Deman v. Allied Administrators, Inc et al

Filing 40

ORDER by Judge Samuel Conti GRANTING 27 Motion for Judgment on the Pleadings or, in the Alternative, Motion for Summary Judgment, and DENYING Motion for Attorney Fees; DENYING AS MOOT 32 MOTION to Strike, 37 Ex Parte Application to Vacate Jury Trial, and 39 Ex Parte Application to Continue Trial Date (sclc2, COURT STAFF) (Filed on 1/24/2012)

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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 RUSSELL L. DEMAN, 8 Plaintiff, 9 v. For the Northern District of California United States District Court 10 ALLIED ADMINISTRATORS, INC., NORTHERN CALIFORNIA TILE INDUSTRY TRUST FUNDS, SHARON TURNER, and LINDA MARTINEZ, 11 12 13 Defendants. 14 15 I. 16 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 10-4109 SC ORDER RE: DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS OR SUMMARY JUDGMENT, DEFENDANTS' MOTION TO STRIKE, AND DEFENDANTS' EX PARTE APPLICATION TO VACATE JURY TRIAL AND SET CASE FOR BENCH TRIAL INTRODUCTION This case concerns claims arising under the Employee 17 Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 et seq. 18 ("ERISA"), brought by Plaintiff Russell L. Deman ("Plaintiff" or 19 "Deman") against Defendants Allied Administrators, Inc., Northern 20 California Tile Industry Trust Funds, Sharon Turner, and Linda 21 Martinez (collectively, "Defendants"). 22 claims: (1) denial of benefits under 29 U.S.C. § 1132(a)(1)(B);1 23 (2) breach of fiduciary duty under § 1132(a)(2); and (3) delay in 24 providing required information under § 1132(c)(1)(B). 25 The FAC asserts three Defendants move for judgment on the pleadings with respect to 26 the second and third claims and summary judgment with respect to 27 1 28 All further statutory citations refer to Title 29 of the United States Code. 1 the first claim. ECF No. 27 ("Mot."). 2 award of attorney fees and costs. 3 motion, Defendants have filed (1) an ex parte application to vacate 4 the jury trial scheduled for this case and set it for bench trial, 5 ECF No. 37, and (2) a motion to strike portions of Plaintiff's 6 declaration supporting his opposition brief, ECF No. 32. Id. Defendants also move for an Separate from the present Pursuant to Civil Local Rule 7-1(b), the Court finds this case 7 8 suitable for decision without oral argument. For the reasons set 9 forth below, the Court GRANTS Defendants' motion for judgment on United States District Court For the Northern District of California 10 the pleadings, GRANTS Defendants' motion for summary judgment, and 11 DENIES AS MOOT Defendants' ex parte application and motion to 12 strike. 13 claim is DISMISSED WITHOUT PREJUDICE and not on the merits, and his 14 second and third claims are DISMISSED WITH PREJUDICE. Consistent with Ninth Circuit precedent, Plaintiff's first 15 16 II. BACKGROUND 17 A. 18 Plaintiff Russell Deman began working for a tile company in 19 1956.2 The Parties ECF No. 18 ("FAC") § 5. No later than the end of 1961 he 20 21 22 23 24 25 26 27 28 2 For purposes of a motion for judgment on the pleadings, all of the nonmovant's factual allegations must be taken as true. Nevertheless, Plaintiff's FAC is no model of clarity. Solely to provide background, the Court supplements the FAC's allegations with the account contained in Defendant's Motion, which in turn is derived from the administrative record. The administrative record consists of exhibits attached to the declaration of Polly Baney. ECF No. 28 ("Baney Decl.") and Exs. 1-6 ("AR"). For purposes of a summary judgment motion, the Court not only may consider evidence outside of the pleadings, but must consider the administrative record. See, e.g., Graeber v. Hewlett Packard Co. Employee Benefits, 421 F. Supp. 2d 1246, 1252 (N.D. Cal. 2006). The Court is cognizant of Plaintiff's numerous objections to Baney's declaration and its exhibits. ECF No. 29; Opp'n at 2-13. They are not well-founded. To the extent that Plaintiff objects to Baney's declaration for lack of personal knowledge, the objection 2 1 had joined a union and begun to participate in its pension plan. 2 Mot. at 2. 