Free Motion to Strike - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

CAPTAIN BARBARA L. CONLEY, Plaintiff, v. COLONEL L. AARON CHAFFINCH, individually and in his official capacity as the Superintendent, Delaware State Police; LIEUTENANT COLONEL THOMAS F. MACLEISH, individually and in his official capacity as the Deputy Superintendent, Delaware State Police; DAVID B. MITCHELL, individually and in his official capacity as Secretary of the Department of Safety and Homeland Security, State of Delaware; and DIVISION OF STATE POLICE, DEPARTMENT OF SAFETY AND HOMELAND SECURITY, STATE OF DELAWARE, Defendants.

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C.A.No.04-1394-GMS

PLAINTIFF'S MOTION TO STRIKE SELECT PORTIONS OF DEFENDANTS' (1) REPLY BRIEF IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT AND (2) ACCOMPANYING APPENDIX FOR FAILURE TO COMPLY WITH LOCAL RULE 7.1.3 AND THE FEDERAL RULES OF CIVIL PROCEDURE Plaintiff Moves to strike select portions of defendants' reply brief in support of their motion for summary judgment (D.I. 154) (hereinafter after "Reply") and the material on which it relies in its accompanying appendix (D.I. 155) ("Appendix"), both dated February 7, 2006, for failure to comply with the Federal Rules of Civil Procedure, as well as Rule 7.1.3(c)(2) of the Local Rules of Civil Practice and Procedure of the U.S. District Court for the District of

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Delaware. In their Reply, defendants rely upon evidence with no independent evidentiary value such as their own Rule 26 disclosures - which are not admissible at summary judgment. Defendants also have sandbagged plaintiff and included new evidence and made new legal arguments which should have been included in a full and fair opening brief. Accordingly, defendants' attempt to circumvent both the Federal Rules of Civil Procedure and the Local Rules of this Court should not be encouraged and specified portions of their brief and supporting appendix should be stricken. Discussion A. Improper Evidence Under Rule 56(c) and Related Federal Rules. Defendants include in their appendix and argue in their Reply from pleadings that lack any evidentiary value at the summary judgment stage of these proceedings. Fed.R.Civ.P. 56(c) states that summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Defendants base all of their record support for Argument VI in their Reply,1 upon two documents contained in their Appendix (D.I. 155): (1) defendants' second amended Rule 26 disclosures (Id. at C14-24); and (2) defendants' unsworn Answers to Plaintiff's First Set of Interrogatories. (Id. at C5-13). 1. Defendants' Rule 26 Disclosures. Simply put, a party's own Rule 26 Which goes to the issue of motivations of the speaker in the First Amendment free speech context as part of the protected activity determination. Defendants also use this as an opportunity to attack plaintiff's character. 2
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disclosures are not substantive evidence upon which that party may rely at summary judgment. They do not constitute nor are they the equivalent of an affidavit, deposition, or admissions listed in Rule 56(c). In the same way, as pleadings they do not have any substantive value as would a stipulation between the parties, or averments made by a plaintiff in their complaint that are admitted by a defendant in their answer. Counsel has been unable to find any case law supporting the proposition that a party may rely upon their own Rule 26 disclosures in support of a motion for summary judgment. In addition to not being part of the list of evidence contained in Rule 56(c), Rule 26 disclosures come up lacking in several additional respects. They are not submitted under oath as are depositions and answers to interrogatories. Cf. Fed.R.Civ.P. 30-31, 33. Nor are they even signed by a party to the action as interrogatories are required to be. Cf. Fed.R.Civ.P. 33(b)(2). Instead, they are signed by the party's attorney. (See D.I. 155 at C24). To the extent defendants will claim that the information contained in these Rule 26 disclosures are defense counsel's verbatim transcription of what the numerous listed witnesses told them and should be considered the equivalent of an interrogatory, affidavit or deposition, such an approach runs afoul of several basic evidentiary rules. First, the attorney does not have personal knowledge of the substance of what the witnesses related to him, so he may not attest to it. See Fed.R.Evid. 602 ("A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter."). Second, is the obvious `double hearsay' problem. But even assuming arguendo that defense counsel's representations are somehow transformed from an unsworn statement into a sworn one, this still does not get around the `single hearsay' problem as defense counsel are still attesting to what 3

