Free Motion for Summary Judgment - District Court of Colorado - Colorado

Case 1:04-cv-01124-JLK-MEH

Document 66

Filed 12/13/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-1124-JLK-OES LINDA FORGACS, et al., Plaintiffs, vs. EYE CARE CENTER OF NORTHERN COLORADO, P.C. et al., Defendants.

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFFS' REMAINING ERISA CLAIMS

Defendants Eye Care Center of Northern Colorado, P.C. ("Eye Care Center") and Joel Meyers, M.D. (collectively, the "Moving Defendants"), through counsel, under Rule 56, F.R.C.P., file their Motion for Summary Judgment as Plaintiffs' Remaining ERISA Claims. 1. 2. 3. Filed with this Motion is Eye Care Center's opening brief. Plaintiffs brought two types of claims under ERISA in the First Claim for Relief. Regarding their accounts with Eye Care Center's 401k Plan, claiming breach of

fiduciary duty, Plaintiffs seek an accounting, damages and penalties based on late deposits into their 401k Plan accounts in 2003, and damages and penalties based on failing to provide them rollover forms and failing to respond to requests to rollover their 401k accounts. 4. The Moving Defendants have provided Plaintiffs with an accounting of their 401k

accounts; so summary judgment should enter as to the accounting relief stated in Plaintiffs' Complaint.

Case 1:04-cv-01124-JLK-MEH

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5.

Summary judgment should enter against Plaintiffs' claim for damages and

penalties based on when they received rollover forms or when their accounts were rolled-over because individual beneficiaries may only seek equitable relief under ERISA. 6. Summary judgment should also enter against the part of Plaintiffs' ERISA claim

seeking damages and penalties based on late deposits into their 401k accounts in 2003 because the Moving Defendants complied with 29 CFR § 2510.3-102, the governing ERISA regulation that states the exclusive remedy when an employer makes late contribution deposits into employees' 401k accounts. 7. Plaintiffs also sought penalties based on not receiving COBRA notices about their

alleged right to continue participating in Eye Care Center's Section 125, Flex-spend Plan after they were terminated. The Court's November 8, 2005 Order entered summary judgment motion and dismissed the § 125 penalty claim for all the Plaintiffs other than Plaintiff Rogge ("Rogge") because their ERISA claim was barred by the applicable statute of limitation. 8. The Moving Defendants seek summary judgment on Rogge's ERISA claim based

on § 125 because her termination for gross misconduct meant she was not eligible to continue participating in the Section 125, Flex-spend Plan because there was no "qualifying event" under 29 U.S.C. § 1163 requiring a COBRA notice or triggering COBRA rights. Wherefore, the Moving Defendants respectfully request the Court to grant this Motion and to enter its Order dismissing on summary judgment the First Claim for Relief on findings the undisputed facts material to that claim and applicable law establish that none of the Plaintiffs

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may seek any relief based on ERISA. Eye Care Center also requests the Court to enter such other relief as the Court deems just. Dated: December 13, 2005. Respectfully submitted,

By:

s/ John R. Paddock, Jr. John R. Paddock, Jr.

Attorney for Defendant Eye Care Center of Northern Colorado, P.C. and Joel Meyers, M.D. CERTIFICATE OF SERVICE I certify that on this 13th day of December, 2005, a copy of the foregoing Motion for Summary Judgment as to Plaintiffs' Remaining ERISA Claims was served by ECF filing on the following: George Price, Esq. 1115 Grant Street, Suite 106 Denver, CO 80203 Fax: 303-484-2421

s/ Mary E. McNichols __________________________________

00276273.WPD; December 13, 2005 (5:21pm)

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