Blair v. Metropolitan Life Insurance Company

Filing 42

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 3/2/2016. (JLC)

FILED
2016 Mar-02 PM 04:49
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
SHARON BLAIR,
Plaintiff,
v.
METROPOLITAN LIFE
INSURANCE COMPANY,
Defendant.

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) Case No.: 4:13-CV-1789-VEH
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MEMORANDUM OPINION
I.

Introduction and Procedural History
On August 22, 2013, Plaintiff Sharon Blair (“Ms. Blair”) initiated this long-

term disability benefits case against Defendant Metropolitan Life Insurance Company
(“MetLife”) in the Circuit Court of Etowah County. (Doc. 1-1 at 2-4; Doc. 29-1 at 24).1 MetLife removed Ms. Blair’s state court action to this court on September 26,
2013, on the basis of federal preemption under the Employee Retirement Income
Security Act of 1974 (“ERISA”). (Doc. 1; id. at 2-3 ¶¶ 5-6).
Prior to that, on April 3, 2012, Ms. Blair had filed an essentially
indistinguishable long-term disability benefits case against MetLife in Etowah
1

All page references to Doc. 1-1 and Doc. 29-1 correspond with the court’s CM/ECF
numbering system.

County, which action MetLife similarly removed to federal court (“Blair I”)2 on May
3, 2012. (Doc. 1; Doc. 1-1 at 3-4).3 On May 12, 2014, this case (“Blair II”) was stayed
and administratively closed (Doc. 20) while the Eleventh Circuit considered the
merits of an appeal in Blair I (Doc. 37) filed by Ms. Blair on July 23, 2013.
The Eleventh Circuit decided Blair I in favor of MetLife in an unpublished
opinion–Blair v. Metlife, 569 F. App’x 827 (11th Cir. 2014), cert. denied, 135 S. Ct.
1414, 191 L. Ed. 2d 364 (2015)–issued initially on June 23, 2014, by the Eleventh
Circuit (see Blair II, Doc. 29-2 at 2)4 and subsequently entered as a mandate in Blair
I (Doc. 40 at 2) on November 3, 2014. On June 16, 2015, the court lifted the stay and
reinstated Blair II (Doc. 27) in light of Ms. Blair’s unwillingness to accept the
outcome in Blair I as dispositive of her long-term disability claim in Blair II. (Doc.
26).
Currently pending before the court are the following four motions:
!

Ms. Blair’s Motion To Allow Amended Complaint (Doc. 28) (the “Amend
Motion”) on filed June 17, 2015;

!

MetLife’s Renewed Motion To Dismiss (Doc. 29) (the “Dismissal Motion”)
filed on June 29, 2015;
2

The CM/ECF district court case number for Blair I is 4:12-CV-1776-JEO.

3

All page references to Doc. 1-1 of Blair I correspond with the court’s CM/ECF numbering

4

All page references to Doc. 29-2 correspond with the court’s CM/ECF numbering system.

system.

2

!

Ms. Blair’s Motion To Allow Sur Reply (Doc. 36) (the “Sur Reply Motion”)
filed on July 31, 2015; and

!

Ms. Blair’s Motion To Compel (Doc. 37) (the “Compel Motion”) filed on
August 21, 2015.
For the reasons stated below, the court finds that MetLife’s Dismissal Motion

is due to be granted in part and otherwise denied, Ms. Blair’s Amend Motion is due
to be denied as futile, and the remaining two motions are due to be termed as moot
or, alternatively, denied.
II.

Standards
A.

Rule 12(b)(6)

A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint. See FED.
R. CIV. P. 12(b)(6) (“[A] party may assert the following defenses by motion: (6)
failure to state a claim upon which relief can be granted[.]”). The Federal Rules of
Civil Procedure require only that the complaint provide “‘a short and plain statement
of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is
and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99,
103, 2 L. Ed. 2d 80 (1957) (footnote omitted) (quoting FED. R. CIV. P. 8(a)(2)),
abrogated by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955,
1965, 167 L. Ed. 2d 929 (2007); see also FED. R. CIV. P. 8(a) (setting forth general
pleading requirements for a complaint including providing “a short and plain
3

