Keith v. Metropolitan Life Insurance Co et al
Filing
32
MEMORANDUM OPINION AND ORDER denying 22 Opposed MOTION for Leave to File Amended Complaint (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
November 30, 2016
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
LINDA KEITH,
Plaintiff,
v.
METROPOLITAN LIFE INSURANCE
COMPANY, CENTRAL BANK, and
CENTRAL BANK WELFARE BENEFIT
PLAN,
Defendants.
§
§
§
§
§
§
§
§
§
§
§
§
David J. Bradley, Clerk
CIVIL ACTION NO. H-15-1030
MEMORANDUM OPINION AND ORDER
Plaintiff, Linda Keith, has brought suit against defendants,
Metropolitan Life Insurance Company ("MetLife"), Central Bank, and
Central Bank Welfare Benefit Plan ("Central Bank defendants"), for
breach of
fiduciary
duty and equitable
relief
insurance benefits owed on the life of John P.
Employment Retirement
§§
for
1001, et seq.
Leave
Income Security Act
in the
form of
White under the
("ERISA"),
29 U.S.C.
Pending before the court is Plaintiff's Motion
Pursuant
to
Fed.
R.
Civ.
Plaintiff's First Amended Complaint
P.
15(c) (1) (B)
to
File
(Docket Entry No. 22), which
would add a claim for injunctive relief and penalties under 29
U.S.C.
§
1132(c) against Central Bank.
For 'the reasons explained
below, plaintiff's motion to amend will be denied.
I.
A.
Factual and Procedural Background
Factual Background 1
White served as Vice President of Central Bank for Business
Development from 2007 until 2013.
While employed by Central Bank,
White enrolled in a group insurance program offered by his employer
that provided life, accidental death and dismemberment, and longterm disability
insurance
through policies
issued by MetLife.
Central Bank made premium payments for the group insurance policies
as part of White's compensation.
White
was
diagnosed
with
Toward the end of his employment
monoplegia
and
amyotrophic
sclerosis (ALS), commonly known as Lou Gehrig's Disease.
2013, was White's last day at work.
lateral
March 7,
On that date White began a
leave of absence under the Family Medical Leave Act (FMLA) .
During
White's leave of absence Central Bank continued to make premium
payments for White's group insurance coverages.
On March 17,
benefits
2013,
under MetLife' s
White applied for long-term disability
policy.
On March
18,
2013,
MetLife
acknowledged receipt of White's disability application, requested
additional information needed to perfect the claim,
White
that
he
needed
to
apply
for
Social
and advised
Security disability
benefits.
On March 19, 2013, White wrote to Central Bank's human
resources
office
to make
any
changes to his insurance elections for plan year 2013-2014,
and
1
reaffirming
See Statement of Facts,
No. 1, pp. 2-9 ~~ 8-42.
his
desires
Original
-2-
(1)
not
Complaint,
Docket
Entry
(2) to keep Keith as the beneficiary for his life insurance policy.
On March 26, 2013, MetLife approved White's disability application
and advised White that his benefits would begin on June 6, 2013,
following a three-month elimination period.
On May 9, 2013, MetLife wrote a letter to White acknowledging
receipt of an April 9, 2013, claim for continuation of group life
insurance during his absence from work.
MetLife's May 9,
2013,
letter acknowledged that the group life insurance plan "includes a
provision that continues your coverage while your are not actively
at work," advised White that a representative "may be in contact,"
and that
May 21,
" [n) o action is required from you at this time."
On
2013, MetLife wrote to White stating that his insurance
plan required him to be totally disabled continuously for nine
consecutive months before he would be eligible for continuation of
group life insurance coverage during his absence from work.
The
May 9, 2013, letter also stated that MetLife would defer making a
decision on his claim for continuation of group life insurance
until December 9, 2013, when the nine-month waiting period expired.
Neither the May 9th nor the May 21st letter mentioned that there
were other means of maintaining continuation of life insurance
coverage, or that White was not qualified for continuation under
the provision with the nine-month waiting period because he had not
become totally disabled before reaching the age of 60.
White was formally terminated from his position with Central
Bank at the end of his FMLA leave- on June 5 or June 15, 2013.
-3-
Central Bank made its last premium payment for White on June 1,
2013.
Plaintiff alleges that neither Central Bank nor MetLife gave
White any notice that premium payments on his group coverage would
cease on June 1, 2013, that the July 1, 2013, payment was due or
past due,
or that White had a right to move or convert his life
insurance coverage following his termination from Central Bank.
White died on September 14,
2013.
Shortly after White's
death, Keith contacted MetLife to advise them of White's passing
and
MetLife
instructed
her
to
submit
a
death
claim.
On
November 25, 2013, MetLife denied Keith's claim for life insurance
benefits.
Keith timely appealed the denial of her claim.
On
May 1, 2014, MetLife denied Keith's appeal because White's coverage
ended on June 30,
2013,
following
the
last premium payment on
June 1, 2013, and because White was not eligible for continuation
of his insurance since he was 60 years old when he became disabled.
B.
Procedural Background
Plaintiff filed her Original Complaint against defendants on
April 21, 2015 (Docket Entry No. 1).
The Central Bank defendants
filed their Original Answer on June 15, 2015 (Docket Entry No. 6),
and MetLife filed its Answer on June 19, 2015 (Docket Entry No. 7).
On September 25,
2015,
the court held an initial conference and
issued a Docket Control Order (Docket Entry No. 13).
In the spaces
on the Docket Control Order for deadlines to file motions to amend
the pleadings and add new parties, the court entered "N/A" for "not
-4-
applicable" because neither party expressed a need to amend the
pleadings.
completed
The Docket Control Order required discovery to be
by
September
October 14, 2016.
30,
2016,
and
set
Docket
Call
for
On August 13, 2016, the parties filed a Joint
Motion to Modify Docket Control Order and Extend Deadlines (Docket
Entry No. 20).
