Frank v. Liberty Life Assurance Company of Boston et al

Filing 39

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 12/3/2015. (aos, Deputy Clerk)

FILED
U.S. DISTRICTCOURT
IN THE UNITED STATES J)(STRICT COUI{JSTRICT OF MARYLAND
FOR THE DISTRICT OF MARYLAND

lOIS DEC- 3 P 3: 5 I

SOl/them Dh'isioll

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CL ERK'S OFFICE

AT GRE[!i8ELi

NOREEN FRANK,
8Y

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Plaintiff,

n~pUT(

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Case No.: G./H-15-12.f

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LIBERTY LIFE ASSURANCE COMPANY
OF BOSTON, et aI.,

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Defendants.

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MEMORANDUM

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OPINION

Plaintiff Noreen Frank brings this case against Libcrty Lifc Assurancc Company of
Boston ("Liberty"). Sodexo, Inc. (""Sodexo""),and Sodcxo Long Term Disability Plan (""Sodexo
Plan""). Frank's claims for rclicfarise under thc Employec Retircment Income Sccurity Act of
1974, as amended (""ERISA"").29 V.S.c. ~ 1132(a)( I) and (3). ECF No. I at ~ I. PlaintitTallcges
wrongful denial ofbenelits and breach oftiduciary

duty stemming Irom Liberty's termination of

Frank's long-term disability (""LTD"")bcnelits.
This Mcmorandum Opinion and accompanying Order addrcss DetCndants Sodexo Plan
and Sodexo's Motion to Dismiss the Complaint (lOCI' No. 14). Frank's Motion lor Partial
Summary Judgmcnt. to Set a Scheduling Order, and to Permit Diseovcry (ECF No. 31), and
Liberty's Motion to Scal Exhibits to Aftidavit of Paula J. McGcc (lOCI' No. 36). The issucs arc
adequately bricfed and no hearing is nceessary. See Local Rule 105.6 (D. Md. 2014). For thc
reasons stated below. Ocfendant Sodexo and Sodexo Plan's Motion to Dismiss is GRANTED,
Plaintiffs Motion fCJrPartial Summary Judgmcnt is GRANTED against Detendant Libcrty and

DENIED against Defendants Sodexo and Sodexo Plan. PlaintilTs Motion to Set a Scheduling
Order and Motion to Permit Discovery are DENIED as moot. and Defendant Liberty"s Motion to
Seal Exhibits is GRANTED.
I.

BACKGROUND1
At all times relevant to this matter. Frank has been a participant of the Sodexo Plan. Eel'

No. I at ~ 3. Defendant Sodexo employed Frank as a Human Resources Director. Id. at 'i~
3.9.
Defendant Sodexo Plan is an employee welfare benefit plan organized and operating
under the provisions of ERISA. Id. at ~ 3. The Summary Plan Description (".SPD..) designated
the Corporate Benefits Department of Sodexo as the plan administrator and plan fiduciary of the
Sodexo Plan. !d at ~ 4. Sodexo Operations. LLC. to whom the policy was issued. is a wholly
owned subsidiary of Sodexo. !d
Defendant Liberty issued policy number GD3/GF3-81 0-252576-01 (".Liberty Policy".) to
Sodexo Operations. LLC. under which the Sodexo Plan provides LTD benefits. !d at ~ 5.
Liberty ..was insurer and decision maker f(l[ [the SodexoJ Plan. and is legally liable for providing
the LTD benelits sought [in the Complaint):. !d
Frank is disabled by severe pain in her lower back. which radiates into her legs. and other
conditions. Id. at '110. Throughout the course of her claim. Frank complied with the
requirements of the Sodexo Policy. submitting medical evidence demonstrating the cause of her
pain and proof that she was entitled to LTD benefits. !d On December 6. 2012. Frank submitted
to Liberty an ..Activities Questionnaire .. that explained her physical limitations. !d at

'i II.

On

December 17.2012. Liberty informed Frank that she was eligible to receive LTD benefits and
began paying LTD benelits to her effective December 9. 2012. !d. at ~ 12. During the course of

I For the motion to dismiss. the well-pled allegations in Frank"s Complaint are accepted as true. See i\~rhll1 Lahs ..
Inc. v. Malkar;. 7 F.3d 1130. 1134 (4th Cir. 1993).

