Durand v. The Hanover Insurance Group, Inc. et al

Filing 136

MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 3/31/2015, re 127 MOTION for Summary Judgment filed by The Allmerica Financial Cash Balance Pension Plan, The Hanover Insurance Group, Inc., and 128 MO TION to Confirm Case Management Plan and Defer Briefing on Defendants' Summary Judgment Motion filed by Jennifer A. Durand. Telephone Conference set for 4/13/2015 at 10:00 AM CDT before Magistrate Judge H. Brent Brennenstuhl. Defendants' motion for summary judgment is stayed pending completion of limited discovery on the statute of limitations issue. cc: Counsel, KL (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:07CV-00130-HBB

JENNIFER A. DURAND, et al.

PLAINTIFFS

VS.

THE HANOVER INSURANCE
GROUP, INC., et al.

DEFENDANTS

MEMORANDUM OPINION
AND ORDER
This matter is before the court on a motion for summary judgment by Defendants,
The Hanover Insurance Group, Inc. (“Hanover”) and the Allmerica Financial Cash
Balance Pension Plan (the “Plan”) pursuant to Fed.R.Civ.P. 56 (DN 127). Plaintiffs
strongly oppose the appropriateness of Defendants filing this motion and, instead of
responding, have filed a motion to confirm the case management plan and defer briefing on
Defendants’ summary judgment motion (DN 128). Defendants responded to Plaintiffs’
motion (DN 131), and Plaintiffs replied (DN 133).

This matter is ripe for determination.

Background
Because the procedural history of this case is lengthy and complex, the Court will
only focus on the events relating to the current motions of the parties. Plaintiff, Jennifer
Durand, originally filed suit against her former employer, The Hanover Insurance Group,
Inc., in March of 2007.

Durand participated in Hanover’s pension plan, Allmerica
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Financial Cash Balance Pension Plan, which is governed by the Employee Retirement
Income Security Act (“ERISA”), 29 U.S.C. §§ 1001 et seq. Durand challenged the
Defendants’ methodology for calculating lump sum distributions between March 1, 1997
and August 17, 2006, which she argues resulted in an underpayment of accrued benefits.
This Court granted class certification as to Plaintiff’s lump sum benefit whipsaw
claims and the related fiduciary breach claims. Essentially three groups of claimants exist
in this ERISA based class action suit.

The overall certified “Lump Sum Class,”

represented by Durand, includes all persons receiving a lump sum distribution from the
Plan between March 1, 1997 and December 31, 2003. Additionally, this Court certified a
subclass of the overall class, known as “Subclass A,” represented by James Fisher.
Subclass A includes all persons receiving a lump sum distribution from the Plan between
March 1, 1997 and March 12, 2002. A third group, the “Wharton/Tedesco” group, has not
been certified as a class in the action because their claims were dismissed by this Court
through a series of orders, on grounds including the applicable statute of limitations (DN
71, 78, 102).

This Court granted Plaintiffs’ motion to make the dismissal of the

Wharton/Tedesco claims a final and appealable judgment under Fed.R.Civ.P 54(b) (DN
118). The Wharton/Tedesco claims are currently pending on appeal at the Sixth Circuit.
Defendants’ filed a motion to alter or amend the Court’s Rule 54(b) order, or
alternatively to stay merits discovery (DN 114). Magistrate Judge Moyer denied the
motion, in the Court’s April 30, 2014 Order, indicating he remained “persuaded that Rule
54(b) relief [was] appropriate, for reasons articulated in its previous opinion, which
contemplated discovery on the Fisher subclass statute of limitations defense.” (DN 118,
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at p.3) (emphasis added). In this Order, Judge Moyer concluded that the written or
“document” phase of discovery should proceed despite Defendants’ concerns about
potentially being unduly prejudiced in the event the Wharton/Tedesco claims dismissal is
reversed on appeal (DN 118, p.3-4). Additionally, Judge Moyer indicated: “[i]f discovery
reaches the deposition phase before resolution of the appeal, the defendants may revisit
their concerns and renew their motion to stay or seek protective orders as necessary” (DN
118, at p. 4). Almost eight months later, Defendants filed the summary judgment motion
that is at issue here (DN 127).
Defendants’ Motion for Summary Judgment and
Plaintiffs’ Motion to Defer Briefing
Defendants’ current motion argues that summary judgment should be granted on
Subclass A’s whipsaw underpayment claims and breach of fiduciary duty claims because
they are time barred by the applicable statutes of limitations (DN 127, Defendants’
Motion). On both the whipsaw claims and breach of fiduciary duty claims, Defendants’
contend that the statute of limitations started running when the lump-sum distribution was
received by each employee (Id.). Accordingly, Defendants’ argue that since the claims
for “Subclass A” accrued when the distributions were received, the five-year statute of
limitations for the whipsaw claims and the three-year statute of limitations for the breach of
fiduciary duty claims have lapsed (Id. at p. 6-8).
In opposition, Plaintiffs do not respond to Defendants’ summary judgment motion
but, instead, filed a motion to confirm the case management plan and defer briefing on the
summary judgment motion (DN 128, Plaintiffs’ Motion).
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Plaintiffs argue that this

