Montgomery v. Standard Insurance Company et al

Filing 39

SCHEDULING ORDER. Signed by Magistrate Judge Joe Brown on 8/11/11. (dt)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
COOKEVILLE DIVISION
ANITA MONTGOMERY,

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Plaintiff
v.
STANDARD INSURANCE COMPANY,
et al.,
Defendants

No. 2:11-0051
Judge Sharp/Brown

SCHEDULING ORDER
The parties in this matter have filed a joint scheduling
order

and

after

discussing

the

matter

with

the

parties

the

following schedule is entered.
1.

Introduction: Pursuant to Fed. R. Civ. P. 16(b) a

scheduling conference is scheduled in this case on August 15, 2011,
at 1:00 p.m. Present representing the plaintiff will be attorney D.
Seth Holliday. Present representing defendants will be attorneys
Warren von Schleicher.
2.

Jurisdiction: This Court has jurisdiction of this

case pursuant to 28 U.S.C. § 1331 and pursuant to 29 U.S.C. § 1132.
Plaintiff is seeking payment of disability benefits under an ERISA
governed long term disability plan (the “Plan”) pursuant to a group
long-term disability insurance policy (the “LTD Policy”) issued by
Standard.
3.

Plaintiff’s theory of the case: Plaintiff claims

that she is disabled under the terms of the Plan that is the

subject of this litigation and the group long term disability
insurance policy that was issued by Standard. Plaintiff, at all
relevant times, was a participant in the Plan. Plaintiff became
disabled on or about August 6, 2007, received benefits for a time,
and timely filed an application for benefits after being terminated
from said benefits. Ms. Montgomery has not received the full
requisite of her long term disability benefits. She appealed this
denial and exhausted her required administrative remedies, but the
denial of benefits was upheld.
Plaintiff contends that the denial of benefits was wrong
under a de novo standard of review and was arbitrary and capricious
under a discretionary standard of review. Standard’s decisionmaking process did not provide the Plaintiff a full and fair review
as required by 29 U.S.C. § 1133 and 29 C.F.R. 2560.503-1. The
Defendant decision-makers were acting under a conflict of interest
and allowed the conflict of interest to influence their decisionmaking. Plaintiff is not making a Section 502(a)(3) claim.
4.

Defendant’s theory of the case: Standard contends

that its decision to deny the Plaintiff's claim for certain long
term disability benefits was reasonable and permissible and was not
arbitrary or capricious. Standard asserts that it provided the
Plaintiff with a full and fair review of her claims for benefits
pursuant to ERISA and the terms of the ERISA Plan. Standard further
denies that the Plaintiff is entitled to an award of benefits,

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interest, attorneys’ fees or any other benefits, damages or other
relief.
5.

Identification of the issues:
A.

Plaintiff asserts that:
1.

Standard’s decision to deny long term

disability was wrong under a de novo standard of review.
2.

Standard’s decision to deny long term

disability benefits was arbitrary and capricious.
3.

Plaintiff is entitled to benefits under

the terms of the ERISA plan, as well as interest and attorneys
fees.
B.

The Defendants assert that:
1.

Standard’s determination that Plaintiff

was not disabled under the terms of the ERISA Plan was reasonable
and was not arbitrary and capricious;
2.

Standard’s denial of the Plaintiff’s claim

for benefits under the terms of the ERISA Plan was reasonable and
was as not arbitrary and capricious;
3.

Plaintiff is not entitled to recover any

long term disability benefits, attorneys’ fees and costs, or any
other benefits or damages. Standard contends that it is entitled to
an award of reasonable attorneys’ fees and costs pursuant to 29
U.S.C. §1132(g).

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6.

Need for other claims or special issues under Rules

13-15, 17-21, and Rule 23 of the Federal Rules of Civil Procedures:
None
7.

Witnesses, if know, subject to supplementation by

each party: None.
8.

Initial

Disclosures

and

Staging

of

Discovery:

Defendant asserts that this case is excluded from the initial
disclosure requirements of Rule 26(a)(1) of the Federal Rules of
Civil Procedure on the basis that this is “an action for review on
an administrative record.” Fed. R. Civ. P. 26(a)(1)(E)(i). Rule
26(a)(1)(E) specifically exempts such proceedings from the initial
disclosure

requirements

under

Rule

26(a)(1).

Pursuant

to

the

procedures adopted in Wilkins v. Baptist Healthcare Sys., Inc., 150
F.3d 609, 619 (6th Cir. 1998), this Court is limited to the
administrative record in connection with its review of Standard’s
determination

to

deny

the

Plaintiff’s

claim

for

long

term

disability benefits under the Plan.
Plaintiff disagrees that this case falls under Fed. R.
Civ.

P.