statement of the claim showing that the pleader is entitled to relief”).
While a plaintiff must provide the grounds of his entitlement to relief, Rule 8
does not mandate the inclusion of “detailed factual allegations” within a complaint.
Twombly, 550 U.S. at 555, 127 S. Ct. at 1964 (quoting Conley, 355 U.S. at 47, 78 S.
Ct. at 103). However, at the same time, “it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). “[O]nce a claim has been
stated adequately, it may be supported by showing any set of facts consistent with the
allegations in the complaint.” Twombly, 550 U.S. at 563, 127 S. Ct. at 1969.
“[A] court considering a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950. “While legal
conclusions can provide the framework of a complaint, they must be supported by
factual allegations.” Id. “When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to
an entitlement to relief.” Id. (emphasis added). “Under Twombly’s construction of
Rule 8 . . . [a plaintiff’s] complaint [must] ‘nudge[] [any] claims’ . . . ‘across the line
from conceivable to plausible.’ Ibid.” Iqbal, 556 U.S. at 680, 129 S. Ct. at 1950-51.
A claim is plausible on its face “when the plaintiff pleads factual content that
4

allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at
556, 127 S. Ct. at 1965).
B.

Futility

“When a district court denies the plaintiff leave to amend a complaint due to
futility, the court is making the legal conclusion that the complaint, as amended,
would necessary fail.” St. Charles Foods, Inc. v. America’s Favorite Chicken Co.,
198 F.3d 815, 822-23 (11th Cir. 1999). The futility standard is comparable to that
applicable to a motion to dismiss. See B.D. Stephenson Trucking, L.L.C. v.
Riverbrooke Capital, No. 5:06-CV-0343-WS, 2006 WL 2772673, at *6 (S.D. Ala.
2006) (“The futility threshold is akin to that for a motion to dismiss; thus, if the
amended complaint could not survive Rule 12(b)(6) scrutiny, then the amendment is
futile and leave to amend is properly denied.” (citing Burger King Corp. v. Weaver,
169 F.3d 1310, 1320 (11th Cir. 1999))); see also Florida Power & Light Co. v. Allis
Chalmers Corp., 85 F.3d 1514, 1520 (11th Cir. 1996) (affirming district court’s
denial of amendment as futile because purported cause of action “would not
withstand a motion to dismiss”).
5

III.

Analysis
A.

MetLife’s Dismissal Motion
1.

Blair I Background and Holdings

In November 2007, Ms. Blair made a long-term disability claim (the “LTD
Claim”) under the Progressive Corporation Group Long Term Disability Plan (the
“Plan”). MetLife is the claims administrator for the Plan. Initially, MetLife approved
Ms. Blair’s LTD Claim. However, in November 2008, MetLife denied it, finding that
Ms. Blair had failed to provide supporting evidence of her continued disabled status
under the Plan.
Ms. Blair administratively appealed the subsequent denial of her LTD Claim.
MetLife (i) conducted an appeal review, (ii) concluded on January 30, 2009, that she
was not disabled as defined by the LTD Plan, and (iii) advised Ms. Blair that she had
exhausted her administrative remedies. Thus, January 30, 2009, is the date on which
MetLife issued its final denial of Ms. Blair’s LTD Claim.
Through her counsel (who is the same lawyer who has represented her
throughout Blair I and Blair II), Ms. Blair, in June 2009, requested that MetLife
conduct a second review of her LTD Claim. Even though the Plan provides for only
one administrative review, MetLife agreed to undergo a second, courtesy review of
Ms. Blair’s LTD Claim. While this courtesy review was pending, Ms. Blair submitted
6

additional records to MetLife in support of her LTD Claim. Ms. Blair filed her appeal
in Blair I before MetLife gave her a decision on its courtesy review.
In Blair I, the Eleventh Circuit rejected Ms. Blair’s contention that MetLife
violated ERISA by not considering certain evidence which she submitted as part of
her so-called “second appeal” to MetLife:
First, there was no “second appeal.” MetLife was not required under the
Plan to review extra materials after it had denied her first appeal. Blair
not only received a timely decision on her initial claim but also a full
administrative appellate review of her claim in accordance with the
terms of the Plan. At that point, Blair was free to file suit in federal court
because she had exhausted her administrative remedies. Yet, she
requested MetLife to conduct an additional administrative review of her
claim, which MetLife was not contractually bound, but voluntarily
agreed, to do. Moreover, our case law is clear that we are limited to only
those documents that were before the administrator at the time the
decision was made. See Jett v. Blue Cross & Blue Shield of Ala., Inc.,
890 F.2d 1137, 1139 (11th Cir. 1989) (noting that a review of the
administrator’s determination is “based upon the facts as known to the
administrator at the time the decision was made”); Turner v. Delta
Family–Care Disability & Survivorship Plan, 291 F.3d 1270, 1273
(11th Cir. 2002) (per curiam) (stating that the court's review is “based
on the evidence of record”). The documents Blair sent to MetLife over
the two years following the denial of her administrative appeal were not
part of the record considered when determining whether to deny Blair’s
LTD benefits. Accordingly, the district court is affirmed as to this issue.
569 F. App’x at 832 (emphasis added).