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other people told them. By definition, this is hearsay. See Fed.R.Evid. 801(c) ("`Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."). It cannot be contested that defense counsel is the "declarant" and they are making a statement about what someone else told them, intended as an evidentiary assertion. See Fed.R.Evid. 801(a) and (b). Again, by definition, this is inadmissible hearsay. See Fed.R.Evid. 802. Accordingly, defense reliance upon their own Rule 26 disclosures is improper and the disclosures should be stricken from the Appendix, along with all portions of the defense Reply that relies upon them. 2. Defendants' Unsworn Answers to Interrogatories. Defendants also submit and rely upon their unsworn Answers to Plaintiff's First Set of Interrogatories directed to individual defendants MacLeish and Mitchell (D.I. 155 at C5-13), in support of the same proposition discussed in the Rule 26 disclosures section above - attacks on Capt. Conley's motivations and character. (See D.I. 154 at 12). First, as the defense Appendix makes clear (Id. at C13), these Answers are not submitted under oath and are not signed by any of the parties as explicitly required by the Rules. See Fed.R.Civ.P. 33(a) and (b)(2) (the substance of an interrogatory must be signed by the party, only the objections may be signed by the attorney).2 See also McDougall v. Dunn, 468 F.3d 468 (4th Cir. 1972) ("Rule 33 expressly provides that the answers are to be `by the party served', and are to be "in writing under oath, ... signed by the person making them..."); Continental v. McGraw, 110 F.R.D. 679, 682 (D.Colo. 1986) ("The rule requires answers given under oath and signed by the party."); 8A Wright, Miller & Marcus, Federal Practice and Procedure; Civil 2d § 2172, p.282 (1994); id. at § 2177, 314-315 ("Each interrogatory must be answered separately and fully in writing under oath and the answers are to be signed by the person making them. Ordinarily the interrogatories must be answered by 4
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Plaintiff previously pointed this out to defendants in an e-mail. (Tab A). Although they apparently did not include it in their Appendix, defendants subsequently submitted a sworn statement from MacLeish attesting to the truth and accuracy of everything contained in the Answers to Interrogatories as required by Rule 33. However, in a subsequent e-mail, defense counsel represented that MacLeish "does not have personal knowledge of all the facts disclosed" in the Answers. (Tab B at p.1).3 However, putting aside the defense explanation for this problematic evidentiary situation (see Tab B at 1), we are still left with the same personal knowledge and hearsay problem discussed in the Rule 26 disclosure section above. Defendants cite page C9 of their appendix for substantive attacks on Capt. Conley's character and motivations. (See D.I. 154 at 12). And again they rely upon an unsworn document, signed by individuals who admittedly lack personal knowledge of the matter. But even putting aside the lack of personal knowledge as required by Fed.R.Evid. 602, there is still the obvious `double hearsay' problem. And even assuming arguendo that defense counsel's representations are somehow transformed from an unsworn statement into a sworn one or that MacLeish is permitted to submit a sworn affidavit attesting to matters that he does not have personal knowledge of, this still does not get around the `single hearsay' problem as defense counsel and MacLeish are still attesting to what other people told them. Again by definition, this is hearsay - an out of court statement being offered to prove the

the party to whom they are directed") (internal footnotes omitted). Thus, defendants are relying in their brief on Answers to Interrogatories that were directed to an individual defendant, were sworn to by an individual defendant, yet the individual defendant's attorney states that the individual defendant does not have personal knowledge of the information contained therein. This is problematic from an evidentiary standpoint. 5
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truth of the matter asserted. See Fed.R.Evid. 801(c). It cannot be contested that defense counsel or MacLeish are the "declarant" and they are making a statement about what someone else told them outside of court, and they are intending this statement to be an evidentiary assertion. Defendants are certainly using the statements as evidentiary assertions to attack Capt. Conley's character. See Fed.R.Evid. 801(a) and (b). Again, by definition, this is inadmissible hearsay. See Fed.R.Evid. 802. Accordingly, defense reliance upon their own unsworn and fatally deficient Answers to Interrogatories are improper and they should be stricken from the record, along with all portions of the defense reply briefs that rely upon them. B. Sandbagging Under the Local Rules. In addition to their transgressions in violation of the Federal Rules of Civil Procedure discussed above, defendants also have violated this Court's Local Rules. D. Del. LR 7.1.3(c)(2) addresses the form and content of briefs in this district and states: The party filing the opening brief shall not reserve material for the reply brief which should have been included in a full and fair opening brief. It is well established that inserting new arguments or evidence into a reply brief is a "tactic ... [which] amounts to impermissible `sandbagging'" and will not be countenanced or otherwise considered by the Court. Rockwell Tech, LLC v. Spectra-Physics Lasers, Inc., 2002 WL 531555, * 3 (D.Del. March 26, 2002); see Jordan v. Bellinger, 2000 WL 1239956, * 5 n. 7 (D.Del. Aug. 28, 2000); Fed. Insur. Co. v. Signatics, Inc., 1998 WL 175882, * 1-2 (D.Del. March 26, 1998); Aubrey Rogers Agency, Inc. v. AIG Life Insur. Co., 2000 WL 135129, *1 n. 4 (D.Del. Jan. 13, 2000); Adkins v. Bell Atlantic Corp., 2000 WL 1728368, * 11 n.13 (D.Del. Feb. 16, 2000).