On September 1, 2016, the court entered an Order
(Docket Entry No. 21) granting the parties' motion to modify and
amended
the
Docket
Control
completed by November 30,
Order
2016,
to
require
discovery
to
be
and Docket Call to be held on
February 10, 2017.
On September 19, 2016, plaintiff filed the pending motion for
leave
to
amend under Rule
15 (c) (1) (B)
(Docket
Entry No.
22).
Rule 15(c) (1) (B) provides that
[a]n amendment to a pleading relates back to the date of
the original pleading when:
the amendment asserts a
claim or defense that arose out of the conduct,
transaction, or occurrence set out--or attempted to be
set out--in the original pleading.
Asserting that the§ 1132(c) claim for penalties that she seeks to
assert against Central Bank arises out of the claims for benefits
already asserted in her Original Complaint, plaintiff argues that
the§ 1132(c) claim is timely because it relates back to the claims
in her Original Complaint. 2
2
Plaintiff's Motion for Leave Pursuant to Fed. R. Civ. P.
15(c) (1) (B)
to
File
Plaintiff's
First
Amended
Complaint
("Plaintiff's Motion for Leave to Amend") , Docket Entry No. 22,
p. 6.
-5-
II.
Standards of Review
In cases for which the court has entered a scheduling order in
compliance with Federal Rule of Civil Procedure 16, Federal Rule of
Civil Procedure 15(a) provides the standard for motions to amend
filed before expiration of the scheduling order's deadline for
amendments, and Federal Rule of Civil Procedure 16(b) provides the
standard
for
motions
to
amend
filed
after
scheduling order's deadline for amendments.
16(b) (3) (A)
the
time
join other parties,
discovery, and file motions.").
Inc.
I
RRG v.
Ford Motor Co.,
("Federal
Rule
pleadings
after
of
a
Civil
of
the
See Fed. R. Civ. P.
The scheduling order must limit
("Required Contents.
to
expiration
amend the pleadings,
complete
See also Marathon Financial Ins.
591 F. 3d 458,
Procedure
scheduling
16 (b)
order's
470
(5th Cir.
governs
deadline
expired.") (citing Fahim v. Marriott Hotel Services
I
2009)
amendment
to
I
amend
of
has
Inc., 551 F. 3d
344, 348 (5th Cir. 2008)).
Rule 15(a) (2) provides that "[t]he court should freely give
leave when justice so requires."
"A decision to grant leave is
within the discretion of the court, although if the court 'lacks a
substantial reason to deny leave,
enough to permit denial.'"
its discretion is not broad
State of Louisiana v. Litton Mortgage
Co., 50 F.3d 1298, 1302-03 (5th Cir. 1995)
Through Jamieson v.
Shaw,
772
(quoting Jamieson By and
F.2d 1205,
1208
(5th Cir.
(quoting Conley v. Gibson, 78 S. Ct. 99, 103 (1957)).
-6-
1985)
Rule 15(a)
provides
amend."
278,
"a
strong presumption
in
favor
of
granting
leave
to
Financial Acquisition Partners LP v. Blackwell, 440 F.3d
291
Nevertheless,
"[d]enial of leave to
amend may be warranted for undue delay,
bad faith or dilatory
motive
(5th Cir.
on
the
2006).
part
of
the
movant,
repeated
failure
to
cure
deficiencies, undue prejudice to the opposing party, or futility of
a proposed amendment."
Health,
United States ex rel. Steury v. Cardinal
Inc., 625 F.3d 262,
270
(5th Cir. 2010)
(citing Farnan v.
Davis, 83 S. Ct. 227, 230 (1962)).
"Rule 16(b)
entered,
it
provides that once a scheduling order has been
'may be modified only for good cause and with the
judge's consent.'"
P. 16(b) (4)).
Marathon, 591 F. 3d at 470 (quoting Fed. R. Civ.
"The good cause standard requires the 'party seeking
relief to show that the deadlines cannot reasonably be met despite
the
diligence
Enterprises,
of
L.L.C.
the
v.
533, 535 (5th Cir. 2003)
party
needing
the
extension.'"
SouthTrust Bank of Alabama,
NA,
S&W
315 F.3d
(quoting 6A Charles Alan Wright, et al.,
Federal Practice and Procedure§ 1522.1 (2d ed. 1990)).
"Only upon
the movant's demonstration of good cause to modify the scheduling
order will the more liberal standard of Rule 15(a) apply."
Id. at
536.
III.
Analysis
Plaintiff seeks leave to add a claim against Central Bank for
statutory penalties under 29 U.S.C. § 1132(c) for "Central Bank's
-7-
failure to provide a statutorily required Summary Plan Description
[("SPD")] " 3
Section 1132(c) provides in pertinent part that:
(1) Any administrator . . . (B) who fails or refuses to
comply with a request for any information which such
administrator is required by this subchapter to furnish
to a participant or beneficiary .
by mailing the
material requested to the last known address of the
requesting participant or beneficiary within 30 days
after such request may in the court's discretion be
personally liable to such participant or beneficiary in
the amount of up to $100 a day from the date of such
failure or refusal, and the court may in its discretion
order such other relief as it deems proper.
29
u.s.c.
§
1132 (c).
Asserting that 29 U.S. C.
§
1024 (b) (4) imposes
an obligation on Central Bank as Plan Administrator to furnish,
upon written request, a copy of the SPD, plaintiff alleges that she
submitted a written request for plan documents on January 14, 2014;
Central Bank failed to provide her the SPD within thirty (30) days;
and that
§
1132(c) (1) therefore permits her to assert a claim for
statutory penalties against Central Bank. 4
Asserting that plaintiff
is not an aggrieved beneficiary,
defendants urge the court to deny plaintiff's motion to amend as
both untimely and futile.
5
Plaintiff' s Reply to Responses to Plaintiff's Motion for
Leave to File Amended Complaint ("Plaintiff's Reply") , Docket Entry
No. 26, p. 1.