Court’s Orders at DN 111 and DN 118 granted Plaintiffs full discovery on the Subclass A
statute of limitations defense (Id.). Believing that the Order created a case management
plan, Plaintiffs feel that Defendants’ summary judgment motion is premature and
disregards the Court’s ordered plan (Id.)

Plaintiffs also argue that Defendants have

dragged their feet in complying with Plaintiffs’ discovery requests and have only recently
started turning over evidence relating to the Subclass A statute of limitations defense (Id. at
p. 8).
Defendants’ response to Plaintiff’s motion focuses on three arguments. First,
Defendants aver that their summary judgment motion is not premature because no prior
order or rule precludes the Court from deciding their dispositive motion at this time (DN
131, Defendants’ Response at p. 3). Next, Defendants argue that Plaintiffs should be
judicially estopped from asking the Court to defer ruling until after the Sixth Circuit’s
appeal on the Wharton/Tedesco claims is resolved (Id. at p.4). Defendants finally argue
that Plaintiffs have not met the strict requirements of Fed.R.Civ.P. 56(d) for deferral of a
summary judgment motion (Id. at p.7).
In reply, Plaintiffs address each of Defendants’ three response arguments and
attempt to dismantle them. Plaintiffs argue that the Court’s Order at DN 118 does
expressly contemplate full discovery on the Subclass A statute of limitations defense prior
to the parties filing dispositive motions on that issue (DN 133, Plaintiffs’ Reply at p.1).
Next, Plaintiffs clarify that they are not asking for the summary judgment motion to be
deferred pending the Sixth Circuit’s ruling, but, actually, only want deferral until discovery
on the statute of limitations defense is completed (Id. at p. 8). Plaintiffs additionally
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explain that they did not intend their motion to serve as a Rule 56(d) motion, and they do
not believe they are required to file a Rule 56(d) motion at this time (Id.).
As an initial matter, Defendants are correct that there is no rule preventing them
from filing their motion for summary judgment at this time. Fed.R.Civ.P. 56(b) instructs
that “[u]nless a different time is set by local rule or the court orders otherwise, a party may
file a motion for summary judgment at any time until 30 days after the close of all
discovery.” Plaintiffs believe the court here ordered otherwise on the appropriateness of
filing dispositive motions. They rely heavily on Magistrate Judge Moyer’s statements
that the Court “contemplated discovery on the Fisher subclass statute of limitations
defense” and “[i]f discovery reaches the deposition phase before resolution of the appeal,
the defendants may revisit their concerns and renew their motion to stay or seek protective
orders as necessary” (DN 118, at p. 3-4). These statements, however, do not dictate the
full discovery that Plaintiffs advocate. The Court’s previous orders envisioned the parties
at least complete the written phase of discovery on the statute of limitations issue before
Defendants file their dispositive motions.
The parties are months into written discovery on the Subclass A statute of
limitations defense claims. In their pending motion, Plaintiffs accuse Defendants of
dragging their feet with producing documents, withholding an untold number of relevant
documents, and not producing a privilege log (DN 128, Plaintiff’s Motion at p. 8).
Surprisingly, Plaintiffs have not filed any motions to compel discovery from the
Defendants despite these complaints in the pending motion. Because the prior Court

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Orders do indicate that some discovery was contemplated, the undersigned will allow the
Plaintiffs to continue their discovery for a finite period of time.
It appears that much of the disagreement between the parties arose because there is
no scheduling order outlining discovery and motion practice on the remaining claims.
Thus, the Court will conduct a telephonic conference with the parties to establish a
scheduling order with specific deadlines for completing written discovery on the statute of
limitations issue and completing briefing on the pending motion for summary judgment.

ORDER
It is HEREBY ORDERED that the Court will conduct a telephonic conference
with the parties on April 13, 2015, at 10:00 AM (CDT) to put a new scheduling order into
place. This Court will initiate the call.
It is further ORDERED that Defendants’ motion for summary judgment is stayed
pending completion of limited discovery on the statute of limitations issue, the deadline for
which will be established during the telephonic scheduling conference.

March 31, 2015

Copies:

Counsel

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