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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RUSSELL L. DEMAN,

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Plaintiff,

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v.

For the Northern District of California

United States District Court

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ALLIED ADMINISTRATORS, INC.,
NORTHERN CALIFORNIA TILE INDUSTRY
TRUST FUNDS, SHARON TURNER, and
LINDA MARTINEZ,

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Defendants.
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I.

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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

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Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 et seq.

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("ERISA"), brought by Plaintiff Russell L. Deman ("Plaintiff" or

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"Deman") against Defendants Allied Administrators, Inc., Northern

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California Tile Industry Trust Funds, Sharon Turner, and Linda

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Martinez (collectively, "Defendants").

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claims: (1) denial of benefits under 29 U.S.C. § 1132(a)(1)(B);1

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(2) breach of fiduciary duty under § 1132(a)(2); and (3) delay in

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providing required information under § 1132(c)(1)(B).

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The FAC asserts three

Defendants move for judgment on the pleadings with respect to

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the second and third claims and summary judgment with respect to

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All further statutory citations refer to Title 29 of the United
States Code.

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the first claim.

ECF No. 27 ("Mot.").

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award of attorney fees and costs.

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motion, Defendants have filed (1) an ex parte application to vacate

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the jury trial scheduled for this case and set it for bench trial,

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ECF No. 37, and (2) a motion to strike portions of Plaintiff's

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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

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suitable for decision without oral argument.

For the reasons set

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forth below, the Court GRANTS Defendants' motion for judgment on

United States District Court

For the Northern District of California

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the pleadings, GRANTS Defendants' motion for summary judgment, and

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DENIES AS MOOT Defendants' ex parte application and motion to

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strike.

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claim is DISMISSED WITHOUT PREJUDICE and not on the merits, and his

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second and third claims are DISMISSED WITH PREJUDICE.

Consistent with Ninth Circuit precedent, Plaintiff's first

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II.

BACKGROUND

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A.

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Plaintiff Russell Deman began working for a tile company in

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1956.2

The Parties

ECF No. 18 ("FAC") § 5.

No later than the end of 1961 he

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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
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had joined a union and begun to participate in its pension plan.

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Mot. at 2.

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mergers, Defendant Northern California Tile Industry Pension Plan

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("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

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board of Defendant Northern California Tile Industry Trust Funds

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("Board").

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to manage the Plan.

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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

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Baney Decl. § 51.

Turner signed a November 17, 2009, letter

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stating that Plaintiff was ineligible for benefits.

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that letter, she indicated that Plaintiff's counsel could call her

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or Martinez with any questions.

AR at 81.

In

Id.

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B.

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In September 1992, Deman wrote a letter to his pension plan, a

The Dispute

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forerunner of the current Plan, seeking information about his

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retirement and pension benefits.

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with a copy of Deman's letter, but it is clear that the plan sent

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him a letter in response ("the 1992 Letter"), informing him that he

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was not eligible for benefits at that time.

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¶ 6.

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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.
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vest after he accumulated 15 credits.

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by working for a qualifying union employer a certain number of

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hours per year; the employer then reported the hours to the plan.

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The 1992 letter explained that due to breaks in service -- that is,

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periods of consecutive years in which no employer reported hours to

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the plan for Deman -- all of Deman's credits had been lost.

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also stated that Deman could still qualify for a pension if he

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"return[ed] to covered employment."

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purported to enclose documents describing "the procedures you

United States District Court

For the Northern District of California

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Participants earned credits

AR at 86.

It

The letter

should follow if you wish to appeal this decision."

Id.

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Plaintiff appears to have taken no further action until August

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31, 2009, when his attorney faxed a letter to Martinez stating that

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he represented Deman and requesting a copy of Deman's work record

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and information about his pension eligibility.

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November 17, 2009, Turner responded, asserting that the 1999 letter

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was correct and that if Deman "does not agree with the record

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provided and has supporting written documentation, please provide

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[it]."

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that Deman did so before filing this lawsuit in August 2010, nor

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does he allege that he did.

Id. at 81.

Id. at 84.

On

The administrative record does not disclose

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C.

The Claims

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In a previous order dismissing Deman's initial Complaint, the

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Court set forth the procedural history of this case's initial

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filing in state court and subsequent removal to federal court.

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ECF No. 16 ("Order").

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///

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///

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///

See

Plaintiff filed the First Amended Complaint

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on January 13, 2011.

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January 24, 2011.

ECF No. 18.

Defendants filed an Answer on

ECF No. 20 ("Answer").3

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Because Defendants move for judgment on the pleadings, and

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Plaintiff's FAC is less than clear, the Court reviews the FAC's

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claims here.

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legal theories need not be pleaded so long as sufficient factual

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averments show that the claimant may be entitled to some relief."

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Young v. City of Visalia, 687 F. Supp. 2d 1141, 1145 (E.D. Cal.

