Sobolewski v. The Prudential Insurance Company of America et al

Filing 26

MEMORANDUM AND OPINION granting 19 MOTION to Dismiss 1 Complaint, Defendant's Motion to Dismiss Plaintiff's Complaint and Memorandum of Law in Support. Sobolewski may seek leave to amend by 04/23/2021. (Signed by Judge Charles Eskridge) Parties notified.(jengonzalez, 4)

United States District Court
Southern District of Texas

ENTERED
March 31, 2021
Nathan Ochsner, Clerk

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MICHAEL SOBOLEWSKI, § CIVIL ACTION NO.
Plaintiff,
§ 4:20-cv-02415
§
§
vs.
§ JUDGE CHARLES ESKRIDGE
§
§
THE PRUDENTIAL LIFE §
INSURANCE COMPANY §
OF AMERICA,
§
Defendant.
§
MEMORANDUM AND OPINION
GRANTING MOTION TO DISMISS
The motion to dismiss by Defendant The Prudential
Insurance Company of America is granted. Dkt 19.
1. Background
This dispute concerns the alleged improper denial of
disability payments. At issue are applicable limitations periods
established by the subject employee-benefits plan.
Capgemini US LLC previously employed Plaintiff Michael
Sobolewski. He suffers from small fiber neuropathy, with
symptoms of nerve pain, decreased balance, and difficulty
focusing. He alleges that he became fully disabled and stopped
working on May 14, 2015. See generally Dkt 1 at 3–7.
Sobolewski applied for long-term disability benefits under a
coverage plan between Capgemini and Prudential. Prudential
initially approved his claim on November 10, 2015. Dkt 21-3
at 15. But it then terminated his claim on April 25, 2017 after
further medical investigation. Id at 4–6. It also denied an appeal
by Sobolewski on December 27, 2017. Id at 11.
Sobolewski filed this lawsuit on July 8, 2020. Dkt 1. He
claims Prudential improperly terminated payment on a long-term
employee-benefits plan under the Employee Retirement Income

Security Act. He brings claims for denial of benefits and breach
of fiduciary duty. See 29 USC § 1132(a)(1)(B) and (a)(3)(B). He
seeks a declaratory judgment that Prudential is obligated to pay
him benefits under the plan and disgorgement of profits.
Prudential filed a motion to dismiss for failure to state a
claim. Dkt 19. It seeks dismissal of both claims as untimely. It
also seeks dismissal of the claim for breach of fiduciary duty as
inappropriately duplicative of the claim for denial of benefits.
2. Legal standard
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires
a plaintiff’s complaint to provide “a short and plain statement of
the claim showing that the pleader is entitled to relief.”
Rule 12(b)(6) allows the defendant to seek dismissal if the
plaintiff fails “to state a claim upon which relief can be granted.”
Read together, the Supreme Court has held that Rule 8 “does
not require ‘detailed factual allegations,’ but it demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v Iqbal, 556 US 662, 678 (2009), quoting Bell
Atlantic Corp v Twombly, 550 US 544, 555 (2007). To survive a
Rule 12(b)(6) motion to dismiss, the complaint “must provide the
plaintiff’s grounds for entitlement to relief—including factual
allegations that when assumed to be true ‘raise a right to relief
above the speculative level.’” Cuvillier v Taylor, 503 F3d 397, 401
(5th Cir 2007), quoting Twombly, 550 US at 555.
A complaint must therefore contain “enough facts to state a
claim to relief that is plausible on its face.” Twombly, 550 US
at 570. “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 US at 678, citing Twombly, 550 US at 556. “The
plausibility standard is not akin to a ‘probability requirement,’ but
it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id at 678, quoting Twombly, 550 US at 556.
Review on motion to dismiss under Rule 12(b)(6) is
constrained. The reviewing court “must accept all well-pleaded
facts as true, and . . . view them in the light most favorable to the
plaintiff.” Walker, 938 F3d at 735. And the court generally “must
limit itself to the contents of the pleadings, including attachments