3 mergers, Defendant Northern California Tile Industry Pension Plan 4 ("Plan"), a defined benefit plan governed by ERISA. That pension plan has become, through a series of Id. The Plan is administered by a Board of Trustees, currently the 5 6 board of Defendant Northern California Tile Industry Trust Funds 7 ("Board"). 8 to manage the Plan. 9 Linda Martinez ("Martinez") are employees of Allied Administrators. Id. The Board employs Defendant Allied Administrators Id. Defendants Sharon Turner ("Turner") and United States District Court For the Northern District of California 10 Baney Decl. § 51. Turner signed a November 17, 2009, letter 11 stating that Plaintiff was ineligible for benefits. 12 that letter, she indicated that Plaintiff's counsel could call her 13 or Martinez with any questions. AR at 81. In Id. 14 B. 15 In September 1992, Deman wrote a letter to his pension plan, a The Dispute 16 forerunner of the current Plan, seeking information about his 17 retirement and pension benefits. 18 with a copy of Deman's letter, but it is clear that the plan sent 19 him a letter in response ("the 1992 Letter"), informing him that he 20 was not eligible for benefits at that time. 21 ¶ 6. 22 23 24 25 26 27 28 Neither party has come forward AR at 85; see also FAC The 1992 letter explained that Deman's pension benefit would is OVERRULED. The declaration itself establishes Baney's personal knowledge that the documents constitute the administrative record of Deman's case. Federal Rule of Evidence ("FRE") 603. To the extent that Plaintiff objects to the exhibits attached to Baney's declaration as hearsay, the objection is OVERRULED. The exhibits are business records and Baney is their custodian. FRE 804(6). To the extent that Plaintiff objects to Baney's declaration on the ground that she offers expert testimony without having been qualified as an expert, the objection is OVERRULED. Baney's declaration is not expert in nature. To the extent that Plaintiff objects to lay opinions and legal conclusions contained in Baney's declaration, the objection is SUSTAINED. The Court has not considered Baney's lay opinions or legal conclusions. 3 1 vest after he accumulated 15 credits. 2 by working for a qualifying union employer a certain number of 3 hours per year; the employer then reported the hours to the plan. 4 The 1992 letter explained that due to breaks in service -- that is, 5 periods of consecutive years in which no employer reported hours to 6 the plan for Deman -- all of Deman's credits had been lost. 7 also stated that Deman could still qualify for a pension if he 8 "return[ed] to covered employment." 9 purported to enclose documents describing "the procedures you United States District Court For the Northern District of California 10 Participants earned credits AR at 86. It The letter should follow if you wish to appeal this decision." Id. 11 Plaintiff appears to have taken no further action until August 12 31, 2009, when his attorney faxed a letter to Martinez stating that 13 he represented Deman and requesting a copy of Deman's work record 14 and information about his pension eligibility. 15 November 17, 2009, Turner responded, asserting that the 1999 letter 16 was correct and that if Deman "does not agree with the record 17 provided and has supporting written documentation, please provide 18 [it]." 19 that Deman did so before filing this lawsuit in August 2010, nor 20 does he allege that he did. Id. at 81. Id. at 84. On The administrative record does not disclose 21 C. The Claims 22 In a previous order dismissing Deman's initial Complaint, the 23 Court set forth the procedural history of this case's initial 24 filing in state court and subsequent removal to federal court. 25 ECF No. 16 ("Order"). 26 /// 27 /// 28 /// See Plaintiff filed the First Amended Complaint 4 1 on January 13, 2011. 