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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

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2001)); see also Ronald J. Cook, 2 ERISA Practice and Procedure §

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8:8 ("[C]ourts generally examine actions for benefits with some

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liberality and do not hesitate to look behind the allegations of

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the pleadings to see if an action . . . can be stated.").
The FAC asserts, first, that the present action arises under

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ERISA -- specifically, under §§ 1132(a)(1)(B) and 1132(c).

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1.

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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[.]

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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

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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.

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§ 1132(c)(1)(B).4

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days after such request . . . ."

Although Deman

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does not specify that his claim for relief arises from §

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1132(c)(1)(B), he alleges in his FAC that he requested information

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from Defendants on August 31, 2009, and that Defendants failed to

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respond until December 2, 2009.

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of those facts, the Court construes the pleading as asserting a

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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

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United States District Court

Defendants assume that, in addition to the two claims Deman

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For the Northern District of California

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fiduciary duty arising under either § 1132(a)(2) or § 1132(a)(3).

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See Mot. at 10-12; see also FAC §§ 13, 14.

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have to be implied from the pleading since the FAC does not mention

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§§ 1132(a)(2) or 1132(a)(3).

Any such claim would

The Court construes the FAC as intending to allege a claim

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under § 1132(a)(2) but not under § 1132(a)(3).

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provides that a plan participant may sue for appropriate relief

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under § 1109.

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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.

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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).

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The Court notes that Plaintiff prays for general and special

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damages, which is not inconsistent with the remedial scheme

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contemplated by § 1109 and hence with a § 1132(a)(2) claim.

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Wise v. Verizon Commc'ns, Inc., 600 F.3d 1180, 1190 (9th Cir. 2010)

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(interpreting putatively equitable claim for recovery of past and

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future benefits as one for money damages).

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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

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Cf.

safety net" provision providing equitable relief, and only

United States District Court

For the Northern District of California

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equitable relief, for breaches of fiduciary duty not otherwise

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remedied by ERISA.

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equitable relief; he seeks only money damages.

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for relief).

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and are not an available remedy under ERISA's equitable safety

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net."

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Because Deman's FAC does not expressly assert a claim under §

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1132(a)(3) or seek the relief contemplated there, the Court does

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not construe the FAC to assert a § 1132(a)(3) claim.

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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:

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(1)

for general and special damages under § 1132(a)(1)(B);

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(2)

for general and special damages under § 1132(a)(2); and

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(3)

for statutory damages under § 1132(c)(1)(B).

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III. Legal Standards

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A.

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"After the pleadings are closed -- but early enough not to

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delay trial -- a party may move for judgment on the pleadings."

Judgment on the Pleadings

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Fed. R. Civ. P. 12(c).

"Judgment on the pleadings is proper when

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the moving party clearly establishes on the face of the pleadings

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that no material issue of fact remains to be resolved and that it

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is entitled to judgment as a matter of law."

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Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir.

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1990).

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matter, accepted as true, to state a claim to relief that is

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plausible on its face.

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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

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Systems, Inc., 637 F.3d 1047, 1055 n.4 (9th Cir. 2011) (citing

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Johnson with approval).

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"Judgment on the pleadings is improper when the district court

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goes beyond the pleadings to resolve an issue; such a proceeding

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must properly be treated as a motion for summary judgment."

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see also Fleming v. Pickard, 581 F.3d 922, 925 n.4 (9th Cir. 2009)

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(refusing to consider supporting declarations in deciding motion

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for judgment on the pleadings).

Id.;

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B.

Summary Judgment

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Entry of summary judgment is proper "if the movant shows that

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there is no genuine dispute as to any material fact and the movant

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is entitled to judgment as a matter of law."

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56(a).

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admissible at trial.

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judgment should be granted if the evidence would require a directed

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verdict for the moving party.

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U.S. 242, 251 (1986).

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summary judgment . . . against a party who fails to make a showing

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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

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that party's case, and on which that party will bear the burden of

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proof at trial."

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(1986).

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justifiable inferences are to be drawn in his favor."

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477 U.S. at 255.

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evidence in support of the [nonmovant]'s position will be

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insufficient; there must be evidence on which the jury could

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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.

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United States District Court

For the Northern District of California

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IV.

DISCUSSION

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A.

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As explained in Section II.C supra, the FAC asserts a §

Deman's § 1132(a)(1)(B) Claim for Denial of Benefits

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1132(a)(1)(B) claim.

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judgment rather than judgment on the pleadings.

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On that claim, Defendants move for summary
Mot. at 12.

Defendants argue that they are entitled to summary judgment

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because (1) Deman's claim is both statutorily and contractually

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time-barred as a result of the 1992 letter; (2) Deman has failed to

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file a formal claim and thus failed to exhaust his administrative

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remedies; and (3) the 1992 letter constituted a reasonable decision

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that Deman cannot successfully challenge under the "arbitrary and

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capricious" standard of review.

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below, the Court needs only to address the first two.

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i.

See id. at 12.

As set forth

The Court Cannot Determine as a Matter of Law that

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Deman's Claim for Benefits Is Time-Barred.