7

2.

The Eleventh Circuit’s opinion in Blair I means
that Ms. Blair’s LTD Claim asserted in Blair II is
not plausible under ERISA.

While the allegations vary slightly, Blair I and Blair II are substantively
identical ERISA lawsuits. For example, Blair I and Blair II both seek redress from
MetLife’s final denial of Ms. Blair’s LTD Claim under the Plan on January 30, 2009.
(Compare Blair I, Doc. 1-1 at 3 ¶ 4 (“Plaintiff filed a written appeal and Defendant
issued a final denial on January 30, 2009.”), with Blair II, Doc. 1-1 at 2 ¶ 4 (“MetLife
denied LTD benefits and MetLife denied Blair’s administrative appeal on 1/30/09.”)).
More specifically, both cases urge that MetLife had an ERISA-driven
obligation to reconsider Ms. Blair’s LTD Claim in conjunction with those additional
documents that she submitted to MetLife after its final denial in January 2009.
(Compare Blair I, Doc. 1-1 at 3 ¶¶ 6-7 (referencing new submissions made to MetLife
after its final denial of Ms. Blair’s LTD Claim), with Blair II, Doc. 1-1 at 2 ¶¶ 5-8
(same)); (compare also Blair I, Doc. 1-1 at 3 ¶ 8 (“Defendant has exceeded the 45 day
deadline.”), with Blair II, Doc. 1-1 at 3 ¶ 12 (“Defendant has never issued a decision
on Plaintiff’s second appeal.”)). Blair I and Blair II also seek identical relief.
(Compare Blair I, Doc. 1-1 at 3 (“WHEREFORE, Plaintiff prays for appropriate
equitable relief, attorney fees and costs which are more than $50,000.”), with Blair
II, Doc. 1-1 at 4 (same)).
8

In its Dismissal Motion, MetLife maintains that due to Blair I and Blair II’s
interrelatedness and common nucleus of operative facts, either res judicata or
collateral estoppel flowing from the finality of Blair I operates to bar Ms. Blair’s
pursuit of her LTD Claim in Blair II. Ms. Blair counters that her second suit against
MetLife for “wrongful termination of LTD benefits is not barred by [either doctrine].”
(Doc. 34 at 1 ¶ 3; id. at 16-20; id. at 23-25). Although following Ms. Blair’s rambling
arguments in opposition to MetLife’s Dismissal Motion is an arduous endeavor,5 the
gist of her position appears to be that res judicata and/or collateral estoppel cannot
apply because MetLife never has considered, much less issued a decision directly
addressing the impact of the additional evidence that she submitted in support of her
LTD Claim and Blair I does not foreclose her from pursuing a second cause of action
under ERISA premised upon such new and differing disability-related documentation
5

Sloppily sandwiched between Ms. Blair’s res judicata/collateral estoppel contentions is a
section about how judicial estoppel should operate to prevent MetLife from taking inconsistent
positions in Blair II versus Blair I. (Doc. 34 at 20-23). Ms. Blair has not cited to a single case in
which judicial estoppel has ever been applied in an ERISA lawsuit. Instead, Ms. Blair references
New Hampshire v. Maine, 532 U.S. 742, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001), a state-boundary
dispute, and Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282 (11th Cir. 2002), an employment
discrimination lawsuit, as her supportive authorities. (Doc. 34 at 21-22). To the extent that judicial
estoppel is even a permissible equitable concept in this benefits-driven ERISA action, see infra at
15-16 n.10 and the court’s discussion of Varity and other cases infra at 16-18, the court rejects Ms.
Blair’s reliance upon the doctrine as she has not demonstrated that MetLife has taken a position in
Blair II that is “clearly” incompatible (Doc. 34 at 22) with any of its stances in Blair I. Instead,
MetLife’s twofold theme throughout Blair I and Blair II consistently has been that: (i) Ms. Blair has
no right to a “second appeal” under ERISA, and (ii) she cannot create cognizable liability based upon
MetLife’s subsequent voluntary acceptance of documents related to her otherwise administratively
exhausted LTD Claim.
9