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thereto.” Brand Coupon Network LLC v Catalina Marketing Corp,
748 F3d 631, 635 (5th Cir 2014) (citation omitted). “The court
may also consider documents attached to either a motion to
dismiss or an opposition to that motion when the documents are
referred to in the pleadings and are central to a plaintiff’s claims.”
Ibid (citation omitted). It may also consider “matters of which a
court may take judicial notice.” Funk v Stryker Corp, 631 F3d 777,
783 (5th Cir 2011).
To its motion to dismiss, Prudential attached the subject
insurance plan. See Dkt 19-1. To his response, Sobolewski
attached the subject summary plan description and the pertinent
denial-of-claim letters from Prudential. See Dkts 21-1, 21-3. The
parties don’t dispute that consideration of these materials is thus
appropriate.
3. Analysis
Argument by the parties in the main concerns whether
Sobolewski’s claims for denial of benefits and breach of fiduciary
duty are untimely. Prudential also asserts that the latter claim
must be dismissed as duplicative of the former.
a. Denial of benefits
Prudential asserts that the limitations period established by
the subject employee-benefits plan bars the denial-of-benefits
claim. Dkt 19 at 6–9.
ERISA doesn’t establish a statute of limitations for claims to
recover benefits. An analogous state statute of limitations
ordinarily fills this gap. For example, see Hall v National
Gypsum Co, 105 F3d 225, 230 (5th Cir 1997). But in the absence
of a controlling statute to the contrary, “a participant and a plan
may agree by contract to a particular limitations period, even one
that starts to run before the cause of action accrues, as long as
the period is reasonable.” Faciane v Sun Life Assurance Co of Canada,
931 F3d 412, 417 (5th Cir 2019), quoting Heimeshoff v Hartford
Life & Accident Insurance Co, 571 US 99, 105–06 (2013).
“Employers have large leeway to design disability and other
welfare plans as they see fit.” Sternberg v Metlife Insurance Co,
2019 WL 4142875, *2 (SD Tex), quoting Heimeshoff, 571 US
at 108. And so the general rule is that a court should enforce such
an agreement as written “unless the limitations period is

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unreasonably short or foreclosed by ERISA.” Pfifer v Sedgwick
Claims Management Services Inc, 414 F Supp 3d 1024, 1033–34
(SD Tex 2019), quoting Heimeshoff, 571 US at 115.
The subject plan contains an elimination period of 180 days.
It defines elimination period to mean “a period of continuous
disability which must be satisfied before you are eligible to receive
benefits from Prudential.” Dkt 19-1 at 35. And it requires the
claimant to send Prudential “written proof of your claim no later
than 90 days after your elimination period ends.” Id at 31. The
plan also states the time period within which to initiate a legal
proceeding, providing that the claimant “can start legal action
regarding your claim 60 days after proof of claim has been given
and up to 3 years from the time proof of claim is required, unless
otherwise provided under federal law.” Id at 33.
Prudential argues that Sobolewski’s claim for denial of
benefits is untimely because he failed to file his lawsuit within
three years from the date that proof of his claim was due.
See Dkt 19 at 6–8. It shows that Sobolewski became disabled on
May 14, 2015, and so the elimination period began then. Proof of
claim was thus due 270 days later, by February 8, 2016. And
Sobolewski was required to file his lawsuit within three years of
that date—being February 8, 2019. But Sobolewski didn’t file the
instant complaint until July 8, 2020, making the claim untimely.
Sobolewski doesn’t dispute the factual basis of Prudential’s
argument. He instead offers four legal rationales to justify the
timeliness of his claim notwithstanding these facts. None are
persuasive.
i.
Applicability of plan’s limitations period
Sobolewski argues that the three-year limitations period
stated in the plan doesn’t apply because it is contained in the
certificate of insurance provided by Prudential and not in the plan
summary provided by Capgemini. Dkt 21 at 1–2. This is contrary
to the cited documents. The plan summary expressly incorporates the limitations period of the certificate of insurance.
Compare Dkt 21-1 at 3 (plan summary), with Dkt 19-1 at 31, 33
(certificate of insurance). The limitations period enforced by the
Supreme Court in Heimeshoff was likewise contained in the
insurer’s policy. 571 US at 104. And referring to the policy here

