Thigpen v. Local 807 Labor Management Pension Fund et al
Filing
64
ORDER: For the reasons set forth in the attached, the Court grants summary judgment to Defendant and dismisses this action. The Court additionally grants Defendant's request for an award of attorneys' fees against Plaintiff, but only in th e amount of $100. The Clerk of Court is respectfully directed to enter judgment and close this case. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum & Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Ordered by Judge Pamela K. Chen on 9/29/2019. (Nadig, Alok)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ANGELA THIGPEN,
Plaintiff,
MEMORANDUM & ORDER
18-CV-162 (PKC) (LB)
- against BOARD OF TRUSTEES OF THE LOCAL 807
LABOR-MANAGEMENT PENSION FUND,
Defendant.
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PAMELA K. CHEN, United States District Judge:
Plaintiff Angela Thigpen, proceeding pro se, 1 brings this action against Defendant Board
of Trustees of the Local 807 Labor Management Pension Fund (“Defendant” or the “Pension
Fund”), seeking various benefits she claims are owed to her as the daughter of deceased Pension
Fund participant Jesse L. Thigpen (the “Decedent”). Defendant moves for summary judgment as
well as an award of attorneys’ fees. For the following reasons, the Court grants Defendant’s
motion for summary judgment on liability and grants Defendant’s request for attorneys’ fees, but
only in the amount of $100.
BACKGROUND
I.
Plaintiff’s 56.1 Statement
Plaintiff has not submitted a 56.1 statement as required by Local Rule 56.1, and remarks
in her brief could thus be interpreted as conceding the truth of the facts averred in Defendant’s
56.1 Statement. (See Plaintiff’s Opposition Brief (“Pl.’s Br.”), Dkt. 56, at 2 (“The Plaintiff will
Because Plaintiff is pro se, the Court liberally construes her submissions and interprets
them “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 474 (2d Cir. 2006) (quotation and emphasis omitted). However, the Court notes
that it “need not act as an advocate for” Plaintiff. Curry v. Kerik, 163 F. Supp. 2d 232, 235
(S.D.N.Y. 2001) (quoting Davis v. Kelly, 160 F.3d 917, 922 (2d Cir. 1998)).
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respectfully agree to the contentions and details set forth in the Pension Funds[’] Local Rule 56.1,
however, there are questions as to the truthfulness of the Statement of Material Facts and the
Affidavits on the record herein which must be fully realized.”).) Nevertheless, the Court declines
to deem Defendant’s 56.1 Statement admitted solely on that basis. As the Second Circuit has
advised:
A district court has broad discretion to determine whether to overlook a party’s
failure to comply with local court rules. Thus, we have previously indicated, and
now hold, that while a court is not required to consider what the parties fail to point
out in their Local 56.1 statements, it may in its discretion opt to conduct an
assiduous review of the record even where one of the parties has failed to file such
a statement.
Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (citation and quotations omitted); see
also Vt. Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 242 (2d Cir. 2004) (“Even
when a motion for summary judgment is unopposed, the district court is not relieved of its duty to
decide whether the movant is entitled to judgment as a matter of law.”). Although Plaintiff failed
to comply with Local Rule 56.1(b), in opposing Defendant’s motion she did provide her own
factual account of the case and attached numerous, non-duplicative exhibits. (See generally Pl.’s
Br., Dkt. 56; Plaintiff’s Exhibits, Dkt. 56-1.) Given Plaintiff’s pro se status, the Court will
“examine the record to determine whether there are any triable issues of material fact,
notwithstanding the fact that [Plaintiff] did not follow Local Civil Rule 56.1.” Cain v. Esthetique,
182 F. Supp. 3d 54, 63 (S.D.N.Y. 2016).
However, the Court will deem facts averred in Defendant’s 56.1 Statement to which
Plaintiff cites no admissible evidence in rebuttal as undisputed. See Lumbermens Mut. Cas. Co. v.
Dinow, No. 06-CV-3881 (TCP), 2012 WL 4498827, at *2 n.2 (E.D.N.Y. Sept. 28, 2012) (“Eastern
District Local Rule 56.1 requires . . . that disputed facts be specifically controverted by admissib le
evidence. Mere denial of an opposing party’s statement or denial by general reference to an exhibit
2
or affidavit does not specifically controvert anything.”).
Therefore, to the extent Plaintiff’s
recitation of facts in her brief “improperly interjects arguments and/or immaterial facts in response
to facts asserted by Defendant without specifically controverting those facts,” the Court has
disregarded Plaintiff’s factual recitation. Risco v. McHugh, 868 F. Supp. 2d 75, 87 n.2 (S.D.N.Y.
