Menge v. AT&T, Inc. et al

Filing 40

ORDER granting in part and denying in part defendants' 35 Opposed Motion to File Surreply Brief. It is granted with respect to the argument that reviewing physicians did not consider plaintiff's job description in making their determination. It is denied with respect to all other challenged arguments. Defendants shall file a surreply no later than 5:00 PM on Friday,3/15/2013. By Judge Philip A. Brimmer on 2/13/13.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-00728-PAB-KLM
KENT D. MENGE,
Plaintiff,
v.
AT&T, INC., a Delaware corporation,
AT&T UMBRELLA BENEFIT PLAN NO. 1,
AT&T OPERATIONS, INC., a Delaware corporation, and
THE AT&T DISABILITY INCOME PROGRAM,
Defendants.

ORDER

This matter is before the Court on the Opposed Motion to File Surreply Brief
[Docket No. 35] filed by defendants AT&T Inc., AT&T Umbrella Benefit Plan No. 1, The
AT&T Disability Income Program, and AT&T Operations, Inc. The Court has jurisdiction
pursuant to 28 U.S.C. §§ 1331, 1332.
On March 23, 2011, plaintiff, a former employee of defendant AT&T Operations,
Inc., filed the complaint in this case alleging that defendants violated the Employee
Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., by
arbitrarily and capriciously denying his claims for short-term and long-term disability
benefits under an employee benefit plan. Docket No. 1 at 14-16; Docket No. 28 at 5,
18-19 ¶¶ 11, 51. On March 16, 2012, the briefing in this case was completed. See
Docket No. 34. On April 16, 2012, defendants filed the motion currently before the
Court, contending that plaintiff raises new arguments in his reply brief and requesting

that the Court either disregard these new arguments or permit defendants to file a
surreply brief. Docket No. 35.
Granting leave to file a surreply is part of the “supervision of litigation” and thus
falls within the discretion of the district court. However, the Court’s discretion is limited
insofar as it may not deny the non-movant’s motion to file a surreply unless it disregards
any new arguments in the moving party’s reply. Pippin v. Burlington Res. Oil & Gas
Co., 440 F.3d 1186, 1191-92 (10th Cir. 2006) (“if the court relies on new materials or
new arguments in a reply brief, it may not forbid the nonmovant from responding to
these new materials.” Id. (internal citations omitted).
Defendants contend that the following three arguments that plaintiff asserts in his
reply brief are new:
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At page 7, ¶ 12 of the Reply, Plaintiff inaccurately asserts, for the first
time, that the independent medical evaluators that the Administrator
asked to review Plaintiff’s claim were not given a copy of his job
description.

•

At page 19, ¶ 36, Plaintiff misquotes language from Defendants’
Response Brief regarding the entity that functioned as the
Administrator for the Program. In the language quoted by Plaintiff,
Defendants accurately pointed out that Sedgwick CMS is the “Claims
Administrator and the Appeals Administrator” for the DIP, not that
Sedgwick was the Plan Administrator. At page 3 of their response,
Defendants actually quoted the language from the DIP stating that the
program was administered by AT&T: “However, AT&T has contracted
with third parties for certain functions associated with this Program.”

•

At page 3, ¶ 4, Plaintiff inaccurately asserts, for the first time. [sic] that
short term disability (“STD”) benefits under the AT&T Umbrella Benefit
Plan are funded by an insurance policy. The Form 5500 that Plaintiff
attached to his Reply does not establish the contrary.

Docket No. 35 at 2-3, ¶ 4. The first argument that defendants identify as new refers to
plaintiff’s statement that:
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Any discussion of whether a person is disabled must include a comparison
of the physical and mental limitations with the ability to perform work. There
does not appear to be any consideration by the Defendants’ reviewing
physicians as to the physical or mental requirements of Plaintiff’s job. It does
not appear from the record that a job description was provided, and no
opinions as to Plaintiff’s ability to meet any job requirement was given to the
Defendants for their consideration of Plaintiff’s claim. The physicians merely
gave conclusory statements, without foundation as to any of the job
requirements. That was unfair to Plaintiff and was unreasonable.
Docket No. 34 at 7, ¶ 12. This is a new contention that plaintiff did not raise in his
opening brief. See generally, Docket No. 28. As this argument is relevant to
determining defendants’ basis for denying plaintiff’s benefits, the Court will permit
defendants to file a surreply to this argument. See Pippin, 440 F.3d at 1191-92.
However, the second argument that defendants challenge does not fall within the
rule articulated in Pippin as it does not introduce new material or a new contention.
See 440 F.3d at 1191-92. This argument counters defendants’ assertion in their
response brief that plaintiff can only maintain a claim against AT&T Benefit Umbrella
Plan No. 1. Docket No. 30 at 28. Plaintiff’s reply identifies purported inconsistencies in
defendants’ filings relating each defendant’s involvement with and responsibility for
plaintiff’s benefits plan. See Docket No. 34 at 19. This argument reiterates the
allegations in plaintiff’s complaint and opening brief that each defendant is responsible
for the allegedly wrongful denial of benefits. Docket No. 1 at 2-3, ¶¶ 4-11; Docket No.
28 at 5-6, ¶¶ 11-16.
The third argument that defendants challenge responds to defendants’ assertion
that Colo. Rev. Stat. § 10-3-1116 does not apply to plaintiff’s benefits plan because the
plan is funded by insurance and not by a trust. See Docket No. 30 at 14 (arguing that

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§ 10-3-1116 does not apply to the plan because it is funded by a trust and not by
insurance). However, the undisputed facts establish that § 10-3-1116, which became
effective on August 5, 2008, does not apply to the plan, which became effective in
2007. See Docket No. 1 at 3, ¶ 15 (“Plaintiff started working full time for the Defendant
AT&T, Inc. or an affiliate on April 18, 2007. He became eligible for benefits six months
after being hired.”). The Tenth Circuit has held that § 10-3-1116 does not apply
retroactively. McClenahan v. Metro. Life Ins. Co., 416 F. App’x 693, 695-96 (10th Cir.
2011); see also Hollingshead v. Stanley Works Long Term Disability Plan, No. 10-cv3124-WJM-CBS, 2012 WL 959402, at *2 (D. Colo. Mar. 21, 2012) (“As the Plan came
into effect before Colo. Rev. Stat. § 10-3-1116 was enacted, the Court finds that the
statute cannot retroactively apply to Plaintiff’s claim.”). Thus, this argument is not
relevant. For the foregoing reasons, it is
ORDERED that defendants’ Opposed Motion to File Surreply Brief [Docket No.
35] is GRANTED in part and DENIED in part. It is granted with respect to the argument
that reviewing physicians did not consider plaintiff’s job description in making their
determination. It is denied with respect to all other challenged arguments. It is further
ORDERED that defendants shall file a surreply no later than 5:00 pm on Friday,
March 15, 2013.

DATED February 13, 2013.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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