3
4
See First Amended Complaint, attached to Plaintiff's Motion
for Leave to Amend, Docket Entry No. 22-1, pp. 17-21, ~~ 70-98.
5
Defendants Central Bank and Central Bank Welfare Plan's
Response to Plaintiff's Motion for Leave to File Plaintiff's First
Amended Complaint ("Central Bank Defendants' Response") , Docket
(continued ... )
-8-
A.
Rule 16(b) (4) Applies
The record before the court shows that plaintiff filed her
Original Complaint on April 21, 2015 (Docket Entry No. 1), that the
Central Bank defendants filed their Original Answer on June 15,
2015
(Docket
Entry
No.
6),
that
MetLife
filed
its
Answer
on
June 19, 2015 (Docket Entry No. 7), and that the Rule 16 scheduling
conference was held on September 25, 2015, at which time the court
entered a scheduling order titled "Docket Control Order"
Entry No.
13).
(Docket
The Docket Control Order contained the notation
"N/A" on the lines provided for deadlines to file motions to amend
the pleadings and motions
Tri Star Freight Systems,
See Breaux v.
to add new parties.
Inc.,
Civil Action No.
WL 6581929, at *2 (S.D. Tex. November 7, 2016)
H-16-846,
2016
("The 'N/A' notation
next to the amendment deadlines on the Scheduling Order indicates
that, at the Rule 16 conference, the parties indicated that they
would not need to amend their pleadings. . . ") .
also
shows
that
the
Docket
Control
The court's record
Order
was
amended
on
September 1, 2016 (Docket Entry No. 21), but that amendment did not
add
a
deadline
plaintiff
filed
for
the
September 19, 2016.
filing
amending
pending
motion
pleadings.
for
leave
Nevertheless,
to
amend
on
Because the court has entered two scheduling
5
( • • • continued)
Entry No. 23, p. 1; Defendant MetLife's Response to Plaintiff's
Motion for Leave to File Plaintiff's First Amended Complaint
("Defendant MetLife's Response"), Docket Entry No. 25, p. 8 ~ 15
and p. 9 ~ 16.
-9-
orders neither of which contained dates for filing motions to amend
the pleadings and because Rule 16(b) (3) requires scheduling orders
to limit the time to amend the pleadings, the court concludes that
plaintiff must establish good cause to amend.
See Fed. R. Civ. P.
16(b)(4).
B.
Plaintiff Fails to Establish Good Cause to Amend
To determine whether a moving party has established good cause
to amend courts consider four factors:
"(1)
the explanation for
the failure to timely move for leave to amend;
of
the
amendment;
(3)
potential
prejudice
(2) the importance
in
allowing
the
amendment; and (4) the availability of a continuance to cure such
prejudice."
Telephone Co.
Marathon, 591 F.3d at 470 (quoting Southwestern Bell
v.
City of El Paso,
346 F.3d 541,
546
(5th Cir.
2003)).
1.
Keith Has Provided No Reasonable Explanation for Delay
Plaintiff's Motion for Leave to Amend states:
Keith made an Initial Request for Documents from
Central Bank, the Plan Administrator of the Central Bank
Welfare Plan, on January 14, 2014.
By operation of ERISA, Central Bank had thirty-(30)
days to provide the requested documents- or February 13,
2014.
29 U.S.C. § 1132 (c).
When Keith filed her Original Complaint, Keith
complained that the lack of the summary plan description
adversely
affected
Mr.
White ['] s
post-termination
-10-
decision-making.
(Plaintiff's Original Complaint (Doc.
No. 1) ~~ 48 - 50).
However, Keith could not bring a
cause of action under 29 U.S.C. § 1132(c) since Central
Bank led Keith into believing that MetLife, the claim
administrator, was responsible for the drafting and
publication of the summary plan description.
Keith
recognized that most circuits have held that only the
Plan Administrator could be liable for penalties under 29
U.S.C. § 1132(c).
Keith had no desire to test whether
someone other than the statutory administrator could be
liable
for
§
502 (c)
penalties.
See
Fisher v.
Metropolitan Life Ins. Co., 895 F.2d 1073, 1077 (5th Cir.
1990). Keith also knew that "[a]s a penalty provision,
section 1132 (c) must be strictly construed." Fisher, 895
F.2d at 1077[,] citing Ivan Allen Co. v. United States,
422 U.S. 617, 626-27, 95 S. Ct. 2501, 2506-07, 45 L.Ed.
2d 435 (1975).
As Keith has set out more fully in (Proposed)
Plaintiff's Amended Complaint, Keith alleges that Central
Bank failed to provide Keith the documents Keith
requested under 29 U.S.C. § 1024 (b) (4).
As late as
April 23, 2014, Central Bank, through its counsel, led
Keith into believing that MetLife was the entity
responsible for drafting and publishing the summary plan
description of Central Bank Welfare Plan to
. Keith.
Since a plan administrator may delegate the drafting
of the summary plan description to a third-party, Keith
had no reason to doubt that MetLife was responsible for
the drafting of the SPD.
Once both Defendants had furnished their disclosures
under FED. R. CIV. P. 26(a) (1) to Keith, then Keith was
certain that neither would furnish the summary plan
description to Keith.
On July 27, 2016, Central Bank served Keith with its
Initial disclosures under FED. R. CIV. P. 26 (a) (1).
Keith learned that Central Bank was truthful in its claim
that it had not created a summary plan description.
Keith also learned that MetLife instructed Central Bank,
in no uncertain terms, that Central Bank, as Plan
Administrator,
was
responsible
for
drafting
and
distributing the summary plan description.
The most
-11-
recent set of documents produced by Central Bank on
September 14, 2016, purport to contain a Summary Plan
Description. To the extent those documents are claimed
to be the Plan's SPD, they are deficient and fail to meet
the requirements of 29 U.S.C. § 1022 and 29 C.F.R.