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Defendants argue that Deman's claims are both statutorily and

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contractually time-barred.

As the Ninth Circuit recently explained

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in Withrow v. Halsey, 655 F.3d 1032, 1035 (9th Cir. 2011), the two

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bars are distinct.

The statutory time bar arises from cases

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interpreting ERISA.

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second, distinct time limitation which arises as a matter of

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contract from the limitations term in the claimant's policy.

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The statutory time limitation for claims arising in California, as

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Deman's have, is four years.

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Id.

The contractual time bar imposes a

Id.

Id. at 1036.

Defendants have not carried their burden of showing that

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Deman's claims are time-barred.

With respect to the statutory time

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bar, Defendants must make a preliminary showing that Deman's §

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1132(a)(1)(B) claim "accrued" -- that is, that the statute of

United States District Court

For the Northern District of California

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limitations has started to run.

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referencing the 1992 letter, that Deman's claim "accrued, if at

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all, in 1992 . . . ."

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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.

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655 F.3d at 1036 (citations and quotation marks omitted).

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Defendants do not argue that Deman's claim for benefits has been

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"actually denied," and such a position would be inconsistent with

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their argument that Deman never submitted a claim, see Section

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IV.A.ii infra.

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on the "reason to know" prong.

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1992 letter communicated a clear and continuing repudiation of

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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

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benefits had been finally denied.

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"still possible for [Deman] to qualify for a pension . . . ."

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at 86.

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"clear" repudiation of Deman's rights, tantamount to a final denial

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of benefits.

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he could still qualify for benefits.

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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

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the basis of one letter.

Defendants cite out-of-circuit authority

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for the proposition that "a" repudiation (that is, any repudiation)

United States District Court

For the Northern District of California

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suffices to trigger ERISA's statutory time bar.

Reply at 8.

Such

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a test would omit the Ninth Circuit's requirement of a "continuing"

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repudiation.

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showing of a clear and continuing repudiation.

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before it, the Court cannot say that Deman's § 1132(a)(1)(B) claim

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accrued in 1992 for the purposes of the statutory four-year bar.

Defendants do not approach the requisite evidentiary
Thus, on the record

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Nor can the Court find on this record that no genuine dispute

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exists concerning which iteration of the plan policy covered Deman

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in 1992.

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party will have the burden of proof on an issue at trial, the

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movant must affirmatively demonstrate that no reasonable trier of

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fact could find other than for the movant."

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Life. Ins. Co., 700 F. Supp. 2d 1204, 1214 (E.D. Cal. 2010).

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contractual bar Defendants seek to impose here is an affirmative

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defense, Answer § 23, and as such Defendants would bear the burden

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of proving it at trial.

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Nonbargained Program, 718 F. Supp. 2d 1167, 1174-75.

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summary judgment on this point, Defendants must "affirmatively

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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-

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Thus, to win

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Defendants have yet to make the prerequisite showing of which

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policy applies.

They assert that the 1992 letter contained a copy

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of the benefits appeal procedures then in effect, denominated

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"Article X of the Plan."

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But nowhere do they demonstrate that this was the policy then in

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effect.

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summary judgment, Defendants can be read to equivocate on this

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point, in that they provide alternate calculations under two

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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

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applies, Defendants do not cite to it.

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court need consider only the cited materials . . . ."

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P. 56(c)(3).

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which version of the plan relied upon by Defendants, if either,

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actually controlled in Deman's case.

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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

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affirmative defense and Defendants have not carried their burden.

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Accordingly, the Court cannot say on the record before it that

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Deman's claim for benefits is time-barred.

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ii.

Deman Has Not Exhausted His Administrative Remedies.

It is axiomatic that, before suing under § 1132(a)(1)(B), an

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ERISA claimant must challenge the denial of his or her benefits by

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filing a claim and exhausting the internal administrative review

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processes provided by his or her plan.

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Employee Welfare Ben. Plan and Trust, 50 F.3d 1478, 1483 (9th Cir.

26

1995).

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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

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exhaustion would be futile.

See id. at 1485-87.

Defendants argue that Deman has not exhausted his

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administrative remedies for the elementary reason that he has yet

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to file a claim pursuant to the Plan's claim procedures.

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12-14.

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that Deman is a plan participant, that the plan provided

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administrative remedies, and that Deman has not availed himself of

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them.

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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

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support of his opposition brief.

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Plaintiff's opposition brief addresses Defendants' exhaustion

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argument, but the declaration is silent as to the existence of a

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formal claim.

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record's lack of any documents suggesting the existence of a claim,

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let alone an appeal.

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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.

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Though Defendants

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have moved for summary judgment, the proper motion on which to

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raise a claimant's failure to exhaust nonjudicial remedies is an

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unenumerated Rule 12 motion to dismiss.

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1108, 1119-1120 (9th Cir. 2003).6

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appropriate resolution of a § 1132(a)(1)(B) claim like Deman's is

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26
27
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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.
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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

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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

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dismisses that claim without prejudice.

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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.

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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

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22

///

23

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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