2

her claim, Liberty caused Frank to be secretly observed
from March 26, 2013to
another activities

to Liberty. !d at

Liberty obtained an "occupational
by Ellen Levine. who described

Jr.. dated December
restrictions

and limitations

precluding

analysis/vocational
occupation

also obtained

12.2013

Sheikh responded

concluding

sedentary

work. including

change [sit/stand/sit]

Frank's ability to perform work at the

!d at ~ 16. Dr. Brown also summarized

letter by noting his conclusion

concentrating

that she remained

her opinion

treating physicians.

Dr.

that Ms. Frank cannot perform

due to the chronic pain and the side effects

the essential

as nceded"

duties of her occupation.

but that "given the difference

you may wish to consider

an independent

ofhcr

LTD benefits.

with allowance

for position

in opinion between Dr. Sheikh

medical evaluation:'

Plainti ff s LTD benefits cffectivc

2013, but invited Plaintiff to appeal that decision.ld.
the termination

report dated January

of the opinion that Frank can perform "full time

On January 20. 2014. Liberty tenninated

appealed

and light physical work. purportedly

which she needs. Id. Dr. Brown provided a supplemental

27,2014,

and this reviewer

that there was no medical support for

film as supporting

that Frank has difficulty

from medications

and light in

work due to chronic pain that does not allow her to sit. Id. at ~ 18. Dr. Sheikh

full time sedentary
also explained

18.2013

a medical review from Dr. Gayle G. flrown.

letter to Dr. Mohsin Sheikh. one ofFrank's

to Dr. Brown's

Frank submitted

review" dated November

as "most olien sedentary

full time sedentary

and light physical demand levels:'

in a December

intervals

'1 14.

10. 2013. which "concluded

relying in part on the surveillance
sedentary

Frank's

'1 15. Liberty

Id. at

physical demand:'

times in eight-hour

14,2013.!d at'i 13. On October 23.2013.

September

questionnaire

eighteen

!d at ~ 20.
December

at'l 19. On July 14. 2014.l'laintilT

!d at ~ 22. Liberty dcnicd Frank's appeal on

Octobcr 28. 2014.1d. at '124.

3

31.

The Liberty Policy that Sodexo distributed to Frank does not mention or reference any
requirement for "objective evidence" or "clinical evidence" to support a claim. except to state
that "Proof' may include a claim form submitted by thc claimant, an attending physician's
statement submitted by the c1aimant"s physician. and "standard diagnosis. chart notes. lab
findings. test results, x-rays. and/or oll1er/iJl'llls o(ohjeclive met/ical e\'it/ence in support ofa
claim for benefits," Id. at'i 28 (emphasis added). The plan document itselL as amendcd and
restated effective January I. 2012. requircs proof of claim "satisfactory to the insurer:' including
information regarding the date. cause. and degree of disability. Id.
The SPD repeatedly mentions objective evidence. stating that (I) to receive LTD benelits
"you must provide objective clinical evidence satisfilctory to the insurance company to support
your inability to perfonn the regular duties of your job": (2) in order fiJr the claimant to continue
receiving benefits. the c1aimant"s physician must be "able to provide objective evidence
regarding progress towards recovery": (3) benelits will end if the claimant receives benefits
"through the normal recovery time for your condition and you do not provide objective clinical
evidence to support your continued absence trom work" or the claimant or their "doctor does not
provide required medical information that supports physical or mental impairment that is
demonstrated by clinical and laboratory evidence": and. (4) "Periods of Disability lasting longer
than the normal period of recuperation must be supported by objective clinical and laboratory
evidence," Id.: see also Eel' No. 14. ex. 3 at 9. 10. 17. Also of note. the Liberty Policy "contains
a clause that purports to reserve sole discrelionlo

UherlJ' 10 imerprel il," Id. at '137.10 (emphasis

added).

4

II.

DEFENDANTS SODEXO AND SODEXO PLAN'S MOTION TO DISMISS
A. Standard of Review
Federal Rule of Civil Procedure ("Rule") 12(b)(6) permits a defendant to prescnt a

motion to dismiss for failure to state a claim upon when relief can be grantcd. Fed. R. Civ. P.
12(b)(6). "To survive a motion to dismiss. a complaint must contain suflicient factual matter.
accepted as true, 'to state a claim to relief that is plausible on its facc .... Ashen!!; \'. Iq!>al. 556
U.S. 662. 678, 129 S. CI. 1937, 173 L. Ed. 2d 868 (2009); see al,l'() COllI/. Gell. Life 111.1'. \'.
Co,
Advanced