at issue in Blair II.
Assuming without deciding that defending on the grounds of res judicata or
collateral estoppel is an overreach given the current status of this record,6 the court,
6

Ms. Blair points out that MetLife, the party invoking res judicata and collateral estoppel,
has not cited to a case in which either doctrine has been applied in an ERISA action procedurally
comparable to hers. (Doc. 34 at 24-25). Conversely, Ms. Blair has not referred to a decision which
suggests that reliance upon such a defense is somehow inappropriate in this instance. Id.
The Eleventh Circuit’s ERISA opinion in Ogden, discussed infra at 16-18, commented that
while the district court’s application of res judicata was not challenged on appeal, it “was
undoubtedly correct.” 348 F.3d at 1286 n.2. More specifically, the record in Ogden included a bench
trial in which “the district court found that the principles of res judicata barred the Ogdens’ claim
for legal relief” under Section 502(a)(1)(B) by virtue of an earlier state court proceeding. 348 F.3d
at 1286. The district court further determined that “the Ogdens were entitled to equitable relief under
ERISA Section 502(a)(3), even though they had never asked for an equitable remedy.” Id. The
Eleventh Circuit held “that an ERISA plaintiff has no cause of action under Section 502(a)(3) where
Congress provided for an adequate remedy elsewhere in the ERISA statutory framework, even if res
judicata now bars the adequate remedy provided.” Ogden, 348 F.3d at 1285.
The record in this case is significantly less developed than the bench trial referenced in
Ogden. Additionally, in conducting its own research, the court has found at least one binding
authority that brings into question the procedural propriety of addressing res judicata and collateral
estoppel on a Rule 12(b)(6) record. As the Eleventh Circuit explained in Concordia v. Bendekovic,
693 F.2d 1073 (11th Cir. 1982):
In the case at bar, the defendants have raised the defense of res judicata [or
collateral estoppel as indicated by a footnote] in the form of a Rule 12(b)(6) motion
supported by the exhibits above mentioned. Res judicata, however, is not a defense
under 12(b); it is an affirmative defense that should be raised under Rule 8(c). Moch
v. East Baton Rouge Parish School Board, 548 F.2d at 596 n.3; Sherwood v. Pearl
River Valley Water Supply District, 427 F.2d 717 (5th Cir.) (Godbold, J., dissenting),
cert. denied, 400 U.S. 832, 91 S. Ct. 64, 27 L. Ed. 2d 63 (1970); Guam Investment
Co. v. Central Building, Inc., 288 F.2d 19, 24 (9th Cir. 1961). Nevertheless a party
may raise a res judicata defense by motion rather than by answer where the defense’s
existence can be judged on the face of the complaint. Pearl River Valley, 427 F.2d
at 718 (Godbold, J., dissenting); Guam Investment Co., 288 F.2d at 24 (“It appears
to us that before an action may be summarily dismissed on the ground of res judicata
the ends of justice require as a minimum that the defense of res judicata appear from
the face of the complaint or that the record of the prior case be received in
10

nonetheless, concludes that the Dismissal Motion is due to be granted. In particular,
the court adopts as persuasive authority the Eleventh Circuit’s unpublished decision
in Blair I and applies it to Blair II. As Blair I instructs, once a final denial of an
ERISA claim has occurred and the claims administrator has advised the plaintiff that
she has exhausted her administrative remedies, a plaintiff’s subsequent submissions
in support of her finally-determined benefits claim, even if voluntarily accepted by
the administrator, do not expand the scope of the record for determining ERISA
liability. Instead, those records are meaningless non-events insofar as an
administrator’s exposure to ERISA liability is concerned.
Here, there is no allegation that Ms. Blair ever filed a new application for longterm disability benefits under the Plan that includes both pre-January 2009 and postJanuary 2009 records that she contends confirm her still-disabled status. (See Doc.
36 at 3 ¶ 2 (“Blair has not filed a new application for benefits.”));7 (cf. Blair I, Doc.