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Additionally, motions to strike should be considered before the substantive motions because if stricken, the improper filings "would not weigh into the court's decision." Fed. Insur., 1998 WL 175882, at * 1. 1. New Evidence. At this late date in their Appendix, defendants have inserted new evidence into the record and argued from it throughout their Reply. Given the nature of the briefing procedures in our District, see D. Del. LR 7.1.2(c), plaintiff has been sandbagged and deprived of the opportunity to respond. a. Affidavit of Mr. Tupman. First is the affidavit of Mr. Tupman, one of defendants' attorneys, contained in the challenged Appendix at C1-3. (D.I. 155). Mr. Tupman was deposed in this case. (See D.I. 110). Defendants argued from Mr. Tupman's deposition testimony in their summary judgment opening brief (D.I. 147), claiming that his testimony supports their advice of counsel defense to qualified immunity and included his testimony in their contemporaneously filed appendix. (D.I. 148 at A143). Plaintiff then responded in her answering brief (D.I. 153) and argued against the defense claims and also argued from Tupman's deposition testimony in her brief. Yet in filing their Reply and supporting Appendix, defendants have now altered the record and included an Affidavit from Tupman (D.I. 155 at C1-3), and argued from it throughout their Reply brief. (D.I. 154 at 5-6, 3, 17). Because defendants chose to wait until their reply brief to submit the Tupman affidavit, plaintiff has been sandbagged and deprived of the opportunity to respond to the latest averments the affidavit makes and the new defense arguments building on them. Accordingly, D. Del. LR 7.1.3(c)(2) requires that the Tupman affidavit and the portions of defendants' Reply arguing from and relying upon it be stricken. 7

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b. Answers to Interrogatories and Rule 26 Disclosures. In the same way, defendants waited until their Reply and their supporting Appendix to discuss, argue from and rely upon two additional Appendix documents - defendants' Answers to Plaintiff's First Set of Interrogatories (D.I. 155 at C5-13), and Defendants' Rule 26 Disclosures. (D.I. 155 at C1424). For the same reasons discussed immediately above, these documents also should be stricken as defendants had the opportunity to include and rely upon them in their opening brief and yet chose not to do so. 2. New Legal Arguments. In their Reply, defendants also add a new nuance to their qualified immunity argument - discussing and arguing at length (D.I. 154 at 14-17), from the Third Circuit's opinion in McKee v. Hart, ­ F.3d ­, 2006 WL 27474 (3d Cir. Jan. 6, 2006), an opinion that was issued almost two weeks before their summary judgment opening brief was submitted to the Court. Had defendants wished to discuss and argue from McKee, they had the opportunity to do so in their opening brief, yet chose not to. Having waited until after plaintiff responded to their qualified immunity arguments in her answering brief, D. Del. LR 7.1.3(c)(2) forbids defendants from raising, discussing and arguing at length from additional case law in their Reply brief, when plaintiff is now unable to respond to the new defense arguments. For the aforementioned reasons, the portions of the defense qualified immunity argument addressing McKee should be stricken. Conclusion For the reasons discussed at length above, the documents bates-stamped C1-3 (the Tupman affidavit), and C5-24 (the Rule 26 disclosures and Defendants' Answers to Interrogatories) which are located in defendants' Appendix (D.I. 155), should be stricken from 8

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the record and all portions of defendants' Reply (D.I. 154) which relies upon them also should be stricken. Similarly, all references to and legal arguments related to the McKee decision in defendants' Reply also should be stricken. Plaintiff waives an opening brief in support of this Motion.

Respectfully Submitted, THE NEUBERGER FIRM, P.A.

/s/ Stephen J. Neuberger THOMAS S. NEUBERGER, ESQ. (#243) STEPHEN J. NEUBERGER, ESQ. (#4440) Two East Seventh Street, Suite 302 Wilmington, Delaware 19801 (302) 655-0582 [email protected] [email protected] Dated: February 14, 2006 Attorneys for Plaintiff

LOCAL RULE 7.1.1 STATEMENT Counsel certifies that he contacted defense counsel to determine their position on this motion. Defense counsel indicated they believe that a motion to strike was not required and that all evidence and legal arguments contained in their Reply and Appendix are proper. (See Tab C).

/s/ Stephen J. Neuberger STEPHEN J. NEUBERGER, ESQ.

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Tab A

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Tab B

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Tab C

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Unreported Opinions

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Only the Westlaw citation is currently available. United States District Court, D. Delaware. Linda L. ADK INS , Plaintiff, v. BEL L AT LAN TIC C ORP ORA TIO N, a Delaware corporation; Bell Atlantic Corporation, Plan Administrator; Bell Atlantic Sickness and Accident Disability Be nefit Plan, a welfare benefit plan; Bell Atlantic Long-Term D isability Plan, a welfare be nefit plan; Group Life Insurance Program, a welfare plan; and Supplem entary G roup Life Insurance Plan, a welfare plan, D efendants. No. 98-254 GMS. Feb. 16, 2000.

regulations promulgated thereund er. In Count V , FN2 Adkins alleges that Bell failed to provide a copy of certain plan documents in violation of ERISA § 104 (b)(4 ), 29 U.S.C. § 1024(b)(4). FN3

FN1. The four plans named as defendants are: (1) the Bell Atlantic Sickness and Accident Disability Benefit Plan; (2) the B ell Atlantic Long-term Disability Plan; (3) the G roup Life Insurance Program; and the Supplementary Group L ife Insurance Plan. FN2. The Complaint actually has two claims identified as Co unt IV . The cou rt will refer to the second such claim as "C ount V ." FN3. Count V actually asserts that the failure to provide these documents was in violation of ERISA § 502 (c), 29 U.S.C. § 1132(c). In their motion to dismiss, Defendants have properly recognized Count V as an alleged violation of § 1024(b), for which a remedy is provided in § 1132(c). Before the court is Defendants' motion to dismiss the complaint for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Also b efore the court is Adkins' motion for summary judgment. For the reasons that follow, the court will deny both o f these motions.