2 January 24, 2011. ECF No. 18. Defendants filed an Answer on ECF No. 20 ("Answer").3 3 Because Defendants move for judgment on the pleadings, and 4 Plaintiff's FAC is less than clear, the Court reviews the FAC's 5 claims here. 6 legal theories need not be pleaded so long as sufficient factual 7 averments show that the claimant may be entitled to some relief." 8 Young v. City of Visalia, 687 F. Supp. 2d 1141, 1145 (E.D. Cal. 9 2009) (quoting Fontana v. Haskin, 262 F.3d 871, 877 (9th Cir. In doing so, the Court is mindful that "[s]pecific United States District Court For the Northern District of California 10 2001)); see also Ronald J. Cook, 2 ERISA Practice and Procedure § 11 8:8 ("[C]ourts generally examine actions for benefits with some 12 liberality and do not hesitate to look behind the allegations of 13 the pleadings to see if an action . . . can be stated."). The FAC asserts, first, that the present action arises under 14 15 ERISA -- specifically, under §§ 1132(a)(1)(B) and 1132(c). 16 1. 17 19 20 22 23 24 25 Section 1132(a)(1)(B) provides: A civil action may be brought . . . by a participant or beneficiary . . . to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan[.] 18 21 FAC ¶ Section 1132(c) primarily describes the powers of the Secretary of Labor (as opposed to private individuals) to issue fines for a plan's failure to supply requested information. However, one subsection, § 1132(c)(1)(B), provides plan participants with a right to recover statutory damages for a plan administrator's failure to supply requested information "within 30 26 27 28 3 In an apparent clerical error, Defendants filed two documents designated as Answers to the First Amended Complaint. The Court considered only the second-filed document, ECF No. 20. 5 § 1132(c)(1)(B).4 1 days after such request . . . ." Although Deman 2 does not specify that his claim for relief arises from § 3 1132(c)(1)(B), he alleges in his FAC that he requested information 4 from Defendants on August 31, 2009, and that Defendants failed to 5 respond until December 2, 2009. 6 of those facts, the Court construes the pleading as asserting a 7 claim under § 1132(c)(1)(B). FAC ¶¶ 7, 8, 18, 19. On the basis expressly asserts, Deman also has asserted a claim for breach of 10 United States District Court Defendants assume that, in addition to the two claims Deman 9 For the Northern District of California 8 fiduciary duty arising under either § 1132(a)(2) or § 1132(a)(3). 11 See Mot. at 10-12; see also FAC §§ 13, 14. 12 have to be implied from the pleading since the FAC does not mention 13 §§ 1132(a)(2) or 1132(a)(3). Any such claim would The Court construes the FAC as intending to allege a claim 14 15 under § 1132(a)(2) but not under § 1132(a)(3). 16 provides that a plan participant may sue for appropriate relief 17 under § 1109. 18 Section 1132(a)(2) Section 1109, in turn, provides in relevant part: Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this subchapter shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate, including removal of such fiduciary. 19 20 21 22 23 24 25 26 27 28 4 The subsection sets forth various additional terms, only one of which is relevant here: it makes the award of damages or other relief under this subsection a matter of discretion for the district court. See § 1132(c)(1)(B). As discussed in Section IV.C, infra, district courts generally require a § 1132(c)(1)(B) claimant to show prejudice. See Kaiser Permanente Employees Pension Plan v. Bertozzi, 849 F. Supp. 692, 702 (N.D. Cal. 1994). 6 1 The Court notes that Plaintiff prays for general and special 2 damages, which is not inconsistent with the remedial scheme 3 contemplated by § 1109 and hence with a § 1132(a)(2) claim. 4 Wise v. Verizon Commc'ns, Inc., 600 F.3d 1180, 1190 (9th Cir. 2010) 5 (interpreting putatively equitable claim for recovery of past and 6 future benefits as one for money damages). 7 construes the FAC as alleging a claim under § 1132(a)(2). Accordingly, the Court Section 1132(a)(3), on the other hand, is a "catchall or 8 9 Cf. safety net" provision providing equitable relief, and only United States District Court For the Northern District of California 10 equitable relief, for breaches of fiduciary duty not otherwise 11 remedied by ERISA. 