Dimry v. The Bert Bell/Pete Rozelle NFL Player Retirement Plan et al

Filing 53

Order by Hon. James Donato granting 39 Motion to Dismiss. (jdlc1S, COURT STAFF) (Filed on 10/12/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHARLES DIMRY,
Plaintiff,

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ORDER RE MOTION TO DISMISS
AMENDED COMPLAINT

v.

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THE BERT BELL/PETE ROZELLE NFL
PLAYER RETIREMENT PLAN, et al.,

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United States District Court
Northern District of California

Case No.16-cv-01413-JD

Re: Dkt. No. 39

Defendants.

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Former NFL cornerback Charles Dimry challenges the denial of disability benefits by the

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Bert Bell/Pete Rozelle NFL Player Retirement Plan and NFL Player Supplemental Disability Plan

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(collectively, “the Plan”). Dkt. No. 38. He alleges ERISA claims for: (1) recovery of total and

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permanent employee benefits under 29 U.S.C. § 1132(a)(1)(B), (2) equitable relief for breach of

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fiduciary duty, under 29 U.S.C. § 1132(a)(3), and (3) failure to produce documents, under 29

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U.S.C. § 1024(b)(4). On June 14, 2016, the Court dismissed the claim for equitable relief with

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leave to amend. Dkt. No. 33. Following the filing of the Amended Complaint, the Plan moved

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again to dismiss for failure to state a claim for equitable relief under Rule 12(b)(6). Dkt. No. 39.

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The Court heard oral argument on September 22, 2016 and dismisses with prejudice claim two for

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equitable relief.

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The parties agree, as they must under the law, that a breach of fiduciary duty claim

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addresses injuries to the ERISA plan as a whole, but not injuries suffered by an individual

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participant. Wise v. Verizon Commc’ns, Inc., 600 F.3d 1180, 1189 (9th Cir. 2010). For this

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reason, Dimry’s claim in the original complaint for equitable relief for breach of fiduciary duty

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under 29 U.S.C. § 1132(a)(3) was dismissed with leave to amend. Dkt. No. 33.

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The amendments now before the Court do not save this claim. By his own admission,
Dimry added just a few new allegations in the Amended Complaint. See Dkt. No. 43 at 3.

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Stripping away the purely conclusory statements and allegations that are based on his individual

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claim alone, Dimry alleges only that: the Plan holds regular specialist meetings; the Plan admitted

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in a letter that it “uniformly” accepts the reports of doctors hired by the NFL; in an ERISA lawsuit

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filed in another district and unrelated to this case, the complaint alleges that a doctor hired by the

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Plan disagreed with the player’s treating doctors to conclude that the player could engage in

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sedentary work; and the Plan has publically stated that if there is a difference of opinion among

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doctors, it refers cases to the “Medical Advisory Physician.” Dkt. No. 38 ¶¶ 19-22. Even when

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treated most favorably to the plaintiff, these allegations simply do not plausibly suggest that the

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United States District Court
Northern District of California

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Plan on a uniform basis is “misusing retained-physicians to withhold benefits from injured

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players, an abuse of the ERISA appeal process.” Dkt. No. 43 at 2; Ashcroft v. Iqbal, 556 U.S. 662,

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678 (2009). The Amended Complaint is utterly devoid of anything close to factual allegations

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sufficient to meet the standards under Rule 8 for the equitable relief claim to proceed.

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The final question is whether Dimry is entitled to yet another try at alleging an adequate

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claim on this point. The Court’s discretion to dismiss with prejudice is “particularly broad” after

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prior leave to amend has been granted. Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir.

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2013). Dimry has already had more than one opportunity to state a claim for breach of fiduciary

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duty under ERISA, and in response to the Court’s inquiry at oral argument, Dimry’s counsel could

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not articulate what new allegations he might add. Consequently, Count II of the First Amended

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Complaint is dismissed with prejudice.

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IT IS SO ORDERED.

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Dated: October 12, 2016

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JAMES DONATO
United States District Judge

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