John M . Stull, W ilmington, De laware , for Plaintiff. Michael P. K elly, W ilmington, De laware , Lawrence B. Fine and Gregory T. Mayes of Morgan, Lew is & Bockius LLP , for Defend ants. MEMORANDUM OPINION AND ORDER SLEET, J. I. INTRODUCTION *1 On May 8, 1998, plaintiff Linda L. Adkins ("Adkins") filed a five count complaint against her former employer, defendant Bell A tlantic Corporation ("Bell"), and four em ployee benefit plans maintained by Bell. FN1 In Counts I, III and IV, Adkins alleges that she was wrongfully denied disability, life insurance and medical benefits under these plans. She seeks to recover such benefits pursuant to section 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132(a)(1)(B). In Count II, Adkins alleges that Bell, as Plan A dministrator, breached its fiduciary d uties by failing to adequately disclose its reasons for denying her benefit claims, in violation of ERISA § 503, 29 U.S.C. § 1133, and

II. BACKGROUND Prior to her termination in May of 1996, Adkins was employed by Bell for ap proximately 26 years. W hile employed, Adkins was a participant in various emp loyee b enefit plans spo nsored by B ell. Adkins has suffered from severe back pain since at least 1990. She also suffers pain from a spinal fusion procedure and from hip surgery. For some time prior to May of 1996, Adkins was absent from work as a result of these injuries and was receiving short term disability benefits

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from the Bell Atlantic Sickness and Accident D isability Benefit Plan ("SADB P"). By notice dated April 26, 1996, Adkins was informed that her disability benefits under the SA DB P wo uld cease as of that date. Adk ins did not return to work, and her employment with Bell ended sometime during May of 1996. The parties do not appear to agree as to whether Adk ins resigned or was involuntarily terminated. It is clear, however, that she is no longer an employee of Bell, and that she has not received benefits under any of the Plans since her employment ceased. As discussed more fully below, resolution of the instant motions turns on the legal significance of, and legal adequacy of, the April 26th notice and the ensuing correspondence between Defendants and lawyers representing Adkins. Defendants contend that these doc uments establish that Adkins failed to exhaust her administrative remedies under the SADB P, thus barring her claims for wrongfully denied benefits in Counts I, III and IV o f the co mpla int. FN4 They also claim that these documents adequately disclose the reason A dkins' SADBP benefits were denied, thus requiring dismissal of Count II. Finally, Defendants contend that these documents establish that Ad kins' request for ce rtain plan docum ents was untimely and/o r was improperly asserted by her attorney, thus requiring dismissal of Count V.

wrongfully denied short and long term disab ility benefits, she would have been eligible for insurance and medical b enefits. Compl. ¶¶ 33-35, 38-40. III. DISCUSSION A. Standard of Review on D efendants' Motion to Dismiss

*2 When considering a motion to dismiss for failure to state a claim, the court must accept as true "the factual allegations in a com plaint an d all reasonable inferences that can be drawn therefrom." Graves v. Lowery, 117 F.3d 723, 726 (3d Cir.1997) (citations omitted). In passing on a motion to dism iss, courts generally consider only the allegations in the co mplaint, exhibits attached thereto, and m atters of public reco rd. See Pension Benefit Gua r. Corp. v. W hite Consol. Ind us., Inc., 998 F.2d 1192, 1196 (3d Cir.1993). The documents alluded to above and described more fully below were not attached to Ad kins' com plaint. Neve rtheless, the court can properly consider "undisputed ly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document." Id.; see also In re R ockefeller C tr. Properties, Inc. Sec. Litig., 184 F.3d 280, 287 (3d Cir.1999) (court can consider doc uments "integral to or explicitly relied upon in the complaint"). Defendants have attached a number of documents to their motio n, and claim that each o f these documents falls within the rule just stated. For the most part, the court agrees. Adkins does not dispute the authenticity of any of these documents. Further, most of these doc uments are clearly "integral to" or "explicitly relied upon" in Adkins' com plaint. FN5 This is less clear, however, with respect to two of the docum ents-a May 15, 199 6 letter from Bell and a "Summary Plan Desc ription." See Mot. to Dismiss Exs. E and I. Although these documents are related to the exhaustion issue, it is not clear that Adkins' comp laint can be said to be "based on" these documents. Even if they do not qualify under the rule, however, the court could

FN4. Although A dkins seeks to recover various types of benefits from several different benefit plans, the parties' briefs focus entirely on the denial of short term disability benefits under the SADB P. Adkins' claims for the other types of benefits are apparently dependent upon her claim for short term disab ility. For e xample, it appears that benefit eligibility under the SADBP is a precondition to eligibility for long term disability benefits. See M ot. to D ismiss at E x. I (Sum mary P lan De scrip tio n ), Secti on 1 ("Dis abilit y Benefits"), p. 4; Section 2 ("Sickness and Accident Disability Coverage"), p. 3; and Section 3 ("Long-Term Disability Plan"), p. 4. Further, Adkins alleges that had she not been