§ 2520.102-3. 6
Defendants argue that plaintiff's contention that she could
not have filed her claim for statutory penalties under 29 U.S.C.
§ 1132(c) until July 27,
Initial Disclosures
2016,
when she received Central Bank's
is misleading and disingenuous because
"if
Plaintiff truly thought she had a viable statutory penalty claim
under§ 1132(c), she had the relevant information and facts before
she initially filed her lawsuit in April 2015." 7
As evidence that
plaintiff had the relevant information and facts needed to assert
her § 1132(c)
claim against Central Bank before she filed this
action in April of 2015, defendants cite (1)
providing
that
participant,
plan,
a
"administrator
of
the
summary
i.e.,
furnish
to
each
plan
description,"
29
U.S.C.
(2) three letters written by MetLife to plaintiff's
counsel dated January 28,
2014,
shall
and each beneficiary receiving benefits under the
copy
§ 1024(b) (1);
the
the ERISA provision
2014,
March 11,
before this action was
filed,
2014,
and August 14,
advising plaintiff's
counsel that the Plan documents, including the SPD, would have to
be obtained from Central Bank; and (3) the pending motion to amend
6
Plaintiff's Motion for Leave to Amend, Docket Entry No. 22,
pp. 3-6.
7
Defendant MetLife's Response, Docket Entry No. 25, p. 9
-12-
~
16.
in which plaintiff admits that only the Plan Administrator can be
held liable for § 1132(c)
penalties and that penalty provisions
such as§ 1132(c) must to be strictly construed. 8
Plaintiff has replied to defendants' responses to her motion
to amend, but has not cited any evidence that disputes defendants'
assertion that
needed to
she had all
assert
the
relevant
information and facts
her claim against Central Bank for
statutory
penalties under§ 1132(c) before she filed her Original Complaint
on April 21, 2015.
Instead, plaintiff merely asserts:
There is no undue delay in filing this Motion.
Keith
searched Central Bank's Initial Disclosures and realized
that Central Bank wholly failed, refused and neglected to
publish an SPD that satisfied Hansen [v. Continental
Insurance Co., 940 F.2d 971 (5th Cir. 1991), abrogated on
other grounds by CIGNA Corp. v. Amara, 131 S. Ct. 1866
(2011)].
That failure prompted the Motion to Amend.
Thus there was no undue delay. 9
Section
1132 (c)
authorizes
statutory penalties
against
a
plan
administrator for failing to provide plan documents sought pursuant
to a written request.
Bank's
Plaintiff argues that her review of Central
initial disclosures
revealed evidence that Central Bank
failed to publish an SPD, but for the reasons stated in § III.B.2,
below, the court concludes that plaintiff has failed to show either
that Central Bank failed to publish an SPD, or that Central Bank
failed to provide an SPD in response to her written request for
plan documents.
8
Id. at 8-9
9
Plaintiff's Reply, Docket Entry No. 26, p. 6.
~
16 (citing Exhibit B thereto).
-13-
In her motion for leave to amend, plaintiff states that she
"made an Initial Request for Documents from Central Bank, the Plan
Administrator of the Central Bank Welfare Plan,
2014,
1110
Central
plaintiff
acknowledges
that
" [b] y
Bank
thirty-(30)
days
to
documents -
had
or February 13,
2014.
on January 14,
operation of
provide
29 U.S.C.
§
the
ERISA,
requested
1132 (c) . 1111
But
plaintiff contends that when she filed her Original Complaint over
one year later on April 21, 2015, she "could not bring a cause of
action under 29 U.S.C.
§
believing that MetLife,
1132(c) since Central Bank led [her] into
the claim administrator, was responsible
for the drafting and publication of the summary plan description.
Plaintiff's
§
contention
that
she
could
not
have
asserted
1112
her
1132(c) claim against Central Bank when she filed her Original
Complaint is belied both by the statement in her Original Complaint
that Central Bank- not MetLife- was the Plan Administrator, 13 and
by the statement in her motion to amend that she "recognized that
most circuits have held that only the Plan Administrator could be
liable for penalties under 29 U.S.C.
§
1132(c) . 1114
Citing Fisher
10
Plaintiff's Motion for Leave to Amend, Docket Entry No. 22,
11
Id.
12
Id. at 3-4.
13
0riginal Complaint, Docket Entry No. 1, p. 2
14
Plaintiff's Motion for Leave to Amend, Docket Entry No. 22,
p. 3.
p. 4.
-14-
~
4.
v. Metropolitan Life Insurance Co., 895 F.2d 1073, 1077 (5th Cir.
1990), plaintiff argues that she delayed filing a§ 1132(c) claim
against Central Bank because she "had no desire to test whether
someone other than the statutory administrator could be liable for
§ 502(c) [ , i . e . , § 1132(c),] penalties," 15 since she knew that "as
a penalty provision, section 1132 (c) must be strictly construed. " 16
In Fisher the plaintiff argued that the plan insurer, MetLife,
should be regarded as a de facto plan administrator because MetLife
had been delegated responsibility for administering claims.
that Fisher's argument had intuitive appeal,
the
Noting
Fifth Circuit
found no need to decide whether MetLife could be held liable under
§ 1132(c) as a de facto administrator because the written request
at issue, i.e., a note scribbled at the bottom of a Social Security
award certificate requesting a copy of certain policies, was not
sufficient to support a§ 1132(c) claim.
Id.
Although the Fifth
Circuit left open the question of whether a life insurance company
could be regarded as a
de
facto plan administrator,
the
Fifth
Circuit neither held nor discussed whether a plan administrator
could avoid liability by delegating responsibility for providing
plan documents to an agent or claims administrator.
is
not
persuaded
that
the
Fifth
Circuit's
Thus the court
opinion
in
Fisher
provides plaintiff any reason not to have included in her Original
-15-
Complaint the § 1132(c) claim that she now seeks leave to assert
against Central Bank.
