245 F. Supp.2d 194 (2003) | Cited 0 times | D. Maine | February 5, 2003


Plaintiffs bring a class action complaint against their long-termdisability insurance provider alleging violations of the EmployeeRetirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001-1461(1999). Presently before the Court are three motions filed by Defendant:1) Defendant's Motion to Dismiss and/or Strike Amended Complaint (Docket#5); 2) Defendant's Motion to Dismiss Count II (Docket #6); and 3)Defendant's Motion to Sever Plaintiffs' Claims (Docket #7). For thereasons discussed below, the Court DENIES Defendant's Motion to DismissPlaintiffs' Amended Complaint in its entirety (Docket #5) but GRANTSDefendant's Motion to Dismiss Count II (Docket #6). In addition, theCourt GRANTS IN PART and DENIES IN PART Defendant's Motion to Strike(Docket #5). Finally, the Court GRANTS Defendant's Motion to SeverPlaintiffs' Claims under Count I (Docket #7).


Plaintiffs Thomas E. Black ("Black"), Carol Burchill ("Burchill"),Walter F. Toomey, Jr. ("Toomey"), and Barbara Johnson ("Johnson")(collectively, "Plaintiffs") were each insured under a group disabilityinsurance policy issued by Defendant UnumProvident Corporation ("Unum")to their respective employers. The facts pertaining to each Plaintiff areas follows. Black is a former employee of ATS Wood Recycling. At the timehe became disabled, Black was insured under Unum Policy No. 106391, whichguaranteed him sixty percent of his pre-disability income in case ofdisability. Unum initially paid Black's monthly benefits claim. Unum,however, eventually terminated these benefits once it concluded thatBlack was no longer disabled from his occupation, even if he was unableto perform his particular job.

Burchill was insured for both short-term and long-term disabilityinsurance under Unum Policy No. 00500848-0001. After working for manyyears as an administrative assistant, Burchill was diagnosed withfibromyalgia. As a result, Burchill filed a claim for disabilitybenefits. Upon reviewing Burchill's claim, Unum concluded that she wasnot disabled under the terms of the policy and denied her benefits.

Toomey was insured under Unum Policy No. 341343. In May 2000, Toomeydeveloped a brain tumor that caused him to suffer from severe fatigue,pain and an inability to concentrate, even after the tumor was removed. Asa result, Toomey filed a claim for disability benefits. Unum reviewedToomey's claim but eventually denied his request for benefits.

Finally, Johnson was insured through her employment at Southern MaineMedical Center under Unum Policy No. 00503143-0100. At the time Johnsonsubmitted her claim for disability benefits, she suffered from a diskdisease in two areas of her spine. Unum initially accepted liability forJohnson's disability. Eventually, however, Unum terminated Johnson'sbenefits based on its conclusion that Johnson was no longer disabled.

Plaintiffs now bring a two count class action Complaint against Unumalleging violations of ERISA.1 Count I alleges Unum wrongfully deniedPlaintiffs' claims for benefits and requests relief pursuant to29 U.S.C. § 1132(a)(1)(B).2 Count II alleges Unum violatedPlaintiffs' constitutional right to due process by failing to provide afull and fair review of their adverse benefits decisions and requestsrelief pursuant to 29 U.S.C. § 1133(2). In response, Unum moves to 1)dismiss and/or strike portions of the Plaintiffs' Complaint; 2) dismissCount II of the Plaintiffs' Complaint; and 3) sever Plaintiffs' claims.The Court discusses each in turn.


A. Motion to Dismiss and/or Strike Amended Complaint

Pursuant to Rule 8(a)(2) of the Federal Rules of Civil Procedure, apleading "shallcontain . . . a short and plain statement of the claimshowing that the pleader is entitled to relief . . . ." Fed.R.Civ.P.8(a)(2). A district court has the power to dismiss a complaint when aplaintiff fails to comply with Rule 8(a)'s "short and plain statement"requirement. Kuehl v. FDIC, 8 F.3d 905, 908 (1st Cir. 1993). Its decisionto do so is reviewable only for abuse of discretion. Id. In addition,pursuant to Rule 12(f), a court has considerable discretion to strike fromany pleading any "redundant, immaterial, impertinent, or scandalousmatter." Fed.R.Civ.P. 12(f); Alvarado-Morales v. Digital EquipmentCorp., 843 F.2d 613, 618 (1st Cir. 1988).

