Lopez-Prillwitz v. Walmart Stores, Inc. et al
MEMORANDUM OPINION AND ORDER. Signed by Honorable Robert T. Dawson on March 2, 2012. (src)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS
Civil No. 11-5280
WALMART STORES, INC. and
USABLE CORPORATION d/b/a BLUE
ADVANTAGE ADMINISTRATORS OF ARKANSAS,
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action pursuant to the provisions of
the Employee Retirement Income Security Act of 1974 (“ERISA”),
Defendant and seeking damages and attorney fees.
The action was
Arkansas, but removed to this Court on December 21, 2011, by
defendant Wal-Mart Stores, Inc. Associates’ Health and Welfare
Currently before the Court are Defendant’s Motion to
Dismiss or Alternative Motion for Summary Judgment (Doc. 4),
Brief in Support of Motion (Doc. 5), Plaintiff’s Response (Doc.
6) and Defendant’s Reply (Doc. 9).
Also before the Court is
Defendant’s Motion to Strike Plaintiff’s Response.
Defendant states that Plaintiff has incorrectly named “WalMart
Stores, Inc.” as a defendant in this matter and that the proper
party name is “Wal-Mart Stores, Inc. Associates’ Health and
Welfare Plan.” (Doc. 4).
Judgment is GRANTED and its Motion to Strike is DENIED as moot.
Plaintiff is an employee of Wal-Mart and a participant in
The Wal-Mart Stores, Inc. Associates’ Health and Welfare Plan
(Doc. 1, ¶ 7).
On or about June 24, 2010,
Plaintiff was involved in a motor-vehicle collision, in which he
sustained physical injuries2.
(Doc. 1, ¶ 12, 13).
On September 26, 2011, Plaintiff’s attorney, on behalf of
the Plaintiff, mailed to the Defendant employer and the Plan a
copy of his healthcare records for treatment and bills in the
amount of $8,029.50.
(Doc. 1, ¶ 14). When Wal-Mart did not
respond, Plaintiff filed a Complaint alleging that the Plan’s
Although not set out
in his complaint, Plaintiff presumably
claims for benefits under the Plan; in support of its
Motion to Dismiss, Defendant submitted two Explanations of
Benefits (EOB) which relate to service on the date Plaintiff was
(Doc. 4, Ex. B).
Page 1 of Ex. B is for ambulance
services provided on June 24, 2010, and durable medical
equipment supplied on June 24, 2010, in the amount of $417.50.
The service provider is listed as “Bentonville Fire &
Ambulance.” The explanation code reads: “Coverage criteria for
ambulance services was not satisfied” and indicates that the
Plaintiff is responsible for the entire amount of the claim
total. Page 2 is for radiology services provided by David Shane
McAlister, MD on June 24, 2010, in the amount of $39.00.
explanation code reads:
“Claim exceeds provider timely filing
period—member not responsible” and indicates that Plaintiff’s
minimum responsibility is $0.00.
benefits violates the provisions of ERISA and the provisions of
the plan itself.”
(Doc. 1, ¶ 18).
This matter is now before the Court on motion of Defendants
judgment. (Doc. 4).
Plaintiff responded to Defendant’s motion
outside the Court’s fourteen day time limit, and Defendant has
moved to have the response stricken from the record as untimely
Response, the Court has considered the arguments and authority
remedies is required in the context of a denial of benefits
U.S.C. § 2560.503-1(f) and (g)as long as the employee has notice
of the procedure.
Wert v. Liberty Life Assurance Company of
Boston, Inc., 447 F.3d 1060 (8th Cir. 2006).
itself contains no exhaustion requirement, beneficiaries must
mandated by the ERISA plan at issue.
Midgett v. Washington
Group Intern. Long Term Disability Plan, 561 F.3d 887, 898 (8th
The EOBs provided by Defendant to Plaintiff following the
denial of his claims for benefits state:
“You may request a
review of a denial of benefits or any claim or portion of a
claim by sending a written appeal to the Appeals Department
(Doc. 5, Ex. 2).
