Nunez v. Hulett Environmental Services, Inc. et al

Filing 12

OPINION AND ORDER granting 7 motion to dismiss to the extent that Hulett Environmental Services, Inc. is dismissed with prejudice, and Guardian Life Insurance Company of America is dismissed without prejudice for failure to exhaust administrative remedies; adopting in part 11 Report and Recommendations. Plaintiff may file an amended complaint within 14 days of this Opinion and Order. Signed by Judge John E. Steele on 12/3/2018. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RODOLFO NUNEZ,
Plaintiff,
v.

Case No:

2:18-cv-275-FtM-99CM

HULETT
ENVIRONMENTAL
SERVICES, INC., a Florida
corporation
and
GUARDIAN
LIFE INS. CO. OF AMERICA, a
New York corporation,
Defendants.
OPINION AND ORDER
This matter is before the Court on consideration of the
Magistrate Judge’s Report and Recommendation (Doc. #11), filed
November 14, 2018, recommending that that defendants’ Motion to
Dismiss (Doc. #7) be granted, and the Complaint (Doc. #1) be
dismissed with prejudice.

No objections have been filed and the

time to do so has expired. 1
I.
After conducting a careful and complete review of the findings
and recommendations, a district judge may accept, reject or modify
the magistrate judge’s report and recommendation.

1

28 U.S.C. §

The Court notes that plaintiff did not file a timely
response to the Motion to Dismiss, and also failed to file a
response when directed by the magistrate judge to do so. (Doc.
#10.)

636(b)(1); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982),
cert. denied, 459 U.S. 1112 (1983).

In the absence of specific

objections, there is no requirement that a district judge review
factual findings de novo, Garvey v. Vaughn, 993 F.2d 776, 779 n.9
(11th Cir. 1993), and the court may accept, reject or modify, in
whole or in part, the findings and recommendations.
636(b)(1).

28 U.S.C. §

The district judge reviews legal conclusions de novo,

even in the absence of an objection.

See Cooper-Houston v.

Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994); Castro
Bobadilla v. Reno, 826 F. Supp. 1428, 1431-32 (S.D. Fla. 1993),
aff’d, 28 F.3d 116 (11th Cir. 1994) (Table).
II.
The Complaint seeks death benefits which it alleges were due
and owing under an Employee Retirement Income Security Act (ERISA)
plan covering plaintiff’s deceased spouse.
dismiss

the

Complaint

with

prejudice

on

Defendant seeks to
three

grounds:

(1)

plaintiff failed to exhaust administrative remedies; (2) the claim
is barred by the limitation of actions provision in the ERISA
Policy;, and (3) defendant Hulett Environmental Services, Inc. was
not the claims administrator under the Policy and is therefore not
a proper defendant.

The Magistrate Judge found that defendant

should prevail on all three arguments, and recommended dismissal
with prejudice.

(Doc. #11, p. 6.)

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(1)

Exhaustion of Administrative Remedies

It is well established that before bringing a civil action
for denial of ERISA benefits, a plaintiff must exhaust his or her
administrative remedies.

Alexandra H. v. Oxford Health Ins. Inc.

Freedom Access Plan, 833 F.3d 1299, 1314 (11th Cir. 2016).
requirement must be pled in the complaint.

This

Herman v. Hartford

Life and Acc. Ins. Co., 508 F. App’x 923, 926 (11th Cir. 2013).
Exhaustion may be excused, however, if exhaustion would be futile
or the remedy inadequate, or where a claimant is denied “meaningful
access” to the review scheme.

Perrino v. S. Bell Tel. & Tel. Co.,

209 F.3d 1309, 1315 (11th Cir. 2000).
The

Complaint

administrative

concedes

remedies,

but

plaintiff
asserts

did

futility

not
as

the

exhaust
excuse:

“Exhausting administrative remedies under ERISA would be futile
under the facts presented insofar as Defendant, Guardian, used the
provisions of ERISA as a shield from paying an otherwise due and
owing claim when the irrefutable proof of causation did not exist
at that time.”

(Doc. #1, ¶ 22.)

This fails to plausibly plead

the required futility, but merely expresses disagreement with the
administrative decision.

The Court therefore adopts the Report

and Recommendation as to dismissal.

Because failure to exhaust

may be excused, and that determination is discretionary, the
dismissal will be without prejudice.

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(2)

Contractual Limitations Period

“Absent a controlling statute to the contrary, a participant
and a plan may agree by contract to a particular limitations
period, even one that starts to run before the cause of action
accrues, as long as the period is reasonable.”

Heimeshoff v.

Hartford Life & Acc. Ins. Co., 571 U.S. 99, 105–06 (2013).
the Policy provided for a three year limitation period.

Here,

Normally,

violation of the limitations period is an affirmative defense,
“and a plaintiff is not required to negate an affirmative defense
in his complaint.”

La Grasta v. First Union Sec., Inc., 358 F.3d

840, 845 (11th Cir. 2004) (quoting Tregenza v. Great Am. Commc'ns
Co., 12 F.3d 717, 718 (7th Cir. 1993)).
granted,

however,

if

it

is

“apparent

from

complaint” that the claim is time-barred.
845.

A dismissal may be
the

face

of

the

La Grasta, 358 F.3d at

Here, the lack of dates in the Complaint results in the

inability

to

determine

on

a

motion

to

contractual limitations period has expired. 2

dismiss

whether

the

Therefore, the Court

rejects the Report and Recommendation as to this issue.
(3)

Plan Sponsor

The Magistrate Judge agreed that Hulett was not a proper party
because it is alleged to be a sponsor and is not the claims

2

The Motion to Dismiss (Doc. #7) attached a copy of the
Policy and the Claim to demonstrate untimeliness, however the dates
are outside the four corners of the Complaint because the dates
were not plead in the Complaint and cannot be considered.

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administrator.

The Complaint identifies Hulett as the sponsor of

the ERISA plan, and Guardian Life as the administrator.
¶ 8.)

(Doc. #1,

After conducting an independent examination of the file and

upon due consideration of the Report and Recommendation, the Court
accepts the Report and Recommendation of the magistrate judge to
dismiss this defendant with prejudice.
Accordingly, it is now
ORDERED:
1.

The

Report

and

Recommendation

(Doc.

#11)

is

hereby

adopted in part and rejected in part as stated above.
2.

Defendants' Motion to Dismiss (Doc. #7) is GRANTED to

the extent that Hulett Environmental Services, Inc. is dismissed
with prejudice, and Guardian Life Ins. Co. of America is dismissed
without prejudice for failure to exhaust administrative remedies.
The Motion is otherwise DENIED.
3.

Plaintiff may file an amended complaint within fourteen

(14) days of the filing of this Opinion and Order.
DONE and ORDERED at Fort Myers, Florida, this
December, 2018.

Copies:
Hon. Carol Mirando
United States Magistrate Judge
Counsel of Record

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3rd

day of