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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kory Dean Krieger,

No. CV11-01059-PHX-DGC
Plaintiff,

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v.

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ORDER

Nationwide Mutual Insurance Company,
Defendant.

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Plaintiff Kory Dean Krieger has filed a motion for reconsideration of the Court’s

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March 27, 2012 order (Doc. 65) granting summary judgment in favor of Defendant

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Nationwide Mutual Insurance Company and denying Plaintiff’s motion to strike, motion

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for preliminary injunction, and motion for leave to file an amended complaint. Doc. 67.

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The Court ordered a response to the motion (Doc. 68), and Defendant has complied

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(Doc. 72). The Court will deny the motion.1

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Motions for reconsideration are disfavored and should be granted only rarely. See

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Stetter v. Blackpool, No. CV 09-1071-PHX-DGC, 2009 WL 3348522, at *1 (D. Ariz.

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Oct. 15, 2009). Courts in this district have identified four circumstances where a motion

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for reconsideration will be granted: (1) the moving party has discovered material

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differences in fact or law from those presented to the Court at the time of its initial

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decision, and the party could not previously have known of the factual or legal

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Doc. 73.

Plaintiff has filed supplemental exhibits to his motion for reconsideration.

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differences through the exercise of reasonable diligence, (2) new material factual events

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have occurred after the Court’s initial decision, (3) there has been a material change in

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the law after the Court’s initial decision, or (4) the moving party makes a convincing

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showing that the Court failed to consider material facts that were presented to the Court

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at the time of its initial decision.

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Contractors, Inc., 215 F.R.D. 581, 586 (D. Ariz. 2003).

See, e.g., Motorola, Inc. v. J.B. Rodgers Mech.

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This case relates to Defendant’s February 28, 2011 termination of Plaintiff’s long

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term disability benefits due to a 24-month limitation that applied under the terms of the

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relevant benefits plan (“the Plan”). Doc. 1, ¶ 13. On March 27, 2012, the Court denied

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Plaintiff’s benefits claim as moot because Plaintiff’s benefits had been reinstated

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retroactive to February 28, 2011. See Doc. 65, at 5-6.

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Plaintiff now comes forward with evidence that his long term disability benefits

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have been terminated a second time, as of February 29, 2012.2 See Doc. 67, at 10-14.

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The Plan provides that “[a]ny [long term disability] that results from a substantial change

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in condition due to an Illness that occurs after the date Long-Term Disability Income

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Benefits begin is not considered an Eligible Disability, unless determined by the Plan

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Administrator to be medically related to an Eligible Disability.”

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Plaintiff’s benefits were terminated on February 29, 2012 because of “inadequate

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objective medical documentation that proves a causal relationship between the approved

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LTD diagnoses and the information reflected in radiological reports[.]” Id.

Doc. 67, at 13.

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Plaintiff urges the Court to reconsider its denial of Plaintiff’s benefits claim due to

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the “capable of repetition, yet evading review” exception to mootness. That exception,

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however, cannot be interpreted to include the risk of benefits termination under any

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provision of the Plan. See Doc. 72, at 3-4 (“Because a long-term disability benefit claim

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can last for decades, courts should not allow a single, perpetually active, lawsuit to

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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).
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remain open for the presentation of separate disputes.”).

Furthermore, the second

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termination of benefits is based on a different Plan provision and different underlying

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reasons than the initial termination that the Court considered in its March 27 order.

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Plaintiff must first exhaust his administrative remedies with respect to the second

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termination. See Diaz v. United Emp. Welfare Benefit Plan & Trust, 50 F.3d 1478, 1483

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(9th Cir. 1995) (“[T]he general rule governing ERISA claims [is] that a claimant must

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avail himself or herself of a plan’s own internal review procedures before bringing suit in

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federal court.”).

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Plaintiff asks the Court for leave to file an amended complaint based on

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Defendant’s February 29, 2012 denial of his long term disability benefits. Doc. 67, at 5.

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Plaintiff previously filed a motion for leave to amend on January 10, 2012. Doc. 50.

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That motion provided no clear indication of the claim Plaintiff wished to assert, and the

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Court denied the motion as untimely given the parties’ agreement that the case required

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no discovery and should be resolved by summary judgment. See Doc. 65, at 14-16.

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Allowing Plaintiff to revive this lawsuit by pursuing a new and different claim would

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further prejudice Defendant. Such amendment would also be futile because, as noted

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above, Plaintiff must first exhaust his administrative remedies with respect to his new

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claim. See Foman v. Davis, 371 U.S. 178, 182 (1962) (leave to amend may be denied as

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futile). Plaintiff’s request for leave to amend is therefore denied. If Plaintiff is to pursue

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a claim based on the recent termination of benefits, it must be in a new action filed after

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Plaintiff has exhausted his administrative remedies.

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IT IS ORDERED that Plaintiff’s motion for reconsideration (Doc. 67) is denied.

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Dated this 7th day of May, 2012.

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