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consider these documents by treating De fendants' motion as one for sum mary judgm ent. See Fed.R.Civ.P. 12(b); In re Rockefeller C tr., 184 F.3d at 287. For the reasons discussed below, the court concludes that Defend ants' motio n shou ld be denied whe ther viewed as a motion to dismiss or as a motion for summary judgment. The court, therefore, need not decide whether consideration of these two documents requires "conversion" of D efendants' motio n. FN6

ER ISA § 40 5, 29 U.S.C. § 1105(c). *3 Section 1105(c) perm its plan fidu ciaries to delegate certain fiduciary respo nsibilities to "persons other than named fiduciaries ." § 1105(c)(1). If such delegations are made in accordance with plan provisions, then, except under circumstances specified by the statute, the origina lly named fiduciary is immune from liability for "an act or omission" of the designated "other perso n" in carrying out those fiduciary resp onsibilities. § 1105(c)(2). The SAD BP does app ear to authorize B ell's delegation of duties to the com mittees noted ab ove. N evertheless, Bell has failed to establish whether these committees are "other" persons within the meaning of the statute. There is nothing in the record that even hints at (1) the nature of these committees; (2) the relationship between Bell and these entities; or (3) whether these committees are "entities" at all. Surely a corporate plan administrator canno t insulate itself from liability under ERISA simply b y designating a "comm ittee" of its own employees to administer the plan. But there is nothing in the record to suggest that Bell's committees are anything more than a group of its own em ployees. Therefore, the court will deny Bell's request to be dismissed from this lawsuit. FN7

FN5. Such documents include the SADBP Plan document, the April 26th benefit denial notice, the letters cited in the complaint as satisfying the exhaustion requirement and the letters cited in the complaint regarding Adk ins' request for Plan documents. Mo t. to Dismiss Exs. A, B, D, F, G, and H. FN6. Before granting a "converted" motion, it is typically necessary to provide no tice to the parties of the court's intent to treat the motion as one for sum mary judgm ent. See In re Rockefeller Ctr., 184 F.3d at 287-88. But where, as here, the court would deny the motion under either standard, the court sees no reaso n why no tice is necessary. B. Defendant Bell's Claim that it Should be Dismissed as an Improper De fendant Before reaching the arguments asserted by all the defendants, the cou rt will add ress Defenda nt Bell's assertion that it is not a p roper defendant in this action. Bell conc edes that it is the SADBP 's Plan Sponsor and Plan Administrator as those terms are defined by ERISA. Bell contends, however, that it delegated its responsibilities as Plan Administrator to the Bell Atlantic Corporate Employees' Benefits Committee ("the Corporate EB C"). It further claims that the Corporate EBC, in turn, delegated its claims determination and claims appeal respo nsibilities to the Bell Atlantic Benefits Claims Comm ittee ("the Claims Committee") and to the Bell Atlantic Benefit Ap peals Committee ("the Appeals Co mmittee"), respectively. As such, Bell contends that it retained no fiduciary duties, and is thereby immune from liability pursuant to

FN7. Because the reason noted above precludes Bell's request, the court need not address other issues that would appear to require some attention before Bell could be dismissed from this lawsuit. For examp le, a named fiduciary cannot escape liability for acts of a designee if it has knowledge of the designee's breach of duty and fails to make reaso nable efforts to rem edy the breach. § 1105(c)(2)(B). Several of the letters at issue in this case are on "Bell Atlantic" letterhead, and at least one of the letters is written by a lawyer representing "the B ell Atlantic com panies." See, e.g., Mot. to Dismiss at Exs. E, H. Further, Bell has cited no authority to establish that § 1105 would shield it from liability that it would have incurred even if their had been no breach of fiduciary duty by

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any party-e.g., liability for be nefit paym ents that it might have incurred as Plan Sponsor if Adkins did q ualify for such benefits and her claim were properly approved b y the comm ittees. The cou rt, today, expresses no opinion o n these potential issues. C. Defendants' Motion to Dismiss Counts I, III and IV of the Complaint Defendants contend that Adkins' claims for wron gfully denied benefits should be dismissed be cause she failed to exhaust her administrative remedies under the SADBP. Actions to reco ver benefits due under an employee benefit plan are authorized by ERISA's civil enforcement provision, 29 U.S.C. § 11 32(a)(1)(B). That provision does not expressly require a plan participant to exhaust administrative remedies available under a plan prior to initiating a lawsuit. See Thomas v. Kemper Nat'l Ins. Co., 984 F.Supp. 885, 890 (E.D.Pa.1997); see also Amato v. Bernard, 618 F.2d 559 , 566 (9th Cir.1980) ( "It is true that the text of ERISA nowhere mentions the exhaustion doctrine."). Nevertheless, federal courts generally require exhaustion of such remedies prior to entertaining a suit for wro ngfully denied plan b enefits. See, e.g., Weldon v. Kra ft, Inc., 896 F.2d 793, 800 (3d Cir.1990); Wolf v. National Shopmen Pension Fund, 728 F.2d 182, 185 (3d Cir.1984). Defendants contend that Adkins failed to follow the administrative review procedures required by the SADBP. Under the SADBP, participants must submit claims for benefits to the Claims Committee within 60 days from the date o f accide nt or from the first day of absence from work. See Ex. A (SAD BP ) §§ 3.2(e), 6.6. FN8 If a claim for benefits is den ied by the Claims Comm ittee, the Plan perm its the participant to app eal that d enial to the Appeals Com mittee by submitting a written request for review within 60 d ays after receiving notice that her claim has be en de nied. E x. A § 3.3(a ). W hile these requirements seem simple enough, the p rocess is anything but simple in practice.

