Fraley v. General Motors, LLC

Filing 46

ORDER DENYING IN PART AND GRANTING IN PART 29 Plaintiff's MOTION to for Leave to File Plaintiff's Amended and Supplemental Complaint. Signed by District Judge Terrence G. Berg. (AChu)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
4:16-CV-14465-TGB

CHARLES FRALEY,

ORDER DENYING IN PART
AND GRANTING IN PART
PLAINTIFF’S MOTION FOR
LEAVE TO FILE PLAINTIFF’S
AMENDED AND
SUPPLEMENTAL
COMPLAINT

Plaintiff,
vs.
GENERAL MOTORS, LLC,
Defendant.

Before the Court is Plaintiff’s Motion for Leave to File Amended
and Supplemental Complaint. ECF No. 29. For the reasons stated herein,
the motion is DENIED IN PART and GRANTED IN PART. Further,
the Court will direct Defendant General Motors, LLC to supplement the
Administrative Record with those documents to which the parties have
stipulated.
I. Background
Plaintiff Charles Fraley was an engineer employed by Defendant
General Motors, LLC (“GM”) until he developed a disability which
prevented him from working. Plaintiff’s Original Complaint, ECF No. 1,
PageID.2–3. Plaintiff applied for, and was granted, Social Security
Disability Insurance benefits (“SSDI”), and Defendant also granted
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Plaintiff “Sickness and Accident Benefits,” (“S&A”) along with “Extended
Disability Benefits,” (“EDB”). ECF No. 1, PageID.3. But Defendant did
not approve other benefits to which Plaintiff believed he was entitled,
and so Plaintiff filed this lawsuit under the Employee Retirement Income
Security Act ("ERISA"), 29 U.S.C. § 1001 et seq., asserting claims for (1)
Life Insurance; (2) Health Care Coverage; (3) Continuation of health
insurance coverage under COBRA (“Consolidated Omnibus Budget
Reconciliation Act”); and (4) Request for Documents.

ECF No. 1,

PageID.3-11. Defendants filed an Answer with affirmative defenses on
January 27, 2017. ECF No. 4.
On May 31, 2017, Defendant filed the Administrative Record
consisting of nearly 1,000 pages including plan documents and
administrative records. ECF No. 6. On July 28, 2017, Plaintiff filed a
“Motion for Remand to Supplement the Administrative Record,”
contending that the record was incomplete, and seeking to remand to the
administrator to supplement the administrative record. ECF No. 8. To
adequately consider this motion, the Court suspended its standard
scheduling order that applies to ERISA cases while it considered
Plaintiff’s motion. ECF Nos. 10, & 11; Sept. 13, 2017 Text Only Order.
After reviewing arguments from both parties (ECF Nos. 8 & 12),
the Court denied Plaintiff’s request. ECF No. 13. In its Opinion and
Order, this Court observed that Plaintiff never raised a claim of
“administrator bias” or of “procedural deficiency.” ECF No. 13,
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PageID.1070–1071. The Court further noted that, per the Sixth Circuit,
a complainant “cannot ‘simply on a hunch’ compel [Defendant] to produce
documents that either do not exist or were not included in the
administrative record in the ordinary course of [Defendant’s] business.”
ECF No. 13, PageID.1070 (quoting Likas v. Life Ins. Co. of North
America, 222 Fed. Appx. 481, 485 (6th Cir. 2007) (unpublished case)
(internal citations omitted)). The Court found that Plaintiff had failed to
present any evidence to suggest that the records they sought existed in
this case or were improperly omitted. ECF No. 13, PageID.1072–1073.
The Court held that it would be able to review this matter based solely
on the existing administrative record. ECF No. 13, PageID.1072.
During a telephonic conference held on January 17, 2018 with
counsel for both sides, counsel for Plaintiff requested leave to withdraw
as counsel. This motion was granted. ECF No. 14. On February 15, 2018,
new counsel for Plaintiff filed notice of appearance, and took over
litigation of this case. ECF No. 15.
Subsequently, Plaintiff filed the instant Motion to Amend and
Correct the Complaint, alleging that, while this case began as an ERISA
action, there were grounds to support adding other claims and new
defendants because the Administrative Record, Plaintiff alleged, was
fraudulently redacted. ECF No. 29. In the amended complaint, Plaintiff
seeks to:

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 add Sedgwick Claims Management Services, Inc. (“Sedgwick”)
and Fidelity & Guaranty Life Insurance Co., Inc. (“Fidelity”) as
defendants;
 add 11 new claims
 add 20 “John and Jane Doe” defendants;
 request additional statutory relief under the new claims, a host
of other sanctions, equitable relief, punitive damages, etc.; and
 reorganize and replead his original claims for health care
coverage, COBRA violations, a failure to provide requested
documents, and denial of life insurance benefits.
On May 2, 2019, the Court held a hearing on Plaintiff’s motion to
amend the complaint. At that hearing, Plaintiff indicated that he had in
his possession numerous documents that should have been included in
the Administrative Record (ECF No. 6) provided to the Court by the plan
administrator but were not included; namely, “automated letters
acknowledging Plaintiff’s calls made in the manner proscribed by the
plan to get COBRA coverage.” ECF No 29, PageID.2443. Counsel for
Defendant agreed to review the documents identified by Plaintiff and the
Court ordered the parties to meet and confer over whether the
Administrative Record could be supplemented to include additional
materials. ECF No. 36. In September 2019, the parties filed
supplemental briefs regarding the Administrative Record. ECF Nos. 43-

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44. The Court also held a telephonic conference with the parties
regarding the supplemental briefs.
In its brief, Defendant asserted that of the non-duplicative
documents that Plaintiff sought to add to the Administrative Record,
many are documents related to Plaintiff’s approved claims for Sick &
Accident Benefits (“S&A”), Extended Disability Benefits (“EDB”), and
Total and Permanent Disability benefits (“TPD”). ECF No. 43,
PageID.2621. Defendant contends these documents relate to claims in
Plaintiff’s proposed amended complaint (ECF No. 29-2) rather than
claims in Plaintiff’s original complaint (ECF No. 1). As these documents
were not before the claim administrator at the time of its final decision—
because they did not involve denied benefits—Defendant contends they
should not be added to the current Administrative Record. ECF No. 43,
PageID.2621. Conversely, Plaintiff argues S&A, EDB, and TPD
documents are relevant to determining Fraley’s eligibility for life
insurance (Count I of Plaintiff’s original complaint) because the
Summary Plan Description (“SPD”) provides that Basic Life Insurance
will be continued at no cost to Plaintiff while he is totally disabled up to
age 65. See Original Complaint, ECF No. 1, PageID.4-5.
GM also identified four documents (dated March 21, 2016, March
31, 2016, July 26, 2017, and January 31, 2018). ECF No. 43,
PageID.2622. Because these documents were generated after the claim
administrator rendered its decision, they could not have been considered
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by the claim administrator, and Defendant contends that therefore they
should not be supplemented into the Administrative Record. Id. Finally,
Defendant acknowledged a set of non-duplicative documents, consisting
of 38 pages, that it agrees may be added to the record “in order to resolve
this dispute regarding the Administrative Record.” Id.
District courts, when asked to review a Plan Administrator’s denial
of ERISA benefits, should conduct a review “based solely upon the
administrative record.” Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d
609, 619 (6th Cir. 1998). They generally should not consider “evidence
not presented to the plan administrator.” Perry v. Simplicity Eng’g, 900
F.2d 963, 966 (6th Cir. 1990). “The only exception to the . . . principle of
not receiving new evidence at the district court level arises when
consideration of that evidence is necessary to resolve an ERISA
claimant’s procedural challenge to the administrator’s decision, such as
an alleged lack of due process afforded by the administrator or alleged
bias on its part.” Wilkins, 150 F.3d at 618.
Fraley’s original complaint does not explicitly allege a lack of due
process or administrator bias, but it does allege that GM repeatedly
denied Plaintiff’s requests for documents related to his COBRA and other
ERISA eligibility. ECF No. 1, PageID.9-10. This included “all
communications” such as “electronic and paper correspondence,” “records
of telephone calls made to and from GM Benefits & Services” and “all
notations” made by GM representatives concerning these calls. Id.
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Allegations in Plaintiff’s proposed amended complaint with respect to
Counts 1 – 4 expand on these allegations by contending that the Plan
Administrator

