Blough v. Cooperative Benefit Administrators Inc et al

Filing 49

ORDER denying 43 Motion to Dismiss. Signed by Honorable Timothy D. DeGiusti on 3/3/2014. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MICHAEL BLOUGH,

)
)
Plaintiff,
)
)
v.
)
)
COOPERATIVE BENEFIT ADMINISTRATORS, )
INC., et al.,
)
)
Defendants.
)

Case No. CIV-13-191-D

ORDER
Before the Court is Defendants Rural Electric Cooperative, Inc.’s and Dale Nye’s Motion
to Dismiss [Doc. No. 43], filed pursuant to Fed. R. Civ. P. 12(b)(6). The Motion seeks dismissal
of the Complaint for failure to state a claim upon relief can be granted, asserting that the moving
defendants are not proper parties to a claim for benefits under the Employee Retirement Income
Security Act (ERISA), 29 U.S.C. § 1001 et seq., and that all state law theories of recovery are
barred by ERISA preemption. Plaintiff Michael Blough has timely responded in opposition to the
Motion, arguing that it is untimely under Rule 12(b)(6).1 The time for filing a reply brief has
expired, and thus, the Motion is at issue.
The moving defendants are Plaintiff’s former employer and its chief executive officer.2 They
timely responded to the Complaint by filing a joint answer on May 13, 2013. The answer merely
denies certain paragraphs of Plaintiff’s pleading; it states no affirmative defenses. Other defendants

1

Plaintiff has combined with his response a “Motion to Strike,” asking that Defendants’ Motion be
stricken as untimely. This aspect of Plaintiff’s filing is improper under LCvR7.1(c), which clearly provides:
“A response to a motion may not also include a motion or a cross-motion made by the responding party.”
Therefore, Plaintiff’s putative motion is disregarded.
2

The Complaint identifies Mr. Nye only as an employee without identifying his job title. However,
Plaintiff does not disagree with this characterization in his response brief.

responded to the Complaint by filing Rule 12(b)(6) motions, which were granted. The Court
dismissed Count II of the Complaint as preempted by ERISA, and dismissed other individual
defendants as improper parties to an ERISA claim in Count I. See Order of Oct. 22, 2013 [Doc.
No. 31]. By the instant Motion, the moving defendants seek similar relief.3
Plaintiff’s sole opposition to the Motion is a procedural objection. Plaintiff observes that
Rule 12(b) plainly provides that a motion under that subsection “must be made before pleading if
a responsive pleading is allowed.” Because the moving defendants answered the Complaint in May,
2013, and did not file their Motion until October, 2013, Plaintiff asserts that the Motion was not
timely filed and should be denied.
Plaintiff’s position is procedurally correct. The time to file a Rule 12(b)(6) motion expired
when the moving defendants filed their Answer [Doc. No. 25]. That is not to say, however, these
defendants cannot properly raise their defense utilizing other procedural rules. According to
Rule 12(h)(1), the defense of failure to state a claim is not waived by failing to include it in a motion
or a responsive pleading; instead, it may be raised “by a motion under Rule 12(c).” See Fed. R. Civ.
P. 12(h)(2). Rule 12(c) authorizes a party to move for judgment on the pleadings “[a]fter the
pleadings are closed – but early enough not to delay trial.” Therefore, although a Rule(b)(6) motion
is procedurally improper at this stage of the litigation, Defendants may nevertheless raise their
defense in a timely manner under Rule 12(c), if they so choose.

3

The Motion also mentions, but contains no argument directed at, a wrongful discharge claim
asserted in Count IV of the Complaint and a “wrongful garnishment” claim in Count III. In fairness to the
movants, Plaintiff’s allegations in support of these claims are confusing and his theories of recovery are
unclear. Count III alleges misconduct only by other defendants, and Plaintiff does not articulate why the
termination of his employment as alleged in Count IV was unlawful. However, because the moving
defendants argue only ERISA preemption and fail to explain how Counts III and IV implicate ERISA’s civil
enforcement remedy, the Court could not find them to be preempted on the present record.
2

IT IS THEREFORE ORDERED that Defendants Rural Electric Cooperative, Inc.’s and Dale
Nye’s Motion to Dismiss [Doc. No. 43] is DENIED, without prejudice to filing a proper motion
under Rule 12(c).
IT IS SO ORDERED this 3rd day of March, 2014.

3