Motion to D ismiss. *4 Although A dkins had been receiving disab ility benefits under the SADBP for some time prior to April 26, 1996, it is not clear from the complaint or the parties' briefs how (i.e., by what procedures) or when those benefits commenced. By notice from the Claims Committee dated April 26, 1996 (Ex. B), Adkins was informed that her disability benefits were denied and would cease as of that date. T his notice was a standardized benefit denial form, on which a mark was placed next to the following standa rd rea son for denial: "The medical evidence indicates that you are able to work with restrictions. Therefore you are no t unable to work [citation to Plan pro visions]."

1. Adkins' Position on Exhaustion Adkins contends that she timely appe aled that claim denial by letter from the attorney then representing her, W illiam Schab, dated M ay 13, 199 6 (Ex. D). She further contends that her appeal was denied, by letter from "Be ll Atlantic Health Services" dated July 18, 1996 (Ex. F). Having thus exhausted her remedies under the Pla n, Adkins contends that she was free to pursue her claim in court. Instead of immediately suing, however, Adkins' new attorney, John Stull, wrote to the Claims Committee on D ecem ber 2 0, 19 96 (Ex. G ). In that letter, Stull asked the Claims Committee to reconsider its claim denial and to provide a more detailed explanation as to why the medical documentation Adkins had previously submitted was not sufficient to establish her disability. By letter dated January 23, 1997 (Ex. H), Stull's request was rejected.

2. Defendants' Position on Exhaustion Defendants view things quite a bit differently. They contend that the April 26 th notice denying Adkins' benefits was not a "claim denial" at all, but rather a "Suspension No tice." As such, Defendants argue that the proper response to this notice was not to "ap peal" the bene fit denial, but rather to submit a "Claim" to the Claims Com mittee, within 60 days. B ecause A dkins' May 13th letter was not addressed to the Claims

FN8. All lettered exhibits referred to here in refer to the exhibits attached to D efendants'

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Committee, it did not qualify as a "Claim." Instead, Defendants contend that Stull's Decem ber 2 0th letter to the Claims Committee-although purporting to be a request for reconsideration of a previously denied appeal-was actually the first correspondence qualifying as a "Claim." B ecause that "Claim" was submitted more than 60 d ays after Adkins' receip t of the April 26 th "Suspension Notice," the Claims Committee denied the "Claim" as untimely, by its letter dated January 23, 1997. Defendants, therefore, contend that Adkins failed to exhau st Plan remedies in two resp ects-by failing to subm it a timely "Claim" to the Claims Committee, and by failing to ap peal the Claim denial (presumably the January 23, 1 997 Claim denial) to the A ppe als Committee.

Date" is noted. Ex. B. This is followed by the heading "REASON(S) FOR DENIAL OF YOUR BENE FIT ." Ex. B. As noted above, a mark was placed next to the app licable reaso n, which included a c itation to applicab le Plan pro visions. These characteristics all point to one conclusion-that the Claims Com mittee was denying A dkins' claim for benefits. This conclusion is consistent with an ordinary understanding of the words "claim," "benefit" and "denial." That is, it would seem more reasonable to expect that a "benefit denial" would follow a "claim" for benefits than, as Defendants contend, a "claim" for benefits should follow a "b enefit denial." As has already been noted above, by some procedure that remains unclear, Adkins was already receiving SADBP benefits for some time prior to the April 26th notice. Indeed, prior to April 26th, Adkins had already submitted medical documentation of her disability, and had already undergone an "Independent Medical Examination" at Be ll's request. See Compl. ¶ 1 4; Pl's Opp 'n Br. at Ex. 1. FN9 These step s further support Adkins' apparent b elief that since her "claim" for benefits had been under review prior to April 26th, the notice of that date was a denial of her claim.