Because undisputed evidence shows
plaintiff knew that Central Bank -
that before filing
not MetLife -
suit
was the plan
administrator, plaintiff knew that she had made a written request
for plan documents to Central Bank but that Central Bank had failed
to provide her the SPD within 30 days as required by ERISA, and
plaintiff knew that most courts construe § 1132 (c)
apply solely to plan administrators,
the
court
strictly to
concludes
that
plaintiff had all the facts needed to assert the § 1132(c) claim
that she now seeks leave to assert against Central Bank before she
filed
her
Original
asserting that claim.
Complaint,
but
that
she
purposely
delayed
Although plaintiff argues that her delay in
seeking leave to file a§ 1132(c) claim against Central Bank was
reasonable because Central Bank misled her into believing that
MetLife was responsible for providing her the SPD, plaintiff has
not cited any evidence from which the court can conclude that
Central Bank in fact misled her into believing that MetLife - not
Central Bank- was responsible for providing her an SPD.
Moreover,
defendants have cited undisputed evidence in the form of three
letters - all dated before this suit was filed - written by MetLife
to plaintiff's counsel advising plaintiff that inquiries for plan
documents - including an SPD - had to be sent to Central Bank, and
that Central Bank - not MetLife - needed to provide those documents
to her.
-16-
In light of undisputed evidence showing that plaintiff had all
the facts needed to assert her§ 1132(c) claim against Central Bank
before she filed her Original Complaint, the court concludes that
plaintiff has not provided any reasonable or persuasive explanation
for her delay in asserting or seeking leave to assert that claim
beyond September 25,
scheduling order.
2015, the day the court entered its initial
Because plaintiff has failed to provide any
reasonable explanation for her delay in seeking leave to amend,
this
factor
weighs
against
plaintiff.
See
Southwestern
Bell
Telephone Co., 346 F.3d at 547 (denying leave to amend upon finding
that "[movant] was aware of the contract that forms the basis of
its proposed [counterclaim] months in advance of the deadline and
does not offer a satisfactory explanation for its delay in seeking
leave to amend"); Steptoe v. JPMorgan Chase Bank NA, Civil Action
No.
4:11-CV-3427,
2013)
2013 WL 150305,
at *1
(S.D.
Tex.
January 12,
(assertion of unconvincing or conclusory explanations for
delay in filing a motion for leave to amend more than eight months
after the scheduling order deadline was sufficient cause for court
to deny leave to amend for lack of good cause under Rule 16).
2.
Importance of the Amendment
Although neither party expressly addresses the importance of
plaintiff's proposed amendment,
Plaintiff's Motion
for
Leave
defendants
argue
to Amend will
be
-17-
that
granting
an exercise
in
futility because Central Bank provided plaintiff a valid SPD . 17
Each defendant has attached the document that they argue serves as
the SPD to their response in opposition. 18
Defendants argue that
Plaintiff alleges in her Motion and in her proposed First
Amended Complaint that through her attorney she requested
the plan documents from Central Bank on January 14, 2014.
(Motion, p.
3; Amended Complaint,
p.
17,
~
72).
Plaintiff goes on to allege that on January 17, 2014,
Central Bank, acting through employee Judy Rogers,
forwarded to Central Bank's attorney the "Certificate of
Insurance" which "they refer to as the basic life plan
summary plan description."
(Amended Complaint, p. 17,
~ 73).
Plaintiff admits in her proposed pleadings that
on January 23, 2014, "the attorney for Central Bank
forwarded the email (with attachments) that paragraph 73
describes to Keith's attorney," which included the SPDs
for the basic life and LTD coverages.
(Amended
Complaint, p. 17, ~ 74). Plaintiff claims, however, that
the document produced for the basic life coverage is not
the SPD.
The facts are to the contrary. 19
Defendants
argue
that
the
"SPD
submitted
to
Plaintiff's
counsel on January 23, 2014, is the document provided to the Plan
participants, including the deceased, John White, as the SPD," 20 and
that "the SPD, which is also the Plan document, meets all of the
requirements of 29 U.S. C.
§
1022. " 21
Defendants explain that
17
Central Bank Defendants' Response, Docket Entry No. 23,
pp. 2-3 ~~ 4-10; Defendant MetLife's Response, Docket Entry No. 25,
pp. 2-8 ~~ 2-15.
18
See Exhibit B to Central Bank Defendants' Response, Docket
Entry No. 23-2, and Exhibit A to Defendant MetLife' s Response,
Docket Entry No. 25-1.
19
Defendant MetLife's Response, Docket Entry No. 25, p. 3
20
Id. at 4
~
8.
21
Id. at 6
~
10.
-18-
~
5.
[t]his SPD was provided to Plaintiff's counsel on
January 23, 2014, and it contains all of the information
required by statute for a SPD.
The SPD sufficiently
apprises participants and beneficiaries of their rights
and obligations under the Plan (KEITH/MET 1, 4, 21-48)
and contains the following information:
the name and
type of administration of the Plan (KEITH/MET 50); the
name and address of the agent for the service of legal
process (Id.); the name and address of the administrator
( Id. ) ; the plan's requirements respecting eligibility for
participation and benefits (KEITH/MET 19-22, 25-27, 50);
circumstances which may result in disqualification,
ineligibility, or denial or loss of benefits (KEITH/MET
27-31, 35-39); the source of financing of the plan and
the identity of any organization through which benefits
are provided (KEITH/MET 50); the date of the end of the
plan year and whether the records of the plan are kept on
a calendar, policy, or fiscal year basis (KEITH/MET 51);
the procedures to be followed in presenting claims for
benefits under the plan including the office at the
Department of Labor ["DOL"] through which participants
and beneficiaries may seek assistance or information
regarding their rights under this chapter (KEITH/MET 5255) ; the remedies available under the plan for the
redress of claims which are denied in whole or in part
(including procedures required under section 1133 of this
title) (KEITH/MET 52-54); and if the employer so elects
for purposes of complying with section 118l(f) (3) (B) (i)
of this title, the model notice applicable to the State
in which the participants and beneficiaries reside (not
applicable to life insurance benefits) . 22
Acknowledging that the document provided to the plaintiff is
not
called a
Fleming
"Summary Plan Description,"
Companies,
Inc.,
961
F.2d
537,
and quoting Hicks v.