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in fact benefits Sobolewski, as he acknowledges that the plan
summary itself states a one-year limitations period. Dkt 21 at 2.
ii.
Interpretation of plan’s limitations period
Sobolewski argues that the phrase “from the time proof of
claim is required” has a meaning different than the one ascribed
by Prudential. Prudential asserts that the date on which proof of
claim is due is “fixed” by the terms of the plan and “does not
change due to subsequent events such as the granting of benefits
for any certain period.” Dkt 19 at 6, citing Dkt 19-1 at 31, 33.
Sobolewski argues that a fixed date might perhaps make sense if
the claim were for a finite duration. But his claim was for long-term
disability benefits. The plan thus entitled Prudential to
periodically ask for “proof of continuing disability” to ensure that
he remained disabled. Dkt 21 at 3, quoting Dkt 19-1 at 31. This
means, Sobolewski says, that the proper time for the proof of claim
is determined relative to when the claim is terminated.
Sobolewski asserts that the limitations period is measured as
follows. Prudential approved his claim on November 11, 2015,
but later terminated it on April 25, 2017 after further medical
investigation. Dkt 21-3 at 15, 4. And it denied his appeal on
December 27, 2017. Id at 11. According to that letter, Sobolewski
was entitled to file an optional second appeal within 180 days, or
June 25, 2018. For Sobolewski, this day is the time for the proof of
claim. So the plan required him to file his lawsuit before June 25,
2021, which he did. See Dkt 21 at 2–4.
A problem with the argument is that a limitations period
keyed to the proof of claim appears to be a common practice in
the insurance industry. Several district courts in the Southern
District of Texas have addressed limitations provisions with
similar concepts. For example, see Pfifer, 414 F Supp 3d at 1029–
30. And at least one involved the sequencing and timing of
limitations intervals in a manner identical to that at issue here.
Sternberg, 2019 WL 4142875 at *1–2. These decisions persuasively
reject the creative argument asserted by Sobolewski.
“The time proof of claim is required” unambiguously means
the date upon which proof of the initial claim for benefits is
required. Here, that was February 8, 2016. Sobolewski thus had
until February 8, 2019 to file a lawsuit. And nothing in

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Prudential’s letter denying his appeal (which isn’t part of the
contract anyway) changes this. To the contrary, it expressly
provides that the second appeal is “voluntary” and that his
“decision on whether to file a second appeal will not affect your
rights to sue under ERISA.” Dkt 21-3 at 41.
iii.
Equitable tolling
Sobolewski argues that equitable tolling is appropriate and
saves his claim. He notes that Prudential argues that the threeyear limitations period began on February 8, 2016 but notes also
that Prudential didn’t terminate his claim until April 25, 2017.
And so he argues that he was unable to discern injury during that
period of time. Further, during the period of time when his
appeal was pending—being from April 25, 2017 to December 27,
2017—he was prohibited by ERISA from filing a lawsuit because
that statute requires him to first exhaust administrative remedies.
See Dkt 21 at 4–5.
The Supreme Court in Heimeshoff held that whether the
limitations period provided by an ERISA plan may be equitably
tolled is matter of federal law. 571 US at 116. And it observed
that equitable tolling “may apply” to toll contractual limitations
periods, but only to “the extent the participant has diligently
pursued both internal review and judicial review but was
prevented from filing suit by extraordinary circumstances.” Id
at 114, citing Irwin v Department of Veterans Affairs, 498 US 89, 95
(1990). Likewise, general equitable-tolling principles in the Fifth
Circuit hold that the plaintiff must show both that he diligently
pursued his legal rights and that extraordinary circumstances
prevented his timely filing the pertinent complaint. See Harris v
Boyd Tunica, Inc, 628 F3d 237, 239 (5th Cir 2010), citing Irwin,
498 US at 96 & nn 3–4. Such tolling under federal law is to be
applied “sparingly.” Granger v Aaron’s, Inc, 636 F3d 708, 712
(5th Cir 2011), quoting National Railroad Passenger Corp v Morgan,
536 US 101, 113 (2002).
In Wilson v Standard Insurance Co, the Eleventh Circuit fully
explained why circumstances like those here fail to support the
application of equitable tolling. 613 F Appx 841 (11th Cir 2015,
per curiam). The insurance policy at issue there also provided for a
three-year limitations period. The defendant insurance company

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denied the plaintiff’s claim for disability benefits, and the plaintiff
failed to timely file a lawsuit challenging the claim denial. The
plaintiff sought equitable tolling, arguing that she didn’t know the
policy included such a limit and that the claim would have been
timely under the standard six-year limitations period for contract
claims. Id at 842–44. The Eleventh Circuit affirmed decision by
the district court declining to toll the contractual limitations
period, reasoning that the plaintiff hadn’t diligently pursued
enforcement of her legal rights. When the insurance company
denied her claim, it informed her of her right to bring a lawsuit
and to request any pertinent policy documents to help her
understand her rights to challenge the benefits determination.
The plaintiff at that point still had roughly two years to file suit.
This meant that the lawsuit “easily could have been timely filed if
she had exercised even minimal diligence in discovering the terms
of the policy.” Id at 845–46. The Eleventh Circuit thus held that
nothing in those facts showed the type of extraordinary
circumstances that warrant equitable tolling. Id at 844–45.
So, too, here. Prudential sent the letter denying Sobolewski’s
appeal on December 27, 2017. That letter clearly explained that
he was entitled to bring a lawsuit challenging the determination.
Dkt 21-3 at 41. From that time, he had until April 25, 2019 to
file—nearly seventeen months. Sobolewski focuses argument on
why his contractual deadline should be extended on the back end
of the limitations period. By contrast, a proper assertion of
equitable tolling would explain his diligence in the pursuit of
rights and extraordinary circumstances that prevented his timely
compliance. For example, see Pfifer, 414 F Supp 3d at 1034. He
provides neither, thus failing to show entitlement to equitable
tolling.
iv.
Statute of limitations under Texas law
Sobolewski last argues for application of the four-year statute
of limitations provided in Texas for breach-of-contract claims.
See Dkt 21 at 5–6, citing Tex Civ Prac & Rem Code § 16.051.
But the state statute fills the gap left by ERISA only where the
subject plan doesn’t provide an enforceable limitations period.
Heimeshoff, 571 US at 116. And the employee-benefits plan here
did so.

