Magner et al v. Airport Shuttle, Inc.
ORDER & REASONS re dft Airport Shuttle, Inc.'s 15 Motion for Summary Judgment: for the reasons stated, IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment is GRANTED and Plaintiffs' complaint is DISMISSED WITH PREJUDICE. Signed by Judge Nannette Jolivette Brown on 6/5/2013. (rll, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DONALD MAGNER, et al.
AIRPORT SHUTTLE, INC.
ORDER AND REASONS
Before the Court is Defendant Airport Shuttle, Inc.'s ("Defendant") Motion for Summary
Judgment,1 wherein it seeks the dismissal of all claims made against it by Plaintiffs Donald and
Cynthia Magner (collectively, "Plaintiffs"). Plaintiffs have failed to file an opposition to the pending
motion.2 After considering the complaint, the pending motion, the memorandum in support, the
record, and the applicable law, the Court will grant the pending motion and dismiss Plaintiffs'
complaint with prejudice.
A. Factual Background
In the complaint, Plaintiffs allege that at all relevant times, Donald Magner was an employee
of Defendant as the term is defined by 29 U.S.C. § 1002(6).3 Plaintiffs further allege that Donald
Magner was a "participant" in, and a "beneficiary" of, an "employee welfare benefit plan" as those
terms are defined by 29 U.S.C. §§ 1002(7), 1002(8), and 1002(1).4 Plaintiff Cynthia Manger was
Rec. Doc. 15.
Pursuant to Local Rule 7.5, "[e]ach party opposing a motion must file and serve a memorandum in opposition
to the motion with citations of authorities no later than eight days before the noticed submission date.
Rec. Doc. 1 at ¶ 4.
Id. at ¶ 5.
also a "beneficiary" in the "employee welfare plan," according to Plaintiffs.5 Plaintiffs claim that
Defendant was Donald Magner's "employer," the plan "sponsor," and the plan "administrator," as
those terms are defined by 29 U.S.C. §§ 1002(5), 1002(16)(A) and 1002(16)(B).6
Plaintiffs aver that on or about January 26, 2010, Donald Magner stopped working for
Defendant due to a stroke.7 In May 2010, Donald Magner resigned from his employment position,
which Plaintiffs claim was a "qualifying event" under 29 U.S.C. § 1163.8 Plaintiffs argue that as
Defendant was both sponsor and administrator of the plan, it was obligated to provide Donald
Magner with notice of his right to continuation of insurance coverage forty-four days after the
qualifying event took place.9 Plaintiffs claim that "[u]pon information and belief, Defendant failed
to provide Plaintiff, DONALD MAGNER, with notice that the qualifying event entitled him to
eighteen months of continued health insurance coverage, and that he would be entitled to an eleven
month extension if he were to be determined by the Social Security Administration to be disabled
and that the disability onset date is within sixty days of the of the [sic] COBRA continuation of
Therefore, Plaintiffs contend that Defendant breached its statutory duty under ERISA, and
as a result "Plaintiffs have incurred medical expenses which have not been covered by insurance."11
As such, Plaintiffs seek payment of their uninsured medical bills, civil penalties in the amount of
$110.00 per day, per beneficiary, for each day Defendant allegedly failed to provide proper notice
Id. at ¶ 6.
Id. at ¶ 8.
Id. at ¶ 10.
Id. at ¶ 11.
Id. at ¶ 12 (citing 29 U.S.C. § 1166(a)(2), (4)).
Id. at ¶ 13.