evidence.”); Florasynth Laboratories, Inc. v. Goldberg, 191 F.2d 877 (7th Cir. 1951).
We must first address whether the record affords sufficient information from which
the district court could dismiss the complaint on the grounds of res judicata.
Concordia, 693 F.2d at 1075 (emphasis added). Here, the face of the complaint in Blair II expressly
disavows the presence of res judicata or collateral estoppel (Doc. 1-1 at 4 ¶ 16) and the record from
Blair I has not been received in Blair II. See Concordia, 693 F.2d at 1076 (“As a general rule, a court
in one case will not take judicial notice of its own records in another and distinct case even between
the same parties, unless the prior proceedings are introduced into evidence.” (internal quotation
marks omitted) (emphasis added) (quoting Guam, 288 F.2d at 23)).
7

All page references to Doc. 36 correspond with the court’s CM/ECF numbering system.
11

35 at 42 n.17 (“The court expresses no opinion on whether Plaintiff might be entitled
to file another application for LTD benefits under the Plan or, if she were to do so,
how the additional evidence she submitted after the denial of her appeal might impact
a disability determination by MetLife.”)). Consequently, the universe of documents
that MetLife is legally obligated to consider under ERISA is limited to only those that
Ms. Blair submitted prior to January 30, 2009. See Blankenship v. Metro. Life Ins.
Co., 644 F.3d 1350, 1354 (11th Cir. 2011) (“Review of the plan administrator’s
denial of benefits is limited to consideration of the material available to the
administrator at the time it made its decision.” (citing Jett v. Blue Cross & Blue Shield
of Ala., Inc., 890 F.2d 1137, 1140 (11th Cir. 1989))).
Concomitantly, no ERISA liability in Blair II can lie for MetLife’s failure to
render a replacement disability decision factoring in those additional untimely
submitted records that it undertook to review only as a courtesy to Ms. Blair. As the
Eleventh Circuit explained in Blair I, MetLife cannot be ordered to “reconsider [Ms.
Blair’s] claim in light of the evidence she failed to timely submit and which MetLife
had no legal obligation to consider, under either the terms of the Plan or ERISA
itself.” Blair I, 569 F. App’x at 830; see Harvey v. Standard Ins. Co., 503 F. App’x
845, 849 (11th Cir. 2013) (“However, the district court correctly determined that
Standard did not unreasonably disregard these documents as they were not submitted
12

to Standard until after it had rendered a final decision on her administrative appeal
on March 15, 2010[;] [i]nstead, Harvey submitted these documents as part of her
subsequent voluntary review . . . .”) (emphasis in original);8 id. (“Therefore only the
record before Standard during its consideration of Harvey’s initial claim or
administrative review thereon is relevant.”); cf. McCay v. Drummond Co., 509 F.
App’x 944, 949 (11th Cir. 2013) (rejecting plaintiff’s position that “there is a
continuing duty [to consider any new evidence], regardless of whether the final
determination has been reached on his claim, regardless of whether the plaintiff made
an effort to exhaust the administrative remedies available to him, and regardless of
whether the plaintiff is even employed or still a participant in the Plan”) (emphasis
added).9 Stated differently, because under Blair I MetLife had no ERISA-based
obligation to evaluate those late-submitted materials from Ms. Blair in an attempt to
resurrect her denied LTD Claim, MetLife similarly cannot be held liable in this case
for failing to follow through on that same voluntary process. Therefore, Blair I means
that Blair II seeks redress against MetLife that is implausible.
The court rejects Ms. Blair’s efforts to create a plausible ERISA claim by
asserting waiver on the part of MetLife by virtue of its voluntary decision to undergo
8

Ms. Blair’s counsel in Blair I and Blair II, Myron Allenstein (“Mr. Allenstein”), is listed
as an attorney of record for the plaintiff in Harvey.
9