12 equitable relief; he seeks only money damages. 13 for relief). 14 and are not an available remedy under ERISA's equitable safety 15 net." 16 Because Deman's FAC does not expressly assert a claim under § 17 1132(a)(3) or seek the relief contemplated there, the Court does 18 not construe the FAC to assert a § 1132(a)(3) claim. 19 20 Id. at 1190. Plaintiff does not pray for FAC at 6-7 (prayer "Money damages are the classic form of legal relief, Wise, 600 F.3d at 1190 (internal quotation marks omitted). To summarize, the Court finds that the FAC asserts the following three ERISA claims against Defendants: 21 (1) for general and special damages under § 1132(a)(1)(B); 22 (2) for general and special damages under § 1132(a)(2); and 23 (3) for statutory damages under § 1132(c)(1)(B). 24 25 III. Legal Standards 26 A. 27 "After the pleadings are closed -- but early enough not to 28 delay trial -- a party may move for judgment on the pleadings." Judgment on the Pleadings 7 1 Fed. R. Civ. P. 12(c). "Judgment on the pleadings is proper when 2 the moving party clearly establishes on the face of the pleadings 3 that no material issue of fact remains to be resolved and that it 4 is entitled to judgment as a matter of law." 5 Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 6 1990). 7 matter, accepted as true, to state a claim to relief that is 8 plausible on its face. 9 2009); see also Cafasso, U.S. ex rel. v. General Dynamics C4 Hal Roach Studios, Moreover, the pleading must contain sufficient factual Johnson v. Rowley, 569 F.3d 40, 44 (2d Cir. United States District Court For the Northern District of California 10 Systems, Inc., 637 F.3d 1047, 1055 n.4 (9th Cir. 2011) (citing 11 Johnson with approval). 12 "Judgment on the pleadings is improper when the district court 13 goes beyond the pleadings to resolve an issue; such a proceeding 14 must properly be treated as a motion for summary judgment." 15 see also Fleming v. Pickard, 581 F.3d 922, 925 n.4 (9th Cir. 2009) 16 (refusing to consider supporting declarations in deciding motion 17 for judgment on the pleadings). Id.; 18 B. Summary Judgment 19 Entry of summary judgment is proper "if the movant shows that 20 there is no genuine dispute as to any material fact and the movant 21 is entitled to judgment as a matter of law." 22 56(a). 23 admissible at trial. 24 judgment should be granted if the evidence would require a directed 25 verdict for the moving party. 26 U.S. 242, 251 (1986). 27 summary judgment . . . against a party who fails to make a showing 28 sufficient to establish the existence of an element essential to Fed. R. Civ. P. The district court may consider only evidence that would be See Fed. R. Civ. P. 56(c)(2). Summary Anderson v. Liberty Lobby, Inc., 477 Thus, "Rule 56[] mandates the entry of 8 1 that party's case, and on which that party will bear the burden of 2 proof at trial." 3 (1986). 4 justifiable inferences are to be drawn in his favor." 5 477 U.S. at 255. 6 evidence in support of the [nonmovant]'s position will be 7 insufficient; there must be evidence on which the jury could 8 reasonably find for the [nonmovant]." Celotex Corp. v. Catrett, 477 U.S. 317, 322 "The evidence of the nonmovant is to be believed, and all Anderson, However, "[t]he mere existence of a scintilla of Id. at 252. 9 United States District Court For the Northern District of California 10 IV. DISCUSSION 11 A. 12 As explained in Section II.C supra, the FAC asserts a § Deman's § 1132(a)(1)(B) Claim for Denial of Benefits 13 1132(a)(1)(B) claim. 14 judgment rather than judgment on the pleadings. 15 On that claim, Defendants move for summary Mot. at 12. Defendants argue that they are entitled to summary judgment 16 because (1) Deman's claim is both statutorily and contractually 17 time-barred as a result of the 1992 letter; (2) Deman has failed to 18 file a formal claim and thus failed to exhaust his administrative 19 remedies; and (3) the 1992 letter constituted a reasonable decision 20 that Deman cannot successfully challenge under the "arbitrary and 21 capricious" standard of review. 