2012).
II.
Facts 2
Defendant provides pension and death benefits to members of Local 807 of the
International Brotherhood of Teamsters (the “Union”), whose employers contribute to the Pension
Fund under written agreements between the employers and the Union or the Internatio na l
Brotherhood of Teamsters. (Defendant’s 56.1 (“Def.’s 56.1”), Dkt. 54, at ¶ 1.) Union members
may also participate in the Local 807 Labor-Management Health Fund or Profit-Sharing Fund if
their employers contribute to those funds under written agreements with the Union or the
International Brotherhood of Teamsters. (Id. ¶ 2.) The Pension Fund, Health Fund, and ProfitSharing Fund are each separate multiemployer employee benefit funds as defined and governed
by the Employee Retirement Income Security Act of 1974 (“ERISA”). (Id. ¶ 3.)
Plaintiff is the daughter of the Decedent, a former participant in the Pension Fund. (Id.
¶ 4.) The Decedent participated in the Pension Fund throughout his employment with Independent
Chemical Corporation (“Independent Chemical”), which contributed to the Pension Fund as a
signatory to the “National Master Freight Agreements” (the “Agreements”) entered into with a
negotiating committee for the International Brotherhood of Teamsters. (Id. ¶ 5.) Specifically, the
Unless otherwise noted, a standalone citation to Defendant’s 56.1 Statement denotes that
this Court has deemed the underlying factual allegation undisputed. Any citation to Defendant’s
56.1 Statement incorporates by reference the documents cited therein. Where relevant, however,
the Court may cite directly to the underlying document.
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Decedent actively participated in the Pension Fund from 1983 to September 2002, and from
October 2002 through his death in 2014 as a retired participant.
(Id. ¶ 6.) Between 1983 and
2002—the years the Decedent worked at Independent Chemical—Independent Chemical
contributed to the Health Fund for eligible employees, including the Decedent, in accordance with
the Agreements.
(Id. ¶ 7.) Accordingly, the Decedent received medical, hospital, prescription
drug, and dental coverage from the Health Fund until he retired from active employment in 2002.
(Id. ¶ 8.) Pursuant to the Pension Fund’s status as a “defined benefit” pension fund, 3 the Decedent
earned and received a pension in the amount of $2,011.50 per month from the Pension Fund when
he retired in September 2002. (Id. ¶¶ 15, 16.) 4
Because the Decedent represented that he was not married at the time he retired, his pension
was paid in the form of a “single life annuity” with a 60-month guarantee. (Id. ¶ 17.) 5 The 60month guarantee provided that, if the Decedent died before receiving 60 months of pension
In a defined benefit pension fund, a participant’s benefit is calculated under a specific
formula based on his length of service and is then paid out of general pension fund assets. (Id.
¶ 16.)
3
Health Fund coverage ceases upon a participant’s retirement. (Id. ¶ 9.) Once a participant
retires, the Health Fund provides no further benefits other than a $2,500 post-retirement death
benefit that is paid upon the participant’s death. (Id. ¶ 10.) The Pension Fund also provides a
$1,000 death benefit which is aggregated with the Health Fund’s benefit towards the participant’s
funeral expenses. (Id.) However, during the period the Decedent worked for Independent
Chemical, Independent Chemical did not contribute to the Profit-Sharing Fund for any of its
employees, including the Decedent, and was not required to do so. (Id. ¶¶ 11–12.) Because
Independent Chemical did not contribute to the Profit-Sharing Fund for the Decedent, the
Decedent did not participate in the Profit-Sharing Fund and was not entitled to any benefits from
the Profit-Sharing Fund. (Id. ¶ 13.)
4
Payment in the form of a single life annuity means that the amount of the Decedent’s
monthly pension benefit was actuarially calculated for the period of his life only (as opposed to a
joint and survivor annuity for married retirees, which would be calculated based on the life
expectancies of both the retiree and the spouse). (Id.)
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benefits, additional monthly payments through the sixtieth month after his pension began would
be paid to a designated beneficiary. (Id. ¶ 18.) The Decedent named Leon B. Thigpen and Richard
Thigpen as the primary beneficiaries under the 60-month guarantee in his December 2002
application for pension benefits.
(Id. ¶ 19.) In November 2003, the Decedent executed a new
beneficiary designation under the 60-month guarantee naming Jackleen Grant Thigpen as the
primary beneficiary and Leon B. Thigpen as the secondary beneficiary. (Id. ¶ 20.) The Decedent
died on May 6, 2014—more than 60 months after he began receiving pension benefits. (Id. ¶ 21.)
