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)

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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. ) ) ) ) ) ) ) ) ) ) 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  

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