failed

to

consider

these

communications

when

determining whether Fraley should be extended the requested ERISA
benefits and that GM failed to give him proper notice that he would not
receive COBRA coverage. See ECF No. 29-2, PageID.2472. Plaintiff also
alleges that GM’s Plan Administrator did not respond to his
administrative appeal with respect to his request for COBRA coverage.
Id. at PageID.2471. See Miller v. Metropolitan Life Ins. Co., 925 F.2d 979,
986 (6th Cir. 1991) (“In reviewing a final decision, this court must
consider what occurred during the administrative appeals process. The
administrative scheme of ERISA requires a participant to exhaust his or
her administrative remedies prior to commencing suit in federal court.”).
The Court finds these allegations sufficient to support a procedural
due process challenge to GM’s denial of ERISA, and that accordingly
some supplementation of the Administrative Record may be permitted
with respect to the 38 pages to which the parties have stipulated. See
Jones v. Iron Workers Local 25 Pension Fund, 2014 WL 12775664, at *6
(E.D. Mich. Aug. 15, 2014) (“The following have been found to violate due
process [in ERISA cases]: the lack of information of factual basis used to
support a denial of benefits; failure to state specific reasons for denial of
claim; failure to notify claimant of appeal procedures; and, failure to
provide a reasonable opportunity for a full and fair review of decision.”).
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The

Court

therefore

ORDERS

Defendant

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to

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supplement

the

Administrative Record by filing the agreed-to 38 pages.1
As for the remaining documents, the Court concludes that
supplementation is not warranted. Plaintiff contends that these
additional documents are relevant to the new claims alleged in his
proposed amended complaint, specifically claims for interference with
EDB benefits. But these claims, as explained further below, are not
adequately pled and are therefore futile. Plaintiff also argues that
additional documents relating to S&A, EDB, and TPD benefits are
relevant to determining Fraley’s eligibility for life insurance (Count I of
Plaintiff’s original complaint) because the SPD provides that Basic Life
Insurance will be continued at no cost to Plaintiff while he is totally
disabled up to age 65. ECF No. 44, PageID.2627 (referencing a “Plaintiff’s
exhibit 7” that was attached to a previously stricken motion for summary
judgment); see ECF No. 16-6. However, as explained above, ERISA claims
are closely regulated; federal district courts may only consider items in
the Administrative Record unless the plaintiff has asserted a procedural
challenge to the administrator’s decision. See Perry v. Simplicity
Engineering, a Div. of Lukens Gen. Indus., Inc., 900 F.2d 963, 966 (6th

Because Plaintiff is not requesting that GM turn over additional discovery to prove
a due process violation, the Court need not engage in a full Wilkins analysis. Rather,
Plaintiff merely seeks to supplement the Administrative Record with additional
documents in his possession. See Jones v. Iron Workers Local 25 Pension Fund, No.
14-10031, 2014 WL 12775664, at *4-5 (E.D. Mich. Aug. 15, 2014).
1

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Cir. 1990). With respect to these additional documents related to S&A,
EDB, and TPD benefits, the Court concludes that Plaintiff has not
adequately shown that they are relevant to his procedural challenge to
the

Plan

Administrator’s

decision

and

therefore

will

not

be

supplemented.
Further, in the event that the Court might conclude on the merits
of Plaintiff’s claims that he was improperly denied ERISA benefits and
that the Plan Administrator’s decision suffered from a procedural defect
or was factually incomplete, then the Court could remand to the Plan
Administrator to allow consideration of any additional documents that
were not part of the Administrative Record. See Shelby Cty. Health Care
Corp. v. Majestic Star Casino, 581 F.3d 355, 373 (6th Cir. 2009). But
where, as here, the Court is ruling on Plaintiff’s pending motion to amend
his complaint—and not a motion for remand, or on the merits of
Plaintiff’s ERISA claims that he was improperly denied benefits—the
Court will not permit supplementation of the Administrative Record with
respect to those additional documents. If it is later determined that the
Plan Administrator erroneously denied benefits, the appropriate
remedy—whether remand to the Plan Administrator to consider those
documents, or an award of benefits—will be determined at that time. See
Shelby Cty. Health Care Corp., 581 F.3d at 373-74.
Consequently, for the reasons expressed above, the Court will
permit supplementation of the Administrative Record as to those 38
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documents

to

which

the

parties

have

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stipulated.

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No

other

supplementation will be allowed at this time.
II. Standard of Review
Federal Rule of Civil Procedure 15(a)(2) provides that a court may
freely grant leave to amend a pleading when justice so requires, in order
to ensure that a case is tried on its merits “rather than [on] the
technicalities of the pleadings.” Moore v. City of Paducah, 790 F.2d 557,
559 (6th Cir. 1986). “In deciding whether to grant a motion to amend,
courts should consider undue delay in filing, lack of notice to the opposing
party, and futility of amendment.” Brumbalough v. Camelot Care Ctrs.,
Inc., 427 F.3d 996, 1001 (6th Cir. 2005). Here, Defendant GM opposes
Plaintiff’s motion to amend as futile. ECF No. 31, PageID.2525. An
amendment is futile if it would be subject to dismissal upon a motion to
dismiss. See Head v. Jellico Hous. Auth., 870 F.2d 1117, 1124 (6th Cir.
1989).
When deciding a motion to dismiss under Rule 12(b)(6), the Court
must “construe the complaint in the light most favorable to the plaintiff
and accept all allegations as true.” Keys v. Humana Inc., 684 F.3d 605,
608 (6th Cir. 2012). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). A plausible claim need not contain “detailed factual allegations,”
but it must contain more than “labels and conclusions” or “a formulaic
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recitation of the elements of a cause of action[.]” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A court “may consider the Complaint
and any exhibits attached thereto, public records, items appearing in the
record of the case and exhibits attached to defendant’s motion to dismiss
so long as they are referred to in the Complaint and are central to the
claims contained therein.” Bassett v. Nat’l Collegiate Athletic Ass’n., 528
F.3d 426, 430 (6th Cir. 2008) (emphasis added).
A plaintiff may also move to supplement her complaint pursuant to
Fed. R. Civ. P. 15(d): “On a motion and reasonable notice, the court may,
on just terms, permit a party to serve a supplemental pleading setting
out any transaction, occurrence, or event that happened after the date of
the pleading to be supplemented.” “Therefore, a motion to supplement,
as opposed to one to amend, seeks to add allegations pertaining to events
arising after the original complaint was filed.” Mitchell v. Clayton, 2014
WL 186026, at *1 (E.D. Mich. Jan. 16, 2014) (citing Murphy v. Genier,
2009 WL 1044832, at *19 (E.D. Mich. Apr. 20, 2009)). “Moreover, like
amendment of pleadings under Rule 15(a), supplementation of original
pleadings is to be liberally permitted ‘when justice so requires.’” Bromley
v. Michigan Educ. Ass’n-NEA, 178 F.R.D. 148, 153-54 (E.D. Mich. 1998)
(quoting Fed. R. Civ. P. 15(a)).
III. Analysis
Plaintiff’s

