Keys v. Bert Bell/Pete Rozelle NFL Player Retirement Plan et al
ORDER granting in part and denying in part 42 Defendants'/Counter-Plaintiffs' Motion to Compel Written Discovery and Deposition Testimony; denying 44 Plaintiff's Motion for Protective Order Regarding Defendants' Subpoenas of Plaintiff's Bank Records. Signed by Magistrate Judge Julie S. Sneed on 10/10/2019. (JAR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No: 8:18-cv-2098-T-36JSS
BERT BELL/PETE ROZELLE NFL
PLAYER RETIREMENT PLAN and NFL
PLAYER DISABILITY AND
NEUROCOGNITIVE BENEFIT PLAN,
THIS MATTER is before the Court on Defendants’/Counter-Plaintiffs’ Motion to Compel
Written Discovery and Deposition Testimony (“Motion to Compel”) (Dkt. 42), with Plaintiff’s
response in opposition (Dkt. 45), and Plaintiff’s Motion for Protective Order Regarding
Defendants’ Subpoenas of Plaintiff’s Bank Records (“Motion for Protective Order”) (Dkt. 44),
with Defendants’ response in opposition (Dkt. 47). For the reasons set forth below, the Motion to
Compel is granted in part and denied in part, and the Motion for Protective Order is denied.
Plaintiff, Tyrone Keys, played football in the National Football League (“NFL”) from 1983
to 1989, when he retired due to injuries. (Dkt. 35 ¶ 5.) Following his retirement, Plaintiff received
benefits from the Defendants’ plans. (Dkt. 35 ¶ 12–19.) In August of 2017, Defendants allegedly
terminated Plaintiff’s benefits, claiming he had been improperly overpaid. (Dkt. 35 ¶ 31.) Plaintiff
sues Defendants under the Employee Retirement Income Security Act (“ERISA”) for a declaration
of his rights under the plans (Count I), for benefits under the plans (Count II), and for equitable
estoppel under the plans (Count III). (Dkt. 35.) In response, Defendants filed a counterclaim
seeking to recover overpaid benefits from Plaintiff. (Dkt. 39.) On July 8, 2019, Plaintiff answered
Defendants’ counterclaims. (Dkt. 40.) In the Motion to Compel, Defendants move the Court to
compel Plaintiff to respond to discovery requests and to compel Plaintiff and his spouse to submit
to a deposition. (Dkt. 42.) In the Motion for Protective Order, Plaintiff moves the Court to quash
two bank subpoenas seeking Plaintiff’s personal bank records. (Dkt. 44.)
A party is entitled to “discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1).
“Proportionality requires counsel and the court to consider whether relevant information is
discoverable in view of the needs of the case.” Tiger v. Dynamic Sports Nutrition, LLC, 2016 WL
1408098, at *2 (M.D. Fla. Apr. 11, 2016). “Information within this scope of discovery need not
be admissible in evidence to be discoverable.” Id. A party may move for an order compelling
disclosure or discovery. Fed. R. Civ. P. 37. The Court has broad discretion in managing pretrial
discovery matters and in deciding to compel. Josendis v. Wall to Wall Residence Repairs, Inc.,
662 F.3d 1292, 1306 (11th Cir. 2011); Perez v. Miami-Dade Cnty., 297 F.3d 1255, 1263 (11th Cir.
A court must quash or modify a subpoena that “requires disclosure of privileged or other
protected matter, if no exception or waiver applies.” Id. at 45(d)(3)(A)(iii). Further, a protective
order may be issued for good cause to protect a person from annoyance, embarrassment,
oppression, or undue burden or expense, by forbidding the discovery, forbidding inquiry into
certain matters, or limiting the scope of disclosure or discovery to certain matters.
26(c)(1)(A), (D). The party seeking a protective order has the burden of demonstrating good cause.
Auto-Owners Ins. Co. v. Se. Floating Docks, Inc., 231 F.R.D. 426, 429–30 (M.D. Fla. 2005).
“‘Good cause’ is a well established legal phrase. Although difficult to define in absolute terms, it
generally signifies a sound basis or legitimate need to take judicial action.” In re Alexander Grant
& Co. Litig., 820 F.2d 352, 356 (11th Cir. 1987).