26(a)(1)(E)(i),

in

that

it

is

not

a

review

of

an

administrative record following agency action. Rather it is a case
between private litigants. An ERISA administrative record is not a
true “administrative record” that is created by a government agency
after a due process hearing. However, the Plaintiff agrees that
service of the ERISA administrative record on the Plaintiff will
satisfy the parties’ obligations for initial disclosures.
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No party has served discovery. The Court’s review is
limited to a review of the administrative record before the claim
decision-maker at the time the decision to deny benefits was made.
Plaintiff contends that discovery is permitted to address alleged
violations of due process on the part of the decision-maker.
Plaintiff acknowledges that the record is closed with respect to
additional evidence of disability. However, Plaintiff asserts that
Sixth Circuit precedent allows limited discovery and the court’s
consideration of evidence of bias or violation of due process on
the part of the decision-maker. Moreover, there is always the
possibility that the parties will disagree as to what constitutes
the

ERISA

administrative

record,

but

there

is

no

present

disagreement at this stage of the proceedings.
Defendants contend that judicial review is confined to
the administrative record, and that there should be no discovery
outside production of the administrative record, based on Sixth
Circuit precedent.
In light of the foregoing, the Parties propose the
following schedule:
Standard shall file the ERISA Administrative Record with
Court and serve a copy of same on Plaintiff on or before September
30, 2011.
Should Plaintiff have any objection to the content of the
filed ERISA Administrative Record, such objection shall be filed on
or before October 28, 2011.
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Should the Plaintiff seek discovery in this case, the
Plaintiff will serve such proposed discovery on the Defendant on or
before October 28, 2011. Plaintiff states that such proposed
discovery will be limited to those issues for which Plaintiff
contends discovery is permitted in an ERISA matter. See, e.g.,
Huffaker, 2008 WL 822262, at *10; Likas, 2007 WL 738647, at *4;
McInerney, 2007 WL 1650498, at *3; Calvert, 409 F.3d at 293, n.2
(6th Cir. 2005); Kalish, 419 F.3d at 508 (6th Cir. 2005); Myers v.
The Prudential Insurance Company of America, No. 1:08-cv-22 (E.D.
Tenn. entered September 22, 2008 as Docket No. 29, Order at 1, 12,
14); Platt v. Walgreen Income Protection Plan for Store Managers,
No. 3:05-cv-162 (M.D. Tenn. entered December 6, 2005 as Docket No.
31, Order at 4).
The Defendant shall (i) respond to the proposed discovery
or (ii) notify Plaintiff in writing that Plaintiff is not entitled
to conduct discovery or that all or a portion of the proposed
discovery is outside the bounds of discovery permitted in a claim
seeking the recovery of an ERISA benefit within thirty (30) days of
receipt of the proposed discovery. If the Defendant so notifies the
Plaintiff of its objection(s), the parties shall endeavor to
resolve any disputes related to the proposed discovery between
themselves. Should the Parties be unable to agree as to any
proposed discovery, either party may file a motion to obtain a
ruling regarding the requested discovery. Nothing in this discovery
plan shall be construed as a concession or admission from the
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Defendant that discovery is allowable in this or any other ERISA
benefits claim.
The Parties shall file their respective motions for
Judgment on the Record ninety (90) days after the deadline to serve
proposed

discovery,

or

by

January

26,

2012,

if

no

proposed

discovery is served by the Plaintiff. If proposed discovery is
served and Defendant does not object to such discovery, the Parties
shall file their respective motions for Judgment on the Record
forty-five (45) days after the proposed discovery is completed. If
the

parties

are

unable

to

resolve

their

respective

disputes

concerning any proposed discovery and a motion pertaining to any
proposed

discovery

is

filed,

the

Parties

shall

file

their

respective motions for Judgment on the Record forty-five (45) days
after the Court rules that the discovery may not be had, or if the
discovery is permitted, within forty-five (45) days after the close
of discovery if discovery is permitted.
The Parties shall file their response briefs to the
opposing party’s motions by February 27, 2012, or thirty (30) days
after

the

date

the

opposing

party

files

and

serves

her/its

respective motion for judgment, whichever date is applicable.
The Parties shall be permitted to file a short, five (5)
page reply brief to the opposing party’s response brief, by March
8, 2012, or within ten (10) days of the filing and service of the
opposing party’s response brief, whichever date is applicable.

7

Prior to filing any discovery-related motion the parties
will

schedule

and

conduct

a

telephone

conference

with

the

Magistrate Judge. The counsel requesting the conference shall check
with opposing counsel as to their availability before setting a
certain time with the Court.
9.

Dispositive motions: Moving and response briefs

shall not exceed 25 pages. The parties shall not exceed these page
limitations without permission of the Court.
10.
need

for

Other deadlines: At this time there appears to be no

counterclaims,

crossclaims,

third-party

claims,

amendments, joinder, or consideration of a class action. Any
motions to amend the pleadings must be made by September 30, 2011.
11.
do

not

Subsequent case management conference: The parties

anticipate

the

need

for

subsequent

case

management

conferences. If such a need arises, the parties may contact the
Court to schedule another case management conference. Otherwise,
any party may file a motion seeking further case management.
12.
tell

whether

Alternate dispute resolution: It is too early to
the

parties

may

be

able

to

negotiate

toward

settlement. The parties will discuss the possibility of settlement
after the ERISA administrative record has been filed by Defendants.
13.

Consent to trial before the Magistrate Judge: The

parties do not consent to trial before the Magistrate Judge.
14.

Target trial date: A trial is not permitted in this

civil action under ERISA. Wilkins v. Baptist Healthcare Sys., 150
8

F.3d 609, 617-20 (6th Cir. 1998). Rather, the court reviews only
the evidence before the claims decision-maker at the time the final
decision to deny benefits was made. Wilkins, 150 F.3d at 617-20.
This case shall be decided on dispositive motions filed by the
parties.
15.

Consent to Magistrate Judge: The parties do not

consent to proceed before the Magistrate Judge.
16.

Case Management Conference:

The Magistrate Judge

conducted a telephone conference with the parties at their request
on August 11, 2011.

In view of that telephone conference, the

initial case management conference scheduled for Monday, August 15,
2011, is canceled.
It is so ORDERED.
/s/ Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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