primary

assertion

is

that

amendment

and

supplementation of his complaint is necessary because once the
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Administrative Record became available for review, “it became apparent
that additional violations could be proved.” ECF No. 29, PageID.2442.
Plaintiff claims that a review of his “Exhibit A6” reveals that the
Administrative Record does not include Fraley’s “underlying employee
claim file.” Because Plaintiff believes he was denied a proper and
comprehensive review as required by ERISA, he should be entitled to
bring additional claims. Additionally, Plaintiff argues his due process
concerns cannot be addressed within the context of the underlying ERISA
claims because they entail different remedies and different equitable
relief. The Court will consider each in turn, beginning with the new
claims Plaintiff seeks to add to the complaint and ending with those
claims in Plaintiff’s original complaint that he seeks to supplement with
additional allegations. The original complaint contained four Counts, so
the first new claim is identified in the proposed Amended Complaint as
“Count V.”
A.

Proposed Count V: Failure to Pay Enhanced Variable Pay
Count V of Plaintiff’s proposed amended complaint alleges that GM

failed to pay him Enhanced Variable Pay (“EVP”) for 2013 while he was
on disability leave and receiving S&A and EDB benefits. Under Section
9 of the SPD (page 180),2 “GM makes contributions for . . . the Enhanced
The Court may consider the contents of the SPD in deciding Plaintiff’s motion to
amend the complaint because the proposed amended complaint extensively quotes
the SPD and is therefore part of the pleadings. Teagardener v. Republic-Franklin Inc.
Pension Plan, 909 F.2d 947, 949 (6th Cir. 1990).
2

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Variable Pay Plan after you become eligible and while you are in active
service.” ECF No. 31-2, PageID.2547 (emphasis added). Plaintiff’s
proposed amended complaint does not allege that Plaintiff was in “active
service” in 2013. Instead, it alleges that Plaintiff was an “[a]ctive
[e]mployee on [d]isability [l]eave for the entire year 2013.” ECF No. 29-2,
PageID.2482.
While the SDP (Summary Plan Description) does not contain a
specific definition for the term “active service,” it does define the phrase
“actively at work” in the Plan’s glossary of terms. That definition is
helpful in considering Plaintiff’s allegation that he was an “active
employee on disability leave.” The SPD’s glossary defines “actively at
work” as:
whenever you are performing the regular duties of your
assignment, as determined by the Company, on a scheduled
work day at one of the Company’s places of business or at any
other location to which the Company’s business may require
you to travel. Assignment includes both your regular
assignment as well as any given on a temporary basis. If you
are on an approved vacation as determined by the Company,
or excused with pay, you shall be considered “actively on
work” while on such approved vacation. For purposes of initial
eligibility for health care coverage, an employee on approved
disability leave of absence will be deemed “actively at work.”
ECF No. 31-3, PageID.2549.
Plaintiff’s original complaint and proposed amended complaint
plead and admit that Plaintiff’s “last day of active work was April 30,
2012.” ECF No. 29-2, PageID.2460; ECF No. 1, PageID.2 (emphasis
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added). Defendant GM asserts that because Plaintiff pleads and admits
that he was not actively working in 2013, he was not in “active service”
in 2013 and therefore not entitled to EVP for 2013 under Section 9 of the
SPD. See ECF No. 31-2, PageID.2547. Further, Section 4 of the SDP
describes all of the benefit programs individuals are entitled to while on
disability leave; because EVP is not included in that list of programs,
Defendant contends that employees on disability leave are not entitled to
EVP. See ECF No. 31-4, PageID.2560-62. Given all of these factors,
Defendant argues amending the complaint to add Count V would be
futile. ECF No. 31, PageID.2525-26.
Again, Plaintiff’s proposed amended complaint does not allege that
his “active employee on disability leave” status satisfies as “active
service” under Section 9. But in his reply in support of his motion,
Plaintiff rejects GM’s reliance on the “active at work” definition and
contends that “active at work” is not the same as “active service” under
Section 9 of the SPD. Plaintiff also attaches a new affidavit (authored by
Fraley on November 12, 2018) stating that he “was periodically called by
his supervisor while on approved leave and until his retirement was
effective in February, 2014.” ECF No. 32, PageID.2584. He states that he
“was told he remained an ‘active employee’ and on the headcount and
budget of the department.” Id. The implication of these additional
contentions is that, as an “Active Employee on Disability Leave” for the

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entire year of 2013, Plaintiff was in “active service” in 2013 and therefore
entitled to EVP for that year.
However, affidavits such as this may not be considered by the Court
on a motion to dismiss unless they are “referred to in the Complaint and
are central to the claims contained therein.” Bassett v. Nat’l Collegiate
Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008) (citing Amini v. Oberlin
Coll., 259 F.3d 493, 502 (6th Cir. 2001)). This affidavit does not satisfy
those parameters because it addresses new facts not contained in the
Proposed Amended Complaint. C.f., Song v. City of Elyria, Ohio, 985 F.2d
840, 842 (6th Cir. 1993) (concluding that affidavits attached to plaintiff’s
complaint were not outside the pleadings because “did nothing more than
verify the complaint. They added nothing new, but, in effect reiterated
the contents of the complaint itself[]”). Therefore, the Court will not
consider this affidavit or the new allegations it makes.
Further, as explained by Defendant, the SDP delineates precisely
what benefits are available to an employee on disability through the S&A
and EDB programs (which Plaintiff alleges he was on throughout 2013).
See Section 4, ECF No. 31-4. While Section 4 explains that employees on
disability may be entitled to a host of benefits and programs like S&A,
EDB, SSDI, contributions to health care coverage, Basic Life Insurance,
it does not list EVP as an entitled-to benefit or program.
The Court recognizes that there may be some ambiguity between
“active service” and “actively at work” for purposes of determining
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entitlement to EVP benefits under the Plan. But even accepting all
allegations as true in Plaintiff’s proposed Count V, Plaintiff simply does
not allege that he was in “active service” in 2013 as required under
Section 9 of the SPD. Rather, he alleges on the one hand that his “last
day of active work was April 30, 2012” but yet he was also an “active
employee on disability leave” throughout 2013. Such allegations do not
state a plausible claim for EVP benefits under the terms of the SPD. This
is even more so where Section 4 of the SPD does not state that employees
on disability leave are entitled to EVP benefits. Therefore, amending
Plaintiff’s complaint to include proposed Count V would be futile.3
B.