Defendant argues Plaintiffs' Complaint is riddled with "speculation,inappropriate rhetorical flourishes, condemnations . . ., diatribes andphilosophical musings, and legal argument" in violation of the FederalRules of Civil Procedure. By not articulating their claims in a plain andconcise manner, Defendant argues Plaintiffs have imposed an unnecessaryburden on the Court, and on the Defendant. Accordingly, Defendantrequests that the Court dismiss Plaintiffs' Complaint in its entiretypursuant to Rules 8(a)(2) and 12(f) and require Plaintiffs to file anappropriate Complaint. In the alternative, Defendant requests that theCourt strike certain portions of Plaintiffs' Complaint that are "clearlyviolative" of Rules 8(a)(2) and 12(f).3

While a court may dismiss a pleading that does not comply with thenotice pleading requirements of Rule 8, the exercise of this power isgenerally reserved for a pleading that is "so confused, ambiguous,vague, or otherwise unintelligible that its true substance, if any, iswell disguised." Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)(internal quotations and citations omitted). Here, albeit prolix andargumentative in some respects, Plaintiffs' Complaint sets forthsufficient facts to inform Defendant of the allegations against it and isnot so unintelligible as to prevent a response. Accordingly, the Courtdeclines to dismiss the Plaintiffs' Complaint in its entirety.4

Notwithstanding the above, the Court agrees with Defendant that certainportions of the Complaint, namely paragraphs four through nine andfootnotes one and two, should be stricken. The material contained inparagraphs four through nine is redundant in that it provides only anunnecessary summary of the allegations contained in Counts I and II. Inaddition, footnotes one and two contain legal argument inappropriate forinclusion in a complaint. See Barrett v. City of Allentown,

152 F.R.D. 50, 53 (E.D.Pa. 1993) (striking portion of plaintiffs' complaintcontaining legal argument in support of their claims as violatingRule 8's "short and plain statement" requirement). Accordingly, the Courtgrants Defendant's motion to strike paragraphs four through nine andfootnotes one and two from the Plaintiffs' Complaint.5

B. Motion to Dismiss Count II

When considering a motion to dismiss under Federal Rule of CivilProcedure 12(b)(6), a court must accept as true all of a plaintiff'swell-pleaded factual averments and "draw all inferences reasonablyextractable from the pleaded facts in the manner most congenial to theplaintiff's theory." Roth v. United States, 952 F.2d 611, 613 (1st Cir.1991). The Court may grant a motion to dismiss only if it clearly appearsthat, on the facts alleged, the plaintiff cannot recover on any viabletheory. Fed.R.Civ.P. 12(b)(6); Gonzalez-Morales v. Hernandez-Arencibia,221 F.3d 45, 48 (1st Cir. 2000).

In Count II of Plaintiffs' Complaint, Plaintiffs allege that Defendantviolated their constitutional right to due process by failing to providea "full and fair review" of their adverse benefits decisions as mandatedby 29 U.S.C. § 1133(2).6 Rather, Defendant "retained completecontrol over the review process even though it had a substantialfinancial interest in the outcome." (See Am. Compl. at ¶ 57 (Docket #2).)As such, Plaintiffs requests: 1) that the Court "certify a class forinjunctive and declaratory relief under Fed.R.Civ.P. 23(b)(2) composed ofall people who . . . have had their disability claim denied, but who havenot been afforded the opportunity for a `full and fair' review inaccordance with the authority and mandate of 29 U.S.C. § 1133(2)";(See id., at 25-26).) 2) that the Court order Defendant to "afford allinsured class members . . . the opportunity for a true `full and fair'review of the denial of their claims"; (See id., at 26).) and 3) that theCourt order Defendant to "provide the opportunity for independent reviewto all future claimants whose claims are initially denied by theDefendant." (See id., at 26).) In response, Defendant argues that theCourt should dismiss Count II with prejudice because Plaintiffs fail tostate a claim upon which relief can be granted.