3. Defendants are Primarily to Blame for any Exhaustion Deficiencies As will soon be clea r, M r. Schab's efforts on Ad kins' behalf at complying with Defendants' administrative procedures leave something to be desired. For the reasons that follow, however, the court concludes that any defects in Adkins' exhau stion efforts were prima rily the result of the confusing procedures employed by the Defendants and their failure to clarify what was, at worst, at reasonable misunderstanding on the part of Adkins and/or Schab. As will also beco me evident, Defendants themse lves had difficulty following their own pro cedures. *5 The problems begin with the proper characterization of the April 26th benefit denial notice. As noted above, Defendants argue that this notice was not a "claim denial" but rather a "Suspension Notice." Curiously, the form does not use that term, nor can the court locate that term in either the Plan itself or the Summary Plan Description. See Exs. A, I. Although the form also does not use the term "claim denial," that certainly appears to be the thrust of it. The form is titled "Notice from Assistant Secretary of Bell Atlantic Benefits Claims Committee." Ex. B . This com mittee, of course, is specified in the Plan itself as the one "to which is delegated the authority and responsibility ... to decide ben efit claims of Em ployees." Ex. A § 2.4 (emph asis added). Near the top of the form, the "Benefit Denial

FN9. Interestingly, the Independent Medical Examiner unequivocally conclude d that "in regard to her employment with Bell Atlantic, [Adkins] is now permanently totally disabled." See Letter dated March 7, 1996 from Dr. Thomas Otter (included in Ex. 1 to P l's O pp 'n Br.). He further opined that "there is little hope that this patient can be rehabilitated to the point where she co uld actively engage in any activities of an occupational nature." Id. At the bottom of the April 26th notice, however, boilerplate language advises the recipient that "if you disagree with this determination yo u may subm it a written Claim ... to: Bell Atlantic Claims Committee [address provided ]." Ex. B. T he recipient is told that there is no special claim form, and that information previously subm itted to "H ealth Services" would be forwarded to the Claims C omm ittee. The recipient is then advised that any additional medical information

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should be submitted to Health Services at the ad dress supp osed ly indicated on an attached letter. Curio usly, the attached letter does not, in fact, provide an ad dress for "Health Services." See Ex. B. Nor does it, for that matter, even refer to Health Services. N or is H ealth Services referred to in either the P lan or the Summary Plan Description. The attached letter does, however, state that the Claims Committee will not consider "reinstating your benefits" unless a "written stateme nt" (which statement is not referred to as a "Claim") is submitted to the Claims Committee. Finally, the letter notes that any additional medical information should be sent to "Bell Atlantic, Health and Safety Management Center" (perhaps another name for the elusive "Health Services"?) at an address that is provided. *6 These instructions provide at least some support for Defend ants' position that Adkins should have responded to the Ap ril 26th notice by filing a "Claim" rather than an appe al. In the cou rt's view, however, the instructions are not clear eno ugh to undermine Adk ins' reasonable belief that the notice was itself a "claim" denial by the Claims Committee. Clearly (and reaso nably) confused b y the Ap ril 26th notice, Adkins' attorney, M r. Scha b, attem pted to appeal the benefit denial by letter dated May 13, 1996. After describing the basis for his belief that Adkins d id qualify for disability benefits, Schab states: "If Ms. Adkins must file an appeal of some previously made decision of Bell Atlantic, let this letter serve as that app eal." Ex. D. While the court would ordinarily frown on a participant essentially m aking up his own ap peals procedure, Schab's statement was reasonable under the circumstances. Further, although Schab's letter was not addressed to the Appeals Comm ittee-as might have been appropriate based on an understanding that the April 26th notice was a "claim denial"-no address had been provided for that committee in the April 26th notice or attached letter. Thus, Mr. Schab did the next best thing-he sent the letter to the attention of Barbara Kelly, the person who signed the April 26th notice. Schab addressed the letter to Bell Atlantic Health Services at the ad dress that had been provided fo r the Bell Atlantic Health and Services Management Center (i.e. Schab reasonably assumed-indeed, perhaps correctly assumed-that this was the proper address for

"Health Services"). Ms. Kelly apparently forwarded Schab's May 13th letter to Keith Fischler, a labo r lawyer with "B ell Atlantic Network Services" who represents "the B ell Atlantic comp anies" and their agents. See Ex. E. Kelly may have done so because Schab's letter, in addition to attempting to appeal the April 26th b enefits denial, also sough t to address a dispute that ap parently had arisen as to whether Adk ins had resigned. Fischler respon ded to Schab by letter dated May 15, 1996 . Ex. E. Although the primary focus of this response was the resignation issue, Fischler's letter also states that if Schab believed Adkins had not received all the disability benefits to which she was entitled, he should "file an ERISA claim by writing to the Claims Administrator." The letter provides the address for the Claims Committee. One might have hoped that Schab would have reacted to Fischler's letter in some way. FN10 On the other hand, one might also have hoped that while Ms. Kelly was forwarding Schab's May 13th letter to M r. Fischler, she wou ld have a lso forw arded a co py to the Claims Committee, thus perfecting Adkins' "Claim." See 29 U.S.C. § 1104 (requiring plan fiduciaries to discharge their duties "solely in the interest of the participants and beneficiaries and ... for the exclusive purpose of providing benefits to participants and their beneficiaries ...").