22 below, the Court needs only to address the first two. 23 i. See id. at 12. As set forth The Court Cannot Determine as a Matter of Law that 24 Deman's Claim for Benefits Is Time-Barred. 25 Defendants argue that Deman's claims are both statutorily and 26 contractually time-barred. As the Ninth Circuit recently explained 27 in Withrow v. Halsey, 655 F.3d 1032, 1035 (9th Cir. 2011), the two 28 bars are distinct. The statutory time bar arises from cases 9 1 interpreting ERISA. 2 second, distinct time limitation which arises as a matter of 3 contract from the limitations term in the claimant's policy. 4 The statutory time limitation for claims arising in California, as 5 Deman's have, is four years. 6 Id. The contractual time bar imposes a Id. Id. at 1036. Defendants have not carried their burden of showing that 7 Deman's claims are time-barred. With respect to the statutory time 8 bar, Defendants must make a preliminary showing that Deman's § 9 1132(a)(1)(B) claim "accrued" -- that is, that the statute of United States District Court For the Northern District of California 10 limitations has started to run. 11 referencing the 1992 letter, that Deman's claim "accrued, if at 12 all, in 1992 . . . ." 13 14 15 16 17 18 19 20 Defendants argue, apparently Mot. at 14. The matter is not nearly so clear-cut. The Withrow court explained that [a]n ERISA cause of action accrues either at the time benefits are actually denied, or when the insured has reason to know that the claim has been denied. A claimant has a “reason to know” under the second prong of the accrual test when the plan communicates a clear and continuing repudiation of a claimant's rights under a plan such that the claimant could not have reasonably believed but that his or her benefits had been finally denied. 21 655 F.3d at 1036 (citations and quotation marks omitted). 22 Defendants do not argue that Deman's claim for benefits has been 23 "actually denied," and such a position would be inconsistent with 24 their argument that Deman never submitted a claim, see Section 25 IV.A.ii infra. 26 on the "reason to know" prong. 27 1992 letter communicated a clear and continuing repudiation of 28 Deman's rights such that he could reasonably believe only that his Instead, Defendants appear to rest their argument But it is far from obvious that the 10 1 benefits had been finally denied. 2 "still possible for [Deman] to qualify for a pension . . . ." 3 at 86. 4 "clear" repudiation of Deman's rights, tantamount to a final denial 5 of benefits. 6 he could still qualify for benefits. 7 The 1992 letter said that it was AR The Court cannot say that this language communicates a On the contrary, the 1992 letter informed Deman that Moreover, the Court cannot find a "continuing" repudiation on 8 the basis of one letter. Defendants cite out-of-circuit authority 9 for the proposition that "a" repudiation (that is, any repudiation) United States District Court For the Northern District of California 10 suffices to trigger ERISA's statutory time bar. Reply at 8. Such 11 a test would omit the Ninth Circuit's requirement of a "continuing" 12 repudiation. 13 showing of a clear and continuing repudiation. 14 before it, the Court cannot say that Deman's § 1132(a)(1)(B) claim 15 accrued in 1992 for the purposes of the statutory four-year bar. Defendants do not approach the requisite evidentiary Thus, on the record 16 Nor can the Court find on this record that no genuine dispute 17 exists concerning which iteration of the plan policy covered Deman 18 in 1992. 19 party will have the burden of proof on an issue at trial, the 20 movant must affirmatively demonstrate that no reasonable trier of 21 fact could find other than for the movant." 22 Life. Ins. Co., 700 F. Supp. 2d 1204, 1214 (E.D. Cal. 2010). 23 contractual bar Defendants seek to impose here is an affirmative 24 defense, Answer § 23, and as such Defendants would bear the burden 25 of proving it at trial. 