Proposed Count VI: False Appeals as violations of ERISA,
the Rehabilitation Act, the Americans with Disabilities Act,
and the Michigan Persons with Disabilities Civil Rights Act
Proposed Count VI alleges that GM and unnamed administrators

(presumed Doe defendants) “demonstrated a pattern of labeling standard
communications as ‘an Appeal,’” and that this conduct violates a host of
federal and state laws. ECF No. 29-2, PageID.2483-85. In doing so,
Plaintiff recounts a handful of communications that he contends GM
impermissibly labeled “appeals,” when they were simply “standard
Plaintiff’s proposed amended complaint also cites to Section 6 of the SPD (page 131),
to support his argument that he is entitled to EVP for 2013. That section states: “[i]f
severance occurs following the end of an EVP performance period but prior to the
payment date, the employee is eligible to receive EVP payout consideration for the
prior performance period.” But Plaintiff’s proposed amended complaint does not
allege that he was “separated in a reduction in force” as is required under the terms
of Section 6 of the SPD. Section 6 is therefore irrelevant.
3

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communication[s].” Id. Plaintiff contends these communications show
that in March of 2014, he spoke with an employee of proposed defendant
Fidelity, named “Hanna”, and inquired about why his health care status
was listed as “inactive.” Id. He states that Hanna wanted to initiate an
appeal for Plaintiff regarding the concern and Plaintiff informed her
expressly not to do so. Id. Then, on November 13, 2015, GM sent a letter
to Plaintiff referring to a communication from Plaintiff’s counsel as an
“appeal of Plaintiff’s eligibility for health care coverage.” Plaintiff
contends that this, and other communications, were not appeals from
Plaintiff but merely “attempts to resolve issues through dialogue at the
lowest possible level.” Id.
Plaintiff’s complaint does not allege, in any way, how these actions
amount to a violation of ERISA, the Rehabilitation Act, the Americans
with Disabilities Act, or the Michigan Persons with Disabilities Civil
Rights Act. The proposed amended complaint simply states that these
actions violate this laundry list of statutes. See ECF No. 2484-85. While
“assumed to be true,” a plaintiff’s allegations “must do more than create
speculation or suspicion of a legally cognizable cause of action; they must
show entitlement to relief.” LULAC v. Bredesen, 500 F.3d 523, 527 (6th
Cir. 2007) (emphasis in original) (citing Twombly, 550 U.S. at 555). Thus,
“[t]o state a valid claim, a complaint must contain either direct or
inferential allegations respecting all the material elements to sustain
recovery under some viable legal theory.” Id. Plaintiff has not shown,
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even accepting the allegations as true, that he would be entitled to relief
under ERISA, the Rehabilitation Act, the Americans with Disabilities
Act, or the Michigan Persons with Disabilities Civil Rights Act because
Plaintiff

does

not

plead

how

mislabeling

Plaintiff’s

counsel’s

communications as “appeals” meets any of the material elements of any
of these causes of action. Amending Plaintiff’s complaint to add Count VI
would therefore be futile.
C.
Proposed Count VII: Interference with Entitled Disability
Benefits
In proposed Count VII, Plaintiff alleges that prohibited deductions
were made to his Entitled Disability Benefit (“EDB”) payments and that
this amounted to ERISA interference. ECF No. 29-2, PageID.2485-88. He
claims the deductions were impermissible because the Plan does not
permit deductions while Social Security Disability Insurance (“SSDI”)
and Total and Permanent Disability (“TPD”) retirement applications are
processing.4
ERISA prohibits “any person to discharge, fine, suspend, expel,
discipline, or discriminate against any participant or beneficiary . . . for
the purpose of interfering with the attainment of any right to which such
participant may become entitled to under the plan[.]” Section 510 of
ERISA, 29 U.S.C.§ 1140. “Congress enacted section 510 primarily to
Plaintiff refers to “the Plan document referenced above in § B (1)” but no § B (1)
exists in the document. And many of Plaintiff’s other allegations in this Count are
disjointed and difficult to follow. For example, Plaintiff references a July 14, 2014
letter from GM as responding to a May 27, 2018 Appeal of Decisions.
4

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prevent ‘unscrupulous employers from discharging or harassing their
employees in order to keep them from obtaining vested pension benefits.’”
Dewitt v. Penn-Del Directory Corp., 106 F.3d 514, 522 (3d Cir. 1997). The
elements of a § 510 claim consequently require the plaintiff to
demonstrate that “(1) he was engaged in an activity that ERISA protects;
(2) he suffered an adverse employment action; and (3) a causal link exists
between his protected activity and the employer’s adverse action.”
Williams v. Graphic Packaging Int’l, Inc., 790 Fed.Appx. 745, 754-55 (6th
Cir. 2019) (quoting Hamilton v. Starcom Mediavest Grp., Inc., 522 F.3d
623, 628 (6th Cir. 2008)). “The Sixth Circuit has recognized two different
kinds of claims under Section 1140 [ERISA § 510]: ‘(1) a retaliation claim
where adverse action is taken because a participant availed [him]self of
an ERISA right; and (2) an interference claim where an adverse action is
taken as interference with the attainment of a right under ERISA.’” Id.
at 755 (quoting Hamilton, 522 F.3d at 627-28). Therefore, to make out a
§ 510 claim, a plaintiff must allege some kind of adverse employment
action. See Spangler v. East Kentucky Power Coop., Inc., 790 Fed.Appx.
719, 721 (6th Cir. 2019) (affirming district court’s motion to dismiss §
1140 claim where plaintiff failed to plead facts that plausibly alleged that
defendant discharged her for the purpose of interfering with her rights
to her husband’s benefits); Schewitzer v. Teamster Local 100, 413 F.3d
533, 537 (6th Cir. 2005).

