Melech v. Life Insurance Company of North America et al

Filing 203

ORDER granting 189 Motion to Dismiss Count IV of Plaintiff's First Amended Complaint. Signed by Judge Kristi K. DuBose on 1/15/2015. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DIANE G. MELECH,
Plaintiff,
vs.
LIFE INSURANCE COMPANY OF
NORTH AMERICA, et al.,
Defendants.

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Civil Action No. 10-00573-KD-M

ORDER
This action is before the Court on the Defendants’ Motion to Dismiss Count IV of
Plaintiff’s First Amended Complaint and plaintiff Diane Melech’s response (docs. 189,
200).1 Upon consideration and for the reasons set forth herein, the motion is GRANTED.
Defendants move the Court to dismiss Count IV of the first amended complaint
wherein plaintiff asserts a claim for failure to provide documents – the claim file for the
post-remand decision to deny plaintiff’s claim for long-term disability (doc. 189).
Defendants argue that the claim in Count IV exceeds the scope of this Court’s review
under the limited remand from the Eleventh Circuit Court of Appeals; and therefore,
plaintiff cannot assert a new penalty claim under 29 U.S.C. § 1132(c) or revive the

1

 Plaintiff also filed three letters: a letter dated October 1, 2014 wherein plaintiff
requested documents from the defendants, a letter dated October 15, 2014 wherein
defendants acknowledge the request, and a letter dated January 5, 2015, wherein plaintiff
acknowledges receipt of a copy of the claim file. (Doc. 193) The Court has not relied
upon these letters to reach its decision. Therefore, the Court has not considered evidence
beyond the pleadings, and thus, need not convert the motion to dismiss into a motion for
summary judgment. See Harper v. Lawrence County., Ala., 592 F.3d 1227, 1232 (11th
Cir. 2010) (“A judge need not convert a motion to dismiss into a motion for summary
judgment as long as he or she does not consider matters outside the pleadings. According
to case law, ‘not considering’ such matters is the functional equivalent of ‘excluding’
them-there is no more formal step required.”).

penalty claim raised in her original complaint.2 Defendants also argue that plaintiff
cannot state a viable cause of action for the statutory penalties against LINA and that the
statute, referenced in §1132(c),3 does not provide penalties for failing to produce the type
of documents that plaintiff requested. Defendants also assert that for failing to produce
the documents requested – an update of defendants’ initial disclosures and prior
productions – the remedy would be a motion to compel and not a penalty claim.
Plaintiff now agrees to dismissal of Count IV. After reviewing the documents
produced December 29, 2014, plaintiff “determined that in light of Defendants’
production of at least most of the claim file,” Count IV is “no longer necessary” and
“agrees to the dismissal[.]” (Doc. 200, p. 3) (italics in original).
In view of plaintiff’s agreement to dismiss Count IV and because the documents
requested by the plaintiff have been produced, the defendants’ motion to dismiss Count
IV is GRANTED. See
 McCroan
 v.
 United
 Parcel
 Service,
 Inc.,
 2014
 WL
 4854184,
 *3

(N.D.
 Fla.
 Sept.
 29,
 2014)
 (finding
 that
 it
 was
 within
 the
 court’s
 discretion
 to
 dismiss

without
 discussion
 Counts
 I
 and
 II
 of
 the
 first
 amended
 complaint
 based
 on

McCroan’s
 response
 that
 he
 “is
 not
 pursuing
 claims
 of
 age
 discrimination
 or

worker’s
 compensation
 retaliation”
 but
 construing
 his
 response
 to
 mean
 that
 he
 was

still
 pursuing
 Count
 III
 for
 retaliation
 under
 the
 ADEA);

DONE and ORDERED this the 15th day of January 2015.
s/ Kristi K. DuBose
KRISTI K. DuBOSE
STATES DISTRICT JUDGE

2
Relevant to this motion, § 1132(c)(1) provides for a monetary civil penalty against an
administrator who refuses to comply with requests for information, which the
administrator is required by statute or regulation to furnish to a participant or beneficiary.

3
Defendants argue that none of the documents requested by plaintiff are identified in the
statute, and therefore defendant LINA cannot be subject to the penalties.

2