26 Nonbargained Program, 718 F. Supp. 2d 1167, 1174-75. 27 summary judgment on this point, Defendants must "affirmatively 28 demonstrate" that the applicable policy bars Plaintiff's claim. On a motion for summary judgment, "[w]here the moving Dias v. Nationwide The See Barnes v. AT&T Pension Ben. Plan- 11 Thus, to win 1 Defendants have yet to make the prerequisite showing of which 2 policy applies. They assert that the 1992 letter contained a copy 3 of the benefits appeal procedures then in effect, denominated 4 "Article X of the Plan." 5 But nowhere do they demonstrate that this was the policy then in 6 effect. 7 summary judgment, Defendants can be read to equivocate on this 8 point, in that they provide alternate calculations under two 9 different iterations of the plan. Mot. at 6 (reciting Baney Decl. ¶ 34). Drawing inferences favorably to Deman, as required on See id. If evidence in the United States District Court For the Northern District of California 10 administrative record establishes which version of the policy 11 applies, Defendants do not cite to it. 12 court need consider only the cited materials . . . ." 13 P. 56(c)(3). 14 which version of the plan relied upon by Defendants, if either, 15 actually controlled in Deman's case. 16 On summary judgment, "[t]he Fed. R. Civ. The cited materials do not affirmatively demonstrate Deman has every right to put Defendants to the proof of their 17 affirmative defense and Defendants have not carried their burden. 18 Accordingly, the Court cannot say on the record before it that 19 Deman's claim for benefits is time-barred. 20 21 ii. Deman Has Not Exhausted His Administrative Remedies. It is axiomatic that, before suing under § 1132(a)(1)(B), an 22 ERISA claimant must challenge the denial of his or her benefits by 23 filing a claim and exhausting the internal administrative review 24 processes provided by his or her plan. 25 Employee Welfare Ben. Plan and Trust, 50 F.3d 1478, 1483 (9th Cir. 26 1995). 27 claimant can show, in a demonstration that goes beyond bare 28 assertion, that the administrative remedies are inadequate or that Diaz v. United Agr. Exceptions to the exhaustion doctrine exist where a 12 1 exhaustion would be futile. See id. at 1485-87. Defendants argue that Deman has not exhausted his 2 3 administrative remedies for the elementary reason that he has yet 4 to file a claim pursuant to the Plan's claim procedures. 5 12-14. 6 that Deman is a plan participant, that the plan provided 7 administrative remedies, and that Deman has not availed himself of 8 them. 9 presents no evidence that he has ever filed a claim. The Court agrees. MTS at The relevant material facts here are The first two facts are undisputed. As to the third, Deman The only United States District Court For the Northern District of California 10 evidence Deman has offered in this case is his own declaration in 11 support of his opposition brief. 12 Plaintiff's opposition brief addresses Defendants' exhaustion 13 argument, but the declaration is silent as to the existence of a 14 formal claim. 15 record's lack of any documents suggesting the existence of a claim, 16 let alone an appeal. 17 has never availed himself of the Plan's administrative remedies. See ECF No. 30 ("Deman Decl.").5 This silence is consistent with the administrative The only justifiable inference is that Deman Deman will have an opportunity to do so. 18 Though Defendants 19 have moved for summary judgment, the proper motion on which to 20 raise a claimant's failure to exhaust nonjudicial remedies is an 21 unenumerated Rule 12 motion to dismiss. 22 1108, 1119-1120 (9th Cir. 2003).6 23 appropriate resolution of a § 1132(a)(1)(B) claim like Deman's is 24 5 25 26 27 28 Wyatt v. Terhune, 315 F.3d Under that procedure, the Deman's declaration contains legal argument and opinion, both of which the Court disregards. Given the ultimate disposition of this case, Defendants' motion to strike portions of Deman's declaration and its exhibits, ECF No. 32, is DENIED AS MOOT. 6 The unenumerated Rule 12 motion is "a procedure closely analogous to summary judgment." Wyatt, 315 F.3d at 1120 n.14. Perceiving no difference between the two procedures in this case, the Court has considered Defendants' summary judgment motion as written. 