Delauter v. The Nissan Supplemental Executive Retirement Plan II et al

Filing 57

MEMORANDUM OPINION AND ORDER: Pending before the Court is Plaintiff's Motion to Convert Defendants' Motion to Dismiss into a Motion for Summary Judgment and to Stay Decision on Defendants' Motion until [Plaintiff] has a Reasonable O pportunity for Discovery. (Doc. No. 39 , "Motion to Convert"). Defendants have responded. (Doc. No. 46 ). Plaintiff has replied. (Doc. No. 50 ). The Motion is ripe for review. For the reasons discussed, the Motion is DENIED. Plaintiff is directed to file its Response to the pending Motion to Dismiss by May 3, 2021. Defendants are directed to file their optional Reply by May 17, 2021. Signed by District Judge Eli J. Richardson on 4/19/2021. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg)

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
BRIAN DELAUTER,
Plaintiff,
v.
THE NISSAN SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN II
and NISSAN NORTH AMERICA,
INC.,
Defendants.

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NO. 3:20-cv-00609
JUDGE RICHARDSON

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s Motion to Convert Defendants’ Motion to Dismiss
into a Motion for Summary Judgment and to Stay Decision on Defendants’ Motion until [Plaintiff]
has a Reasonable Opportunity for Discovery. (Doc. No. 39, “Motion to Convert”).1 Defendants
have responded. (Doc. No. 46). Plaintiff has replied. (Doc. No. 50). The Motion is ripe for review.
For the reasons discussed herein, the Court will deny the Motion to convert.

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Also pending, but not ruled upon herein, is Defendants’ Motion to Dismiss pursuant to Rule
12(b)(6) (Doc. No. 35, “Motion to Dismiss”). After filing the Motion to Convert, Plaintiff filed an
unopposed motion to stay (briefing on) the Motion to Dismiss (Doc. No. 41), which was granted
pending the resolution of the Motion to Convert (Doc. No. 42). For this reason, Plaintiff has not
yet responded to the Motion to Dismiss. The original Memorandum in Support of the Motion to
Dismiss (Doc. No. 36) was withdrawn and refiled pursuant to an order from the Magistrate Judge
ruling on a joint motion to withdraw. (Doc. Nos. 38, 43). The operative Memorandum in Support
of the Motion to Dismiss is found at Docket Number 45. The exhibits attached to the original
Memorandum in Support of the Motion to Dismiss were not refiled with the Memorandum, and
they are found at Docket Numbers 36-1 and 36-2.
One result of all of this is that, as the reader will note below, the Motion to Convert (Doc.
No. 40) bears a docket number lower (earlier) than the operative memorandum in support of the
Motion to Dismiss (Doc. No. 43) to which (along with the Motion to Dismiss itself) the Motion to
Convert is reacting. This seems counterintuitive until one grasps that the Motion to Convert was
filed after the original memorandum was filed by Defendants.
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BACKGROUND
Plaintiff, a former executive for Defendant Nissan, has brought this lawsuit because he has
not received retirement account benefits under the Nissan Supplemental Executive Retirement
Plan II (“Plan”) to which he believes he is entitled. (Doc. No. 31). Plaintiff’s Amended Complaint
(Doc. No. 31)2 brings counts for I) recovery of benefits, and II) breach of contract.
This matter is related to two other matters before this Court, Vest v. The Nissan
Supplemental Executive Retirement Plan II et al, 3:19-cv-01021, and Sullivan v. The Nissan
Supplemental Executive Retirement Plan II et al, 3:20-cv-00752.
LEGAL STANDARD
Fed. R. Civ. P. 12(d) provides that if, on a motion under 12(b)(6) the Court considers
matters outside the pleadings, the motion must instead be treated as one for summary judgment
under Fed. R. Civ. P. 56. The rule further provides that “[a]ll parties must be given a reasonable
opportunity to present all the material that is pertinent to the motion.” Whether or not to allow a
conversion into a motion for summary judgment is within the district court’s broad discretion.
Greve v. Bass, No. 3:16-CV-372, 2017 WL 387203, at *2 (M.D. Tenn. Jan. 27, 2017); Wysocki v.
Int’l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th Cir. 2010) (“We review the district court’s
decision to convert a 12(b)(6) motion to dismiss into a motion for summary judgment for abuse of
discretion.”); Graham v. City of Hopkinsville, Ky., No. 5:12-CV-23, 2012 WL 4483866, at *2
(W.D. Ky. Sept. 28, 2012).
Absent conversion to a motion for summary judgment, Fed. R. Civ. P. 56(d) “does not
apply to motions to dismiss for failure to state a claim.” Corl v. Kenan Advantage Grp. Inc., No.

