Free Motion to Withdraw - District Court of Colorado - Colorado

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

Document 103

Filed 05/05/2006

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

DEFENDANTS' STIPULATED WITHDRAWAL OF ONE PORTION OF MOTION FOR SUMMARY JUDGMENT

Defendants, through counsel, submit the following Stipulated Withdrawal of One Portion of Motion for Summary Judgment. D.C.COLO.LCivR 7.1 Certification Defendants' counsel certifies that I have conferred with Plaintiffs' counsel. He agrees to the relief sought by this Stipulated Withdrawal of One Portion of Motion for Summary Judgment. Plaintiffs' first claim asserts breach of fiduciary duty under ERISA. As clarified by Plaintiffs' April 24, 2006 Supplement to Response to Defendants' Motion for Summary Judgment, the only part of the first claim for which all Plaintiffs still seek relief is the allegation they are entitled to the statutory penalty under 29 U.S.C. §1132(c).1 Plaintiffs ask the Court to

Plaintiff Rogge also still seeks relief under the first claim based on the assertion she should have received a COBRA notice that she could continue participating in Eye Care Center's Section 125 Flex Spend Plan after her termination.

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

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impose the penalty of up to $100 per day based on the allegation they requested roll-over forms for their 401k accounts and did not receive the requested forms within 30 days after their requests. Complaint ¶¶ 13, 25. The Defendants to this claim, Eye Care Center of Northern Colorado, P.C. ("Eye Care Center") and Joel Meyers, M.D., are the Plan Administrators for Eye Care Center's 401k Plan. In December 2005, they moved for summary judgment on all parts of the ERISA claim that had not been dismissed as the result of the Court's November 8, 2005 Order. For Plaintiffs' claim for damages and penalties based on the allegedly late responses to their requests for roll-over forms, these Defendants sought summary judgment on two grounds: (1) individual beneficiaries may not seek damages based on a breach of fiduciary duty claim; and (2) individual beneficiaries may not seek to impose a penalty against Plan Administrators who take too long to provide requested forms. Plaintiffs' Supplement indicates they agree with the first argument; so Plaintiffs have dropped their request for damages based on getting their roll-over forms late. Plaintiffs still assert that they may seek a penalty. Plaintiffs' original Response and Supplement do not cite any authority for that position other than 29 U.S.C. §1132(c). Defendants' counsel has reviewed this part of the summary judgment motion. I erred in my argument beneficiaries may not seek the penalty. In particular, this Court and the Tenth Circuit have held that individual beneficiaries may seek penalties from Plan Administrators who fail to provide information within 30 days after a request. Deboard v. Sunshine Min. and Refining Co., 208 F.3d 1228, 1243 (10th Cir. 2000)(affirming decision not to award any penalty); -2-

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Wilcott v. Matlack, Inc., 64 F.3d 1458, 1461 (10th Cir. 1995)(same); Cytrynbaum v. Employee Retirement Plan of Amoco Corp. and Participating Companies, 338 F.Supp.2d 1187, 1194 (D.Colo. 2004)(finding plaintiff stated a claim for the penalty where Plan Administrator took more than 180 days to provide requested documents but declining to award any penalty because plaintiff failed to show that delay caused any prejudice); Adams v. Cyprus Amax Mineral Co., 927 F.Supp. 1407, 1410 (D.Colo. 1996)("a district court may impose a penalty under § 1132(c) where a plan representative has not responded to a request for information by plan participants or beneficiaries;" citing Sage v. Automation, Inc. Pension Plan & Trust, 845 F.2d 885, 894 (10th Cir. 1988)). Therefore, Defendants request leave to withdraw from the pending summary judgment motions that part challenging Plaintiffs' first claim seeking penalties under ERISA based on the allegation the Plan Administrators took more than 30 days to provide 401k account roll-over forms. As a matter of law, Plaintiffs may seek that relief. Dated: May 5, 2006. Respectfully submitted, s/ John R. Paddock, Jr. John R. Paddock, Jr., Attorney Reg. No.12460 Pryor Johnson Carney Karr Nixon, P.C. 5619 DTC Parkway, Suite 1200 Greenwood Village, CO 80111-3061 Telephone: 303-773-3500 Fax: 303-779-0740 E-mail: [email protected] Attorney for Defendants By:

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CERTIFICATE OF SERVICE I certify that on this 5th day of May 2006 copy of the foregoing Defendants' Supplement to Reply in Support of Summary Judgment Motion 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 __________________________________

PLD - Stip Withdrawal of Part of Sum Judgment (00289514).WPD; May 4, 2006 (6:20pm)

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