Since the Decedent received pension benefits for more than 60 months before his death, no benefits
under the 60-month guarantee were payable to his designated beneficiaries after his death. (Id.
¶ 22.) The only benefits provided by the Pension Fund—and the only benefits to which the
Decedent was entitled from the Pension Fund—were the $2,011.50 monthly pension benefit that
he received from 2002 through 2014 and the $1,000 post-retirement death benefit. (Id. ¶ 25.) 6
The Decedent named Plaintiff as the beneficiary of $3,500 in post-retirement death benefits
on a form used strictly for designating the beneficiary of this benefit by the participant. (Id. ¶ 26.)
The post-retirement death benefit was the only benefit for which the Decedent designated Plaintiff
as the beneficiary. (Id. ¶ 27.) By letter dated May 7, 2014, Margo Guarino—an employee of the
Pension Fund—asked Plaintiff to submit a copy of the Decedent’s funeral bill, showing who paid
for the funeral. (Id. ¶ 28.) Ms. Guarino added that, if the bill was not yet fully paid, Plaintiff could
submit an “assignment of proceeds” for the $3,500 post-retirement death benefit made payable to
In 2014, the Pension Fund provided post-retirement death benefits in the amount of
$1,000 to its participants, including the Decedent. (Id. ¶ 23.) The post-retirement death benefits
paid by the Pension Fund were to be aggregated with $2,500 in post-retirement death benefit paid
by the Health Fund. (Id. ¶ 24.) The death benefits were payable to a funeral home toward burial
expenses or to a third party who paid for burial expenses. (Id. ¶ 24.) If there was no claim for
burial expenses, the benefits were payable to the participant’s designated beneficiary. (Id.)
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the funeral home. (Id.) Plaintiff executed an assignment form before a notary public on May 14,
2018 that directed the Pension Fund and the Health Fund to pay the $3,500 in post-retirement death
benefits to the House of Hills Funeral Home. (Id. ¶ 29.) The Pension Fund and the Health Fund
paid the post-retirement death benefits to the House of Hills Funeral Home based on the
assignment of benefits form signed by Plaintiff. (Id. ¶ 30.) Thereafter, the Pension Fund informed
Plaintiff and her representative that no additional benefits were payable from the Pension Fund.
(Id. ¶ 31.)
III.
Procedural History
Plaintiff commenced this action in state court on or about December 7, 2017. (See Notice
of Removal, Dkt. 1, ¶ 5 & ECF 7 6–10.) 8 The complaint recited a cause of action for negligence
and sought all benefits due to Plaintiff, as well as plan documents and documentation on “reporting
and disclosure, participation, vesting, funding, and so on.” (Id. ¶ 5 & ECF 8–9.) 9 On January 10,
2018, Defendant removed the action to federal court on the basis of federal question jurisdictio n.
(See id. ¶ 9 (“Under Section 502(a) of ERISA, district courts of the United States have origina l
jurisdiction over claims arising under Title I, Section 502(a)(1)(B) of ERISA. The Complaint
seeks benefits from the Fund, an ERISA employee benefit plan, based on Plaintiff’s status as a
beneficiary of the Fund.”).) After discovery concluded, the Court granted Defendant leave to file
“ECF” refers to the “Page ID” number generated by the Court’s CM/ECF docketing
system and not the document’s internal pagination.
7
Though Plaintiff originally named Carol Westfall as a defendant (id. ¶ 5 & ECF 6), Ms.
Westfall was dismissed from the case on March 6, 2018 (see Mar. 6, 2019 ECF Entry).
8
At her deposition Plaintiff indicated that she seeks reimbursement from the Pension Fund
for: (1) approximately $2,000 in funeral expenses that exceeded the amount of the Decedent’s
post-retirement death benefits; (2) lost wages for days she went to court, worked on her lawsuit,
and missed work for her father’s funeral; and (3) trauma and emotional stress that she suffered due
to the Decedent’s death. (Def.’s 56.1, ¶ 76.)
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a motion for summary judgment (see Nov. 20, 2018 ECF Entry), which is currently pending before
this Court (Dkt. 50). 10
STANDARD OF REVIEW
Summary judgment is appropriate where the submissions of the parties, taken together,
“show[] that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251–52 (1986) (summary judgment inquiry is “whether the evidence presents a suffic ie nt
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law”). A dispute of fact is “genuine” if “the [record] evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
The initial burden of “establishing the absence of any genuine issue of material fact” rests
with the moving party. Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir.
