Gardner v. Verizon Communications Inc.

Filing 31

MEMORANDUM AND ORDER: For the reasons set forth above, Verizon's motion to dismiss Gardner's claims twothrough four and Gardner's claims for compensatory and punitive damages is granted. (Doc. No. 19 ). Moreover, Gardner's propose d amended complaint fails to allege claims upon which relief may be granted. Therefore, Gardner's motion to amend her complaint to include statutory penalties and fines is denied. (Doc. Nos. 17 , 19 -6). However, Gardner is granted thirty (30) days from the date of this Memorandum and Order to seek leave to amend her complaint consistent with this Court's ruling. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good fai th, and therefore, in forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 ( 1962). The Clerk of Court is respectfully directed to mail a copy of this Memorandum and Order to plaintiff Helen T. Gardner, pro se, and note the mailing on the docket. Ordered by Judge Roslynn R. Mauskopf on 3/17/2017. (Taronji, Robert)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

------------------------------------------------------------------)(
HELEN T. GARDNER,
Plaintiff,
- against -

MEMORANDUM AND ORDER
16-CV -814 (RRM) (RML)

VERIZON COMMUNICATIONS INC.,
Defendant.

------------------------------------------------------------------)(
ROSLYNN R. MAUSKOPF, United States District Judge.
Plaintiff prose He len T. Gardner seeks life insurance benefits for her daughter's death,
pursuant to a policy issued by Gardner's former employer, defendant Verizon Communications
Inc. ("Verizon"). 1 Before the Court is Verizon's motion to dismiss Gardner's first amended
complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6) fo r fa ilure to state a
claim upon which relief can be granted. (See Mot. Dismiss (Doc. No. 19-2).) Specifically,
Verizon seeks to dismiss (l) Gardner's state law claims because they are preempted by the
Employee Retirement Income Security Act of 1974 ("ERISA"), and (2) Gardner's claims for
compensatory and punitive damages because ERISA limits her legal relief to the $5,000 life
insurance benefits due under her life insurance plan, which have already been paid to Gardner.

(See id.)
For the reasons that fo llow, Verizon's motion to dismiss is granted. However, Gardner is
granted thirty (30) days from the date of this Memorandum and Order to seek leave to amend her
complaint to include a claim for contractual damages for interest accrued on the delayed
disbursement of benefits.

1

Gardner commenced th is action in December 20 15 in the Supreme Court of the State of New York, Kings County,
and Verizon removed the action on February 17, 20 15 to this Court, pursuant to 28 U.S.C. § 1441 (b) and 29 U.S.C.
§ I 132(e). (See Notice of Removal (Doc. No. I).)

BACKGROUND
The following facts, liberally construed, are taken from Gardner's first amended
complaint and considered to be true for purposes of this motion to di smi ss. Gardner worked for
"New York Telephone/ Atlantic/ NYNEX/ Verizon" from 1971 until 2006. (First Am. Comp!.
(Doc. No. 11 ) at 1.) 2 After retiring in 2006, Gardner made monthly payments to her former
employer, Verizon, "for a $5,000 supplemental insurance policy for [her] daughter" under the
Verizon Dependent Group Life Insurance Plan for New Yark and New England Associates (the
" Plan"). (See id.) When Gardner' s daughter passed away on November 15, 20 16, Gardner
"called the Verizon Benefit Center to advise them of [her] daughter's passing in order to collect
the supplemental pol icy." (Id. at 1- 2.) Gardner was advised that her daughter " had ' no po licy. "'

(Id. at 2.) Gardner alleges that Verizon deliberately falsified on line records to state that the
supplemental policy had been terminated on January 1, 2015, before her daughter's death. (See
id. at 2-4.)

Gardner alleges that Verizon refused to pay life insurance benefits under the Plan. (See
id. at 3-4; Mot. Dismiss at 5.) Gardner concedes in her first amended complaint that the Plan is

an employee benefit plan under ERJSA,3 and asserts causes of action under ERJSA and related
state law claims of deceptive acts and practices, breach of contract, and "intentional
misrepresentation/fraud. " (See id. at 3-4.) Gardner's first amended com plaint seeks
compensatory damages in the amount of the life insurance policy of $5 ,000 and punitive
damages in the amount of $ 1,000,000. (See id.)