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The Amended Complaint is the operative complaint in this matter. See Parry v. Mohawk Motors
of Mich., Inc., 236 F.3d 299, 306 (6th Cir. 2000).
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3:20-CV-00503, 2020 WL 7694967, at *4 (M.D. Tenn. Dec. 28, 2020) (Richardson, J.). In Corl,
the Court found that:
Even if Plaintiffs are not relying on Rule 56 as the Court believes they are,
the Court would not allow discovery at this stage. The problem for Plaintiff is not
just that Rule 56(d) does not support additional discovery for the purpose of
responding to a Rule 12(b)(6) motion to dismiss, but also that no other legal
principles do, either; quite the contrary, because “a plaintiff is generally not entitled
to discovery before a motion to dismiss has been decided, and allowing such
discovery undermines the purpose of Federal Rule of Civil Procedure 12(b)(6),
which is ‘to enable defendants to challenge the legal sufficiency of complaints
without subjecting themselves to discovery.’ ” Greve v. Bass, No. 3:16-CV-372,
2017 WL 387203, at *2 (M.D. Tenn. Jan. 27, 2017) (denying a plaintiff's motion to
take discovery before responding to a motion to dismiss) (quoting Yuhasz v. Brush
Wellman, Inc., 341 F.3d 559, 566 (6th Cir. 2003)).
Id. at *4 n.5.3 Therefore, if the Court does not to convert the Motion to Dismiss into a motion for
summary judgment, it would be inappropriate to order additional discovery for the particular
purpose of allowing Plaintiff to respond to the Motion to Dismiss.4
DISCUSSION
Plaintiff brings the Motion to Convert pursuant to Fed. R. Civ. P. 12(d) and 56(d). (Doc.
No. 40 at 2-3). In the Motion to Dismiss, Defendants argue that Plaintiff has failed to exhaust all
of his administrative remedies under the Plan and under the Employee Retirement Income Security
Act of 1974 (“ERISA”).5 (Doc. No. 45 at 11). Plaintiff argues that the Plan lacks reasonable

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Despite making these comments in Corl, the Court realizes full well that although a plaintiff is
not entitled to discovery at this stage, a plaintiff may be (and in appropriate circumstances will be)
allowed discovery at this stage in the Court’s discretion.
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The Court takes no position on whether Plaintiff should be allowed to take discovery for some
other purpose(s) or reason(s).
The parties both seem to agree that the Plan is an ERISA “plan.” Neither party indicates whether
the Plan is, more specifically, an ERISA top hat plan. In previously ruling on a Motion to Dismiss
in the related case Vest, the Court noted that if the type of plan is material or contested, the parties
should thoroughly brief their arguments regarding what type of plan is before the Court. (3:19-cv5