2010). Once this burden is met, however, the burden shifts to the non-moving party to put forward
some evidence establishing the existence of a question of fact that must be resolved at trial. Spinelli
v. City of New York, 579 F.3d 160, 166–67 (2d Cir. 2009); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322–23 (1986). A mere “scintilla of evidence” in support of the non-moving party is
“insufficient”; “there must be evidence on which the jury could reasonably find for the nonmovant.” Hayut v. State Univ. of N.Y., 352 F.3d 733, 743 (2d Cir. 2003) (brackets and quotation
omitted). In other words, “[t]he nonmoving party must come forward with specific facts showing
that there is a genuine issue for trial.” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002)
(quotation and emphasis omitted).
On December 27, 2018, Defendant served Plaintiff with a “Notice To Pro Se Litiga nt
Who Opposes a Motion For Summary Judgment” pursuant to Local Rule 56.2. (Id. at ECF 246.)
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When assessing whether a genuine issue of fact exists, the Court must resolve all
ambiguities and draw all reasonable inferences against the moving party. See Major League
Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). The Court also construes
any disputed facts in the light most favorable to the non-moving party. See Adickes v. S.H. Kress
& Co., 398 U.S. 144, 157–59 (1970). However, “the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly supported motion for summary
judgment.” Anderson, 477 U.S. at 247–48.
DISCUSSION
I.
Liability
“ERISA permits a person entitled to benefits to enforce that entitlement in a civil action.”
Dickerson v. United Way of N.Y.C., 351 F. App’x 506, 507 (2d Cir. 2009) (summary order) (citing
29 U.S.C. § 1132(a)(1)(B)). To prevail on such a claim, a plaintiff must prove that “(1) the plan
is covered by ERISA, (2) [she] is a participant or beneficiary of the plan, and (3) [she] was
wrongfully denied” a benefit to which she was owed under the plan. Giordano v. Thomson, 564
F.3d 163, 168 (2d Cir. 2009) (citations omitted); see Juliano v. Health Maint. Org. of N.J., Inc.,
221 F.3d 279, 287–88 (2d Cir. 2000) (noting that a plaintiff in an ERISA action must prove her
case by “establish[ing] that [she] [was] entitled to [the] benefit [she seeks] pursuant to the terms
of the [c]ontract or applicable federal law”). In this case, only the second and third requireme nts
are in dispute. Defendant argues that the Pension Fund is entitled to summary judgment because
the undisputed facts show that Plaintiff has received full payment of the only benefit to which she
is entitled. (Defendant’s Opening Brief (“Def.’s Br.”), Dkt. 51, at ECF 269.)
As explained, supra, the record before the Court on summary judgment substantiates this
argument. More specifically, the evidence in the record indicates that (1) the Decedent named
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Plaintiff as the beneficiary of $3,500 in post-retirement death benefits (Def.’s 56.1, ¶ 26); (2) this
post-retirement death benefit was the only benefit for which the Decedent designated Plaintiff as
a beneficiary (id. ¶ 27); and (3) Plaintiff, in fact, received the $3,500 post-retirement death benefit,
which she assigned to the House of Hills Funeral Home as partial payment for her father’s funeral
expenses (id. ¶¶ 28–30). Accordingly, because Defendant has “demonstrate[d] that there are no
genuine issues of material fact,” the burden shifts to Plaintiff to “come forth with evidence
sufficient to allow a reasonable jury to find in [her] favor.” Spinelli, 579 F.3d at 166 (quotation
omitted).
In opposition to Defendant’s summary judgment motion, Plaintiff argues that (1) she may
be entitled to additional benefits through the Pension Benefit Guarantee Corp. (“PBGC”) because
the beneficiary card on which the Decedent named Plaintiff as the beneficiary of his death benefit
“lists Local 707” and the PBGC has a Form 707 through which a pensioner can designate a
beneficiary; (2) the absence of a plan name on the beneficiary card may indicate that Plaintiff was
entitled to benefits beyond the $3,500 post-retirement death benefit that she received; (3) the 1099R Forms issued by the Pension Fund show distributions that Plaintiff should have, but did not,
receive, and/or indicate the existence of other pension plans under which Plaintiff was entitled to
benefits; (4) the Pension Fund’s Form 5500 Schedule MB for 2010 indicates the existence of other
multiemployer defined benefit plans and money purchase plans under which Plaintiff may be
entitled to benefits; and (5) communications between Plaintiff and Optum Bank about the
Decedent’s Health Savings Account prove she is entitled to more benefits than she received. (Pl.’s
Br., Dkt. 56, at ECF 821–23.)
At the outset, the Court rejects Plaintiff’s first, second, and fourth arguments, as they ask
the Court to speculate as to evidence that could exist somewhere, but is not currently in the record.
