Fraley v. General Motors, LLC

Filing 61

ORDER granting 51 Defendant's Motion to Strike. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHARLES FRALEY,
Plaintiff,
v.

4:16-CV-14465-TGB
ORDER GRANTING
DEFENDANT’S MOTION TO
STRIKE (ECF NO. 51)

GENERAL MOTORS, LLC,
Defendant.
Defendant General Motors moves to strike all or portions of
Plaintiff’s “Third Amended Complaint,” ECF No. 51.1 For the reasons
stated below, Defendant’s motion to strike portions of the Third Amended
Complaint will be GRANTED.
A brief procedural history is necessary to place this matter in
context. Plaintiff first asked for leave to file an amended complaint on
October 17, 2018. ECR. No. 29. In his motion to amend, Plaintiff asked
to supplement each of his original four counts (Counts I through IV) as
well as to add eleven new counts (Counts V through XV), and a number
Although captioned as Plaintiff’s “Third Amended Complaint,” this
pleading is really the second amended complaint presented by Plaintiff.
The original Complaint, ECF No. 1, was filed to commence this case.
Plaintiff later moved to amend, submitting a proposed “Second Amended
and Supplemental Complaint,” ECF No. 29, which was actually the first
amended complaint. For ease of identification, however, the Court will
use the captions that appear on the pleadings.
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of additional defendants. ECF. Nos. 29-1, 29-2. In a detailed Order dated
June 1, 2020, the Court denied leave to add proposed Counts V-XV,
additional defendants, or to supplement Court IV, finding these proposed
amendments to be futile. ECR. No. 46.
The Court also admonished Plaintiff’s counsel for unnecessarily
complicating the complaint with frivolous allegations, but granted
Plaintiff leave to narrowly amend the complaint in strict compliance with
the directives contained in the Court’s order:
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.
ECF No. 46. The Order explicitly limited how Counts I-IV could be
properly amended, making it clear that only the specific allegations
permitted by the Order would be allowed.

Specifically, the Order

provided that Counts I-IV could be amended to add the following new
allegations:
i.

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.
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ii.

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.

iii.

Count III: COBRA. This count may include the allegations set
forth in Count III of the 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 that 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.

iv.

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.

ECF No. 46, PageID.2677-78. Other than these additions, the Order
made it clear that “The Court will strike any Amended Complaint that
deviates from these directives or attempts to further amend or
supplement the complaint.” Id. at PageID.2678.
Despite these clear directives, Plaintiff filed a “Third Amended
Complaint” which includes an entirely new “Count V -- Interference with
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Entitled Benefits – EDB Plan Prohibited Acts”. ECF No. 50,
PageID.2746. In addition, Plaintiff supplemented Counts I-IV with
additional claims that violate the strictures of the Court’s Order as well.
Defendant moves to strike the entire Third Amended Complaint as in
violation of the Court’s Order, or in the alternative, to strike those
portions not explicitly approved by the Court’s Order. The motion is welltaken and will be granted.
I.

Legal Standard

A motion to strike is a request that part of a party’s pleading or a
piece of evidence be removed from the record. Rule 12(f) of the Federal
Rules of Civil Procedure states that a pleading can be removed if it is
redundant, immaterial, impertinent, or scandalous. Fed. R. Civ. P. 12(f).
District courts have discretion in determining whether to grant a motion
to strike. Starnfes Family Office, LLC v. McCullar, 765 F. Supp. 2d 1036,
1047 (W.D. Tenn. 2011) (citing Seay v. Tenn. Valley. Auth., 339 F.3d 454,
480 (6th Cir. 2003)).
II.