Surgel)' Or. C!f Bethesda. LLC. No. DKC 14-2376,2015 U.S. Disl. LEXIS 91689. at

*13 (D. Md. July 15.2(15) C'At this stage. all well-pled allegations in a complaint must bc
considered as true and all factual allegations must be construed in thc light most favorable to the
plaintifr."). "A claim has facial plausibility when the plaintiff pleads factual content that allows
the coul1 to draw the reasonable inference that the defendant is liable for the misconduct
alleged." Iqhal. 556 U.S. at 678.
When assessing a motion to dismiss, courts refer to the pleading requirements of Rule
8(a)(2) to determine if the complaint adequately states a claim for relief. See Bell Atl. COIl)' \'.
Twomhly, 550 U.S. 544. 554-55. 127 S. Ct. 1955. 167 L. Ed. 2d 929 (2007). Rule 8(a)(2)
requires a "short and plain statement of the claim showing that the pleader is entitled to relieC'
Fed. R. Civ. 1'. 8(a)(2). A well-pleaded complaint may proceed even if the "actual proof of those
facts is improbable and recovery is very remote and unlikely." T\I'OII1My. 550 U.S. at 556
(internal quotation marks omitted). For a motion to dismiss. judges are required to assess ..the
sufliciency of the complaint and not to resolve contests surrounding the facts. the merits ofa
claim. or the applicability of defenses:' Presley \'. City o(Charlolle,\\'iIIe.
Cir. 20(6).

5

464 F.3d 480. 483 (4th

However, "Rule 8(a)(2) still requires a 'showing,' rather than a blanket assertion, of
entitlement to relief." T\I'OIl1bly. 550 U.S. at 555 n.3. That showing must eonsist of more than
"labels and conclusions," "a formulaic recitation of the elements ofa cause of action:' or "naked
assertions devoid of further factual enhancement:'

Iqbal, 556 U.S. at 678. "In evaluating the

complaint, unsupported legal allegations need not be accepted:' Re\'ene \'. Charles OJ'.
Comm '1'.1'.882 F.2d 870, 873 (4th Cir. 1989). Similarly. "[IJegal conclusions couched as factual
allegations are insufJicient as are conclusory factual allegations devoid of any relerence to actual
events" Conn. Gen. Lifi! Ins. Co.. 2015 U.S. Dist. LEXIS 91689 at

* 13-14 (internal

citations

omitted). If the "well-pleaded facts do not permit the eourt to inler more than the mere
possibility of misconduct:'

the complaint has not shown "that the pleader is entitled to relief"

Iqbal, 556 U.S. at 679.
Courts are generally not allowed "to consider matters outside the pleadings or resolve
factual disputes when ruling on a motion to dismiss:' Bosiger

I'.

u.s. Ainl'ays.

Inc.. 510 F.3d

442,450 (4th Cir. 2007). "However. there are limited circumstanees in which the court may
eonsider extrinsic documents in the context of a motion to dismiss:' including "doeuments
'attaehed to the eomplaint. as well as those attaehed to the motion to dismiss. so long as they are
integral to the complaint and authentic:"

Philips

I'.

Pill. OJ'. Mem. l1osp., 572 F.3d 176. 180

(4th Cir. 2009).
B. Declaratory Relief under ~ 502(a)(1 )(B) Against Sodexo Plan (First and
Second Claims)
Delendants Sodexo and Sodexo Plan move to dismiss Plaintiffs ERISA ~ 502(a)(l )(B)
claims against the Sodexo Plan. Generally, ERISA applies to "any employee benefit plan"
established or maintained by "any employer engaged in commerce or in any industry or activity
atlecting commerce," "any employce organization or organizations representing employees

6

engaged in commerce or in any industry or activity affecting commerce:' or both. 29 U.S.c. ~
I003(a). "An 'employee welfare benefit plan' refers to 'any plan. fund. or program' established
or maintained by an employer or employee organization to provide. il1/er alia. medical. surgical.
or hospital benefits to employees:' S0170COProds. Co. \'. I'hysical7s Hea/lh l'/al1. 117c..338 F.3d
366.368 n.3 (4th Cir. 2003).
Under ERISA ~ 502(a)(l )(8). a participant or bencficiary may bring a civil action "to
recover bencfits due to him under the tenns of his plan. to enforce his rights under the terms of
the plan. or to clarify his rights to future benefits under the terms of the plan:' 29 U.S.c. ~
I 132(a)(l )(8). "An employee bene1it plan may sue or be sued under this title as an entity:' 29
U.S.c.