Id. at ¶ 14.
of Plaintiffs' right to elect continued health converge, litigation costs and attorney's fees, as well as
any other equitable relief the Court may determine is proper.12
B. Procedural Background
Plaintiffs filed the complaint in this matter on October 24, 2012.13 Defendant filed the
pending motion for summary judgment on May 20, 2013, and it was set for hearing on June 5,
2013.14 As noted earlier, Plaintiffs have failed to file an opposition.
II. Defendant's Motion for Summary Judgment
In support of the pending motion, Defendant argues that Plaintiffs were provided proper
notice of their right to COBRA continuation coverage, and accepted that continuation.15 Defendant
asserts that COBRA requires, generally, that an employee be provided with notice of his or her right
to continue health insurance within a certain number of days of a qualifying event.16 Defendant does
not dispute that Donald Magner's resignation was a "qualifying event" for COBRA purposes.17
Defendant directs the Court to the May 9, 2013 deposition of Donald Magner, where he admits that
he resigned via an August 31, 2010 letter, which he signed.18 Further, in the deposition of Sheri
Reuther, a plan administrator for Defendant, she stated that she sent a COBRA Notice Packet
immediately upon Donald Magner's resignation.19 Defendant also highlights sections of Donald
Magner's deposition, where he admits to signing the "COBRA Continuation Coverage Election
Rec. Doc. 15.
Rec. Doc. 15-1 at p. 2.
Id. at pp. 2-3 (citing 29 U.S.C. §§ 1166(a), 1163).
Id. at p. 3.
Id. (citing Rec. Doc. 15-4 at pp. 2-3). Defendant also attaches the letter. See Rec. Doc 15-4. at p. 3.
Id. (citing Rec. Doc. 15-5 at pp. 2-3).
Form," which was included in the COBRA Notice Packet, on September 1, 2010.20 As such,
Defendant argues that Donald Magner "not only received the necessary COBRA notice timely, but
accepted it, all within 1 day of his resignation. Timeliness of the notice, then, is not an issue."21
Further, Defendant contends that the notice also had the legally required language that the
coverage would last for 18 months.22 In addition, Defendant explains that the COBRA notice also
contained an explanation that the coverage could be extended by an additional 11 months if one of
the beneficiaries was found to be disabled by the Social Security Administration.23 Therefore,
Defendant contends that:
[T]he undisputed facts show that Donald Magner was provide[d] notice timely of his
right to continue coverage under COBRA, that he elected to continue the converge,
and that the notice described both the original 18 month period available as well as
the possibility of an 11 month extension if a Social Security disability finding was
As the only claims alleged in the complaint relate to alleged untimeliness of notice, Defendant avers
that based on these undisputed facts, all claims should be dismissed with prejudice.25
Finally, Defendant "anticipates" that Plaintiffs will make another claim, "beyond the claims
alleged in the complaint," that Plaintiffs "provided notice of the Social Security disability finding
as to trigger the 11 month extension."26 However, Defendant claims that Plaintiff failed to provide
timely notice of the Social Security disability finding.27 As this claim does not appear in the
Id. at pp. 4-5; see also id. at p. 6 (COBRA election form signed and dated by Donald Magner on September
Rec. Doc. 15-1 at p. 3.
Id. at p. 4 (citing Rec. Doc. 15-4 at p. 12).
See id. at pp. 5-7.
complaint, because Plaintiffs have declined to file an opposition to the pending motion to assert such
an argument, the Court will not address it here.
III. Standard on a Motion for Summary Judgment
Summary judgment is appropriate when the pleadings, discovery and disclosure materials
on file, and any affidavits show that “there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.”28 When assessing whether a dispute as to any
material fact exists, the court considers “all of the evidence but refrains from making credibility
determinations or weighing the evidence.”29 All reasonable inferences are drawn in favor of the
nonmoving party, but “‘conclusory allegations will not suffice to require a trial.'"30 If the record,
as a whole, could not lead a rational trier of fact to find for the nonmoving party, then no genuine
issue of fact exists and the moving party is entitled to judgment as a matter of law.31
Because factual disputes may not be resolved on summary judgment, a nonmovant need not
offer all of its evidence, but rather only enough so that a jury might return a verdict in its favor.32 If
the nonmovant would bear the burden of proof at trial on a claim, the movant may simply point to
the absence of evidence, which then returns the burden on the motion for summary judgment to the
nonmovant.33 Then, the nonmovant must point to competent evidence that there is an issue of
material fact so as to warrant trial.34 To defeat summary judgment, the nonmovant must direct the
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).