542
(5th
Cir.
1992),
defendants argue
the Fifth Circuit has made clear, a SPD is not determined
by what it is called.
[T] he appropriate test for
determining if a document constitutes an SPD is "whether
it contains all or substantially all categories of
information required under 29 U.S.C. § 1022(b) and the
22
Id. at 4-5
~
9.
-19-
DOL's regulations at 29 C.F.R.
of benefit in question. " 23
§
2520.102-3 for the type
In Hicks an employee had sued his employer and its parent company
for wrongful denial of long-term disability benefits, claiming that
he
was
eligible
disability
to
benefits
participate
plan
based
in
on
the
employers'
representations
long-term
made
in
a
booklet, despite the fact that he was ineligible under the terms of
the master plan document.
Recognizing
that
the
terms
of
the
booklet could govern the employee's right to the benefits if the
booklet was found to be an SPD,
the Fifth Circuit nevertheless
affirmed the grant of summary judgment to the employers.
the
booklet
included
some
cursory
information
Although
about
payments under the long-term disability benefits plan,
monthly
the court
noted that the booklet contained none of the other information
required by 29 U.S.C.
§
§
1022(b) or the DOL regulations at 29 C.F.R.
2520.102-03 concerning the plan's management and rules, such as
(1) the name and type of administration of the plan;
(2) the name
and address of the person designated as agent for the service of
process;
(3) the source of financing of the plan and the identity
of any organization through which benefits were to be provided;
(4) the date and end of the plan year and whether the records of
the plan were to be kept on a calendar,
basis;
23
policy,
or fiscal year
(5) the procedures to be followed in presenting claims for
Id. at
6 ~
11.
-20-
benefits under the plan; and (6) the remedies available under the
plan for the redress of claims denied in whole or in part nor the
information required by DOL regulations alone, such as the employer
identification number assigned by the Internal Revenue Service to
the plan sponsor, the plan number assigned to the plan sponsor, or
the so-called statement of ERISA rights.
Hicks thus stands for the
principle that a document may constitute an SPD for ERISA purposes
if it contains all or substantially all categories of information
required under 29 U.S.C.
§
§
1022(b) and DOL regulations at 29 C.F.R.
2520.102-03.
Citing Rhea v. Alan Ritchey. Inc., 85 F. Supp. 3d 870, 874-75
(E.D.
Tex.
America,
(S.D.
2015),
and Adams v.
Civil Action No.
Tex. August 23,
UNUM
H-04-2179,
2005),
Life
Insurance Company of
2005 WL 2030840,
at *7-*8
defendants argue that u[w]hile the
document provided to Plaintiff's counsel also serves as the Plan
document,
there is no prohibition against the Plan document and
[the] SPD being the same document. " 24
that
a
summary plan description
can
In Rhea the court explained
constitute
a
formal
plan
document so long as no other contradictory plan document exists.
85 F. Supp. 3d at 874-75.
WL 2030840,
at
*7-*8,
Defendants argue that as in Adams, 2005
the certificate of
insurance with ERISA
information provided to plaintiff's counsel in January of 2014 is
the SPD because it
24
Id. at 4
~
7.
-21-
was obviously written for the participant,
the policyholder, because it explains:
rather than
Metropolitan
Life
Insurance
Company
("MetLife")
certifies that You are
insured for the benefits described in this
certificate, subject to the provisions of this
certificate. This is a certificate issued to
You under the Group Policy and it includes the
terms and provisions of the Group Policy that
describe Your insurance.
PLEASE READ THIS
CERTIFICATE CAREFULLY.
This certificate is part of the Group Policy.
The Group Policy is a contract between MetLife
and the Employer and may be changed or ended
without Your consent or notice to You.
(KEITH/MET 1).
"You" and "Your" are defined in the
certificate as "an employee who is insured under the
Group Policy for the insurance described in this
certificate."
(KEITH/MET 24) . 25
Acknowledging that Central Bank responded to her January 14,
2014, request for plan documents by providing MetLife's Certificate
of Insurance along with a document entitled Additional Information
-
ERISA Information, plaintiff replies that the proposed amended
complaint is not an exercise in futility because her claim for
penal ties
against
Central
Bank
is
supported
by
Circuit precedent, i.e., Hansen, 940 F.2d at 971. 26
Brothers Insurance Associates,
No. 11-5407, 2013 WL 1195529,
Inc.
*8
v.
(E. D.
Braunstein,
binding
Fifth
Quoting Weaver
Civil Action
Pa. March 25,
2013) , and
2014 WL 2599929, *13-*14 (E.D. Pa. June 10, 2014), plaintiff argues
that in Hansen, 940 F.2d at 981, the Fifth Circuit held:
~
25
Id. at 7
26
Plaintiff's Reply, Docket Entry No. 26, pp. 2-4.
12.
-22-
The certificate of insurance, which sets out the full
terms of the policy, is no[t] part of the summary plan
description.
Continental confounds the policy with a
summary of the policy, collapsing two distinct documents
into one.
By definition, a summary description of the
policy does not reproduce each and every term, word for
word, of the policy. Indeed, the very purpose of having
a summary description of the policy is to enable the
average participant in the plan to understand readily the
general features of the policy, precisely so that the
average participant need not become expert in each and
every one of the requirements, provisos, conditions, and
qualifications of the policy and its legal terminology.
Id. at 981.
The reasoning of Hansen is persuasive here. There is a
clear delineation in the booklet provided to Deborah
Braunstein between the Certificate of Group Insurance and
the SPD which is found toward the end of the booklet.
The table of contents to the Certificate of Group
Insurance does not list the SPD.