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Here, the allegations in proposed Count VII do not allege any
adverse employment action. See ECF No. 29-3, PageID.2485-88. In his
reply in support of his motion to amend, Plaintiff asserts that “[t]hirty
nine (39) ERISA Interference adverse employment actions are contained
throughout the [proposed] Amended Complaint.” ECF No. 32,
PageID.2578 (citing Lawson v. Avis Budget Car Rental, LLC, 2016 WL
3919653 (S.D.N.Y. July 12, 2016); Imperato v. Otsego Cty. Sheriff’s Dep’t.,
2016 WL 1466545 (N.D.N.Y. Apr. 14, 2016)). But Plaintiff makes no effort
to identify with specificity the supposed adverse employment actions
“contained throughout” the 52-page proposed amended complaint, and
they are not alleged under Count VII. “[M]erely asserting that [he has]
alleged sufficient facts without telling [the Court] what those facts are
amount to mentioning an argument ‘in the most skeletal way . . . leaving
the court to put flesh on its bones.” Agema v. City of Allegan, 826 F.3d
326, 332-33 (6th Cir. 2016) (quoting McPherson v. Kelsey, 125 F.3d 989,
996 (6th Cir. 1997)). This the Court will not do. Without reference to
supporting facts, Plaintiff’s argument “becomes a conclusory statement
insufficient to state a plausible claim.” Id. Accordingly, this claim is
futile.
D. Proposed Count VIII: Failure to Accommodate under the ADA
Proposed Count VIII alleges that GM violated the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. and 29 C.F.R. §
1630.2(o), when Plaintiff’s counsel requested to represent Plaintiff for all
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communications with the GM Benefits & Services Center in a January
27, 2014 letter and GM refused. ECF No. 29-2, PageID.2488. Plaintiff
alleges counsel attempted to follow up with GM management and GM did
not respond and asserts that this amounts to a failure to accommodate
under the ADA. Id.
Under an ADA failure to accommodate claim, a plaintiff must show
that: “(1) he is disabled within the meaning of the ADA; (2) he is
otherwise qualified for the position, with or without reasonable
accommodation; (3) his employer was aware of his disability; (4) an
accommodation was requested; and (5) the employer failed to provide the
necessary accommodation.” Moore v. Hexacomb Corp., 670 F. Supp. 2d
621, 626 (W.D. Mich. 2009).
Permitting Plaintiff to amend his complaint to add this count would
be futile because it is barred for failure to exhaust administrative
remedies. Defendant GM raises this failure to exhaust in its response to
Plaintiff’s motion to amend. ECF No. 31, PageID.2532-33. “An employee
may not file suit under the ADA if he or she does not possess a right-tosue letter from the [Equal Employment Opportunity Commission] EEOC
because he or she has not exhausted his or her remedies.” Parry v.
Mohawk Motors of Michigan, Inc., 236 F.3d 299, 309 (6th Cir. 2000).
Plaintiff’s proposed amended complaint makes no mention of the EEOC,
nor does it allege an attempt to exhaust administrative remedies in this
manner by obtaining a right-to-sue letter. On reply in support of his
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motion, Plaintiff asserts that Defendant’s claims of exhaustion are
improperly raised and must be saved for a motion for summary judgment.
ECF No. 32, PageID.2576. But that is not so. Failing to timely file a
charge of discrimination with the EEOC is a proper ground for dismissal
pursuant to FRCP 12(b)(6). See Campau v. Orchard Hills Psychiatric
Center, 946 F. Supp. 507, 509 (E.D. Mich. 1996).
Plaintiff also argues that his failure to file a complaint with the
EEOC should be equitably tolled because he did not have enough
information to support filing a discrimination claim. “Equitable tolling
‘permits a plaintiff to avoid the bar of the statute of limitation if despite
all due diligence he is unable to obtain vital information bearing on the
existence of his claim.’” Campau, 946 F. Supp. at 511 (quoting Cada v.
Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir. 1990) (Posner, J.),
cert. denied, 501 U.S. 1261 (1991)). “Equitable tolling is inappropriate
where a plaintiff has either actual or constructive notice of his rights.”
Id. (citing Jackson v. Richards Medical Co., 961 F.2d 575 (6th Cir. 1992)).
Here, the alleged facts do not support tolling because, according to
the allegations in Plaintiff’s proposed amended complaint, Plaintiff was
aware of GM’s alleged refusal to correspond with Plaintiff’s counsel as
soon as it occurred in 2014. Campau, 946 F. Supp. at 512-13 (“Judge
Posner concluded, and at least one district court in the Eastern District
of Michigan has agreed, that ‘a plaintiff who invokes equitable tolling to
suspend the statute of limitation must bring suit within a reasonable
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time after he has obtained the necessary information.’”). And even still,
Plaintiff has given no indication to the Court, via his proposed amended
pleadings or otherwise, that he attempted to file an EEOC charge as soon
as he learned of the necessary information. Id. at 509 (granting
defendant’s motion to dismiss plaintiff’s ADA claim where Plaintiff
waited seven months after any possible equitable tolling period to bring
charges with the EEOC). Therefore, amending Plaintiff’s complaint to
add Count VIII would be futile.
E.
Proposed Count IX: ERISA
Discrimination”

Interference

“Systematic

Count IX appears to be an assertion of an additional ERISA
violation, as it is titled “ERISA 510 Systematic Discrimination – COBRA
– Medical Reports as Harassment – Plan Prohibited EDB Deductions –
False Appeals.” ECF No. 29-2, PageID.2488-89. The count alleges that
the

“sum

total”

of

Defendant’s

“actions”

demonstrates

that

discriminatory conduct was “allowed and supported” by Defendant and
resulted in conduct that “block[ed], hinder[ed,] and interfere[d] with
Plaintiff accessing his statutory right to entitled benefits.” Id. Plaintiff
appears to contend that each of these individual, unidentified “acts” of
interference are individually actionable and merit a separate remedy. Id.
As pled, this claim must fail. Plaintiff does not specify what individual
“acts” of interference are individually actionable and the claim is largely
incomprehensible. This count alleges no facts that could support an
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ERISA § 510 claim, and as stated above, the Court will not attempt to
discern those arguments where Plaintiff has not. Agema, 826 F.3d at 33233 (“[M]erely asserting that [he has] alleged sufficient facts without
telling [the Court] what those facts are amount to mentioning an
argument ‘in the most skeletal way . . . leaving the court to put flesh on
its bones.”)
F.

Proposed Count X: Breach of Fiduciary Duty
In proposed Count X, Plaintiff alleges that Defendant’s COBRA and

ERISA violations amount to a “Hydra of breach of fiduciary obligations.”
ECF No. 29-2, PageID.2489-90. Plaintiff also claims that under 29 C.F.R.
§ 2520.104-1 and 29 C.F.R. 101.1(k), Defendant had a nondelegable
fiduciary duty to maintain and share the administrative record with
Plaintiff. Plaintiff alleges that GM failed to provide him with the full
claim file and therefore, under ERISA § 502(a)(3), he should be entitled
“to obtain other appropriate equitable relief” to redress ERISA violations.
ECF No. 29-2, PageID.2490-91.
This claim is futile. Plaintiff’s claim that GM has a nondelegable
fiduciary duty to share the complete administrative record appears to be
a repackaging of Count IV of Plaintiff’s original complaint (“Request for
Documents”) and Count III of Plaintiff’s proposed amended complaint
(“Request for Documents”).