Mr. Allenstein is also listed as an attorney of record for the plaintiff in McCay.
13

a second courtesy review of Ms. Blair’s LTD Claim. (Doc. 34 at 11-16). The Eleventh
Circuit has described waiver in the context of an ERISA case as “the voluntary,
intentional relinquishment of a known right.” Glass v. United of Omaha Life Ins. Co.,
33 F.3d 1341, 1348 (11th Cir. 1994) (citing Pitts by and through Pitts v. American
Security Life Ins. Co., 931 F.2d 351, 355 (5th Cir. 1991)). Ms. Blair suggests that
because the Eleventh Circuit has not completely foreclosed a plaintiff’s right to assert
waiver in an ERISA dispute, see Glass v. United of Omaha Life Ins. Co., 33 F.3d
1341, 1348 (11th Cir. 1994) (“declin[ing] to incorporate as part of the federal
common law of ERISA a ‘something-for-nothing’ waiver claim[,]” with respect to
mistakes made by the insurer in dealing with the eligibility of some enrollees, but
“leav[ing] open whether in other circumstances waiver principles might apply under
the federal common law in the ERISA context”), Blair II states a cognizable claim.
However, merely leaving the door open for waiver to conceivably become viable
under ERISA-federal common law by no certainty means that waiver, if ever
expressly embraced in this circuit, would plausibly apply to this set of facts. See
Iqbal, 556 U.S. at 680, 129 S. Ct. at 1950-51 (instructing that merely conceivable
claims fall short of satisfying Rule 8’s line of plausibility); cf. Glass, 33 F.3d 1347
(“[N]ot all common law insurance principles automatically apply to ERISA-regulated
insurance policies.”); cf. also id. (“In the Eleventh Circuit we have created a very
14

narrow common law doctrine under ERISA for equitable estoppel . . . .”) (emphasis
added); id. at 1347 n.5 (“ERISA waiver principles, if they emerge in this circuit, may
be quite distinct from state waiver law, and parties should recognize this.”) (emphasis
added).
Moreover, in light of Blakenship’s binding guidance about the proper scope of
the administrative record and the persuasive insight gleaned from Blair I, Harvey, and
McCay, the court strongly doubts that the Eleventh Circuit will ever apply waiver to
sustain an ERISA benefits claim premised upon an insurer’s willingness to undergo
a courtesy review of supplemental records, which non-mandatory process is then
circumvented by a plaintiff’s intervening appeal to federal court in a related action
the challenges the final denial of the same long-term disability claim. Indeed,
allowing waiver to apply to such a situation resembles the “something-for-nothing”
waiver claim squarely rejected by the Eleventh Circuit in Glass–MetLife has
equitably opened the door to ERISA benefits liability for initiating, but not
completing, the courtesy review or voluntary reconsideration of her LTD Claim even
though Ms. Blair was given all the review that she was contractually due to receive
from MetLife under the Plan.10

10

Permitting such a waiver application would also seem to run afoul of the Supreme Court’s
decision in Varity and the Eleventh Circuit’s opinions in Ogden and Katz, discussed infra at 16-18,
as a plan participant would be invoking the equitable principle of waiver, presumably pursuant to
15

Finally, to the extent that Ms. Blair is attempting to recast her LTD Claim in
Blair II as an equitable one arising under Section 502(a)(3),11 MetLife correctly
points out that, because she otherwise has an adequate remedy “elsewhere in the
ERISA’s statutory framework[,]” see Ogden v. Blue Bell Creameries U.S.A., Inc., 348
F.3d 1284, 1288 (11th Cir. 2003) (quoting Hembree v. Provident Life and Accident
Ins. Co., 127 F. Supp. 2d 1265, 1274 (N.D. Ga. 2000)), she is precluded from
pursuing relief under ERISA’s catchall equitable enforcement provision.
As the Ogden court summarized the Supreme Court’s limitations placed upon
the availability of relief under Section 502(a)(3):
We explained in Katz v. Comprehensive Plan of Group Insurance,
197 F.3d 1084 (11th Cir. 1999), that an ERISA plaintiff who has an
adequate remedy under Section 502(a)(1)(B) cannot alternatively plead
and proceed under Section 502(a)(3). Id. at 1088-89. We also recognized
that an ERISA plaintiff that had an adequate remedy under Section
502(a)(1)(B) cannot assert a Section 502(a)(3) claim after his Section
502(a)(1)(B) claim has been lost. Id. at 1089.