(Doc. No. 1 at 76-77.)
The Certificate of Group Insurance is not incorporated
into the SPD- it is merely included in "this document,"
which is the booklet.
Thus, the only way a plan participant would know about
the terms of the Plan would be by referring to another
document, the Certificate of Group Insurance.
The SPD
itself, however, is required to provide the summary of
the plan, not another document referred to in the SPD. 27
Plaintiff argues that "[h[ere, there is a clear delineation
between the Certificate and the Additional Information," 28 because
the
table
Additional
Insurance
section,
of
contents
Information
is
not
of
the
Certificate
section,
incorporated
because
into
the
does
the
list
Certificate
Additional
the
of
Information
and because the Certificate of Insurance ends with the
statement "THIS IS THE END OF THE CERTIFICATE.
27
not
Id. at 3.
-23-
THE FOLLOWING IS
ADDITIONAL
INFORMATION,"
plaintiff
argues
that
Central Bank has not provided an adequate SPD. 29
under
Hansen,
Finally, plaintiff
argues that defendants' reliance on Rhea, 85 F. Supp. 3d at 874-75,
is misplaced because there "[t]he magistrate, in an opinion adopted
by the District
Court,
found
' [t] here
is
also nothing
in the
precedent before the Court that would indicate that, as a matter of
law,
a document titled "summary plan"
cannot serve as
the plan
where there is no alternative document.' " 30
Plaintiff's reliance on Hansen is misplaced because that case
did not address whether a single document could serve as both the
Instead,
SPD and the plan document.
Hansen involved conflicts
between a plan document and the SPD given to the employees.
In
Hansen the Fifth Circuit held that the terms of the SPD control
over
inconsistent
terms
in
the
underlying
plan
because
the
statutory language of ERISA requires that SPDs be given to plan
participants and that SPDs be accurate, and that an insurer could
not disclaim the effect of the SPD by stating that all rights would
be governed by the master policy.
(citing 29 U.S.C.
§
1866,
the
§
in
which
1022).
Hansen,
940
F.2d at 981-82
Hansen preceded CIGNA, 131 S. Ct. at
Supreme
Court
held
that
the
text
of
1132(a) (1) (B) does not authorize courts to enforce the terms of
a plan summary because that provision only authorizes enforcement
29Id.
30
Id. at 6.
-24-
of the "terms of the plan."
Id. at 1877.
The Fifth Circuit has
since recognized that the Supreme Court,s CIGNA opinion changes its
case law to the extent that the plan text ultimately controls the
administrator,s obligations in a§ 1132(a) (1) (B) action, but that
CIGNA does not disturb the Fifth Circuit, s prior holdings that
(1) ambiguous plan language be given a meaning as close as possible
to what is said in the plan summary,
and
(2)
plan summaries be
interpreted in light of the applicable statutes and regulations.
Koehler v. Aetna Health Inc.,
683 F.3d 182,
189
(5th Cir.
2012)
(citing McCall v. Burlington Northern/Santa Fe Co., 237 F.3d 506,
512 (5th Cir. 2000), cert. denied, 122 S. Ct. 57 (2001), and Rhorer
v. Raytheon Engineers and Constructors, Inc., 181 F.3d 634, 641-42
(5thCir. 1999)).
Plaintiff 1 s reliance on Braunstein,
2014
2599929,
WL
factually
*13-*14
distinguishable
is
2013 WL 1195529,
*8 and
similarly misplaced because
from
this
case.
In
it
Braunstein
is
the
booklet produced by the plan administrator contained two sections:
a
long
section
section
titled
titled
"Certificate
"Summary
Plan
of
Insurance"
Description."
and
a
Braunstein,
WL 1195529, at *7-*9; 2014 WL 2599929, at *3-*4.
short
2013
The court found
that the two sections were two separate documents and that the
section
titled
"Summary
Plan
Description"
lacked
the
information that an SPD is required to give a participant.
2 0 14 WL 2 5 9 9 9 2 9 , at * 4 .
Here,
evidence that the Plan document,
basic
Id. at
defendants have cited undisputed
which they contend is also the
-25-
SPD, meets all of the requirements for SPDs set forth in 29 U.S.C.
§
1022, that it was provided to Plan participants as the SPD, and
that it was timely provided to plaintiff's counsel on January 23,
2014, i.e., within thirty (30) days of plaintiff's written request.
Plaintiff contends that the document provided to her counsel as the
SPD is not
an adequate SPD, 31 but has
failed to
show that the
document lacks any of the information that ERISA requires to be
included in an SPD.
Plaintiff's argument that the
§
1132(c)
claim she seeks to
assert against Central Bank is not futile is based on the fact that
the document at issue is not titled "Summary Plan Description."
However, as the Fifth Circuit made clear in Hicks, 961 F.2d at 542,
the appropriate test for determining if a document constitutes an
SPD is not whether it is called an SPD but, instead, whether "it
contains
all
or
substantially
all
categories
of
information
required under 29 U.S.C. § 1022(b) and the DOL's regulations at 29
C.F.R.
§
2520.102-3
for
the
type
of
benefit
in
question."
Plaintiff has not offered any evidence capable of contradicting
defendants'
argument that the document at issue contains all or
substantially all categories of information required for SPDs.
Plaintiff
has
argued
that
defendants'
reliance
on
Rhea,
85
F. Supp. 3d at 874-75, is misplaced because the court there held
only that an SPD can constitute a formal plan document consistent
31
Id. at 4.
-26-
with the holding of CIGNA, 131 S. Ct. 1866, but "did not address
whether the one document
rule applied if,
as here,
Defendants
advance the claim that the plan document can be the SPD. " 32
But
plaintiff has not cited any authority holding to the contrary,
i.e. ,
holding that
the plan document cannot serve as
the SPD.
Moreover, in Koehler, 683 F.3d at 185, the Fifth Circuit analyzed
just such a document.