2

For ease of reference, citations to Court documents util ize the Electronic Case Filing System ("ECF") pagination.

3

Gardner's original complaint asserted only state law claims. (See Notice of Removal.) However, after Verizon
raised affirmati ve defenses that ERJSA governs the Plan and therefore preempts state law claims, (see Answer (Doc.
No. 5)), Gardner amended her complaint, asserting ERISA claims and claims for additional damages. (See First
Am. Comp !. ) Additionally, Gardner concedes in her briefs to the Court that ERIS A governs the Plan. (See Pl. 's
Mem. in Supp. (Doc. No. 19-6); Mot. Summ. J. (Doc. No. 24).)

2

It is undisputed that on or about May 3 1, 20 16, fo llowing the fi ling of the instant action,
Gardner received the $5,000 in life insurance benefits due under the Plan . (See Mot. D ismiss at
12- 13; Pl. 's Mem. in Supp . (Doc. No. 19-6) at 9.) Verizon subsequently moved to dismiss
Gardner' s first amended complaint, on the ground s that she received her benefi ts due under the
Plan and was not entitled to further relief. (See Mot. Dismiss.)
On July 5, 20 I 6, Gardner opposed Verizon's motion and subsequent ly filed a motion to
amend her complaint for a second time. (See Notice of Mot. to Amend (Doc. No. 19-5); Pl. 's
Mem. in Supp.)4 In her proposed second amended complaint, Gardner asserts claims for
damages under ERISA for ( 1) " improperly denying benefits to current or former employees"; (2)
" breach of fiduciary duty toward employees covered by plans"; and (3) "interference with the
right of employees covered by plans." (See Pl. 's Mem. in Supp. at 5.) Gardner also seeks
additional civil and criminal pena lties pursuant to the following federa l statutes: ( 1) 18 U.S.C. §
I 027, entitled False Statements and Concealment of Facts in Relation to Documents Required by
ERISA; (2) 29 U.S .C. § 1140, entitled Interference with Protected Rights; (3) 29 U.S.C. § 1149,
entitled Prohibition on False Statements and Representations; (4) the Computer Fraud and Abuse
Act, 18 U.S.C. § 1030; (5) Section 802 of the Sarbanes-Oxley Act of2002, 18 U.S.C. §§ 1501,
15 19, 1520; and (6) Section 904 of the Sarbanes-Oxley A ct of2002, 29 U.S.C. § 113 1. (See P t's
Mem. in Supp. at 5- 10.)5

4

Gardner's motion to file a second amended comp laint appears in two docket entries. (See Doc. Nos. 17, 19.)
Although the motion filed on July 7, 20 16 (Doc. No. 17) includes two additional pages as exhibits, the substantive
content of each motion is identical. (Compare Doc. No. 17, with Doc. Nos. 19-5- 19-12.) The additional pages
constitute a copy of Gardner's phone log, which includes ti mestamps of her phone calls to Verizon's life insurance
policy representatives. (See Doc. o. 17-5 at 2-4 .)
5

The Court notes that after fil ing her motion to fi le a second amended complaint and opposition to Verizon's motion
to dismiss, Gardner filed a motion for summary j udgment on November 28, 2016. (Mot. Summ. J. (Doc. No. 24).)
Verizon subsequently fil ed an opposition to Gardner's motion for summary judgment on December 12, 20 16.
(Def. 's Opp'n to Mot. Summ . J. (Doc. No. 25).) The Court declines to reach Gardner's motion for summary
j udgment at this time, and notes that Gardner's motion for summary judgment merely restates her previous
allegations.

3

STAND ARD OF REVIEW
Pursuant to Rule 12(b)(6), a party may move to dismiss a cause of action that "fail[s] to
state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In order to withstand a
motion to dismiss, a complaint "must contain sufficient factua l 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) (citing

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Hayden v. Paterson, 594 F.3d 150,
161 (2d Cir. 2010). A claim is plausible "when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged." Matson v. Bd. of Educ., 631F.3d57, 63 (2d Cir. 2011) (quoting Iqbal, 556 U.S. at
678). The Court assumes the truth of the facts alleged, and draws all reasonable inferences in the
norunovant's favor. See Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). Although all factual
allegations contained in the complaint are assumed to be true, thj s tenet is " inapplicable to legal
conclusions." Iqbal 556 U.S. at 678.
When a plaintiff proceeds prose, the plaintiffs pleadings should be held "to less
stringent standards than forma l pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89,
94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 104- 05 (1 976)); see Harris v.

Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after Twombly, the court " remain[s]
obligated to construe a prose complaint libera lly"). Notwithstanding the liberal pleading
standard s granted to a prose plaintiff, if " the allegations in a complaint, however true, could not
raise a claim of entitlement to relief," dismissal is warranted. Twombly, 550 U.S. at 558.

DISCUSSION
I.

Express Preemption Under ERISA
In 1974, Congress enacted ERISA to provide comprehensive and uniform regulation of

employee benefit plans - including employee welfare benefit plans - in order to protect

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"participants in employee benefit plans and their beneficiaries." See 29 U.S.C. §§ 100 l (b),
1002( 1), 1003(1 ). ERIS A defines an employee welfare benefit plan, in pertinent part, as "any
plan, fund or program . .. established or maintained by an employer or by an employee
organization .. . for the purpose of providing its participants or their beneficiaries, through the
purchase of insurance or otherwise, (A) medical, surgical, or hospital care . .. or benefits in the
event of sickness, accident or disability .... " 29 U.S.C. § 1002( 1).
When a plaintiff brings a cause of action that relates to an employee benefit plan, that
cause of action is governed by ERISA 's civi l enforcement provision. See 29 U.S.C. § 1132;
Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65- 66 (1987). ERISA expressly preempts any and

all state law claims that " relate to" an employee welfare benefit plan. 29 U .S.C. § 1144 ("[T]he
provisions of this title and title IV shall supersede any and all State laws insofar as they may ...
relate to any employee benefit plan described in section 1003(a) .... "); see also Pilot Lif Ins.
e
Co. v. Dedeaux, 481 U.S. 41 , 48- 51 ( 1987); Metro. Life, 481 U.S. at 62- 63 ; Smith v. DunhamBush, Inc., 959 F.2d 6, 8-10 (2d Cir. 1992). A state law " relates to" an employee benefit plan "if

it has a connection with or reference to such a plan." Egelhoff v. Egelhoff ex rel. Breiner, 532
U.S. 14 1, 147 (2001) (internal quotation marks and citation omitted); HM! Mech. Sys., Inc. v.
McGowan, 266 F.3d 142, 148 (2d Cir. 200 1) ("A state law relates to employee benefit plans ...

whenever it purports to regulate, directly or indirectly, the terms and conditi ons of employee
benefit plans.") Because ERISA expressly preempts state law in a "deliberately expansive"
manner, cowts give a broad commonsense meaning to the phrase "relate to." See Pilot Life, 481
U.S. at 45-46.
Specifically, state statutory claims are preempted by ER1SA "where they provide an
alternative cause of action to employees to collect benefits protected by ERISA, refer specifically
to ERISA plans and apply solely to them, or interfere with the calculation of benefits owed to an

5

employee." Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 114 (2d Cir. 2008) (finding
plaintiff's state statutory claim of unfair trade practices preempted because the claim was
premised on the termination of an employee benefit plan and denial of plan benefits). Similarly,
state common law claims are preempted where they "seek to rectify a wrongful denial of benefits
promised under BRISA-regulated plans." Id. (internal quotation marks and citations omitted)
(applying preemption to plaintiff' s state common law claims of breach of contract and reckless
misrepresentation) ; see also Smith, 959 F.2d at 10 (applying preemption to breach of contract
and negligent misrepresentation claims).
In her first amended complaint, Gardner asserts a cause of action under BRJSA, seeking
li fe insurance benefits under the Plan as a result of her daughter's death. (See First Am. Comp!.
at 3; Mot. Dismiss at 5.) There is no dispute that the Plan constitutes an employee welfare
benefit plan within the meaning and intent of BRISA. (See First Am. CompI. at 3; Mot. Dismiss
at 5-6, 9); see also 29 U.S.C. § 1002(1). As such, BRJSA preempts Gardner's second, third, and
fourth clai ms because the state statutory and common law claims " relate to" the Plan.
Gardner' s second claim, fo r relief alleging deceptive acts and practices pursuant to New
York's General Obligations Law § 349, is preempted because the state claim relates to Verizon's
a lleged termination of the ERISA plan and denial of the ERJSA plan's benefits. See Paneccasio,
532 F.3d at 114. Similarly, Gardner's third and fourth claims, all eging breach of contract and
" intentional misrepresentation/fraud," are preempted because they relate to the alleged
termination of an ERIS A plan and the denial of an E RIS A plan 's benefits. See id. at 114.
T herefore, Verizon's motion to dismiss Gardner's state law claims is granted.