Section 502(a)(3), to save an otherwise administratively exhausted or “lost” claim under Section
502(a)(1)(B).
11

It appears from certain portions of Ms. Blair’s opposition and sur reply that in Blair II she
exclusively seeks disability benefits under Section 502(a)(1)(B). (See, e.g., Doc. 34 at 26 (“Blair is
not making equitable claims.”)); (Doc. 36 at 4 ¶ 3 (indicating that “[c]ounsel for Blair routinely
requests equitable relief” under Section 502(a)(3), but clarifying that “[i]n this case she specifically
requests LTD benefits” under Section 502(a)(1)(B))); see also 29 U.S.C. § 1132(a)(1)(B) (allowing
participant to file suit “to recover benefits due to him under the terms of his plan”). However, these
statements are inconsistent with Ms. Blair’s attempts to invoke judicial estoppel and waiver in
opposition to MetLife’s Dismissal Motion, which concepts are founded in equity. See supra at 9 n.5
and 15-16 n.10.
16

In Katz, we affirmed a district court’s finding on summary
judgment that, pursuant to the Supreme Court’s holding in Varity Corp.
v. Howe, 516 U.S. 489, 116 S. Ct. 1065, 134 L. Ed. 2d 130 (1996), an
ERISA plaintiff could not state a valid claim for equitable relief when
Section 502(a)(1)(B) afforded her with an adequate remedy, even though
her Section 502(a)(1)(B) claim was subsequently lost on the merits.
Katz, 197 F.3d at 1089. In Varity, the Supreme Court held that a class of
ERISA beneficiaries had stated a claim for injunctive relief under
Section 502(a)(3) and reinstated them to their former employer’s welfare
benefit plan. Varity, 516 U.S. at 504-14, 116 S. Ct. at 1075-79. In so
holding, however, the Supreme Court emphasized that Section 502(a)(3)
is a “catchall” provision that provides relief only for injuries that are not
otherwise adequately provided for by ERISA. According to the Court,
“where Congress elsewhere provided adequate relief for a beneficiary’s
injury, there will likely be no need for further equitable relief, in which
case such relief would not be ‘appropriate.’” Id. at 515, 116 S. Ct. at
1079.
Following this instruction, we held in Katz that the plaintiff had
no Section 502(a)(3) cause of action because, at the time the district
court dismissed her Section 502(a)(3) claim, she had an adequate
remedy under Section 502(a)(1)(B). Katz, 197 F.3d at 1089; see also
Larocca v. Borden, Inc., 276 F.3d 22, 28 (1st Cir. 2002) (commenting
that “following [Varity], federal courts have uniformly concluded that,
if a plaintiff can pursue benefits under the plan pursuant to Section a(1),
there is an adequate remedy under the plan which bars a further remedy
under Section a(3)”). We further held that the availability of relief under
Section 502(a)(3) was in no way dependent on the success or failure of
the Section 502(a)(1)(B) claim because “the availability of an adequate
remedy under the law for Varity purposes, does not mean, nor does it
guarantee, an adjudication in one’s favor.” Katz, 197 F.3d at 1089;
accord Tolson v. Avondale Indus., Inc., 141 F.3d 604, 610 (5th Cir.
1998); see also Hembree ex rel. Hembree v. Provident Life and Accident
Ins. Co., 127 F. Supp. 2d 1265, 1273-74 (N.D. Ga. 2000) (holding that
a plaintiff could not assert a Section 502(a)(3) claim when the
contractual statute of limitations barred his Section 502(a)(1) claim).

17

Ogden, 348 F.3d at 1287 (emphasis added).
Consequently, because Section 502(a)(1)(B) adequately addresses Ms. Blair’s
benefits-related injury under ERISA, her LTD Claim cannot be salvaged by resorting
to ERISA’s conditional catchall provision by invoking waiver, judicial estoppel, or
any other equitable doctrine against MetLife. Thus, for all the foregoing reasons,
MetLife’s Dismissal Motion is due to be granted in terms of dismissing Blair II.12
MetLife also has included a one-sentence tagalong request for attorney’s fees
and costs at the very end of its Dismissal Motion. (Doc. 29 at 15);13 (see also Doc. 35
at 8 n.7; id. at 9). Because MetLife has wholly failed to set out the appropriate
standard(s) for this court to apply, much less quantified and substantiated the
reasonableness of the attorney’s fees and costs that it seeks to recover from Ms. Blair,
that portion of its Dismissal Motion is due to be denied.
B.