The Plan at issue in this action requires benefit claimants
determination before challenging that determination in court.
The Summary Plan Description3 states:
initial claim for benefits under the Plan within 12 months from
claims and appeals process described in the Claims and appeals
When considering a motion to dismiss under Fed.R.Civ.P.
12(b)(6), the Court generally must ignore materials outside the
pleadings. However, the Court may consider “some materials that
are part of the public record or do not contradict the
complaint,” Missouri ex rel. Nixon v. Coeur D'Alene Tribe, 164
F.3d 1102, 1107 (8th Cir. 1999), as well as materials that are
“necessarily embraced by the pleadings.” Piper Jaffray Cos. v.
Nat'l Union Fire Ins. Co., 967 F.Supp. 1148, 1152 (D.Minn.1997).
See also 5C Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure: Civil 3d § 1366, at 184-86 (2004)
(providing that a court may consider “exhibits that are attached
to the pleading, matters of which the district court can take
judicial notice, and items of unquestioned authenticity that are
referred to in the challenged pleading and are ‘central’ or
‘integral’ to the pleader's claim for relief”). While Defendant
attached the Summary Plan Description to its Motion to Dismiss,
it is noted that Plaintiff’s Complaint stated “The Defendants
are in exclusive possession of the Summary Plan Description, and
therefore good cause exists to omit attaching it.” (Doc. 1, ¶
chapter before you may bring legal action....”
“You may not
file a lawsuit for benefits if the initial claim or appeal is
procedures of the Plan.”
“You must file any lawsuit for benefit
within 180 days after the final decision on appeal (whether by
the Plan or after external review).
You may not file suit after
that 180-day period expires.”)(Doc. 5, Ex. 1)(emphasis added).
Plaintiff stipulates that he has not filed any appeals for his
claims at issue with Defendants.
Even given the
arguably permissive language in the EOB, Plaintiff was put on
notice of the review procedure.
The Eighth Circuit has found
that an explicit statement regarding exhaustion is not required.
Wert at 1065.
”In no case has our court excused a failure to
language described a review procedure as permissive rather than
under the plan at issue in this case, and Plaintiff did not
pursue his administrative remedies before seeking relief from
the federal court.
"futility," the core of his argument is that Defendant’s failure
opportunity...for a full and fair review" excuses
his failure to exhaust.
ERISA plan beneficiaries are required
to exhaust their claims where there is notice of an available
review procedure and where there is no showing that exhaustion
would be futile.
An administrative remedy will be deemed futile
if there is doubt about whether the agency could grant effective
relief. Midgett at 898.
Unsupported and speculative claims of
futility do not excuse a claimant's failure to exhaust his or
her administrative remedies. Id.
Defendant’s Plan appears to comply with all statutory and
regulatory requirements for reasonable claim procedures. See 29
U.S.C. § 1133 (requiring adequate notice in writing of claim
denials and "a reasonable opportunity" for a "full and fair
denying the claim."); and 29 C.F.R. § 2560.503-1(f) (requiring
plans to "establish and maintain a procedure by which a claimant
shall have a reasonable opportunity to appeal an adverse benefit
determination to an appropriate named fiduciary of the plan, and
under which there will be a full and fair review of the claim
and the adverse benefit determination.")
The Court concludes that Plaintiff failed to exhaust his
administrative remedies and that such failure is fatal to his
His claim must be dismissed.
GRANTED and Plaintiff’s Complaint (Doc. 1) is DISMISSED WITHOUT
Defendant’s Motion to Strike (Doc. 4) is DENIED as
All parties are to bear their own costs and fees.
IT IS SO ORDERED this 2nd Day of March, 2012.
/s/ Robert T. Dawson
Honorable Robert T. Dawson
United States District Judge
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