9
See Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (“While it is true
that a court is required to resolve all ambiguities and draw all factual inferences in favor of the
nonmovant, a plaintiff may not survive summary judgment merely by conjuring a hypothetica l
issue of material fact.” (quotation and citation omitted)); Jeffreys v. City of New York, 426 F.3d
549, 554 (2d Cir. 2005) (“To defeat summary judgment, . . . nonmoving parties must do more than
simply show that there is some metaphysical doubt as to the material facts, and they may not rely
on conclusory allegations or unsubstantiated speculation.” (quotations and citation omitted));
Christie’s Inc. v. Davis, 247 F. Supp. 2d 414, 422 (S.D.N.Y. 2002) (noting that “‘mere conjecture
[and] speculation,’ . . . does not provide a basis to deny summary judgment” (quoting Argus Inc.
v. Eastman Kodak Co., 801 F.3d 38, 42 (2d Cir. 1986) (first alteration in original))); Local Unions
20 v. United Bhd. of Carpenters & Joiners of Am., 223 F. Supp. 2d 491, 507 (S.D.N.Y. 2002)
(“declin[ing], in the absence of any evidence, to speculate on what ‘the evidence would show’ if
offered”); Jimenez v. City of New York, 605 F. Supp. 2d 485, 522 (S.D.N.Y. 2009) (“Plaintiff
submits no evidence to support [her] supposition; [she] merely speculates . . . . That is not
sufficient to bar summary judgment [].”).
The Court accordingly only addresses Plaintiff’s third and fifth arguments.
A.
1099-R Forms
Plaintiff argues that the 1099-R Forms issued by the Pension Fund show distributions that
Plaintiff should have, but did not, receive, and/or indicate the existence of other pension plans
under which Plaintiff was entitled to benefits.
(Pl.’s Br., Dkt. 56, at ECF 821–22.) But the
referenced Forms do not indicate anything of the sort. Rather, the 1099-R Forms reflect pension
payments made by the Pension Fund to the Decedent, who is identified on the forms as the
“recipient.” (See Tax Forms, Dkt. 56-1, at ECF 837–46.) The forms set forth the gross amounts
10
of pension benefits paid to the Decedent for the years in which they were issued. (Supplementa l
Affidavit of Teresa Casanova (“Casanova Supp. Aff.”), Dkt 57-1, ¶ 6.) 11 To the extent any pension
benefits might have been payable after the Decedent’s death, Plaintiff was not the named
beneficiary of those benefits. (Id. ¶ 7; Casanova First Aff., Dkt. 52, ¶¶ 19, 20.) Because the 1099R Forms relate only to pension benefits to which Plaintiff had no claim, they do not prove
Plaintiff’s entitlement to additional benefits from the Pension Fund. Cf. Powell v. Nat’l Bd. of
Med. Exam’rs, 364 F.3d 79, 84 (2d Cir. 2004) (“An alleged factual dispute regarding immater ia l
or minor facts between the parties will not defeat an otherwise properly supported motion for
summary judgment.”).
B.
Optum Bank
Plaintiff argues that communications between Optum Bank and Plaintiff about the
Decedent’s Health Savings Account shows that she is entitled to more benefits from the Pension
Fund than she received. (Pl.’s Br., Dkt. 56, at ECF 823.) More specifically, Plaintiff states,
it should be further noted that in the latter part of 2018, the Plaintiff established
phone and written communication with OPTUM Bank Representative(s) in Salt
Lake City, UT.
The Plaintiff upon making further written and verbal
communication received a correspondence to the effect of expressing condolences
Although Defendant submitted the supplemental affidavit of Teresa Casanova—the
Fund Manager for the Pension Fund (First Affidavit of Teresa Casanova (“Casanova First Aff.”),
Dkt. 52, ¶ 1)—for the first time in reply, this affidavit “merely responds to matters placed in issue
by” Plaintiff in her opposition brief, and therefore “does not spring upon [Plaintiff] new reasons
for the entry of summary judgment.” Kelly v. Times/Review Newspapers Corp., No. 14-CV-2995
(JMA) (SIL), 2018 WL 1701999, at *8 (E.D.N.Y. Feb. 15, 2018), report and recommendation
adopted, 2018 WL 1701945 (E.D.N.Y. Mar. 31, 2018). The Court therefore exercises its
discretion to consider the affidavit. See Bayway Ref. Co. v. Oxygenated Mktg. & Trading A.G.,
215 F.3d 219, 226–27 (2d Cir. 2000) (“[R]eply papers may properly address new material issues
raised in the opposition papers so as to avoid giving unfair advantage to the answering party.”
