and the Supreme Court's
decisions in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed.
2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d
868 (2009); rather, they are presented in a shorthand fashion. The result is that on
appeal we have difficulty in determining whether the district court, in granting
summary judgment, ruled on the claims and defenses as stated in the complaint and
answer or as stated in the memoranda submitted to the court on summary judgment,
as if the pleadings had been amended by implied consent.
We encountered this dilemma most recently in GeorgiaCarry.Org, Inc. v.
Georgia, 687 F.3d 1244 (11th Cir. 2012), cert. denied, ––– U.S. ––––, 133 S. Ct.
856, 184 L. Ed.2 d 656 (2013). There, in their motion for summary judgment, the
plaintiffs sought to eliminate a critical deficiency in the allegations of their amended
complaint by including additional facts. The defendants did not object to this tactic
on the ground that the plaintiffs were, in effect, seeking to amend their complaint.
And the district court, in ruling on the sufficiency of the complaint, appeared to have
considered the additional facts as if they had been alleged in the complaint. In
affirming the district court’s dismissal of the claim at issue, we refused to consider
these additional facts, citing precedent that precludes a plaintiff from amending its
complaint “through argument at the summary judgment phase of proceedings.” Id.
at 1258 n. 27. “At the summary judgment stage, the proper procedure for plaintiffs
to assert a new claim is to amend the complaint in accordance with Fed. R. Civ. P.
15(a).” Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004).
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Therefore, guided by Variety Children’s, Gilmour, and Flintlock, Goodyear’s
Motion is due to be granted with respect to its defense of administrative exhaustion,
but the appropriate relief to award will be a without prejudice dismissal as opposed
to a with prejudice one, which is what Goodyear expressly requests in its Motion.
(See Doc. 13 at 1 (“Goodyear respectfully request[s] that this Court enter summary
judgment in its favor on all of the Plaintiff’s claims and dismiss this case against
Goodyear with prejudice.”)).
B.

Goodyear’s 1950 Plan-Related Defense

In its reply, Goodyear belatedly raises the defense that Mr. Bowen is not
eligible for a deferred vested pension under the unambiguous language of the 1950
Plan. (Doc. 26 at 7-8). Eleventh Circuit binding authority leaves no room for doubt
that such a belated effort on Goodyear’s part is procedurally ineffective on summary
judgment:
This court’s precedent foreclosed Well–Come's attempt to amend its
complaint at the summary judgment stage without seeking leave of court pursuant to
Rule 15(a)(2). Accordingly, the District Court should have disposed of
Well–Come’s claim with a statement that Well–Come failed to establish that
ASRRG and ASIS issued a commercial general liability policy and excess/umbrella
liability policy to Flintlock LLC, as alleged in paragraphs 6 and 7 of its complaint.
We affirm the court’s judgment on that ground. Krutzig v. Pulte Home Corp., 602
F.3d 1231, 1234 (11th Cir.2010) (“This court may affirm a decision of the district
court on any ground supported by the record.”).
Flintlock Const. Services, LLC v. Well-Come Holdings, LLC, 710 F.3d 1221, 1227-28 (11th Cir.
2013) (emphasis added).
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First and foremost, Plaintiffs do not point out, and we cannot find,
where they raised this argument before the district court in defense of
the NFL’s summary judgment motion. Moreover, in their initial brief on
appeal, Plaintiffs refer to the fact that the NFL is not a signatory to the
CBA in only two ambiguous sentences. They do not appear to argue
that preemption should not apply to the NFL because it is not a signatory
to the CBA until their reply brief and at oral argument. That is too late.
For these reasons, we do not address this belated contention. See World
Holdings, LLC v. Fed. Republic of Ger., 613 F.3d 1310, 1317 n. 12
(11th Cir. 2010) (claim raised for the first time on appeal); Jackson v.
Comm’r of Soc. Sec., 601 F.3d 1268, 1274 n.4 (11th Cir. 2010) (claim
raised for the first time in a reply brief).
Atwater v. National Football League Players Ass’n, 626 F.3d 1170, 1177 (11th Cir.
2010) (footnotes omitted) (emphasis added).
Alternatively, the brevity in which this contention is presented by Goodyear,
including the absence of any cited case authority, means that it is substantively
underdeveloped. Cf. Flanigan’s Enters., Inc. v. Fulton County, Ga., 242 F.3d 976,
987 n.16 (11th Cir. 2001) (holding that a party waives an argument if the party
“fail[s] to elaborate or provide any citation of authority in support” of the argument);
Ordower v. Feldman, 826 F.2d 1569, 1576 (7th Cir. 1987) (stating that an argument
made without citation to authority is insufficient to raise an issue before the court).
Accordingly, Goodyear’s Motion is due to be denied with respect to this
second ground.

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IV.

CONCLUSION
In sum, the Motion is due to be granted in part as modified above and

otherwise denied. The court, consistent with Variety Children’s, will enter a separate
order dismissing Mr. Bowen’s lawsuit without prejudice on the basis of ERISA’s
administrative exhaustion requirement.
DONE and ORDERED this the 10th day of October, 2013.

VIRGINIA EMERSON HOPKINS
United States District Judge

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