II.

Compensatory and Punitive Damages Under ERISA
BRISA's civi l enforcement provision states that an ERISA plan participant or beneficiary

may bring a civil action "to recover benefits due to him under the terms of hi s plan, to enforce

6

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. § l 132(a)(l). Courts have consistently held that ERISA 's comprehensive
civil enforcement scheme indicates that ERISA 's civil enforcement remedies are exclusive.

Pilot Life, 48 1 U.S. at 54 ("The deliberate care w ith which ERISA's civil enforcement remedies
were drafted and the balancing of policies embodied in its choice ofremedies argue strongly for
the conclusion that ERISA's civil enforcement remedies were intended to be exclusive.");

Massachusells Mui. Life Ins. Co. v. Russell, 473 U.S. 134, 146 (1985) ("The six carefully
integrated civil enforcement provisions . . . provide strong evidence that Congress did not intend
to authorize other remedies that it simply forgot to incorporate expressly."); see also 29 U.S.C.

§ 1132. As such, ERISA does not permit the recovery of extra-contractual compensatory or
punitive damages. Pilot Life, 481 U.S. at 54- 55 (fi nding plaintiff may not supplement its claim
for ERISA plan benefits with state law compensatory or punitive damage claims); see also Aetna

Health Inc. v. Davila, 542 U.S. 200, 214-16 (2004) (reaffirming the exclusivity ofERISA's civil
enforcement remedies); Russell, 473 U.S. at 146 (finding that ERISA's exclusive remedies
barred plaintiff from seeking extra-contractual and punitive damages for a delay in processing
her claim).
Here, Gardner seeks compensatory damages of $5,000 " in the amount of the life
insurance policy" and punitive damages of $ 1,000,000 to rectify an alleged wrongful denial of
her ERISA plan benefits. (First Am . Comp I. at 4.) Because Gardner asserts a cause of action
under ERISA, her legal relief is limited to the remedies provided under 29 U.S.C.

§ 1I32(a)(I )(B). The parties agree that Gardner has received the $5,000 in life insurance
benefits due under the Plan. (See Mot. Dismiss at 12-13; Pl.' s Mem. in Supp. at 9; see also
Def. 's Opp ' n to Mot. Summ. J. at 4 ("Prudential paid the Plan benefits sought by Gardner as a
result of the death of Decedent on May 31 , 20 16."); Life Insurance Claim Status Ex. C (Doc. No.

7

25-2) at 42.) Gardner's claims fo r extra-contractual compensatory damages and punitive
damages supplement the $5,000 in benefits she already received under the ERISA plan. Because
ERISA limits Gardner's legal relief to the remedies under 29 U.S .C. § l 132(a)(l)(B), Gardner
may not recover the compensatory or punitive damages that she seeks. See Davila, 542 U.S. at
2 14- 16; Russell, 4 73 U.S . at 146. Therefore, Gardner lacks any legal basis for the relief she
seeks under ERISA, and her claims for relief are dismissed.

III.

Leave to Amend
In her opposition to Verizon's motion to dism iss, Gardner seeks leave to amend her

