Krieger v. Nationwide Mutual Insurance Company et al

Filing 74

ORDER denying 67 Plaintiff's Motion for Reconsideration. Signed by Judge David G Campbell on 5/7/12.(DMT)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Kory Dean Krieger, No. CV11-01059-PHX-DGC Plaintiff, 10 11 v. 12 ORDER Nationwide Mutual Insurance Company, Defendant. 13 14 15 Plaintiff Kory Dean Krieger has filed a motion for reconsideration of the Court’s 16 March 27, 2012 order (Doc. 65) granting summary judgment in favor of Defendant 17 Nationwide Mutual Insurance Company and denying Plaintiff’s motion to strike, motion 18 for preliminary injunction, and motion for leave to file an amended complaint. Doc. 67. 19 The Court ordered a response to the motion (Doc. 68), and Defendant has complied 20 (Doc. 72). The Court will deny the motion.1 21 Motions for reconsideration are disfavored and should be granted only rarely. See 22 Stetter v. Blackpool, No. CV 09-1071-PHX-DGC, 2009 WL 3348522, at *1 (D. Ariz. 23 Oct. 15, 2009). Courts in this district have identified four circumstances where a motion 24 for reconsideration will be granted: (1) the moving party has discovered material 25 differences in fact or law from those presented to the Court at the time of its initial 26 decision, and the party could not previously have known of the factual or legal 27 1 28 Doc. 73. Plaintiff has filed supplemental exhibits to his motion for reconsideration. 1 differences through the exercise of reasonable diligence, (2) new material factual events 2 have occurred after the Court’s initial decision, (3) there has been a material change in 3 the law after the Court’s initial decision, or (4) the moving party makes a convincing 4 showing that the Court failed to consider material facts that were presented to the Court 5 at the time of its initial decision. 6 Contractors, Inc., 215 F.R.D. 581, 586 (D. Ariz. 2003). See, e.g., Motorola, Inc. v. J.B. Rodgers Mech. 7 This case relates to Defendant’s February 28, 2011 termination of Plaintiff’s long 8 term disability benefits due to a 24-month limitation that applied under the terms of the 9 relevant benefits plan (“the Plan”). Doc. 1, ¶ 13. On March 27, 2012, the Court denied 10 Plaintiff’s benefits claim as moot because Plaintiff’s benefits had been reinstated 11 retroactive to February 28, 2011. See Doc. 65, at 5-6. 12 Plaintiff now comes forward with evidence that his long term disability benefits 13 have been terminated a second time, as of February 29, 2012.2 See Doc. 67, at 10-14. 14 The Plan provides that “[a]ny [long term disability] that results from a substantial change 15 in condition due to an Illness that occurs after the date Long-Term Disability Income 16 Benefits begin is not considered an Eligible Disability, unless determined by the Plan 17 Administrator to be medically related to an Eligible Disability.” 18 Plaintiff’s benefits were terminated on February 29, 2012 because of “inadequate 19 objective medical documentation that proves a causal relationship between the approved 20 LTD diagnoses and the information reflected in radiological reports[.]” Id. Doc. 67, at 13. 21 Plaintiff urges the Court to reconsider its denial of Plaintiff’s benefits claim due to 22 the “capable of repetition, yet evading review” exception to mootness. That exception, 23 however, cannot be interpreted to include the risk of benefits termination under any 24 provision of the Plan. See Doc. 72, at 3-4 (“Because a long-term disability benefit claim 25 can last for decades, courts should not allow a single, perpetually active, lawsuit to 26 27 28 2 Plaintiff was notified of this second termination in a letter dated February 22, 2012 (Doc. 67, at 10), yet did not inform the Court of the second termination before the Court issued its March 27, 2012 order (Doc. 65). -2- 1 remain open for the presentation of separate disputes.”). Furthermore, the second 2 termination of benefits is based on a different Plan provision and different underlying 3 reasons than the initial termination that the Court considered in its March 27 order. 4 Plaintiff must first exhaust his administrative remedies with respect to the second 5 termination. See Diaz v. United Emp. Welfare Benefit Plan & Trust, 50 F.3d 1478, 1483 6 (9th Cir. 1995) (“[T]he general rule governing ERISA claims [is] that a claimant must 7 avail himself or herself of a plan’s own internal review procedures before bringing suit in 8 federal court.”). 9 Plaintiff asks the Court for leave to file an amended complaint based on 10 Defendant’s February 29, 2012 denial of his long term disability benefits. Doc. 67, at 5. 11 Plaintiff previously filed a motion for leave to amend on January 10, 2012. Doc. 50. 12 That motion provided no clear indication of the claim Plaintiff wished to assert, and the 13 Court denied the motion as untimely given the parties’ agreement that the case required 14 no discovery and should be resolved by summary judgment. See Doc. 65, at 14-16. 15 Allowing Plaintiff to revive this lawsuit by pursuing a new and different claim would 16 further prejudice Defendant. Such amendment would also be futile because, as noted 17 above, Plaintiff must first exhaust his administrative remedies with respect to his new 18 claim. See Foman v. Davis, 371 U.S. 178, 182 (1962) (leave to amend may be denied as 19 futile). Plaintiff’s request for leave to amend is therefore denied. If Plaintiff is to pursue 20 a claim based on the recent termination of benefits, it must be in a new action filed after 21 Plaintiff has exhausted his administrative remedies. 22 IT IS ORDERED that Plaintiff’s motion for reconsideration (Doc. 67) is denied. 23 Dated this 7th day of May, 2012. 24 25 26 27 28 -3-

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