(citation omitted)); Gustavia Home, LLC v. Hoyer, 362 F. Supp. 3d 71, 80 n.6 (E.D.N.Y. 2019)
(exercising discretion to consider affidavit submitted in reply that merely responded to the
identification of alleged deficiencies in the moving party’s evidence); Lopez v. Hollisco Owners’
Corp., 147 F. Supp. 3d 71, 79 (E.D.N.Y. 2015) (exercising discretion to consider reply declaration
that was responsive to opposition).
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for the loss of her father who[] is the Participant and was directed to provide the
necessary documentation such as a certified copy of the death certificate, etc. in
order to expedite the distribution of additional benefit funds, which goes to the
contrary of the Defendants’ Attorneys[’] argument that the Plaintiff was only
entitled to a Single Life Annuity.
(Id. (emphasis in original).) However, Plaintiff has not submitted any evidence indicating that the
Health Savings Account was associated with the Pension Fund (see Optum Bank Documents, Dkt.
56-1, at ECF 919–20), and the Pension Fund has indicated that it does not offer any Health Savings
Accounts (Casanova Supp. Aff., Dkt. 57-1, ¶ 11). Plainly, the existence of benefits offered through
other entities does not prove that Defendant owes any additional benefits to Plaintiff. Cf. Powell,
364 F.3d at 84.
*
*
*
Accordingly, because no reasonable jury could find that Plaintiff is entitled to any benefits
from Defendant Pension Fund beyond the benefit she has already received, the Court grants
summary judgment to Defendant.
II.
Attorneys’ Fees
Defendant additionally asks this Court to award it $500 towards the attorneys’ fees and
costs incurred due to Plaintiff’s frivolous actions during these proceedings. (Def.’s Br., Dkt. 51,
at ECF 271–73.) For the below reasons, the Court grants Defendant’s request, but reduces the
attorneys’ fees award to $100.
A.
Relevant Facts
As described, supra, Plaintiff commenced this action in state court on or about December 7,
2017. (See Notice of Removal, Dkt. 1, ¶ 5 & ECF 6–10.) On January 10, 2018, Defendant
removed the action to federal court. (See Notice of Removal, Dkt. 1, ¶ 9). During a hearing in
state court on March 14, 2018, Plaintiff represented to the Honorable Carl J. Landicino of the
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Supreme Court of New York, Kings County, that her case had not been removed (Def.’s 56.1,
¶¶ 57–58; Transcript of Mar. 14, 2018 Hearing, Dkt. 53-17, at ECF 762), 12 even though she had,
in fact, received notice of the removal by first-class mail (Def.’s 56.1, ¶¶ 53–55). 13 Also on
March 14, 2018, Plaintiff filed in state court an affidavit in opposition to removal. (Id. ¶ 60.) The
March hearing was continued to April 18, 2018, because Plaintiff had not served her Order to
Show Cause on Defendant or Carol Westfall. (Id. ¶ 59.)
A hearing subsequently took place on April 18, 2018. (Id. ¶ 61.) During that hearing,
Plaintiff continued to insist that she had not been served in the federal action. (Id. ¶ 62; Transcript
of Apr. 18, 2018 Hearing, Dkt. 53-18, at ECF 783–86.) During this time, discovery in the federal
action had commenced and Plaintiff was being uncooperative with Defendant and the Court by
refusing to timely comply with document requests. (Def.’s 56.1, ¶ 75; Deposition of Plaintiff,
Dkt. 53-16, at ECF 701–03). By May 29, 2018, Defendant had served Plaintiff with copies of
Defendant’s files on the Decedent and “all official plan documents in Defendant’s possession and
control for the years 1983 through 2014.” (Certificate of Service, Dkt. 17.)
Until the March 18, 2018 hearing, Justice Landicino had not been made aware that the
whole proceeding had been removed to federal court. (Id. at ECF 762.)
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Specifically, at the time Plaintiff told Justice Landicino that she had not received any
notice that her case had been removed, Plaintiff had been served with the following documents via
certified mail: (1) the notice of removal, (2) this Court’s case assignment notification, (3) this
Court’s notice of availability of a magistrate, (4) the federal court clerk’s docket check notice, (5)
the state court notice of filing of notice of removal, (6) Defendant’s answer, (7) a copy of the
affidavit of service of Defendant’s notice of filing of notice of removal, (8) Carol Westfall’s letter
motion for a pre-motion conference, (9) this Court’s order directing Plaintiff to respond to Ms.
Westfall’s motion, (10) this Court’s order granting Ms. Westfall’s request for a pre-motion
conference, (11) Defendant’s letter to this Court correcting a typographical error, (12) this Court’s
minute entry for the pre-motion conference, (13) defense counsel’s notice of change of address,
(14) defense counsel’s notice of appearance, and (15) the Honorable Lois Bloom’s scheduling
order. (Id. ¶ 58.)