Ms. Blair’s Amend Motion

The court has studied Ms. Blair’s proposed amended complaint (Doc. 28 at 3-7
¶¶ 1-17)14 that she incorporated into her Amend Motion, as well as MetLife’s

12

The court rejects as undeveloped and unpersuasive, see infra at 20-21, Ms. Blair’s onesentence statement about tolling and the accompanying non-contextualized block quote from 29
C.F.R. § 2560.503-1(c)(3), which she incorrectly identifies as “§ 2560.503-(c)(3).” (Doc. 34 at 2526).
13

All page references to Doc. 29 correspond with the court’s CM/ECF numbering system.

14

All page references to Doc. 28 correspond with the court’s CM/ECF numbering system.
18

opposition. (Doc. 30). Because, with respect to those allegations pivotal to the court’s
Rule 12(b)(6) analysis, the amended assertions are essentially the same as those
included in her initial complaint (see, e.g., Doc. 28 at 3 ¶ 4 (“MetLife denied LTD
benefits and MetLife denied Blair’s administrative appeal on 1/30/09.”)), Ms. Blair
still has not stated a plausible ERISA claim. Consequently, her Amend Motion is due
to be denied as futile.
C.

Ms. Blair’s Remaining Motions

Ms. Blair’s Compel and Sur Reply Motions are due to be termed as moot, as
nothing within either filing addresses the key underpinnings of the court’s reasons for
granting MetLife’s Dismissal Motion. As explained above, the LTD Claim in Blair
II consists of disability records submitted by Ms. Blair after MetLife had finally
denied her benefits under the Plan. Seeking to impose liability upon MetLife in its
handling of these temporally deficient submissions is simply an implausibility under
ERISA, even if MetLife did, indeed, “do Ms. Blair wrong”15 in agreeing to conduct
a courtesy review, but never providing her with any results. More specifically, no
amount of discovery from MetLife about “further reviews” or “second appeals” (Doc.

15

As set forth in § II.A, supra, Twiqbal’s plausibility standard “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678, 129 S. Ct. at
1949. Ms. Blair’s complaint does not even clear the less demanding “the-defendant-unlawfullyharmed-me” hurdle. Instead, all she has are conclusory allegations that MetLife harmed her in a
manner that is not unlawful under ERISA.
19

37 at 2) will legally transform Ms. Blair’s dispute into one protected under the Plan
or by ERISA.
Similarly, nothing mentioned in Ms. Blair’s proposed sur reply (Doc. 36 at 3-4)
causes the court to alter its analysis of Blair II’s inherently implausible nature. Thus,
the court’s ruling on the Dismissal Motion remains favorable to MetLife with or
without regard to the discovery sought by Ms. Blair in her Compel Motion or the
points of clarification raised in her Sur Reply Motion’s proposed brief.
Alternatively, Ms. Blair’s Compel and Sur Reply Motions are due to be denied
as undeveloped. With the notable exceptions of motions that are either filed “jointly”
or as “unopposed,” this court rarely, if ever, grants a motion that is supported solely
by the moving party’s counsel’s ipse dixit. Furthermore, as Ms. Blair ineffectively has
done here, offering only a one- or two-sentence statement that meagerly requests
relief while simultaneously omitting any on-point authorities (Doc. 36 at 1; Doc. 37
at 1) is a perfunctorily-made and, ultimately, an entirely unpersuasive, motion. Cf.
Flanigan’s Enters., Inc. v. Fulton Cty., 242 F.3d 976, 987 n.16 (11th Cir. 2001) (per
curiam), superseded by statute on other grounds as recognized in 596 F.3d 1265
(11th Cir. 2010) (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
20

without citation to authority is insufficient to raise an issue before the court).
IV.

Conclusion
Therefore, MetLife’s Dismissal Motion is due to be granted in part and

otherwise denied. Further, Ms. Blair’s Amend Motion is due to be denied and her
Compel and Sur Reply Motions are due to be termed as moot or, alternatively, denied.
The court will enter a separate order of dismissal consistent with this memorandum
opinion.
DONE and ORDERED this the 2nd day of March, 2016.

VIRGINIA EMERSON HOPKINS
United States District Judge

21