In Koehler the defendant, Aetna, produced a
copy of the plan's Certificate of Coverage ("COC") in response to
Koehler's request for a copy of the SPD applicable to her claim.
The
Fifth
Circuit
stated
that
"although a
plan
summary
is
a
separate document from the plan itself, in this case the summary's
text is simply a verbatim copy of the underlying plan provisions."
Id.
at 185.
See also id.
at 189
&
n.11
("Typically,
the plan
summary is not a verbatim copy of the text of the plan itself.").
See also Dudley v. Sedgwick Claims Management Services, Inc., 495
F. App'x 470, 471 n.1 (5th Cir. 2012)
("Summary plan descriptions
('SPD') are required by ERISA, 29 U.S.C.
§ 1022, and are often a
separate document, used to 'apprise [the plan's] participants and
beneficiaries of their rights and obligations under the plan.'")
(emphasis
added) .
Absent
any
authority
holding
that
a
plan
document cannot serve as an SPD, and absent any evidence that the
plan document produced as the SPD in this case does not contain all
or substantially all of the information required to be included in
32
Id. at 6.
-27-
an SPD, the court concludes that the§ 1132(c) claim that plaintiff
seeks
to
assert
against
Central
Bank would be
futile
because
undisputed evidence shows that the documents that Central Bank
timely produced in response to plaintiff's written request included
the relevant SPD.
Because the court concludes that the claim the
plaintiff seeks leave to add would be futile, the court concludes
that claim is not important.
See Filgueira v. U.S. Bank National
Association, 734 F.3d 420, 423 (5th Cir. 2013).
Accordingly, the
court concludes that this factor weighs in favor of defendants.
3.
Potential Prejudice to Defendants and Availability of a
Continuance to Cure Prejudice
The addition of a new but futile claim for relief at this late
date filed
over a-year-and-a-half after the Original Complaint was
-
will
needlessly
extend
defendants additional expense.
the
litigation
and
cause
the
Absent any reasonable explanation
from plaintiff for the cause of her delay in asserting the proposed
new§ 1132(c) claim against Central Bank for statutory penalties or
any reasonable basis for the court to conclude that the proposed
new claim would not be futile,
the court concludes that allowing
the proposed amendment will not only require the court to abandon
long-established deadlines,
prejudice the defendants.
but will
also
Accordingly,
delay
the
trial
and
the court concludes that
the third and fourth factors weigh against plaintiff's motion for
leave to file an amended complaint.
-28-
See Southwestern Bell,
346
F.3d
at
547
(Courts
have
"broad
discretion
to
preserve
the
integrity and purpose of the pretrial order.").
4.
Conclusions
Plaintiff fails to show good cause for her delay in seeking
leave to amend.
Plaintiff's only reason for failing to assert her
proposed§ 1132(c) claim either in her Original Complaint or by the
time
the
court
entered
its
initial
September 25,
2015,
that MetLife,
the claim administrator,
order
on
is that Central Bank led her into believing
drafting and publication of the SPD.
Complaint,
scheduling
plaintiff did,
however,
was
responsible for the
Before filing her Original
know that Central Bank -
not
MetLife - was the Plan Administrator; knew that she had submitted
a written request for plan documents to Central Bank; and knew that
the documents she received in response to that request did not
include a document titled "SPD."
§ 1132 (c)
claims
imposes
Plaintiff also acknowledges that
liability on the plan administrator not
administrator,
and
that
most
courts
strictly
the
construe
§ 1132(c) to allow penalties solely against the plan administrator.
Despite this knowledge, plaintiff waited until September 19, 2016
-- less than two months before the November 30, 2016, deadline for
completion of discovery -- to seek leave to amend.
Plaintiff has
failed to cite any evidence from which the court could conclude
that she reasonably delayed beyond either September 25, 2015, the
date the court entered its first scheduling order in this case, or
-29-
September 1, 2016, the date the court entered its second scheduling
order,
to seek leave to file her proposed
addition
to
failing
to
explain
§
her delay,
1132 (c)
claim.
plaintiff
In
fails
demonstrate that the proposed claim would not be futile,
to
or that
allowing the proposed amendment at this late date would not unduly
prejudice
the
defendants.
The
court
concludes
therefore
that
plaintiff has failed to establish good cause as required by Rule
16(b) (4)
to
amend
pleadings
once
the
deadline
for
established by the court's scheduling order has expired.
R.
Civ.
P.
16(b) (4)
doing
so
See Fed.
("A schedule may be modified only for good
cause and with the judge's consent.").
IV.
Conclusions and Order
For the reasons stated in
§
III.B, above, the court concludes
that plaintiff has failed to establish good cause as required by
Rule 16(b) (4)
to amend pleadings once the deadline for doing so
established by the court's scheduling order has expired.
Even if
the court were to conclude that plaintiff had established good
cause for delaying her motion seeking leave to amend,
the court
would deny Plaintiff's Motion for Leave to Amend under Rule 15(a) 's
standards
because uncontroverted evidence establishes
that
plaintiff
was
proposed
well
aware
of
the
facts
on
which
her
the
amendment is based long before she filed her Original Complaint,
and because the claim that plaintiff seeks leave to amend would be
futile.
See Lozano v. Ocwen Fed. Bank, FSB, 489 F.3d 636, 644 (5th
-30-
Cir. 2007)
(affirming the district court's denial of leave to amend
under Rule 15 because the plaintiffs "had been aware of the factual
underpinnings of the
[new]
fraud claim for some time,
and .
they had not been diligent in pursuing the claim").
Accordingly,
Plaintiff's
R.
15 (c) (1) (B)
Motion
for
Leave
Pursuant
to
Fed.
to File Plaintiff's First Amended Complaint
Civ.
P.
(Docket
Entry No. 22) is DENIED.
SIGNED at Houston, Texas, on this 30th day of November, 2016.
7
SIM LAKE
UNITED STATES DISTRICT JUDGE
-31-
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