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The claim for denial of benefits is untimely pursuant to the
stated limitations period of the employee-benefits plan. The claim
must be dismissed.
b. Breach of fiduciary duty
Prudential argues that the claim by Sobolewski for breach of
fiduciary duty is likewise untimely. It also asserts that the claim
fails as improperly duplicative of his denial-of-benefits claim.
See Dkt 19 at 7–13.
i.
Timeliness of claim
ERISA provides that a plaintiff must file a claim for breach
of fiduciary duty within three years of having “actual knowledge”
of the breach. 29 USC § 1113(2). Actual knowledge in this regard
means “actual knowledge of all material facts necessary to
understand that some claim exists, which facts could include
necessary opinions of experts, knowledge of a transaction’s
harmful consequences, or even actual harm.” Maher v Strachan
Shipping Co, 68 F3d 951, 954 (5th Cir 1995), quoting Gluck v
Unisys Corp, 960 F2d 1168, 1177 (3d Cir 1992).
Prudential argues that Sobolewski had actual knowledge of
his potential claim on the date that it denied his claim, being
April 25, 2017. Three years from that date is April 25, 2020,
which is approximately seventy-five days before Sobolewski
actually brought suit. This means that the claim is time-barred,
says Prudential. Dkt 19 at 7–8. Sobolewski argues to the contrary
that he didn’t have actual knowledge until Prudential denied his
appeal. Dkt 21 at 6–7.
“An ERISA cause of action accrues when a request for
benefits is denied.” Hogan v Kraft Foods, 969 F2d 142, 145 (5th Cir
1992) (citations omitted). Many district courts thus recognize that
the denial of a claim establishes actual knowledge. For example,
see Harmon v Bayer Business, 2016 WL 397684, *8–9 (SD Tex);
Barrilleaux v Hartford Life and Accident Insurance Co, 2014 WL
4084799, *2–3 (ED La); Simon v Telsco Industries Employee Benefit
Plan, 2002 WL 628656, *1–2 (ND Tex). In its letter of April 25,
2017, Prudential squarely denied the claim by Sobolewski and
provided explanation of its reasons for doing so. See Dkt 21-3
at 4–9. Sobolewski at that point had actual knowledge of the
material facts necessary to understand that Prudential might have

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violated his rights as provided by ERISA and the plan. True, the
appeal-denial letter on December 27, 2017 provided more detail
about the reasons for denial. See Dkt 21-3 at 11–41. But the
subsequent letter giving further notice in no way means that the
first letter gave insufficient notice. Indeed, the Fifth Circuit in
Babcock v Hartmax Corp found actual knowledge conferred where
the claimant three times demanded payment on a life insurance
policy and the company didn’t respond. 182 F3d 336, 339–40
(5th Cir 1999). Far more information was provided here.
The claim for breach of fiduciary duty is untimely pursuant
to the stated limitations period within ERISA. The claim must be
dismissed.
ii.
Duplication of claim
Prudential argues that ERISA precludes Sobolewski from
asserting a duplicative claim styled as breach of fiduciary duty
where his claim for denial of benefits provides an adequate
remedy. See Dkt 19 at 9–13. Sobolewski briefly asserts only that
the claim isn’t duplicative “because it provides different
remedies,” including attorney fees and disgorgement of profits
“for misapplying, misinterpreting and misrepresenting the Policy
and similar Policies on a company-wide basis.” Dkt 21 at 7, citing
Gabriel v Alaska Electrical Pension Fund, 773 F3d 945 (9th Cir 2014).
ERISA authorizes several types of claims. Sobolewski
proceeds under 29 USC § 1132(a)(1)(B) as to his denial-ofbenefits claim. This provision states that a plaintiff may bring a
civil action “to recover benefits due to him under the terms of
his plan, to enforce his rights under the terms of the plan, or to
clarify his rights to future benefits under the terms of the plan.”
The Fifth Circuit holds that this section provides a remedy for
asserted violations related to “the interpretation of plan
documents and payment of claims.” Manuel v Turner Industries
Group, LLC, 905 F3d 859, 864 (5th Cir 2018), quoting Varity
Corp v Howe, 516 US 489, 512 (1996). It is, in fact, a “direct
mechanism” to address injuries of that sort, whether the
underlying cause of action is denial of benefits or breach of
fiduciary duty. Swenson v United of Omaha Life Insurance Co, 876 F3d
809, 812 (5th Cir 2017), citing Tolson v Avondale Industries, Inc,
141 F3d 604, 610 (5th Cir 1998).