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procedures and that his claim therefore should be deemed exhausted.6 (Doc. No. 40). In order to
show that the Plan lacks reasonable procedures, Plaintiff contends that he needs discovery on three
issues: 1) whether Defendants had “reasonable” procedures for filing benefits claims (such as the
identity of the Claims Official and what information participants had when Plaintiff filed his claim
about the identity of the Claims Official);7 2) whether Defendants’ procedures were administered
in such a way that they unduly inhibited or hampered the initiation or processing of claims for
benefits (including discovery on what specific individuals did with Plaintiff’s emails and phone
calls asking what to do to initiate his claim for benefits); 3) whether the procedures were
administered consistently for similarly situated claimants. (Id. at 1-2).
Plaintiff argues that failure to exhaust is an affirmative defense better analyzed on a motion
for summary judgment, and so the Motion to Dismiss should be converted. (Id.). It is true that
affirmative defenses are typically more proper on a motion for summary judgment than a motion
to dismiss under 12(b)(6). Middleton v. United Church of Christ Bd., 483 F. Supp. 3d 489, 496
(N.D. Ohio 2020). And although the Sixth Circuit has not yet ruled on the issue, some district
courts in this circuit have found that failure to exhaust under ERISA is an affirmative defense (and
therefore better considered on a motion for summary judgment). Beamon v. Assurant Emp.

01021, Doc. No. 34 at 11). It would behoove the parties to do so here to the extent necessary to
convey their respective positions on the Motion to Dismiss.
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Defendants argue that Plaintiff has not alleged that Defendants failed to implement reasonable
procedures for filing a claim and that Plaintiff should not be able to raise a new argument in
response to Defendants’ Motion to Dismiss. (Doc. No. 46 at 4). Since Plaintiff has not yet filed his
response to the Motion to Dismiss, the Court will refrain from ruling at this time regarding what
arguments he can make therein, and instead limit its review to whether the Motion to Dismiss
should be converted and whether discovery is appropriate.
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Defendants note that this request is strange inasmuch as Plaintiff has pled that he presented his
written claim to the Claims Official, indicating that he knows who the Claims Official is. (Doc.
No. 46 at 9-10).
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Benefits, 917 F. Supp. 2d 662, 666 (W.D. Mich. 2013); Select Specialty Hosp.-Memphis, Inc. v.
Trustees of Langston Companies, Inc., No. 2:19-CV-2654-JPM-TMP, 2020 WL 4275264, at *12
(W.D. Tenn. July 24, 2020). However, as an exception to the general rule, when an affirmative
defense appears on the face of the complaint, a court can properly consider it on a 12(b)(6) motion
to dismiss. Select Specialty Hosp.-Memphis, Inc., 2020 WL 4275264, at *12.
Without much explanation, Plaintiff argues that failure to exhaust is not apparent on the
face of his Amended Complaint. (Doc. No. 40 at 2). Defendants respond that Plaintiff’s failure to
exhaust his administrative remedies is apparent from the face of the Amended Complaint. (Doc.
No. 46 at 4). The Amended Complaint contains a section regarding Plaintiff’s exhaustion of
remedies under the Plan. (Doc. No. 31 at 3-5). Attached to the Amended Complaint are exhibits
with the emails between Plaintiff and various individuals regarding the Plan and receiving his
SERP payments. (Id. at 33-46).
Without commenting on the substance of the parties’ arguments regarding exhaustion, the
Court will make a consequential finding regarding the nature of Defendants’ argument regarding
exhaustion. That is, the Court finds that Defendants’ argument is that Plaintiff’s failure to exhaust
his administrative remedies is apparent from the face of the Amended Complaint (including the
attachments thereto), i.e., that based exclusively on the content of the Amended Complaint and
accepting such content as true, the Court should find that Plaintiff failed to exhaust his
administrative remedies. See e.g., Beamon, 917 F. Supp. 2d at 666 (finding lack of exhaustion on
the face of the complaint when “unconventional” complaint contained only two letters, one from
the plaintiff and one from a representative of defendant); Thompson v. Hendrickson USA, LLC,
No. 3:20-CV-00482, 2021 WL 848694, at *6 n.10 (M.D. Tenn. Mar. 5, 2021) (Richardson, J.)
(“Defendant is arguing here that Plaintiff’s failure to take certain actions within the relevant