complaint fo r a second time. (See generally Notice of Mot. to Amend; Pl. 's Mem. in Supp.) In
her proposed second amended complaint, Gardner asserts claims for damages under ERISA fo r
(I) " improperly denying benefits to current or former employees"; (2) "breach of fi duciary duty
toward employees covered by plans"; and (3) " interference with the right of employees covered
by plans." (See Pl.'s Mem. in Supp. at 5.) Gardner seeks civil penalties and fines pursuant to the
following federal statutes: (1) 18 U.S.C. § 1027, entitled False Statements and Concealment of
Facts in Re lation to Documents Required by ERISA; (2) 29 U.S.C. § 1140, entitled Interference
with Protected Rights; (3) 29 U.S.C. § 11 49, entitled Prohibition on False Statements and
Representations; and (4) the Computer Fraud and Abuse Act, 18 U.S.C. § 1030. (See id. at 510.) Gardner also seeks criminal penalties and fines pursuant to the fo ll owing federa l statutes:
( 1) Section 802 of the Sarbanes-Ox ley Actof2002, 18 U.S.C. §§ 1501 , 1519, 1520; and (2)
Section 904 of the Sarbanes-Oxley Act of 2002, 29 U .S.C. § 1131. (See id.)
Pursuant to Rule 15(a)( 1), a party may amend a pleading once as a matter of course, Fed.
R. Civ. P. I 5(a)( l ), which Gardner did on April 7, 20 16, (see generally First Am. Comp!.)
Thereafter, "a party may amend its pleading only with the opposing party's written consent or
the court' s leave." Fed. R. Civ. P. 15(a)(2). Generally, courts "should freely give leave [to

8

amend] when justice so requires." Id. The Supreme Court has interpreted this rule to mean that
"[i]n the absence of any apparent or declared reason - such as undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility
of amendment, etc. - the leave should, as the rules require, be 'freely given."' Foman v. Davis,
3 7 1 U.S. 178, 182 ( 1962); see Ruotolo v. City ofNew York, 514 F .3d 184, 191 (2d Cir. 2008).
The Second Circuit has recognized that although prose filings are "to be read liberally,"
a court should not give leave to amend when an amendment would be futile. See Cuoco v.

Moritsugu, 222 F.3d 99, 11 2 (2d Cir. 2000) (finding leave to amend would be futile where the
complaint, even when read liberally, did not suggest that the prose plaintiff has a claim); see

also Lucente v. Int '! Bus. Machines Corp. , 310 F.3d 243 , 258 (2d Cir. 2002) ("One appropriate
basis for denying leave to amend is that the proposed amendment is futile.") (internal citations
omitted); Health-Chem Corp. v. Baker, 915 F.2d 805, 809-10 (2d Cir. 1990) ("[W]here, as here,
there is no meri t in the proposed amendments, leave to amend should be denied."). A proposed
amendment is futile where it cannot withstand a Rule 12(b)(6) motion to dismiss because the
proposed amendment fails to state a clai m upon which relief can be granted. See Dougherty v.

Town of N. Hempstead Bd. o./Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002).
As discussed above, ERISA's exclusive civil enforcement provision limits Gardner's
relief to the remedies under 29 U.S.C. § 11 32(a)( l)(B). It is undisputed that Gardner has already
received the $5,000 in life insurance benefits due under the Plan. (Mot. Dism iss at 12-13; Pl. ' s
Mem. in Supp. at 9.) In her proposed amendment, Gardner seeks statutory penalties and fines
beyond ERISA's exclusive remedy scheme. 6 Although ERISA provides for certain penalties and

6

In a let1er to the Court dated Ju ly 7, 2016, Gardner also alleges "a breach of fiduciary duty toward employees
covered by the plan," and seeks monetary damages. (7/7/ 16 Letter (Doc. No. 18) at I; see also Pl. 's Mem. in Supp.

9

fines against plan administrators and fiduciaries, those provisions permit government redress, not
private causes of action. See 29 U.S.C. §§ 1111 , 113 1, 1132(1), l 132(c)(2), 1149. Gardner has
not established that any of the statutes she re lies upon provide private causes of action. Thus,
Gardner fai ls to allege claims upon which relief may be granted, and leave to an1end her
complaint a second time is futi le. Accordingly, Gardner's motion to amend her complaint to
include statutory penalties and fines is denied.
In regards to Verizon's seven month-long delay in disbursing her $5,000 life insurance
benefits, Gardner claims that she is owed "prejudgment interest" under ERISA. (Pl. 's Mem. in
Supp. at 11- 12.) However, because Gardner did not recover a money judgment from a district
court, no prejudgment interest is warranted in this case. See 28 U.S.C. § 1961.
That said, courts have found that ERISA § 502 permi ts awards of equitable relief and/or
contractual danrnges under certain circumstances to compensate a beneficiary where there has
been a delay in the disbursement of money owed under an ERISA plan. See Mi/gram v.