Due process requires that there not be a financial conflict of interestbetween any person exercising adjudicatory authority under the law andthe person who is the subject of that authority. See Aetna Life Ins. Co.v. Lavoie, 475 U.S. 813 (1986); Gibson v. Berryhill, 411 U.S. 564(1973); Ward v. Monroeville, 409 U.S. 57 (1972); Tumey v. Ohio,273 U.S. 510 (1927). In ERISA cases, however, the administrator's statusas the source of funding does not create a conflict of interest soserious as to preclude the administrator from acting as the reviewingauthority. See Doyle v. Paul Revere Life Ins. Co., 144 F.3d 181, 184 (1stCir. 1998). Although undertaking a role as both administrator of claimsand the payer of benefits creates a conflict of sorts, the "marketpresents competing incentives to the insurer that substantially minimizethe apparent conflict." Pari-Fasano v. ITT Hartford Life & AccidentIns. Co., 230 F.3d 415, 418 (1st Cir. 2000).

Here, Plaintiffs presuppose that Defendant employed improper methods indenying their claims for the sake of saving money. Plaintiffs argue thatDefendant cannot make benefit determinations given that Defendant alsopays the benefits upon its approval of the claim. The mere showing thatDefendant decides which claims it will pay, however, is not enough toprove a conflict of interest sufficient to render Defendant's reviewprocedures unconstitutional.

Moreover, Plaintiffs fail to show that Defendant's process of reviewingadministrative appeals under section 1133(2) is subject to constitutionalscrutiny. Generally, the Constitution's procedural due process safeguardsare triggered only by conduct that constitutes state action. See DeShaneyv. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 196 (1989).Conduct of a private entity amounts to state action when it acts in ajudicial or quasi-judicial capacity pursuant to a legislative delegationof authority. See Concrete Pipe & Prods. v. Constr. Laborers PensionTrust, 508 U.S. 602, 617 (1993). Here, however, ERISA does not delegateany adjudicative functions to an otherwise private party. Namely, ERISAdoes not mandate that a particular entity perform any specific task orcreate presumptions with regard to any entity's determination. See29 C.F.R. § 2560.503-1(h), (i). Rather, ERISA merely establishes"minimum standards" on those performing reviews of initial adversebenefit determinations. See Brown v. Ret. Comm. of Briggs & StrattonRet. Plan, 797 F.2d 521, 527-528 (7th Cir. 1986) (internal citationsomitted). Absent the requisite legislative delegation of adjudicativeauthority, Defendant's conduct remains that of a private, rather thanstate, actor. See id.; see also Grossmuller v. Int'l Union, U.A.W.,511 F. Supp. 709, 711 (E.D.Pa. 1981) (rejecting ERISA plaintiff'sallegation of state action as "frivolous"). Accordingly, the Courtrejects Plaintiffs' constitutional argument and finds Defendant isentitled to judgment on its Motion to Dismiss Count II.

C. Motion to Sever Plaintiffs' Claims

The Federal Rules of Civil Procedure provide for the permissive joinderof parties where "they assert any right to relief jointly, severally, orin the alternative in respect of or arising out of the same transaction,occurrence, or series of transactions or occurrences and if any questionof law or fact common to all these persons will arise in the action."Fed.R.Civ.P. 20(a). When joinder is improper, a court may sever theclaims. Fed.R.Civ.P. 21.

Defendant argues that Plaintiffs should not be joined because theirclaims for relief do not arise out of the same transaction, occurrence,or series of transactions or occurrences. Specifically, Defendant arguesall four Plaintiffs were covered under different disability insurancepolicies, diagnosed with different illnesses or injuries, employed bydifferent companies and denied disability benefits for differentreasons. In response, Plaintiffs argue joinder is proper in this casebecause there is a common question of law as to whether Defendant canreview initial adverse benefit determinations pursuant to section1133(2). Furthermore, Plaintiffs argue joinder is proper because there isacommon request for relief pursuant to section 1132(a)(1)(B).