Discussion

Defendant moves to strike all or portions of Plaintiff’s Third
Amended Complaint. See ECF No. 51. Defendant contends that this
complaint includes pleadings that are contrary to and in deviation from
the Court’s Order of June 1, 2020. See id. at PageID.2768; see also ECF
No. 46, PageID.2676-78. That Order permitted Plaintiff to supplement
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Counts I-IV in the specific manner directed by the Court. Id. at
PageID.2676. In addition, the Court concluded that Counts V-XV of the
Second Proposed Amended Supplemental Complaint were futile and
therefore not permitted. Id. at PageID.2677. And finally, as stated above,
the Court made clear that it would strike “any Amended Complaint that
deviates from these directives or attempts to further amend or
supplement the complaint.” Id. at PageID.2678. Nevertheless, the Third
Amended Complaint contains both a new “Count V,” as well as several
other allegations in Counts I-IV that were not authorized by the Court.
Here, Defendant asserts that many of these other allegations in
Counts I-IV of the “Third Amended Complaint” were allegations that
Plaintiff already presented in Counts V-XV. The Court explicitly
considered and rejected these proposed supplements and amendments in
its previous Order. Plaintiff may not circumvent this Court’s directives
by re-pleading rejected allegations within pre-existing Counts. The Court
considers each allegation in turn.
a. New Proposed Count V of Plaintiff’s Third
Amended Complaint.
The Third Amended Complaint includes a new count, “Count V -Interference with Entitled Benefits – EDB Plan Prohibited Acts”. ECF
No. 50, PageID.2746. As a preliminary matter, this count will be stricken
because it violates the Court’s Order providing that no supplemental
claims could be added. More particularly, however, Defendant argues
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that portions of Count V include arguments that the Court rejected by
precluding Count VII in Plaintiff’s proposed Second Amended Complaint.
ECF No. 51, PageID.2768.
Count VII stated that Defendant made prohibited deductions to his
Entitled Disability Benefit payments and that this amounted to ERISA
interference. ECF No. 29-2, PageID.2485-88. But the Court rejected
Count VII because Plaintiff failed to allege any adverse employment
action nor did he try to do so. ECF No. 46, PageID.2659. Now, Plaintiff
wants to insert this argument under Count V by tying Sixth Circuit case
law to his allegations in a footnote. ECF No. 50, PageID.2745-48, fn. 5.
Similarly, Plaintiff attempts to relitigate the issue by alleging a “casual
[sic] link between [Plaintiff’s] ERISA protected activity and GM’s adverse
employment action of plan prohibited EBB deductions.” Id. at
PageID.2752. The Court was clear in rejecting Plaintiff’s motion to
amend and supplement his complaint. He cannot now try to fix Count
VII’s deficiencies by addressing the reasoning in the Court’s previous
order and grafting it on to a new count in his new complaint.
Defendant also points out that Count V attempts to insert
allegations of breach of fiduciary duty that this Court previously
considered and rejected. Specifically, in Count V, Plaintiff requests relief
“under ERISA § 1132(a)(3)” as well as “monetary damages, equitable
relief, litigation costs, and reasonable attorney fees.” ECF No. 50,
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PageID.2752. As stated in the Court’ previous Order, an ERISA claimant
cannot “simply characterize a denial of benefits as a breach of fiduciary
duty.” ECF No. 46, PageID.2664 (citing Wilkins v. Baptist Healthcare
Sys., Inc., 150 F.3d 609, 615 (6th Cir. 1998)).
Similarly, the Court had rejected Plaintiff’s allegations in Count X
of the proposed Second Amended Complaint because Plaintiff was
already able to seek equitable relief in other forms. Despite this ruling,
Plaintiff again inserts a request under Count V that the Court order
“monetary damages, equitable relief, litigation costs, and reasonable
attorney fees.” ECF No. 50, PageID.2753. The Court considered this
question and rejected it, and Plaintiff cannot now repackage it and
reassert it in his Third Amended Complaint.
Defendant also points out that paragraphs 60 to 68 of Count V
“appear to be completely new and had not been included as proposed
amendments.” ECF No. 51, PageID.2769. Defendant moves to strike
these portions because they “go beyond the supplements allowed by the
Court to be included in an amended complaint.” Id. Plaintiff admits that
these portions are merely new facts that are more specific and intended
to support existing claims. ECF No. 54, PageID.2784. (“These are new
facts as the defendant referenced and in ¶ d above to correct their
absence.”). But he fails to show how these new facts relate to the existing
counts. Indeed, as best as the Court can understand them, these new