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After discovery concluded, Plaintiff filed sundry submissions in this Court insisting that
discovery should be extended. For example, on October 19, 2018, Plaintiff moved to extend the
discovery deadline because Defendant had not produced documents that she requested. (Def.’s
56.1, ¶ 66.) After Defendant responded that it had, in fact, produced all existing responsive
documents, Judge Bloom denied Plaintiff’s motion on November 1, 2018. (Def.’s 56.1, ¶ 67.) In
doing so, Judge Bloom summarized:
Plaintiff writes to request an extension of time to complete discovery. (ECF
No. 34.) Defendant’s counsel reports that all responsive pleadings to [P]laintiff’s
discovery requests have been produced. (ECF No. 36.) Defense counsel further
reports that to the extent that documents have not been produced, such documents
do not exist.
A party seeking an extension of a scheduling order must demonstrate diligence and
good cause. Parker v. Columbia Pictures Indus., 204 F.3d 326 339–40 (2d Cir.
2000); Fed. R. Civ. P. 16(b)(4) (“[a] schedule may be modified only for good cause
and with the judge’s consent[]”).
Discovery in this case closed on October 22, 2018. Defendant’s counsel responded
to [P]laintiff’s demands on August 15, 2018, September 5, 2018, and October 19,
2018. (ECF No. 36.) Plaintiff may not be satisfied with discovery responses;
however, that is not sufficient to demonstrate good cause to extend the discovery
deadline. Defendant does not have an obligation to produce any further discovery.
(Dkt. 38.)
Notwithstanding Judge Bloom’s order, Plaintiff filed a letter on October 30, 2018 in which
she again asserted that Defendant had not produced documents Plaintiff had requested. (Def.’s
56.1, ¶ 68.) Defendant again answered that it had, in fact, produced all existing documents. (Id.
¶ 69.) On November 6, 2018, Plaintiff filed another motion to extend discovery and subpoena
documents from Defendant. (Id. ¶ 70.) Defendant again answered that it had produced all existing
documents. (Id. ¶ 71.) By order dated November 16, 2018, Judge Bloom again denied Plaintiff’s
request to reopen discovery and subpoena documents, and directed Defendant to resend Plaintiff’s
deposition transcript to her, as Plaintiff claimed to have not received it. (Id. ¶ 72; Dkt. 49.)
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B.
Analysis
A party seeking attorneys’ fees in an ERISA action must show “some degree of success on
the merits” before a court may award attorneys’ fees. Hardt v. Reliance Standard Life Ins. Co.,
560 U.S. 242, 255 (2010). Having granted summary judgment in Defendant’s favor, supra, the
Court notes that Defendant has met this standard. Though Defendant is eligible to seek attorneys’
fees, Defendant is not categorically entitled to recover such fees. The relevant provision of ERISA
grants the Court discretion in determining whether to allow reasonable attorneys’ fees. See 29
U.S.C. § 1132(g)(1) (“In any action under this subchapter . . . by a participant, beneficiary, or
fiduciary, the court in its discretion may allow a reasonable attorney[s’] fee and costs of action to
either party.”).
Defendant argues that it is entitled to attorneys’ fees under the five factors set forth in
Chambless v. Masters, Mates & Pilots Pension Plan, 815 F.2d 869, 871–73 (2d Cir. 1987),
abrogated by Hardt, 560 U.S. at 255. (Def.’s Br., Dkt. 51, ECF 271–73.) In Chambless, the
Second Circuit announced five factors that a court is to consider in deciding whether to grant an
award of reasonable attorneys’ fees under ERISA’s fee-shifting provision: (1) the degree of the
offending party’s culpability or bad faith, (2) the ability of the offending party to satisfy an award
of attorney’s fees, (3) whether an award of fees would deter other persons from acting similar ly
under like circumstances, (4) the relative merits of the parties’ positions, and (5) whether the action
conferred a common benefit on a group of plan participants.
815 F.2d at 871. In Hardt, the
Supreme Court observed that the five Chambless factors “bear no obvious relation to
§ 1132(g)(1)’s text or to [the Supreme Court’s] fee-shifting jurisprudence” and “are not required
for channeling a court’s discretion when awarding fees” under § 1132(g)(1). 560 U.S. at 255. The
Supreme Court did note, however, that “a court may consider the five [Chambless] factors . . . in
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deciding whether to award attorney[s’] fees.” Id. at 255 n.8 (emphasis added). As the Second
Circuit has summarized:
After Hardt, whether a [party] has obtained some degree of success on the merits
is the sole factor that a court must consider in exercising its discretion. Although a
court may, without further inquiry, award attorneys’ fees to a [party] who has had
some degree of success on the merits, Hardt also made clear that courts retain
discretion to consider five additional factors in deciding whether to award
attorney[s’] fees.