The motions at issue raise a dispute about the proper scope of discovery on Defendants’
counterclaims. While discovery in ERISA cases is governed by Rule 26(b), which permits
discovery of information that is relevant to any party’s claim or defense and proportional to the
needs of the case, the scope of discovery in ERISA cases is also integrally linked to the standard
of review applied in each case. Hawkins v. Arctic Slope Reg’l Corp., 344 F. Supp. 2d 1331, 1333
(M.D. Fla. 2002). There are three standards of review in ERISA benefit determination cases: (1)
de novo, when the plan does not grant the administrator discretion to determine eligibility for
benefits or to construe the terms of the plan; (2) arbitrary and capricious, when the plan grants the
administrator discretion; and (3) heightened arbitrary and capricious, when there is a conflict of
interest, such as when an administrator both insures the plan and makes the final claims decision.
See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 (1989); Buckley v. Metro. Life, 115
F.3d 936, 939 (11th Cir. 1997). When reviewing a denial of benefits under the de novo standard
of review, the court may examine evidence beyond that which was presented to the administrator
at the time the denial decision was made. Moon v. Am. Home Assurance Co., 888 F.2d 86, 89
(11th Cir. 1989). On the other hand, under an arbitrary and capricious standard of review, the
district court is limited to “the facts as known to the administrator at the time the decision was
made.” Jett v. Blue Cross & Blue Shield of Ala., Inc., 890 F.2d 1137, 1139 (11th Cir. 1989); see
also Lee v. Blue Cross/Blue Shield of Ala., 10 F.3d 1547, 1550 (11th Cir. 1994) (looking “only to
the facts known to the administrator at the time the decision was made” in a heightened arbitrary
and capricious standard case).
However, Defendants’ counterclaims are not claims challenging a denial of benefits, which
might be subject to a narrow standard of review. See Firestone, 489 U.S. at 115. Defendants bring
their counterclaims for reimbursement under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), which
allows a plan fiduciary “to bring civil suits ‘to obtain other appropriate equitable relief . . . to
enforce . . . the terms of the plan.’” Montanile v. Bd. of Trs. of Nat’l Elevator Indus. Health Benefit
Plan, 136 S. Ct. 651, 657 (2016) (quoting 29 U.S.C. § 1132(a)(3)). Because “these actions do not
benefit from the administrative process,” case law “does not constrain discovery under ERISA §
502(a)(3) actions.” Jensen v. Solvay Chems., Inc., 520 F. Supp. 2d 1349, 1355 (D. Wyo. 2007)
(explaining that “a finding that claims arise from ERISA § 502(a)(3) reverts discovery into the
traditional realm and is governed under traditional federal, circuit, and local procedure”). Indeed,
many district courts have allowed broader discovery in actions under ERISA § 502(a)(3). See
Milby v. Liberty Life Assurance Co. of Boston, No. 3:13-CV-487-CRS, 2016 WL 4599919, at *4–
5 (W.D. Ky. Sept. 2, 2016); Moran v. Life Ins. Co. of N. Am. Misericordia Univ., No. 3:cv–13–
765, 2014 WL 4251604, at *9 (M.D. Pa. Aug. 27, 2014); Jones v. Allen, No. 2:11–cv–380, 2014
WL 1155347, at *8 (S.D. Ohio Mar. 21, 2014); Winburn v. Progress Energy Carolinas, Inc., No.
4:11–3527–RBH, 2013 WL 3880149, at *3–4 (D.S.C. July 25, 2013); Malbrough v. Kanawha Ins.
Co., 943 F. Supp. 2d 684, 691–93 (W.D. La. 2013); Mainieri v. Bd. of Trs. of Operating Eng’rs
Local 825 Pension Fund, No. 07–1133 (PGS), 2008 WL 4224924, at *4 (D.N.J. Sept. 10, 2008).
Defendants’ discovery requests focus on the amount of overpayments Plaintiff received
from the plans and whether Plaintiff has any assets traceable to the overpayments. (Dkt. 42 at 2.)
Plaintiff makes two objections to Defendants’ discovery requests. First, Plaintiff argues that
Defendants are not entitled to discovery on their counterclaims because they failed to exhaust their
administrative remedies prior to filing suit. (Dkt. 45 at 3–6.) Defendants counter that they are not
required to exhaust any administrative remedies. See Jensen, 520 F. Supp. 2d at 1356 (finding that
claims under ERISA § 502(a)(3) are exempt from the “standard ERISA exhaustion requirement”);
Reliance Standard Life Ins. Co. v. Smith, No. 3:05-CV-467, 2006 WL 2993054, at *3 (E.D. Tenn.
