Barta v. CenturyLink
ORDER by Magistrate Judge Kristen L. Mix on 1/22/15. Opposed Motion to Strike Declaration of Kim Korn [#17] is DENIED.(lgale, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03030-RM-KLM
CENTURYLINK, as Sponsor and Administrator of the CenturyLink Employee Benefit Plan,
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Opposed Motion to Strike Declaration
of Kim Korn [#17]1 (the “Motion”). Defendant filed a Response [#18] in opposition to the
Motion, and Plaintiff filed a Reply [#21]. This lawsuit arises from a dispute regarding
Plaintiff’s entitlement to benefits under the Employee Retirement Income Security Act of
1974 (“ERISA”). Compl. [#1]. The parties have submitted the underlying Administrative
Record [#13] for review. Plaintiff filed her Opening Brief [#15] with respect to this review,
and Defendant filed a Response [#16]. Defendant attached to the Response [#16] the
Declaration of Kim Korn (the “Declaration”), [#16-1] at 2-3, which in turn included two
Attachments. [#16-1] at 4-16. Plaintiff does not object to the inclusion of Attachments 1 and
2 to the record for the Court’s review.
“[#17]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). The Court uses this convention throughout this Order.
In the Motion, Plaintiff argues that the Declaration is not part of the Administrative
Record and therefore should be stricken from the Court’s consideration. Motion [#17] at
1 (citing Brown v. Hartford Life Ins. Co., 428 F. App’x 817 (10th Cir. 2011)). In Brown v.
Hartford Life Insurance Company, also an ERISA review case, the plaintiff appealed a
district court order denying his motion to supplement the administrative record with
documents filed in social security proceedings.
428 F. App’x at 819.
administrator had not relied on the documents in question. Id. The Tenth Circuit Court of
Appeals stated that they “have frequently, consistently, and unequivocally reiterated that,
in reviewing a plan administrator's decision under the arbitrary and capricious standard, the
federal courts are limited to the administrative record.” Id. at 820 (quoting Murphy v.
Deloitte & Touche Grp. Ins. Plan, 619 F.3d 1151, 1157 (10th Cir. 2010)). After the plan
administrator’s decision to deny him disability benefits, the plaintiff filed an administrative
appeal and supplemented the record at that time. 428 F. App’x at 820. The Tenth Circuit
held that the district court correctly denied the plaintiff’s motion to supplement the
administrative record with materials pertaining to his eligibility for benefits. 428 F. App’x
In support of allowing the Declaration, Defendant primarily relies on Murphy v.
Deloitte & Touche Group Insurance Plan, 619 F.3d 1151. See Response [#18] at 2-3. In
Murphy, the Tenth Circuit stated:
Although we have frequently used broad language to describe our restriction
on extra-record discovery and supplementation, the breadth of that language
can be misleading, at least to some degree. . . . Specifically, the broad
language prohibiting extra-record discovery is potentially misleading in cases
involving a dual role conflict of interests or procedural irregularities. . . . Paul
v. Hartford Life and Accident Ins. Co., No. 08-cv-00890, 2008 WL 2945607,
*2 (D. Colo. July 28, 2008) (unreported) (compiling cases and concluding that
“while it would not be proper to allow Plaintiff to conduct discovery directed
to the factual merits of his claim, this Court will permit limited discovery
related to the alleged conflict of interest in this case and to the policies and
procedures used by [the administrator] to make its decision”) . . . .
619 F.3d at 1159-61.
Here, it is clear that the Declaration does not pertain to Plaintiff’s eligibility for
benefits, which is rarely permitted. See Hall v. UNUM Life Ins. Co. of Am., 300 F.3d 1197,
1203 (10th Cir. 2002). Instead, Plaintiff raised the following issue in its Opening Brief:
More troubling is Defendant’s use of . . . selectively produced vocational
data. ERISA, and C.F.R. § 2560.503 require that Defendant produce all
materials relied upon in making its decision. Here Defendant did not do so
for obvious reasons; the vocational material it was referring to contradicted
Defendant’s stated analysis. . . . This serious procedural issue should be
[#15] at 14. The Declaration was submitted by Defendant in support of its response to this
issue. Response [#18] at 2-3. The Declaration offers an explanation of the vocational data
included in the two Attachments, which pertains directly to the procedural issue raised by
The Tenth Circuit has “emphasize[d] that ERISA policy strongly disfavors
expanding the record beyond that which was available to the plan administrator” and
“[s]upplemental evidence should not be used to take a second bite at the apple, but only
when necessary to enable the court to understand and evaluate the decision under review.”
Jewell v. Life Ins. Co. of N. Am., 508 F.3d 1303,1309 (10th Cir. 2007). Such is the case
here. The Declaration does not pertain to Plaintiff’s eligibility for benefits, but rather
addresses a purported procedural irregularity raised by Plaintiff. Allowing the Declaration
may “enable the court to understand and evaluate the decision under review.” Id. Thus,
the Court finds that the Declaration should be permitted. Accordingly,
IT IS HEREBY ORDERED that the Motion [#17] is DENIED.
Dated: January 22, 2015
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