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Sobolewski proceeds under 29 USC § 1132(a)(3)(B) as to his
claim for breach of fiduciary duty, which states that a plaintiff
may bring a civil action to “obtain other appropriate equitable
relief.” The Supreme Court deems this subsection to be a
“catchall” provision, “offering appropriate equitable relief for
injuries caused by violations” that ERISA doesn’t “elsewhere
adequately remedy.” Varity, 516 US at 512; see also Innova Hospital
San Antonio Limited Partnership v Blue Cross & Blue Shield of Georgia,
892 F3d 719, 733–34 (5th Cir 2018). The Fifth Circuit instructs
district courts to dismiss claims under this catchall provision
where an adequate remedy is provided elsewhere. See Manuel, 905
F3d at 865–66, citing Innova Hospital, 892 F3d at 733.
Whether the claim under the catchall provision of subsection
(a)(3)(B) must be dismissed thus requires consideration of the
alleged injury and the corresponding remedies provided by
subsection (a)(1)(B) for that injury. See Innova Hospital, 892 F3d
at 733. The substance of Sobolewski’s alleged injury is that
Prudential improperly terminated his claim and denied him
benefits. The Supreme Court clearly holds that subsection
(a)(1)(B) provides an adequate remedy for “breaches of fiduciary
duty with respect to the interpretation of plan documents and the
payment of claims.” Varity, 516 US at 512; see also Swenson,
876 F3d at 812. By contrast, it characterizes subsection (a)(3)(B)
as having “provided yet other remedies for yet other breaches of
other sorts of fiduciary obligation.” Varity, 516 US at 512.
That’s binding precedent. And beyond it, Sobolewski doesn’t
distinguish in his complaint between allegations that support his
claims for denial of benefits and breach of fiduciary duty. He
simply lists various alleged wrongdoings—for example, hiring
doctors with conflicts of interest—and concludes that they
constitute violations of both (a)(1)(B) and (a)(3)(B). Dkt 1 at 1,
11. He fails to identify a separate injury to be remedied.
In short, the only legal injury alleged pertains to alleged
misinterpretation of the employee-benefits plan by Prudential
when determining that Sobolewski wasn’t eligible for long-term
disability benefits. As such, the claim for breach of fiduciary duty
must also be dismissed as duplicative.

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4. Opportunity to replead
A district court “should freely give leave [to amend] when
justice so requires.” FRCP 15(a)(2). The Fifth Circuit has long
held that this evinces a bias in favor of granting leave to amend.
See Dussouy v Gulf Coast Investment Corp, 660 F2d 594, 597(5th Cir
1981); Carroll v Fort James Corp, 470 F3d 1171, 1175 (5th Cir 2006).
But whether to grant leave to amend is within the sound
discretion of the district court. Pervasive Software Inc v Lexware
GmbH & Co KG, 688 F3d 214, 232 (5th Cir 2012), quoting
Wimm v Jack Eckerd Corp, 3 F3d 137, 139 (5th Cir 1993). It may
be denied “when it would cause undue delay, be the result of bad
faith, represent the repeated failure to cure previous
amendments, create undue prejudice, or be futile.” Morgan v
Chapman, 969 F3d 238, 248 (5th Cir 2020), citing Smith v
EMC Corp, 393 F3d 590, 595 (5th Cir 2004).
The live document is only the original complaint by
Sobolewski. These pleading defects very likely can’t be cured on
repleading. Even so, dismissal will be without prejudice.
Sobolewski may seek leave to replead his claims, subject to the
dictates of Rule 11(b).
5. Conclusion
The motion to dismiss by Defendant Prudential Insurance
Company of America is GRANTED. Dkt 19.
The claims by Plaintiff Michael Sobolewski are DISMISSED
WITHOUT PREJUDICE.
Sobolewski may seek leave to amend by April 23, 2021.
SO ORDERED.
Signed on March 31, 2021, at Houston, Texas.

Hon. Charles Eskridge
United States District Judge

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