Oct. 18, 2006) (“As Reliance is not a beneficiary/participant under the plan, it is not required to
exhaust any administrative procedures on the overpayment claim.”). Given the procedural posture
of the case, Plaintiff’s affirmative defense concerning exhaustion of administrative remedies may
be decided on summary judgment or at trial. Nevertheless, while the counterclaims are pending,
the parties “may obtain discovery regarding any nonprivileged matter that is relevant to” the
claims. Fed. R. Civ. P. 26(b)(1); see also Horne v. Potter, No. 07-61829-CIV-DIMITROULEAS/
ROSENBAUM, 2009 WL 10666885, at *4 (S.D. Fla. Jan. 27, 2009) (“Under these circumstances,
where the requested information is relevant to a claim in the case and therefore falls within the
scope of Rule 26, the Court will not preclude discovery simply because the USPS claims as an
affirmative defense failure to exhaust administrative remedies.”).
Second, Plaintiff argues that discovery should not be allowed where a claim for
reimbursement is not authorized by the plans. (Dkt. 44 at 2–5; Dkt. 45 at 6–11.) Plaintiff argues
that, in this case, the plans authorize Defendants to “[r]ecover any overpayment of benefits through
reduction or offset of future benefit payments or other method chosen by the Retirement Board.”
(Dkt. 44-3 at 11.) Plaintiff argues that the “or” in that provision precludes Defendants from
offsetting future benefits—which they have already done—and also making a counterclaim for
reimbursement. (Dkt. 44 at 5.) In response, Defendants argue that the terms of the plans are
intended to give the administrators “the broadest possible power and authority to recover over
payments” and that the Court should defer to the administrators’ interpretation of the plans. (Dkt.
47 at 10–11.)
On August 27, 2019, Plaintiff filed a motion for leave to file an amended answer
specifically alleging this issue as an affirmative defense. (Dkt. 46.) On October 2, 2019, the Court
granted the motion (Dkt. 52) and on October 7, 2019, Plaintiff filed his amended answer (Dkt. 53).
Accordingly, based on the procedural posture of this case, this is also an issue that may be decided
on summary judgment or at trial. The Court will not rule on the merits of Plaintiff’s affirmative
defense—that is, whether reimbursement is authorized by the plans—at the discovery stage. See
ROSENBAUM, 2008 WL 11330717, at *4 (S.D. Fla. Oct. 15, 2008) (noting that it is “not
appropriate for the Court to opine on” the viability of an affirmative defense on a discovery
Further, the discovery sought by Defendants goes directly to the issues that must be
established “to succeed on a Section 1132(a)(3) claim.” Herman v. Metro. Life Ins. Co., 689 F.
Supp. 2d 1316, 1330 (M.D. Fla. 2010). In Herman, the defendant argued that the court “should
enter judgment in its favor on the reimbursement claim and then permit it to conduct discovery in
aid of execution to determine whether there is an identifiable fund as to which it has a claim under
Section 1132(a)(3).” Id. at 1331. However, the court held that the discovery the defendant sought
would “determine whether it is entitled to bring a Section 1132(a)(3) claim fruition, i.e., to
judgment,” and therefore should have been obtained “during the regular discovery period.” Id.
(emphasis in original). Similarly, Defendants may seek discovery to support their Section
Nonetheless, the Court retains an obligation to limit discovery that is “unreasonably
cumulative or duplicative, or can be obtained from some other source that is more convenient, less
burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C)(i). Accordingly, as Defendants have
already issued subpoenas directly to Plaintiff’s banks, the Court will deny the Motion to Compel
as to request for production numbers three and four seeking the same records. 1 The Court also
denies the Motion to Compel as to request for production numbers one and two, and interrogatory
number one as Plaintiff’s responses directed Defendants to the previously produced records which
contain the responsive information. See Fed. R. Civ. P. 33(d).
Accordingly, it is ORDERED:
1. Defendants’/Counter-Plaintiffs’ Motion to Compel Written Discovery and Deposition
Testimony (Dkt. 42) is GRANTED IN PART and DENIED IN PART;
a. The motion is GRANTED as to interrogatory numbers two through six.
Plaintiff must respond to these discovery requests by October 25, 2019;
b. The motion is DENIED as to request for production numbers one through
four and interrogatory number one;
c. Plaintiff and his wife, Bessie Keys, must appear for deposition by
November 1, 2019; and
It appears that Defendants have already received some bank records which are pending review until resolution of
the instant motions. (Dkt 47 at 5 n.3.)
2. Plaintiff’s Motion for Protective Order Regarding Defendants’ Subpoenas of Plaintiff’s
Bank Records (Dkt. 44) is DENIED.
DONE and ORDERED in Tampa, Florida, on October 10, 2019.
Copies furnished to:
Counsel of Record
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