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timeframes is clear from the face of the Complaint and the documents referenced in the Complaint.
The Court therefore is unpersuaded that it should convert the Motion to a motion for summary
judgment on this exhaustion-related theory, even assuming the theory were appropriately applied
to this case.”). As noted, Plaintiff includes a section regarding exhaustion in his Amended
Complaint and attaches emails pertaining (in part) to whether he exhausted his administrative
remedies. (Doc. No. 31). Defendants’ Motion to Dismiss argues based solely on what is contained
in the Amended Complaint and its attachments, that Plaintiff failed to exhaust his administrative
remedies.
The only new evidence offered in support of the Motion to Dismiss is one email (Doc. No.
36-1) and a letter to Plaintiff’s Counsel (Doc. No. 36-2), each of which was referenced in the
Amended Complaint, (Doc. No. 31 at 7; id. at 1 n.1), but omitted from the attachments thereto.
“When a court is presented with a Rule 12(b)(6) motion, it may consider the Complaint and any
exhibits attached thereto, public records, items appearing in the record of the case and exhibits
attached to defendant’s motion to dismiss so long as they are referred to in the Complaint and are
central to the claims contained therein.” Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426,
430 (6th Cir. 2008); see also Thompson, 2021 WL 848694, at *6-7; Doe v. Ohio State Univ., 219
F. Supp. 3d 645, 652-53 (S.D. Ohio 2016); Blanch v. Trans Union, LLC, 333 F. Supp. 3d 789,
791-92 (M.D. Tenn. 2018); Mediacom Se. LLC v. BellSouth Telecommunications, Inc., 672 F.3d
396, 400 (6th Cir. 2012). Each of two additional documents offered by Defendants appear to fit
this bill and thus is appropriate for the Court to consider on the Motion to Dismiss, especially since

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there appears to be no dispute regarding the authenticity, validity, or enforceability of the
documents.8
In short, the Court finds that Defendants’ Motion to Dismiss, which is grounded on
Plaintiff’s alleged failure to exhaust administrative remedies, is properly based exclusively on the
allegations of the Amended Complaint (and documents referred to therein). Thus, the Court will
exercise its broad discretion not to convert the pending Motion to Dismiss into a motion for
summary judgment. Accordingly, and as indicated above, the Court will not allow discovery for
the specific (unnecessary) purpose of enabling Plaintiff to respond to the (unconverted) Motion to
Dismiss. As further suggested above, the Court also does not reach any other issues regarding
discovery, including the general issue briefed by the parties of whether discovery ever will be
appropriate in this case or whether the Court will be confined to the administrative record.
CONCLUSION
For the reasons discussed, the Motion is DENIED. Plaintiff is directed to file its Response
to the pending Motion to Dismiss by May 3, 2021. Defendants are directed to file their optional
Reply by May 17, 2021.

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Defendants also cite the Court to the Department of Labor guidelines, which the Court can
consider on a motion to dismiss. (Doc. No. 45 at 16); Bowie v. Comm’r of Soc. Sec., 539 F.3d 395,
397 (6th Cir. 2008), as amended (considering social security administration guidance without
comment); Community Health Sys., Inc. v. Med. Univ. Hosp. Authority, No. 3:20-CV-00163, 2021
WL 964047, at *6 (M.D. Tenn. Mar. 15, 2021) (noting that the Court can take judicial notice of a
government website when ruling on a motion to dismiss) (collecting cases) (Richardson, J.). If
Plaintiff wishes to argue in his response to the Motion to Dismiss that the Court should not consider
any of these documents in ruling on the Motion to Dismiss, the Court will consider those arguments
at the proper time. However, the Court does not find that their attachment (when it appears at this
stage they can be considered when deciding the Motion to Dismiss) serves to convert this into a
motion for summary judgment, as the Court can disregard the documents if it ultimately decides it
cannot properly consider them on a motion to dismiss. See Kajy Hill, Inc. v. Sunoco, Inc., No. 15CV-12613, 2015 WL 12990680, at *2 (E.D. Mich. Oct. 15, 2015).
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IT IS SO ORDERED.

____________________________________
ELI RICHARDSON
UNITED STATES DISTRICT JUDGE

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