S

1132(d)( I). "This court has held that review of a benefits determination under ~

I I32(a)(l )(13)should consider among other factors. 'whether the decision making process was
reasoned and principled.' 'whether the decision was consistent with the procedural and
substantive requirements of ERISA: and 'the fiduciary" s motives and any conllict of interest it
may have .... KorolYl7ska

1'.

Jlelro Life 117.1'. 474 F.3d 101. 107 (4th Cir. 2006).
CO..

Here. Plaintiffs Complaint fails to allege f~lctsthat state a claim against the Sodexo Plan.
As Defendants correctly note. Plaintiffs "First Claim for Reliefmentions

the Plan in the

heading. but in the forty-three paragraphs that lollow the heading. there is not a single allegation
that purports to describe anything that the [SodexoJ Plan did or failed to do:' lOCI'No. 24 at 3:
see ECF No. I at

'I~

6-49. Plaintiffs second claim asserts that the Sodexo Plan and Liberty failed

to provide Plaintiff a lilll and fair review of her claim or a full and fair review of the appeal from
the tennination of her claim for LTD benefits. ECF No. 1 at ~ 50. but fails to assert that the
Sodexo Plan participated in the review. lOCI'No. I at

'i~
11-39.

Additionally. Plaintiff

acknowledges that Liberty was the "insurer and decision maker fiJr [the Sodexo J Plan, and is

7

legally liable fi)r providing
Plaintiffs

conclusory

the LTD benefits sought [in the Complaint]."

allegation

that the Sodexo Plnn and Liberty failed to provide PlaintifTa

and fair review does not meet the standards
("'Rule 8(a)(2) still requires a 'showing,'
reliee),

Accordingly,

ECF No. I at ~ 5.

Defendants

provided

full

in Twomhly, Twomh~l', 550 U.S. at 555 n.3

rather than a blanket assertion,

of entitlement

to

Sodexo and Sodexo Plan's motion to dismiss Plaintiffs

~

502(a)( I )(13) claims against the Sodexo Plan is GRANTED.
C. Breach
Defendants

of Fiduciary

S 502(a)(3),

any act or practice

Against

Sodcxo (Third

beneliciary,

which violates any provision
equitable

relief(i)

29 U,S,c.

S

or (ii) to enforce any

I 132(a)(3 ). In order to establish

a plaintiff must show "I) that a defendant

ERISA plan, 2) that a defendant

breached

is in need of injunctive

52-59. Under

of this title or the terms of the plan, or (13) to

ERISA claim under ~ 502(a)(3),

the participant

'I~

or fiduciary may bring a civil action "(A) to enjoin

to rcdress such violations

of this title or the terms of the plan"

Claim)

Third Claim, which

its liduciary duty owed to Frank, ECF No, I at

a participant,

obtain other appropriate
provisions

~ 502(a)(3)

Sodexo and Sodexo Plan move to dismiss Plaintiffs

alleges that Sodexo breached
ERISA

Duty Under

its liduciary

responsibilities

or other appropriate

a

\\'as a liduciary of the

under the plan, and 3) that

equitable

relief to remedy the

violation or enforce the plan'" Adallls \". Brink's Co., 261 F. App'x 583, 590 (4th Cir. 2008).
Plaintiff must also show that the relief being sought under ~ 502(a)(3)
under ~ 502(a)( I )(13).

KO/"OIYlISka,

474 F,3d at 102-03 ("Because

the plaintiff s injury through review of her individual
under

9

1132(a)(3)

has sufficiently
demonstrate
available

will not lie"),

established

S 502(a)(

adequate

benefits claim under

relief is available

S

that Defendant

Sodexo was a Iiduciary,

1)(13),
8

PlaintilT

Plaintiff has tililed to

Plaintiffs

for

I 32(a)( 1)(13), relief

For the reasons below, the Court finds that although

that Sodexo violated a fiduciary duty. Additionally,

under

would not be available

reliefis

fully

1. Plaintiff has suflicientlv alleged that Sodexo was a fiduciarv to Frank
"To state a claim for breach of fiduciary duty under ERISA. the threshold question is
whether the plaintifThas sufliciently alleged that the defendant was a .fiduciary .... Mooll \'. BIVX
Techs .. Illc .. 577 F. App'x 224. 229 (4th Cir. 2014). Under ERISA. a person is a fiduciary to a
plan ."to the extent' that he (I) 'exercises any discretionary authority or discretionary control
respecting management of such plan or its assets.' (2) 'renders investment advice for a fee or
other compensation.'