13 1 to dismiss it as unripe -- without prejudice and not on the merits 2 -- to permit the claimant to develop a factual record and file a 3 formal claim with his pension plan. 4 California, No. CV 05-03324 DDP, 2009 WL 1586039, at *4 (C.D. Cal. 5 June 3, 2009). 6 judgment motion with respect to Deman's § 1132(a)(1)(B) claim and 7 dismisses that claim without prejudice. 8 operate as an adjudication on the merits. 9 Foster v. Blue Shield of Therefore, the Court GRANTS Defendants' summary This dismissal does not Wyatt, 315 F.3d at 1119. The Court does not reach Defendants' argument that the 1992 United States District Court For the Northern District of California 10 letter constituted a reasonable final determination of Deman's 11 entitlement to pension benefits. 12 B. 13 With respect to Deman's second claim, Defendants move for Deman's § 1132(a)(2) Claim for Breach of Fiduciary Duty 14 judgment on the pleadings rather than summary judgment. 15 therefore confines itself to reviewing only the FAC and the Answer. 16 Deman's second claim asserts that by denying benefits to Deman, 17 Defendants have breached fiduciary duties allegedly owed to him. 18 FAC § 13. 19 any fiduciary duties and that, even if they did, Deman's claim 20 under § 1132(a)(2) must fail because Deman is suing on his own 21 behalf rather than to recover losses incurred by the Plan itself. 22 Mot. at 8-11. 23 The Court Defendants respond that none of the Defendants owe Deman It is doubtful that Defendants owed Deman a fiduciary duty, 24 but the Court need not decide that question because Defendants' 25 second argument is clearly correct and provides a narrower ground 26 for decision. 27 a remedy for injuries to the ERISA plan as a whole, but not for 28 injuries suffered by individual participants as a result of a "The [§ 1132(a)(2)] claim for fiduciary breach gives 14 1 fiduciary breach." Wise, 600 F.3d at 1189. The FAC nowhere 2 alleges harm to the plan as a whole. 3 Plaintiff cites language which only confirms Defendants' point, in 4 that it speaks only of losses to Plaintiff. 5 FAC ¶¶ 10-11). 6 for judgment on the pleadings with respect to Plaintiff's § 7 1132(a)(2) claim and DISMISSES that claim WITH PREJUDICE. In his opposition brief, Opp'n at 16 (quoting Accordingly, the Court GRANTS Defendant's motion 8 C. 9 With respect to Deman's third claim, Defendants move for Deman's § 1132(c)(1)(B) Claim for Delay United States District Court For the Northern District of California 10 judgment on the pleadings rather than summary judgment. The Court 11 therefore confines itself to reviewing only the FAC and the Answer. 12 Deman's third claim, construed at Section II.C infra, asserts that 13 Defendants unlawfully delayed in responding to Deman's requests for 14 information. 15 7, 8, 18, and 19, which describe Deman sending a letter through 16 counsel on August 31, 2009, and receiving an answer on December 2, 17 2009. 18 responding to requests for information that ERISA requires an 19 administrator to furnish. 20 for statutory damages of $100 per day for every day after the 21 thirtieth; the award of any such damages or other relief is 22 committed to the discretion of the district court. 23 generally require a § 1132(c)(1)(B) claimant to show prejudice 24 resulting from the delay. 25 v. Bertozzi, 849 F. Supp. 692, 702 (N.D. Cal. 1994). The allegations supporting this charge are paragraphs Section 1132(c)(1)(B) imposes a thirty-day deadline for Section 1132(c)(1)(B) further provides District courts Kaiser Permanente Employees Pension Plan 26 The Court is not inclined to award relief in this case. 27 Plaintiff has not alleged any prejudice resulting from Defendants' 28 alleged delay. Nor does Plaintiff allege specifically which 15 1 information Defendants were required, but failed, to provide. 