Estate of Charles Wasden et al v. Citizens Communications et al

Filing 71

ORDER ADOPTING 56 REPORT AND RECOMMENDATIONS. Plaintiff's motion to remand is denied (doc. 27); The motions to dismiss (13,23) are granted and Plaintiffs' state law claims are dismissed; the motion to strike (docs 17, 23) are granted; defendant's motion to dismiss for failure to state a claim (doc. 17) is now moot because Lincoln has been dismissed per doc. 69. Signed by Judge Kristi K. DuBose on 6/5/2013. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ESTATE OF CHARLES WASDEN, by and
through Executrix Myrtlean Wasden, and
MYRTLEAN WASDEN, individually as the
beneficiary of the insurance policy
referenced herein,

)
)
)
)
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Plaintiff,
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vs.
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CITIZENS COMMUNICATIONS d/b/a
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FRONTIER COMMUNICATIONS and/or )
FRONTIER CORPORATION, successor
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corporation to Monroeville Telephone
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Company, Inc., f/d/b Monroe Telephone
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Company, et al,
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Defendants.
)

CIVIL ACTION NO. 13-0002-KD-B

ORDER
This action is before the Court on the report and recommendation of the Magistrate Judge
(doc. 56) and the objections filed by Plaintiffs Estate of Charles Wasden, by and through
Executrix Myrtlean Wasden, and Myrtlean Wasden, individually (doc. 64-66). The Plaintiffs fail
to make any viable argument that the benefit sought is not governed by the Employee Retirement
Income Security Act (ERISA). Title 29 U.S.C. § 1002(1) provides that ERISA governs “any
plan, fund or program . . . established or maintained by an employer” to provide benefits to an
employee through an insurance policy. The March 4, 1998 letter which forms the basis of
Plaintiffs’ claims clearly refers to an ERISA-governed benefit. The fact that the underlying
terms of the Plan are in dispute, or perhaps unknown, does not change the fact that it is an
employer provided insurance benefit which is governed by ERISA.
Accordingly, after due and proper consideration of all portions of this file deemed

relevant to the issues raised, and a de novo determination of those portions of the Report and
Recommendation to which objection is made, the Report and Recommendation of the Magistrate
Judge made under 28 U.S.C. § 636(b)(1)(B) is ADOPTED1 as the opinion of this Court.
Therefore, it is ORDERED that
1) Plaintiffs’ motion to remand (doc. 27) is DENIED;
2) Defendants Citizens Communications and Prudential Insurance Company’s motions to
dismiss (docs. 13, 23) are GRANTED and Plaintiffs’ state law claims are dismissed;
3) Defendants Citizens Communications and Lincoln National Life Insurance Company’s
motions to strike Plaintiffs’ claim for extra-contractual damages and demand for a jury trial
(docs. 17, 23) are GRANTED; and
4) Defendant Lincoln’s motion to dismiss (doc. 17) for failure to state a claim is now
MOOT because Lincoln has been dismissed without prejudice from this action by separate order
pursuant to the notice of dismissal (doc. 69).
Done and ordered this the 5th day of June 2013.
s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

1

The undersigned does not adopt the report and recommendation to the extent that it
could be interpreted as making any finding that the July 1991 letter provides for the terms of the
plan or policy referenced in the March 1998 letter.

2