or (3) 'has any discretionary authority or discretionary responsibility in the

administration of such plan.' ERISA

* 3(21 )(A). 29 U.S.c. * 1002(21 )(A)'" Pellder

\'. Ballk oj'

Am. Corp .• 788 F.3d 354. 362 (4th Cir. 2015). Courts must "'examine the conduct at issuc when
determining whether an individual is an ERISA tiduciary'" becausc ..the definition of ERISA
tiduciary 'is couched in terms of functional control and authority ovcr the plan .... Mooll. 577 F.
App'x at 229.
As an employer. Sodexo is allowed to be a fiduciary of a welfare bene lit plan. while still
perfonning its duties as an employer. An employer that establishes or "mailllains an employec"
bene tit plan is a plan sponsor. SOIlOCOProds. Co .. 338 F.3d at 372.
Unlike traditional trustees who are bound by the duty of loyalty to trust
bcneticiaries. ERISA fiduciaries may wear two hats. "Employers. for example.
can be ERISA fiduciaries and still take actions to the disadvantage of employee
beneficiaries. when they act as employers (e.g .. tiring a beneliciary for reasons
unrelated to the ERISA plan). or even as plan sponsors (~. modifying the terms
of a plan as allowed by ERISA to provide Icss generous benetits)."
Pender, 788 F.3d at 362 (internal citation omitted). An employer's status as "an ERISA plan
sponsor does not automatically convert the employer into a plan fiduciary." Moon. 577 F. App'x
at 229. An employer. or plan sponsor. "acts as a liduciary only to the extent that it 'exercises
"any discretionary authority" over the management or administration of a plan .... SOIlOCOI'rods.

9

Co., 338 1'.3d at 372-73. But an employer does not "act as a fiduciary simply 'by performing
settlor-type functions such as establishing a plan and designing its benefits .... Id. at 373.
Here. PlaintifTavers that Sodexo exercised discretionary authority over the administration
of the plan. According to Plaintill Sodexo exercised fiduciary discretion by "(a) preparing
and/or distributing the SPD to employees and participants. and (b) supervising and ensuring that
The Plan's delegated claims liduciary. Liberty. complies with the requirements of the plan
document and thus The Policy and of ERISA when deciding claims. because Sodexo exercised
discretionary authority over the plan's management. and had discretionary authority or
responsibility in the plan's administration:'

ECI' No. I at'; 54. The alleged supervision of

Liberty when deciding claims and discretion of the plan's management sufficiently goes beyond
"establishing a plan and designing its benefits:'

80/lOCO

P/'{}(/,'. Co .. 338 F.3d at 373. Thus. the

Plaintiffs Complaint has adequately asserted that Sodexo was a fiduciary.
2. Sodexo did not violate its liduciarv duty
Although Plaintiff has sufficiently alleged that Sodexo was a fiduciary. Plaintilfhas
failed to allege that Sodexo violated its fiduciary duty. ERISA requires a fiduciary to discharge
its liduciary duties "'with respect to a plan solely in the interest of the participants and
beneficiaries .... Varit)' Corp. \'. Ilowe, 516 U.S. 489, 506,116 S. Ct. 1065,134 L. Ed. 2d 130
(1996). Its duties include the "'duty to provide bencliciaries with accurate information .... Gross
v. 81. Agnes Health Care, Il1c No. ELH-12-2990. 2013 U.S. Dist. LEXIS 130291. at *44 (0,
..
Md, Sept. 12, 2013). "ERISA administrators have a liduciary obligation 'not to misinf011l1
employees through material misrepresentations and incomplete, inconsistent or contradictory
disclosures"" Griggs \', E.!. DuPont de Nell/ours & Co.. 237 F.3d 371. 380 (4th Cir. 2001)
(citation omitted).