Travelers Ins. Co. v. Liljeberg Enters., Inc., 7 F.3d 1203, 1207 (5th Cir. 1993) (quoting Shaffer v. Williams,
794 F.2d 1030, 1033 (5th Cir. 1986)).
Amoco Prod. Co. v. Horwell Energy, Inc., 969 F.2d 146, 147-48 (5th Cir. 1992).
Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264 (5th Cir. 1991).
Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir. 1994) (per curiam).
court’s attention to specific evidence in the record to establish an issue of material fact as to each
claim upon which it will bear the burden of proof at trial.35 "The opponent must meet the movant’s
affidavits with opposing affidavits that set out specific facts showing an issue for trial."36
IV. Law and Analysis
Pursuant to 29 U.S.C. § 1166(a):
(a) In general
In accordance with regulations prescribed by the Secretary-...
(2) the employer of an employee under a plan must notify the
administrator of a qualifying event described in paragraph (1), (2),
(4), or (6) of section 1163 of this title within 30 days (or, in the case
of a group health plan which is a multiemployer plan, such longer
period of time as may be provided in the terms of the plan) of the date
of the qualifying event,
(4) the administrator shall notify–
(A) in the case of a qualifying event described in paragraph
(1), (2), (4), or (6) of section 1163 of this title, any qualified
beneficiary with respect to such event, and
(B) in the case of a qualifying event described in paragraph
(3) or (5) of section 1163 of this title where the covered
employee notifies the administrator under paragraph (3), any
qualified beneficiary with respect to such event,
of such beneficiary's rights under this subsection.
Defendant has provided evidence that Donald Magner was sent a COBRA Notice Packet upon his
resignation,37 and that he in fact signed the "COBRA Continuation Coverage Election Form,"
Rizzo v. Children’s World Learning Ctrs., 84 F.3d 758, 762 (5th Cir. 1996).
Travelers, 7 F.3d at 1206-07.
Rec. Doc. 15-5.
included in the packet, on September 1, 2010.38 In addition, the attached exhibits show that
Plaintiffs were informed in these materials that coverage would last for 18 months, and could be
extended further by a period of 11 months if one of the beneficiaries was found to by disabled by
the Social Security Administration.39
Here, Plaintiff has failed to file an opposition to the pending motion, and therefore has
brought forward no competing evidence to demonstrate that there is a genuine issue of material fact
that should preclude summary judgment. The Fifth Circuit has recognized that "when a nonmovant
is faced with a motion for summary judgment 'made and supported' as provided by Rule 56, the
nonmovant cannot survive the motion by resting on the mere allegations of its pleadings."40 Federal
Rule of Civil Procedure 56 provides that a motion for summary judgment, and the facts asserted
therein, may be supported by depositions, documents, electronically stored information, and
affidavits, as Defendant has done here.41 Further, within the Fifth Circuit, the "general rule [is] that
summary judgment [is] appropriate [where] the nonmovant, although faced with a summary
judgment motion, cho[oses] not to respond to the motion at all."42 As Defendant's evidence supports
the dismissal of Plaintiffs' action, and Plaintiffs have not come forward to refute any of Defendant's
evidence or claim that there is a genuine dispute as to any material fact, the Court will grant the
pending motion and dismiss Plaintiffs' complaint with prejudice.
Rec. Doc. 15-4 at pp. 6-7.
See id at pp. 11-12.
Isquith for on Behalf of Isquith v. Middle S. Utilities, Inc., 847 F.2d 186, 199 (5th Cir. 1988).
Fed. R. Civ. P. 56(c).
Isquith, 847 F.2d at 199.
For the foregoing reasons,
IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment43 is
GRANTED and Plaintiffs' complaint is DISMISSED WITH PREJUDICE.
NEW ORLEANS, LOUISIANA, this _______ day of June, 2013.
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
Rec. Doc. 15.
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