Orthopedic Assocs. Defined Contribution Pension Plan, 666 F.3d 68, 78-79 (2d Cir. 2011);
Dobson v. Hartford Fin. Servs. Grp., Inc., 399-400 (2d Cir. 2004). However, Gardner neither
seeks such remedies, nor does she allege any facts from which this Court can glean whether she

at 5.) Actions for breach of fiduciary duty must be brought in a representative capacity on behalf of the plan as a
whole, rather than on behalf of an individual beneficiary or plan participant. Coan v. Kaufman, 457 F.3d 250, 26 1
(2d Cir. 2006); see Russell, 473 U.S. at 142. For a plaintiff to successfully state a claim for breach of fiduciary duty
under ERISA, the complaint must contain factual allegations that the defendant was a fiduciary, and the complaint
must allege loss or injury to the plan. Nechis v. Oxford Health Plans, Inc., 328 F. Supp. 2d 469, 477 (S.D.N.Y.
2004), a.ff'd, 421 F.3d 96 (2d Cir. 2005). Even when read liberally, Gardner's proposed amendments do not contain
sufficient factual allegations of loss or inj ury to the Plan. Moreover, Gardner cannot recover money damages
through her claim for breach of fiduciary duty. See Krauss v. Oxford Health Plans, Inc., 5 17 F.3d 614, 630 (2d Cir.
2008) (finding plaintiffs could not recover money damages for a breach of fiduciary duty); see also Ciampa v.
Oxford Health Ins. , Inc. , No. I4-CV-2989 (DRH), 20 15 WL 2337385 at *4 (E.D.N .Y. May 13, 20 15) (d ismissing
plaintiff's claim for breach of fiduciary duty because she did not plead entitlement "to any equitable re lief, but solely
' monetary reimbursement' for her medical bills").

10

may have a viable claim in thi s regard.7 Given her prose status, Gardner is granted thirty (30)
days from the date of thi s Memorandum and Order to seek leave to plead a claim seeking solely
relief for the delay in disbursement of her $5,000 life insurance benefits. Should Gardner seek to
avail herself of this opportunity, she shall file a proposed third amended complaint, so captioned
and bearing the same docket number, and shall plead sufficient facts to support any such claim.
Gardner shall also fi le a brief memorandum of law as to why such an amendment raises a proper
claim and is not futile. In the event Gardner seeks to amend, Verizon will be given an
opportunity to address Gardner's motion.

CONCLUSION
For the reasons set forth above, Verizon's motion to dismiss Gardner's claims two
through four and Gardner's claims fo r compensatory and punitive damages is granted. (Doc . No.
19-2). Moreover, Gardner's proposed amended complaint fai ls to allege claims upon which
relief may be granted. Therefore, Gardner's motion to amend her complaint to include statutory
penalties and fines is denied. (Doc. Nos. 17, 19-6). However, Gardner is granted thirty (30)
days from the date of this Memorandum and Order to seek leave to amend her complaint
consistent with this Court's ruling.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith, and therefore, informa pauperis status is denied for purpose of
an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 ( 1962).

7

In response to Gardner's claim seeking interest, Verizon argues that "to the extent interest was owed and not paid,
it would be paid by Prudential, as Prudential funded the life insurance benefit payable under the Plan and paid
Gardner's claim." (Reply Mot. to Dismiss (Doc. No. 19-13) at 7 n.2; Def.'s Opp'n to Mot. Summ. J. at 8 n.1. )
Verizon gives no legal or factua l bases to support its position, other than a copy of the claim status showing that
Prudential paid Gardner the full benefit due under the Plan. (See generally Reply Mot. to Dismiss; Def.'s Opp'n to
Mot. Summ. J; Life Insurance Claim Status Ex.Cat 42.) Accordingly, the Court makes no determination at this
time as to who may be liable for any interest owed.

11

The Clerk of Court is respectfully directed to mail a copy of this Memorandum and Order
to plaintiff Helen T. Gardner, prose, and note the mailing on the docket.

SO ORDERED.

Dated: Brooklyn, New York
March 17, 20 17

s/Roslynn R. Mauskopf
ROSL YNN R. MAUSKOPF
United States District Judge

12