10

Plaintiff argues that Sodexo breached its fiduciary duty by "distributing to eligible
employees. including Frank. a false and fraudulent SPD which includes terms and requirements
not in the Policy or the plan document:' ECF No. I at ~ 57. Pursuant to 29 U.S.c. ~ I022(a). the
SPD must be "surticiently accurate and comprehensive to reasonably apprise f] participants ...
of their rights and obligations under the plan:' 29 U.S.C. ~ 1022(a). Sodexo's description of the
Liberty Policy provided in the SPD met this standard. The SPD states that "'Proof

may include a

claim form submitted by the claimant. an attending physician's statement submitted by the
claimant's physician. and 'standard diagnosis. chart notes. lab findings. test results. x-rays.
and/or olherfimll.\' oj'objeclil'e medical el'idellce in support of a claim for benefits .... ECF No. I
at ~ 28 (emphasis added). The SPD also notes that to receive LTD benefits. "you must provide
objectiv~ clinical evidence satisfactory to Liberty to SUPP0l1 your inability to perform the regular
duties of your job. ECF No. I at'i 28. While not copied verbatim from the Liberty Policy.
Sodexo's SPD was not a material misrepresentation or contradictory to the Liberty Policy. which
included a requirement of "objective medical evidence:' Thus. it sen'ed its purpose of
reasonably apprising the participants of its obligations and Plaintiff has not surticiently alleged a
breach of fiduciary duty.
3. Relief for Plaintiffs Claims are available under 502(a)(1 )(13).makinQ
502(a)(3) inappropriate
PlaintifTseeks relief from Sodexo f()r breach of fiduciary duty pursuant to ERISA ~
502(a)(3), despite also seeking relief under ERISA ~ 502(a)( I)(B). In the Fourth Circuit.
plaintiffs are not permitted to '''seek rcliefsimultaneously

under ~ 502(a)(I)(B) and ~ 502(a)(3):

when the injury alleged creates a cause of action under ~ 502(a)(I)(B):'

COIIII.

Gell. Uj'e

Ill.\'.

.-

Co..

2015 U.S. Dist. LEXIS 91689 at *86. Because ~ 502(a)(3) "fimctions as a 'safetv net. olTeril1!!
.
.
appropriate equitable relief for injuries caused by violations that ~ 502 does not elsewhere
II

adequately remedy' equitable relief will not normally be 'appropriate'

ifrcliefis

available under

another subsection of Section 502(a):' Pender. 788 F.3d at 364: see a/so Varily COIl'" 516 U.S.
at 515 ("Thus, we should expect that where Congress elsewhere provided adequate relief for a
beneficiary's injury. there will likely be no need for fUl1herequitable relief. in which case such
relief normally would not be 'appropriate."'):

KOl"Olymka.474 F.3d at 102 ("Individualized

equitable relief under ~ I I32(a)(3 ) is normally appropriate only for injuries that do not find
adequate redress in ERISA's other provisions.").
However. a plaintiff is allowed to present multiple theories and seek relief under ~
502(a)(3) as a lallback if the theory supporting the ~ 502(a)(1 )(8) c1aimlails. Guardian Uti! Ins.
Co. of Am.

1'.

Reinaman. No. WDQ-IO-1374. 2011 U.S. Dist. LEXIS 57100. at *27-28 (D. Md.

May 26, 201 I ) (citing Varily. 516 U.S. at 515). ("One theory is that Guardian wrongfully denied
the benefits he was entitled to under the Plan. The other is that Shilling-as
representative-misinformed

Guardian's

him of the process for obtaining coverage. and as a result he was

never covered by Guardian. Under that theory. Reinaman could not proceed under ~
502(a)(l )(8). but could sue under ~ 502(a)(3 ).").
Here. Plaintiff argues that Sodexo breached its fiduciary duty "by failing to ensure that its
delegated liduciary. Liberty complied with the terms of the plan document and the Policy and the
procedural requirements of ERISA when processing and deciding claims for LTD benefits.
including Frank's claim for LTD bcnelits:' ECF No. I at '157. Defendants Sodexo and Sodexo
Plan correctly state that the Complaint "alleges ERISA breach of fiduciary duty claims against
Sodexo. but those claims amount to nothing more than a claim for the insured disability
benelits:' ECF No. 14-1 at 2. There is no claim asserted by Frank that. ifaeeepted. would not be
covered by the Sodexo Plan and recoverable under ~ 502(a)(1 )(B). See ECl' No. I at'i 3