It asserts that Defendant(s) had an

affirmative and fiduciary duty to provide requested claim and plan
documents under 29 U.S.C. § 1024(b)(4), 29 C.F.R. § 2560.503-1(h), and
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29 C.F.R. §§ 2560.503-1(m)(8)(i) and (ii). ECF No. 1, PageID.9-10; ECF
No. 29-2, PageID.2477-2479. While Plaintiff seeks to assert this claim
under § 502(a)(3), courts have warned that this “catch-all” provision
should not be used where a plaintiff may seek relief under another
provision of ERISA. Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d
609, 615 (6th Cir. 1998) (“The Supreme Court clearly limited the
applicability of § 1132(a)(3) to beneficiaries who may not avail themselves
of § 1132’s other remedies.”). Thus, an ERISA claimant cannot “simply
characterize a denial of benefits as a breach of fiduciary duty[.]” Id. at
616.
Here, ERISA already allows a statutory penalty of up to $110 per
day for failure to provide requested documents. 29 U.S.C. § 1132(c)(1); 29
C.F.R. § 2575.502c-1. And both Count IV of Plaintiff’s original complaint
and Count III of Plaintiff’s proposed amended complaint already request
equitable relief—ordering GM to produce the claim and plan documents.
Plaintiff contends he should be able to seek other unspecified equitable
remedies under a § 502(a)(3) claim for the same conduct, relying on Cigna
Corp. v. Amara, 563 U.S. 421 (2011). But in Cigna, the Supreme Court
authorized equitable relief in the form of changing the terms of the plan
explicitly because relief was not available under another ERISA
provision—there, § 502(a)(1)(B). 563 U.S. at 438-39. Here, as explained,
Plaintiff may already seek equitable relief in the form of access to the
claim and plan documents pursuant to 29 U.S.C.§ 1024(b)(4). In other
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words, § 502(a)(1)(B) empowers a plaintiff to “enforce his rights under the
terms of the plan” by seeking access to plan and claim files to which he is
entitled to under the plan. And here, as Plaintiff alleges in Count III of
his original complaint, he is entitled to the requested plan and claim
documents pursuant to directives in the SPD. Therefore, equitable relief
under § 502(a)(3) is unnecessary where § 502(a)(1)(B) already provides
the equitable relief Plaintiff seeks—access to his requested plan and
claim documents.
And to the extent Count X seeks some form of equitable relief other
than access to the claim and plan documents, it is not apparent from the
allegations in the claim and therefore is not properly pled. In sum,
because the allegations and relief sought in Count X are already being
sought in other claims, and the bare-bones allegations contained within
Count X provide the Court with no indication that Plaintiff is doing
anything other than seeking repackaged claims already alleged, Count X
is futile.
G. Proposed Count XI: EDB and Medical Report Harassment
This count alleges that Proposed Defendant Sedgwick’s request for
frequent Independent Medical Evaluations to maintain Plaintiff’s
disability and EDB benefits amounted to harassment of Plaintiff and his
physicians. ECF No. 29-2, PageID.2491-93. He alleges that Sedgwick’s
consistent barrage of paperwork and requests for examinations by
Plaintiff’s physician caused “an end” to Plaintiff’s long-term primary care
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relationship with his physician. Id. Plaintiff claims this has also caused
him stress, frustration, depression, and additional Lupus “flare ups.” Id.
However, this claim fails to allege a violation of any federal or state
law, but simply claims that Sedgwick has engaged in some unspecified
“harassment.” Id. Therefore, Count XI fails to state a claim upon which
relief could be granted and it would be futile to amend Plaintiff’s
complaint to add this count.
H. Proposed Count XII: Civil Rights and Discrimination
Harassment
Count XII alleges that the “summary of actions” by Defendants
demonstrates that they “ignored” their duties “under civil rights law”
resulting in “harassment to continue to a level of ‘extreme severity.’” ECF
No 29-2, PageID.2494. Not only does this count fail to allege the violation
of any state or federal law, it is largely incomprehensible and therefore
fails to state a claim upon which relief could be granted.
I.

Proposed Count XIII: Violation of “Two State Laws”
This count alleges that Defendant violated the Michigan Social

Security Number Privacy Act (“MSSNP”), M.C.L. § 445.81 et seq., when
it allegedly demanded that Plaintiff’s counsel supply his Social Security
Number and home address before discussing the case with him. ECF No.
29-2, PageID.2495-96. This count also alleges Defendant violated the
Michigan Uniform Power of Attorney Act (“MUPOA”), M.C.L. § 700.5501

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et seq., when Defendant allegedly refused to accept Plaintiff’s counsel’s
tenders of power of attorney. Id.
Both of these claims fail as a matter of law. First, any harm alleged
as to the MSSNP was to Plaintiff’s counsel, not Plaintiff. Therefore,
Plaintiff lacks standing to assert this claim. Lyshe v. Levy, 854 F.3d 855,
857 (6th Cir. 2017). Second, M.C.L. § 700.5501 does not create a private
cause of action from which Plaintiff can assert a claim. Accordingly,
adding Count Proposed XIII to Plaintiff’s complaint would be futile.
J.

Proposed Count XIV: Violation of Michigan Tax Law
Count XIV alleges that GM violated § 141.613 of the Uniform City

Income Tax Ordinance (“UCITO”). But the UCITO does not create a
private cause of action; it may only be enforced by the ordinance
“administrator.” M.C.L. § 141.671(2). Plaintiff’s reply wholly ignores this
argument made by Defendant. This claim fails as a matter of law.
Count XIV also alleges that Defendant violated unspecified
provisions of the “Michigan Tax Code” “by taking deductions that were
prohibited by law and the GM Life and Disability Plan itself.” As
discussed with other claims above, this “bare assertion” of liability fails
to state a claim upon which relief could be granted. Agema, 826 F.3d at
332-33.

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Proposed Count XV: Fraud on the Court and Plaintiff and
Spoliation
Count XV of Plaintiff’s Proposed Amended Complaint alleges fraud

on the Court and spoliation. While Plaintiff contends that fraud and
spoliation are actionable torts here, ECF No. 32, PageID.2580 (citing
Welsh v. United States, 844 F.2d 1239 (6th Cir. 1989)), this is not so.
The Sixth Circuit has made clear that spoliation is a sanction, not
a separate cause of action. See Adkins v. Wolever, 554 F.3d 650, 652 (6th
Cir. 2009); Johnson v. Metropolitan Gov’t of Nashville and Davidson Cty.,
502 Fed.Appx. 523, 532-32 (6th Cir. 2012). Further, fraud on the court is
a claim appropriately brought in a Rule 60 motion. Carter v. Anderson,
585 F.3d 1007, 1011 (6th Cir. 2009) (“A Rule 60(b)(6) motion is an
appropriate vehicle to bring forward a claim for fraud on the court.”);
Rodriguez v. Honigman Miller Schwartz & Cohn LLP, 465 Fed.Appx.
504, 508 (6th Cir. 2012); In re M.T.G., Inc., 400 B.R. 558, 565-66 (E.D.
Mich. 2009). The case on which Plaintiff relies, Welsh v. United States,
844 F.2d 1239 (6th Cir. 1989), does not even address fraud on the court
claims. Accordingly, it would be futile to amend plaintiff’s complaint to
add this count.
L.