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facts pertain to Plaintiff’s allegation that Defendant interfered with his
benefits. But again, the Court considered this argument and rejected it.
ECF No. 46, PageID.2672. Furthermore, the Court was clear that no
additional amendments may be made to the complaint. Id. at
PageID.2676 fn.9. This also means no additional counts. Defendant’s
motion to strike Count V in its entirety is granted. Accordingly,
Defendant’s motion to strike Count V of the Third Amended Complaint
is granted. ECF No. 51, PageID.2768-69 (citing ECF No. 50, paragraphs
57-59, 61, and 64).
b. Supplemental Allegations in Counts I, II, and III.
The Court has already explained that Plaintiff’s added request for
equitable relief violates the Court’s previous order. ECF No. 51,
PageID.2769-70. Therefore, the allegation in Count I of the Third
Amended Complaint, paragraph 23, stating that Plaintiff “has no plain,
speedy and adequate legal remedy” is inconsistent with the Court’s order
because it requests, among other forms of relief, equitable relief. ECF
No.50, PageID.2735. Defendant’s motion to strike this portion is granted.
ECF No. 51, PageID.2769-70 (citing ECF No. 50, paragraph 23).
Plaintiff similarly inserts additional allegations in Count II by
citing Pearce v. Chrysler Group LLC Pension Plan, 893 F.3d 339 (6th Cir.
2018) for the proposition that claimants may “seek equitable relief under
ERISA § 502(a)(3).” Defendant maintains that ERISA claimants seek
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equitable relief under § 1132(a)(3) for breach of fiduciary duty. Id. at
PageID.2737-38, paragraph 31. As analyzed above, the Court concluded
that a claim for breach of fiduciary duty is futile because Plaintiff is
already seeking relief under another provision of ERISA. ECF No. 46,
PageID.2664, 2674 (citing Wilkins, 150 F.3d at 615).
Also in his Third Amended Complaint, Plaintiff inserts paragraph
29 in Count II, which states that because of his dispute with Defendant,
he “has suffered bodily injury and medical distress.” ECF No. 50,
PageID.2737. Defendant asserts that Plaintiff attempts “to seek recovery
for bodily injury and medical distress” under a claim for “extracontractual damages, such as emotional distress.” ECF No. 51,
PageID.2770. But in its previous order, the Court considered whether
Plaintiff may supplement his pleadings with new allegations about
emotional distress. The Court concluded no because such damages are
unavailable in an ERISA claim. ECF No. 46, PageID.2760 (citing 29
U.S.C. § 1132(a)(1)(B); § 1132(g); Mass. Mut. Life Ins. Co v. Russell, 473
U.S. 134, 144 (1985). Consequently, Plaintiff may not raise this issue as
a supplement or amendment to his complaint. Based on the foregoing,
Defendant’s motion to strike these portions is granted. ECF No. 51,
PageID.2770-71 (citing ECF No. 50, paragraphs 29 and 31).
Finally, Defendant contends that Plaintiff has supplemented Count
III COBRA Violation by alleging that the violation constitutes an
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“adverse employment action.” ECF No. 51, PageID.2771. The new
allegation states, “Revoking Plaintiff’s COBRA coverage is an ‘adverse
employment action’ that interfered with Plaintiff obtaining his entitled
COBRA benefit from the defendant.” ECF No. 50, PageID.2741. The
Court already concluded that such an allegation is futile and insufficient
to state a § 1140 claim. ECF No. 46, PageID.2672. In addition, the Court
ordered that Plaintiff may amend Count III by adding that “the
Administrative Record does not contain evidence of communications from
Defendant to Plaintiff that Plaintiff had COBRA coverage and could
receive certain treatments.” Id. at PageID.2678. Plaintiff complied with
the Court’s Order by adding the preceding language, but he then added
new language alleging an adverse employment action—and this
allegation is a legal conclusion that the Court considered and rejected in
its previous order. Plaintiff may not insert it now. Consequently,
Defendant’s motion to strike this portion is also granted. ECF No. 51,
PageID.2771 (citing ECF No. 50, paragraph 40).
CONCLUSION
For the foregoing reasons, the Court ORDERS the following:
 Count V of the Third Amended Complaint is STRICKEN;


Any allegations in the Third Amended Complaint that were
not specifically authorized by the Court’s Order of June 1,
2020 are STRICKEN;
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 Defendant’s motion to strike is therefore GRANTED.
IT IS SO ORDERED.
Dated: February 26, 2021

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

Certificate of Service
I hereby certify that this Order was electronically filed, and the
parties and/or counsel of record were served on February 26, 2021.
s/A. Chubb
Case Manager

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