12

("Plaintiff is, and at all times relevant hereto was. a participant ... of the Sodexo Long Term
Disability Plan ("The Plan") and thereby entitled to receive benefits therefrom,"): see a/so Vori/y
Corp., 516 U.S. at 515 ("But that is not the case here. The Plaintiffs in this case could not
proceed under thejirsl

subsection because they were no longer members of the Massey-Ferguson

plan and. therefore. had no 'bene!lts due them under the terms of the plan,''' (italics in original».
As explained by the Fourth Circuit. "[1]0 allow a claim under [J(a)(3) would permit 'ERISA
claimants to simply characterize a denial ofbenellts as a breach of lIdueiary duty. a result which
the Supreme C01ll1expressly rejected .... KOI'OI)'I1.1'ko. 474 F.3d at 107.
KOl'Olyn.l'ka

is helpful here. In KOI'OI)'I1.1'ka. the plaintilTalleged ..that defendant lIduciary

breached its duties to her and other benefits plan participants by engaging in improper claims
procedures designed to deny valid claims for long-term disability benefits," Korol)'mko.

474

F3d at 102. The plaintiff accused the defendant of "[1]argeting types of claims that have selt~
reported symptoms. lack of objective medical findings supporting the claims. or an undefined
diagnosis. without due regard for the actual impact of the claimants' conditions on their ability tn
work," Jd. at 103. The Fourth Circuit explained that there was "nn questinn that what plaintiffis
pressing is a claim lor individual benellts ....

[and) Knrotynska's injury is redressable elsewhere

in ERISA's scheme," Id. at 105-06. The Fourth Circuit also reasnned that "Inlot only is relief
available to the plaintiff under ~ 1132(a)(I)(13). but the equitable reliefshc seeks under ~
1132(a)(3) - the revision of claims procedures - is pursued with the ultimate aim of securing the
remedies aftorded by

S

1132(a)(1 )(13)," Id. at 107-08. Likewise. here. the relicfsought is

available tn PlaintilTunder ~ 502(a)(I)(I3). Plaintiffs claim for breach ofllduciary
Sodexo is therefore dismissed.

13

duty against

D. Attorney's

Fees lind Costs

In their motion to dismiss. Defendants Sodexo and Sodexo Plan seek attorney's tees and
costs. ECF No. 14 at 17-18. "ERISA places the determination of whether attorneys' lees should
be awarded in an ERISA action completely within the discretion of the district court."
QuesinbenJI \'. Life Ins. Co., 987 F.2d 1017. 1029 (4th Cir. 1993). An award ofattorncy's

fces

may be assessed against either a party or an attorney. Childers \'. MedStar Health. Inc.. 289 F.
Supp. 2d 714. 717 (D. Md. 2003).
Sodexo and Sodexo Plan argue that Plaintiff's claims against them are without merit.
noting that Plaintiff's claim ofa "'false and fraudulent' SPD is based solely on the one word
difference between ['objective clinical evidence' and 'objective medical evidence']." and that
PlaintitTs claim that Sodexo is liable to pay Plaintiff's disability benetits is contrary to casc law
and PlaintitTs Complaint. ECF No. 14 at 18. While Defendants also note that PlaintitTs lawyer
may have been motivated by an "ongoing crusade against Liberty:' Detendants do not assert bad
faith as a motivation against Sodexo and Sodexo Plan. ECF No. 14 at 19. Plaintiff argues that
Defendant Sodexo and Sodexo Plan's request for attorney's fees and costs is without merit
because their motion to dismiss is without merit. ECF No. 19 at 24.
While the Court has granted Detendants Sodexo and Sodcxo Plan's motion to dismiss.
there is no indication that Plaintiff presented her claims against Sodexo and Sodexo Plan with
bad faith. Childers. 289 F. Supp. 2d at 717 ("Bad faith is evidenced by 'an intentional
advancement ofa baseless contention

): see Reinkin)!. \'. Philo.

Alii

Life. Ins. CO.. 910 F.2d

1210, 1217-18 (4th Cir. 1990) (listing bad faith as a factor to be considered in determination of
attorney fees award). Defendants Sodexo and Sodexo Plan's motion for attorney's Ices and costs
is DENIED.

14

lII,

I'LAINTIFF'S
REGARDING

MOTION FOR PARTIAL SUMMARY .IUDGMENT
STANDARD OF REVIEW!