Donachie v. Liberty Life Assurance Co. of Boston, 745 F.3d 41, 46 (2d Cir. 2014) (citations,
quotations, and alterations omitted); see also Scarangella v. Grp. Health, Inc., 731 F.3d 146, 152
(2d Cir. 2013) (“Hardt also permitted the use of the five-factor tests adopted by most Circuit[s] . .
. to channel discretion in awarding reasonable fees to eligible parties, but held that courts were not
required to use them.”).
Applying this standard, the Court determines that Defendants are entitled to attorneys’ fees,
but only in the amount of $100. See 29 U.S.C. § 1132(g)(1); Donachie, 745 F.3d at 47–48
(affirming district court’s discretion in awarding attorneys’ fees in ERISA matter).
While
Defendant has demonstrated success on the merits and clearly established two of the five
Chambless factors—i.e., that the merits of Defendant’s position was plainly superior to that of
Plaintiff throughout the litigation (the fourth Chambless factor) and that the action commenced by
Plaintiff conferred a de minimis, if any, common benefit on any group or plan participants (the
fifth Chambless factor)—the Court is concerned about Plaintiff’s ability to pay any attorneys’ fee
award (the second Chambless factor), given the nature of these proceedings and her pro se status.
See Cross v. Village of Cooperstown, No. 04-CV-501 (FJS) (GHL), 2007 WL 3254269, at *5
(N.D.N.Y. Nov. 2, 2007) (“Although it is unjust to award attorney[s’] fees against a plaintiff
proceeding pro se in forma pauperis where the plaintiff’s dereliction is the result of circumsta nces
16
beyond his control, a court may assess fees against pro se plaintiffs who do not proceed in forma
pauperis and who act willfully.” (citations omitted)). 14
In addition, the Court is not convinced that an award of attorneys’ fees will have a general
deterrent effect (the third Chambliss factor), since it seems unlikely that others who may be
contemplating similar litigation would have any way or reason to know about this action or any
attorneys’ fee award. Cf. Buffalo Anesthesia Assocs., P.C. v. Gang, No. 05-CV-204 (KS), 2009
WL 3199584, at *2 (W.D.N.Y. Sept. 30, 2009) (“[T]he Court is sensitive to [third-party plaintiff’s]
disability and []professed lack of financial means and aware of the likely disparity between the
legal fees actually incurred . . . in defending this action and the penalty which would deter [thirdparty plaintiff]—and others—from such misconduct in the future.”).
Lastly, the Court also is not convinced that, despite acting in plain disregard for procedural
realities, Plaintiff, who is pro se, acted with subjective bad faith—as opposed to acting out of
desperation and ignorance of the law—during the relevant events in this case (the first Chambless
factor). The Court intends that the award of $100 in attorneys’ fees will serve to deter Plaintiff
from ill-advisedly continuing or bringing future litigation of this nature, affirm Defendant’s
entitlement to attorneys’ fees in situations such as this, and provide a measure of compensation for
the fees expended by Defendant in this litigation. See E. Sav. Bank, FSB v. Bowen, No. 13-CV6366 (ENV) (VMS), 2017 WL 9485705, at *1 (E.D.N.Y. Feb. 6, 2017) (“As the Court must award
reasonable attorneys’ fees and as Defendant [] is a pro se defendant, the Court has considered the
fees and costs request and recommends that the amount awarded for attorneys’ fees and costs be
reduced from Plaintiff’s proposed amount.” (citation and footnote omitted)), report and
The Court notes that, because Defendant removed this action to federal court, Plaintiff
was not required to pay the filing fee, and there is no evidence in the record definitive ly
establishing whether or not Plaintiff is of financial means.
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17
recommendation adopted as to attorneys’ fees and costs, 2017 WL 2375928 (E.D.N.Y. May 31,
2017).
Accordingly, the Court grants Defendant’s request for attorneys’ fees. but only in the
amount of $100.
CONCLUSION
For the reasons set forth above, the Court grants summary judgment to Defendant and
dismisses this action. The Court additionally grants Defendant’s request for an award of attorneys’
fees against Plaintiff, but only in the amount of $100. The Clerk of Court is respectfully directed
to enter judgment and close this case. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal from this Memorandum & Order would not be taken in good faith and therefore in
forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369
U.S. 438, 444–45 (1962).
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: September 29, 2019
Brooklyn, New York
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