2 Consequently, the Court cannot determine what Plaintiff thought he 3 should have received or when the thirty day period would have 4 begun, if ever. 5 presented facts that would move the Court to exercise its 6 discretion to award Plaintiff damages. 7 Defendants' motion for judgment on the pleadings with respect to 8 Deman's § 1132(c)(1)(B) claim and DISMISSES it WITH PREJUDICE. 9 United States District Court For the Northern District of California 10 D. Plaintiff has not even stated a claim, let alone The Court GRANTS Defendants' Motion for Attorney Fees and Costs Defendants move for attorney fees and costs under § 1132(g). 11 That section commits the award of attorney fees and costs to the 12 discretion of the district court. 13 five factors to guide the district court's exercise of discretion: 14 (1) the degree of the opposing parties' culpability or bad faith; (2) the ability of the opposing parties to satisfy an award of fees; (3) whether an award of fees against the opposing parties would deter others from acting under similar circumstances; (4) whether the parties requesting fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA; and (5) the relative merits of the parties' positions. 15 16 17 18 19 20 21 The Ninth Circuit has set forth Hummell v. S. E. Rykoff & Co., 634 F.2d 453 (9th Cir. 1980). Considering these factors, the Court is not inclined to award 22 attorney fees and costs in this case. The Court cannot say that 23 Deman has acted culpably or that his positions must have appeared 24 meritless to him or to his counsel when viewed prospectively rather 25 than with the benefit of hindsight. 26 persuaded that Deman could satisfy an award of attorney fees. 27 Defendants make much of the deterrent aspect of attorney fee 28 awards. Moreover, the Court is not But deterrence cuts both ways. 16 In light of ERISA's policy appropriate to funnel plaintiffs like Deman into administrative 3 appeal procedures than to deter them from asserting their rights in 4 court in the first instance. 5 this point in the case -- though perhaps not at a later one -- 6 would risk over-deterrence, which may further the policies 7 underlying ERISA no better than under-deterrence would. 8 DENIES Defendants' motion for attorney fees and costs. 9 /// 10 United States District Court favoring administrative resolution of claims, it is more 2 For the Northern District of California 1 /// 11 /// 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// A grant of attorney fees and costs at 17 The Court 1 V. CONCLUSION For the reasons set forth above, the Court GRANTS Defendants' 2 claims under Sections 1132(a)(2) and 1132(c)(1)(B) and DISMISSES 5 those claims WITH PREJUDICE. 6 motion for summary judgment with respect to Plaintiff's claim under 7 Section § 1132(a)(1)(B) and DISMISSES that claim WITHOUT PREJUDICE. 8 This dismissal does not operate as an adjudication on the merits. 9 Before filing another claim under Section 1132(a)(1)(B), Plaintiff 10 must file a formal claim for pension benefits pursuant to the terms 11 provided by his plan and, if his claim is denied, exhaust his 12 administrative remedies or make a good faith argument explaining 13 why he is excused from doing so. The Court also GRANTS Defendants' The Court DENIES Defendants' motion for attorney fees and 14 15 costs. The Court DENIES AS MOOT Defendants' ex parte application 16 and motion to strike. 17 Tuesday, February 21, 2012. 18 Defendants' ex parte request to continue the trial date, ECF No. 19 39. The Court VACATES the jury trial set for Accordingly, the Court DENIES 25 R NIA ER UNITED STATES DISTRICT CJUDGE H 26 ti uel Con am Judge S LI 24 A 23 DERED O OR IT IS S FO Dated: January 24, 2012 22 RT IT IS SO ORDERED. NO 21 S DISTRICT TE C TA RT U O S 20 UNIT ED United States District Court motion for judgment on the pleadings with respect to Plaintiff's 4 For the Northern District of California 3 N 27 28 18 F D IS T IC T O R

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