Plaintiff has submitted a motion for partial summary judgment regarding the standard of
review the Court should apply to its review of the decision to deny her benefits. See ECF 31.
Defendant Liberty agrees with PlaintifTthat the Court should review the decision under a de
novo standard. See ECF No. 35 at 3. Accordingly. Plaintiffs Motion for Partial Summary
Judgment Regarding Standard of Review is GRANTED.
IV,

DEFENDANT LIBERTY'S
OF PAULA .1. McGEE

MOTION TO SEAL EXHIBITS TO AFF(()A VIT

On October 27. 2015.3 Liberty filed a Motion to Seal Exhibits lo Affidavit of Paula J.
McGee (ECF No. 35-1). submitted in support of Liberty's opposition to Frank's discovery
requests. ECF No. 36. Local Rule 105.11 requires a motion to seal to include "proposed reasons
supported by specific factual representations to justify the sealing" and "an explanation why
alternatives to scaling would not provide sufticient protection:' L.R. 105.11 (D. Md. 2014).
'"Notably. 'sensitive medical or personal identification inf'JrI11alionmay be scaled" but not where
'the scope of the request is too broad .... .I.E. \'. ely' o(I101l'l1rd. No. ELII-14-3752. 2015 U.S.
Dis!. LEXIS 7339. at *10 (D. Md. Jan. 21. 2015) (holding that the complaint and exhibits would
remain sealed. but the entire case should not remain scaled).
Liberty explains that Exhibit A. which contains Liberty's tile related to Plaintiffs claim
for disability benefits. "is 970 pages long and contains voluminous medical records and other
documents that include personal identifiers and other confidential intlJrlllation:' ECF No. 36 at

'i

Defendants Sodexo and Sodexo Plan's Motion to Dismiss has been granted and those Defendants shall be removed
from this casco As such. Plaintiffs
Illotions considered in this Memorandum
Opinion apply to Liberty Life only. Her
motion for summary judgment against Sodexo and Sodexo Plan is denied as moot. S'ee. e.g .. Knickllum \'. Prince
George's Cty .. 187 F. Supp. 2d 559. 567 (D. Md. 2002) ("All ofPlaintiWs
claims have been dismissed. therefore.
her motion for summary judgment
is 11100l.").
2

The Court can rule upon the motion
105.\1 (D. Md. 2014).

3

because

at least fourteen

15

days has passed since the Illotion was tiled. See LR.

I. Exhibit B is a disc that contains surveillance videotapes of the Plaintiff that identify her
residence. Iii. at ~ 3. Liberty argues that "any attempt to redact personal identifiers and other
confidential information would be time-consuming and the likelihood that some identitiers may
be missed would be significant:' Iii. at ~ 2.
The Court has considered the motion under the governing standard. See Doe \'. PI/h.
Citizen. 749 FJd 246. 265-66. 272 (4th Cir. 2014). The privacy concern regarding Frank's
medical and personal information. including her residence. "heavily outweighs the public
interests in access" Id. at 266. Furthermore. it would be unduly burdensome to have counsel
redact 970 pages for a non-dispositive motion. While thesc exhibits may ultimately be
unredacted for trial or a dispositive motion. the Court agrces with the concern of protecting
PlaintitTs privacy and GRANTS Defendant Liberty Lite's Motion to Seal Exhibits to Affidavit
of Paula J. McGee.
V.

PLAINTIFF's MOTION TO SET A SCHEDULING CONFERENCE AND TO
PERMIT ()(SCOVERY
Plaintiff submitted a motion f(Jr this Court to hold a scheduling conference. issue a

scheduling order. allow her counsel to depose Dr. Brown once f(Jr usc in this case and an
unrelated case. and to order Defendants to produce the missing policy amendments. premium
notices. and evidence as to whether Liberty raised the premium on the Policy because

S

12-2 J I

was adopted. ECF No. 31-1 at 2. Defendants Sodexo. Sodexo Plan. and Liberty submitted
memorandums in opposition. see ECF Nos. 34. 35. and Plaintiff has submittcd a reply. see ECF
No. 38.
Upon issuance of the accompanying Order. counsel for Plainti!Tand Defendant Liberty
will be contacted to schedule a Rule 16 Scheduling Conference. Thus. this iVlotion is DENIED as
moot.

16

VI.

CONCLUSION
For the reasons stated above, Defendant Sodexo and Sodexo Plan's Motion to Dismiss is

GRANTED, Plaintiffs Motion for Partial Summary Judgment is GRANTED against Defendant
Liberty and DENIED as moot against Defendants Sodexo and Sad exa Plan, Plaintiffs Motion to
Set a Scheduling Order and Motion to Permit Discovery are DENIED as moot, and Defendant
Liberty's Motion to Seal Exhibits is GRANTED.

Dated:

Decembe0

,$/Z-

,2015

GEORGE J. HAZEL
United States District Judge

17