Plaintiff’s Motion to Supplement of Counts I, II, III & IV
i. Count I: Healthcare Coverage
Count I in Plaintiff’s proposed amended complaint appears to be

seeking to supplement Count II of Plaintiff’s original complaint. ECF No.
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29-2, PageID.2462-65; ECF No. 1, PageID.5-6. Many of the allegations in
Count I of the proposed amended complaint track those in Count II of the
original complaint. However, there are new allegations in the proposed
amended complaint. The new claim include: (1) GM failed to notify
Plaintiff that he would lose health care coverage if he retired, which he
did on January 1, 2014, and that if there is any discrepancy between the
Plan and the SPD5, the Plan “must be made to conform to the
unambiguous promises that were made in the SPD; (2) that GM’s failure
to provide health care coverage has resulted in “bodily injury and
psychological and emotional distress,” and impaired Plaintiff’s ability to
obtain necessary medical treatment (3) that GM, Fidelity and Sedgwick
have been unjustly enriched. In part, these supplementations just
provide additional context to Plaintiff’s Health Care Coverage claim but
do not allege new conduct that occurred after Plaintiff filed his original
complaint. “The purpose of a supplemental pleading is to set forth new
facts that have occurred since the filing of the original pleading and that
affect the controversy and relief sought. Its function is to bring the action
‘up to date.’” Weisbord v. Michigan State University, 495 F. Supp. 1347,
1350-51 (W.D. Mich. 1980); see also Pullard v. Federal Bureau of Prisons,
The Plan is the large internal document that sets out in detail a claimant’s benefits.
The SPD is the shorter, more digestible document that is given to the claimant to
summarize their rights under the Plan. When these two documents conflict with each
other, there is a body of case law that the Court must apply in resolving the conflict.
See CIGNA Corp. v. Amara, 563 U.S. 421 (2011); Board of Trustees v. Moore, 800 F.3d
214, 219 (6th Cir. 2015).
5

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535 F. Supp. 2d 146, 149 (D.D.C. 2008) (construing proposed
supplemental pleading as proposed amended pleading because the
supplemental pleading itself did not allege facts pertaining to
occurrences or events taking place after the date of the original
complaint). Therefore, the Court will treat proposed Count I as a
proposed amendment to Count II of the original complaint.
Portions of this proposed amendment to Count II of the complaint
must be denied as futile. First, to the extent Count I alleges an unjust
enrichment claim, see ECF No. 29-2, PageID.2465 ¶36, this state law
claim is precluded. Loffredo v. Daimler AG, 666 Fed.Appx. 370, 375 (6th
Cir. 2016) (quoting 29 U.S.C. § 1144(a)). Moreover, to the extent these
amendments seek additional damages such as “emotional distress,” those
damages are unavailable in an ERISA claim. See 29 U.S.C. §
1132(a)(1)(B); § 1132(g); Mass. Mut. Life Ins. Co v. Russell, 473 U.S. 134,
144 (1985) (ERISA § 502(a)(1)(B) “says nothing about the recovery of
extracontractual damages, or about the possible consequences of delay in
the plan administrators’ processing of a disputed claim”). As for the
remainder of the allegations in proposed amended Count I (those
contending that GM failed to notify Plaintiff that he would lose health
care coverage if he retired, which he did on January 1, 2014, and that if
there is any discrepancy between the Plan and the SPD, the Plan “must
be made to conform to the unambiguous promises that were made in the
SPD”), these allegations go to Plaintiff’s procedural challenge to the
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administrator’s decision, and the Court will accept Plaintiff’s proposed
amended Count I in so far as it realleges Count II of Plaintiff’s original
complaint and makes these additional permissible allegations described
above. See Wilkins, 150 F.3d at 618.
ii. Count II: COBRA Violation
Count II of Plaintiff’s proposed amended complaint appears to be a
supplement to Count III of Plaintiff’s original complaint.6 This
amendment adds two additional allegations.
First, it alleges that “Plaintiff timely elected COBRA with phone
and automated email confirmation from the General Motors LLC
Administrator,” and adding a new citation to “ex A1, pp 1-8,” which
Plaintiff claims was “redacted from the administrative file that
Defendant filed with the court.” ECF No. 29-2, PageID.2466. However,
the only “ex A1” in the record—which is attached to a prior stricken
motion for summary judgment, not to Plaintiff’s motion for leave to
amend his complaint—is a one-page document dated March 31, 2014 and
acknowledges that Fidelity had received a “recent Health & Insurance
service request” and has “resolved” said request. ECF No. 16-8,
PageID.1358. It is unclear from the record whether “ex A1” is one of the
38 documents with which GM has agreed to supplement to the

Like Count I, Count II does not allege any facts occurring after Plaintiff’s original
complaint was filed. As such, Plaintiff will treat this count as an amendment, rather
than a supplement, to Plaintiff’s original complaint.

6

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Administrative Record. See ECF Nos. 43-44. But to the extent that it is
not, a review of the Administrative Record already reveals evidence of
these informal communications between GM, Fidelity, and Plaintiff’s
counsel, as evidenced by email communications between Plaintiff’s
former counsel and representatives of GM. See, e.g., ECF No. 6-6,
PageID.983-84; PageID.1029-32. These email communications recount
Plaintiff’s interactions with GM Benefits & Services Department
employees over the phone about electing COBRA coverage.
Second, it alleges that “Defendant”7 intentionally prevented
Plaintiff from exercising his COBRA rights by “backdating Plaintiff’s
retirement date and ignoring the date of the notice,” “removing it from
the portion of their website he could access; and repeatedly purposely
thwarted continuation of health care coverage.” ECF No. 29-2,
PageID.2472.
As with proposed Count I, some of Fraley’s proposed amendments
contained in Count II (Count III in the original complaint) are futile. To
the extent amended Count II alleges that the “foregoing” constitutes an
intentional act of interference with Plaintiff’s protected right to COBRA
continuing coverage under ERISA § 510, 29 U.S.C. § 1140. ECF No. 292, PageID.2470, this allegation falls short because Plaintiff has not
alleged any adverse employment action to state a § 1140 claim. Spangler,
790 Fed.Appx. at 721. Further, this Count makes allegations regarding
7