Based on the fact that the Court has now dismissed Count II ofPlaintiffs' Complaint, Plaintiffs' argument with regard to section1133(2) is now moot. Additionally, Plaintiffs' argument with regard tosection 1132(a)(1)(B) is incorrect. In circumstances where the factualscenario of each claim is different, courts have found joinderinappropriate. See Abdullah v. Acands, Inc., 30 F.3d 264, 269 (1st Cir.1994). Here, whether any or all of the Plaintiffs are entitled to reliefunder section 1132(a)(1)(B) is a fact specific inquiry particular to eachindividual case. Each case is factually different and distinct, andrelief for each Plaintiff depends on those wholly different factualscenarios. Although Plaintiffs may allege, in general, a right tobenefits under the same section of ERISA, each claim for benefitsinvolves different people, diagnoses, doctors, treatments and claimfiles. Therefore, the Court finds that joinder under Rule 20 of theFederal Rules of Civil Procedure is inappropriate in this case and seversPlaintiffs' claims under Count I. The Court orders Plaintiffs to submitappropriate and independent complaints seeking individual relief.


For the reasons discussed above, the Court DENIES Defendant's Motion toDismiss Plaintiffs' Amended Complaint in its entirety (Docket #5) butGRANTS Defendant's Motion to Dismiss Count II (Docket #6). In addition,the Court GRANTS Defendant's Motion to Strike (Docket #5) as toparagraphs four through nine and footnotes one and two of Count I.Finally, the Court GRANTS Defendant's Motion to Sever Plaintiffs' Claimsunder Count I (Docket #7). The Court ORDERS Plaintiffs to fileindependent complaints seeking individual relief against Defendant withinfourteen days from the issuance of this Order. For purposes of thestatute of limitations, each claim will relate back to the date of theoriginal Complaint.


1. Initially, Black and Burchill filed a Complaint on August 19,2002. On October 4, 2002, Plaintiffs filed an Amended Complaint assertinga class action and deleting the jury demand included in the originalComplaint. The Court's discussion addresses the allegations contained inthe class action Amended Complaint.

2. Although Plaintiffs do not specify the statutory basis for theirclaim under Count I, the Court assumes from the allegations contained intheir Amended Complaint that their requested relief is pursuant tosection 1132(a)(1)(B). The Court's assumption is supported by the factthat Plaintiffs do not contest Defendant's repeated characterization oftheir claim as one brought under this section.

3. In its Reply memorandum (Docket #14), Defendant additionallyrequests that the Court disregard and strike Exhibits 1 and 2, which areattached to Plaintiffs' Objection to Defendant's Motion (Docket #12).Defendant argues Exhibit 1, a "Dateline NBC" transcript, is inadmissiblehearsay, and that Exhibit 2, the deposition transcript of Patrick FergalMcSharry ("Dr. McSharry"), is not evidence in this case. The Court agreesthat the "Dateline NBC" transcript constitutes inadmissible hearsay,and, thus, grants Defendant's request to strike. The Court, however,denies Defendant's request to strike Dr. McSharry's deposition transcriptas it lends support to Plaintiffs' claim for wrongful termination ofbenefits under Count I of their Complaint.

4. The cases relied on by Defendant are far more egregious than theinstant case. For example, in Green v. Massachusetts, 108 F.R.D. 217(D.Mass. 1985), the complaint failed to allege even the basic elementsnecessary to support a cause of action. Id., at 218. In Newman v.Massachusetts, 115 F.R.D. 341 (D.Mass. 1987), the lack of organization inthe complaint made it arduous for the defendants to respond to theplaintiff's allegations because it was difficult to even figure out whichallegations pertained to which defendants. Id., at 344.

5. Defendant also requests that the Court strike certain paragraphscontained in Count II of Plaintiffs' Complaint, namely paragraphs 51-53,56, 57, 59 and 61-69. The Court, however, does not address Defendant'srequest to strike these paragraphs at this juncture because the Defendanthas filed a Motion to Dismiss Count II in its entirety, which the Courtdiscusses below.

6. Section 1133(2) provides in pertinent part that "every employeebenefit plan shall afford a reasonable opportunity to any participantwhose claims for benefits has been denied for a full and fair review bythe appropriate named fiduciary of the decision denying the claim."29 U.S.C. § 1133(2).

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