It is unclear here whether Plaintiff means GM or Fidelity.
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“power of attorney,” and GM’s request of Plaintiff’s counsel’s social
security number, which, as explained above, do not create private rights
of action for Plaintiff. The same holds for Plaintiff’s arguments about
fraud on the court, spoliation, and generalized harassment, which are
addressed above.
However, some of the allegations in proposed Count II expand on
the reasons why Plaintiff believes he was denied COBRA benefits and
alleges—albeit inadvertently—the presence of some procedural challenge
to the Plan Administrator’s decision. It contends that the Administrative
Record does not contain evidence of communications from Defendant to
Plaintiff that Plaintiff had COBRA coverage and could receive certain
treatments. ECF No. 29-2, PageID.2466. It also contends that Defendant
made electing COBRA impossible by removing COBRA options from the
portions of their website that Plaintiff could access. These allegations, in
addition to those that appear to be copy and pasted from Count III of the
original complaint, will survive as Plaintiff’s Count II.
iii. Count III: Failure to Provide Requested Documents
Proposed Count III attempts to supplement Count IV of Plaintiff’s
original complaint, alleging that Defendant GM failed and refused to
produce requested claim documents and plan documents after Plaintiff,
by his attorney, made two written requests. ECF No. 29-2, PageID.247779. The only additional allegation in Proposed Count III not contained in
the original complaint is the allegation that Defendant GM sent the
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administrative file to an inaccurate email for Plaintiff’s new counsel.
Defendant GM contends that this count is substantively the same as the
allegations in the original complaint. ECF No. 31, PageID.2540. The
Court agrees, finding the proposed supplements have no practical
purpose and are therefore futile. See Beal Corp. Liquidating Trust, 927
F. Supp. 1350, 1374 (D. Colo. 1996).
iv. Count IV: Denial of Benefits; Life Insurance
This count realleges Count I in Plaintiff’s original complaint but
makes additional allegations that appear to seek to transform this count
into a breach of fiduciary duty claim. See ECF No. 29-2, PageID.2481 ¶
88. Not only must this allegation of a breach of fiduciary duty be
separated into its own claim, as explained above, § 502(a)(3) should not
be used where a plaintiff may seek relief under another provision of
ERISA. Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 615 (6th
Cir. 1998). Here, Plaintiff is making a claim for life insurance benefits
under ERISA § 502(a)(1), (as he did in Count I of his original complaint),
so to allege in the same count that this also amounts to a breach of
fiduciary duty does not make much sense to the Court. These allegations
are futile and not well taken.
However, this proposed count also alleges that the SPD and/or the
Plan failed to clearly explain how Plaintiff should seek life insurance
coverage and that there may have been some discrepancies in life
insurance coverage between the Plan and the SPD. ECF No. 29-2,
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PageID.2481. It also alleges that GM did not respond to Plaintiff’s
administrative appeal with respect to the Life and Disability Plan. Id. at
PageID.2479. In addition to those claims that appear to be copy and
pasted from Count I of Plaintiff’s original complaint, these allegations
will be accepted as an amendment to Count I of Plaintiff’s original
complaint because they are not futile.8
M.

The addition of Sedgwick, Fidelity, and Does 1-20
Plaintiff contends that Sedgwick and Fidelity are proper parties to

the claim because they are the designated plan administrators of
Plaintiff’s Life and Disability Benefits Program and Salaried Retirement
Program Plans respectively. ECF No. 32, PageID.2579-80. This is
incorrect. Plaintiff seeks benefits under three ERISA Plans: (1) the
General Motors Salaried Retirement Program; (2) the General Motors
Life and Disability Benefits Program; and (3) the General Motors
Salaried Health Care Program. ECF No. 29-2, PageID.2458-59. The
Administrative Record contains the Plans of each of these programs. A
review of those plans shows that GM is the designated Plan
Administrator. ECF No. 6-4, PageID.608 (Salaried Retirement Program);
ECF No. 6-3, PageID.276 (Life and Disability Benefits Program); ECF
No. 6-2, PageID.49 (Salaried Health Care Program). Therefore, GM, not
Fidelity or Sedgwick, is the proper defendant for Plaintiff’s claims for
Defendant GM expressly states in its response that Counts I-IV of Plaintiff’s original
complaint are not futile. See ECF No. 31, PageID.2541.

8

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benefits under ERISA. Riverview Health Institute LLC v. Med. Mutual of
Ohio, 601 F.3d 505, 522-23 (6th Cir. 2010) (explaining that in a claim for
benefits under ERISA, the only proper defendants are the Plan
Administrator and the Plan itself).
Further, Plaintiff has failed to identify how the alleged Does 1-20
are fiduciaries for purposes of ERISA or otherwise liable under the
surviving claims. Id.; ECF No. 29-2, PageID.2456, ¶ 5 (“Various
anonymous persons purported to act on Plaintiff’s claims, and each of the
Defendants has engaged in conduct prohibited by statute.”). Because
Plaintiff has failed to provide a basis to add these unnamed parties to the
case, his request is futile. Annabel v. Michigan Dep’t of Corr., No. 16-543,
2018 WL 3455407, at *11 (W.D. Mich. July 18, 2018) (finding dismissal
warranted where plaintiff failed to properly allege “the personal
involvement of any Defendant”).
IV. Conclusion
For the reasons set forth above, Plaintiff’s Motion for Leave to File
Plaintiff’s Amended and Supplemental Complaint is DENIED IN
PART9 AND GRANTED IN PART. As explained in detail above, the
Counts I-IV of the original complaint may be supplemented by as directed

Many of the proposed amendments raised by Plaintiff here were completely
frivolous, but required a significant amount of effort to unravel, comprehend, and
analyze. No additional amendments may be made to this complaint, and Plaintiff’s
counsel is admonished to take care to avoid mounting further frivolous legal claims
or arguments.
99

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herein, but Counts V-XV of the Amended Complaint are futile and may
not be added, nor may additional proposed defendants Sedgwick Claims
Management Services, Inc., Fidelity & Guaranty Life Insurance Co., or
any Does be added. In summary, and to aid the parties going forward,
Plaintiff’s remaining claims that may proceed following this Order
include:
 Count I: Life Insurance. This count may include the allegations set
forth in Count I of Plaintiff’s Original Complaint, and the following
allegations set forth in Count IV in Plaintiff’s Proposed Amended
Complaint: that the SPD and/or the Plan failed to clearly explain
how Plaintiff should seek life insurance coverage and that there
may have been some discrepancies in life insurance coverage
between the Plan and the SPD. It may also include the allegation
that GM did not respond to Plaintiff’s administrative appeal with
respect to the Life and Disability Plan.
 Count II: Health Care Coverage. This count may include the
allegations set forth in Count II of Plaintiff’s Original Complaint,
as well as the following allegations set forth in Count I of Plaintiff’s
Proposed Amended Complaint: that GM failed to notify Plaintiff
that he would lose health care coverage if he retired, which he did
on January 1, 2014, and that if there is any discrepancy between
the Plan and the SPD, the Plan must be made to conform to the
unambiguous promises that were made in the SPD.
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 Count III: COBRA. This count may include the allegations set forth
in Count III of Plaintiff’s Original Complaint, as well as the
following allegations set forth in Count II of Plaintiff’s Proposed
Amended Complaint: that the Administrative Record does not
contain evidence of communications from Defendant to Plaintiff
that Plaintiff had COBRA coverage and could receive certain
treatments. It will also contain the allegation that Defendant made
electing COBRA impossible by removing COBRA options from the
portions of their website that Plaintiff could access.
 Count IV: Request for Documents. This may include the allegations
set forth in Count IV of Plaintiff’s Original Complaint. This count
may not include any other additions or supplements from Plaintiff’s
Proposed Amended Complaint.
Plaintiff is ORDERED to file an Amended Complaint within 14 days
that tracks this Court’s Order. The Court will strike any Amended
Complaint that deviates from these directives or attempts to further
amend or supplement the complaint.
Finally, Defendant GM is ORDERED to supplement the
Administrative Record within 14 days with the those documents the
parties have stipulated to.

IT IS SO ORDERED.

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DATED: June 1, 2020.
BY THE COURT:
/s/Terrence G. Berg
TERRENCE G. BERG
United States District Judge

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