FN10. It appears that Schab did not respond in any way to Fischler's letter. Although he was perhaps still reasonably confused as to why the Claims Committee's April 26th denial of Adkins' claim needed to be appealed by filing a claim with the Claims Committee, further inquiry at this point might have revealed why in the Defendants' view the May 13th letter had not pe rfected an appeal. Still, for the reasons alread y stated, and those which follow, Schab's failure to respond to the Fischler letter doe s not alter the cou rt's conclusion that Bell is primarily at fault for any deficiencies in Adk ins' exhaustion efforts. *7 Next in the parade of confusing correspondence is a

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July 18, 1996 letter from Bell Atlantic Health Services to Adkins. Ex. F. This letter advises Adkins that, subsequent to its April 26th benefit denial notice, Health Services had received "further information from you and/or your treating health pro fessiona l." W ithout hinting at what this additional information might have been (was it, perhaps, Schab's May 13th letter?), the letter states that this additional information does not change Health Services' prior determination to deny benefits. Ever anxious to be helpful, the letter then reminds Adkins that she has only 60 days from the date of the prior notice to submit a Claim to the C laims Committee. That is, the July 1 8, 1996 letter reminds Adkins that she is required to submit a claim by June 26, 1996. The July 18, 1996 letter concludes with yet another helpful re minder-it advises Adkins that she "will be expected to return to work on April 26, 1996 ." Ex. F. This letter further demo nstrates Defen dants' inability to understand and/or effectively comm unicate its own deadlines under the Plan. In sum, the court concludes that Adkins reaso nably understood the April 26th Benefit Denial notice to be a claim denial. Further, Scha b ma de a reasonable effort to perfect an appeal of that decision by his letter dated M ay 13, 1 996 , thus exhausting the adm inistrative procedures required by the Plan. While some of Defend ants' correspondence advised A dkins that she needed to file a "Claim," none of the letters expressly advised Adk ins that the A pril 26th notice was no t a "claim denial" and that Sch ab's M ay 13th letter did not perfect her appe al. Mo reover, even if Defendants are correct that Adkins first filed a "Claim" by Stull's December 20, 1996 letter, their January 23, 1997 denying that claim is inadequate. Had that letter truly been a claims denial letter, Defendants would have been required to provide Adkins written no tice spe cifying, inter alia, "app ropriate information as to the steps to be taken if [she] wishes to submit [her] claim for review." 29 C.F.R. § 2560.503-1(f) (setting forth required content of notice to claimants whose claims for benefits are denied). Rather than provide Adkins with information as to how she cou ld appe al the C laims Com mittee's January 23rd denial of her claim, the letter simply states: "The decisio n of this Committee is final." Ex. H.

Rem arkab ly, Defendants' alternative "failure to exhaust" theory a ppe ars to b e that Adkins failed to appeal the January 23 rd claims de nial letter. See Def's Mem. of Law in Supp. of their Mot. to Dismiss, at 12. FN11

FN11. Defendants' alternative exhaustion theory might be be tter understood to be that even if the April 23rd notice was a claim denial, the May 13th letter does not qualify as a proper appeal of that denial because it was not addressed to the Appeals Committee. As already indicated, that argument fails because the April 23rd claim denial notice and acco mpa nying letter failed to inform Adkins that her ap peal should go to that Committee. See 29 C .F.R. § 256 0.50 3-1(f). Under the circumstances, Schab's request in his May 13th letter to "let this letter serve as [any required] appeal" was a reasonable effort to perfect an ap peal. Perhaps even more remarkab ly, Defendants essentially attempt to argue that although the April 23, 1996 notice was not a claims denial letter for the p urpo se of C ounts I, III and IV of the C omp laint, it was a claims denial letter for the purpose of Count II of the C omp laint. See infra. That argument only bolsters the court's conclusion that Adkins' understanding of the April 23rd notice as a claims denial letter was reasonable.

4. Conclusion as to D efendants' Motion to D ismiss Counts I, III and IV *8 For these reasons, the court conclud es that Adkins' efforts to exhaust administrative remedies were sufficient. To the extent these efforts were not perfec t, excusing any deficiencies is, under the circum stances, wholly consistent with the purposes served by the exhaustion requirement. In Zipf v. AT & T, 799 F.2d 889 (3d Cir.1986), the Third C ircuit described tho se purpo ses as follows: W hen a plan pa rticipant claims that he or she has unjustly been denied benefits, it is appropriate to require particip ants to address their complaints to the

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fiduciaries to whom Congress, in Section 503 [29 U.S.C. § 1133], assigned the primary responsibility for evaluating claims for benefits. This ensures that the app eals procedures mandated by Congress will be employed, perm its officials of benefit plans to meet the responsibilities properly entrusted to them, encourages the consistent treatment of claims for benefits, minimizes the costs and delays of claim settlement in a nonadversarial setting, and creates a reco rd of the plan's rationales for denial of the claim. Id. at 892 (citations omitted). W hen Adk ins' disability benefits were denied , she did not run to the federal courthouse. Rather, she attempted to appeal the denial to the fiduciaries Congress made respo nsible for benefit determinations. In response, she was met with only ob stacles to a review on the m erits. Even after Health Services reaffirmed its earlier decision by its letter dated July 18, 1996, Adkins once again implored the Defendants to rec onsider their decision "before we proceed to a more formal review of your procedures." Ex. G. Defendants rejected that request as untimely. Defendants, therefore, had more than ample opportunity to evaluate Adkins' claims on the merits before she was forced to resort to this lawsuit. Further, allowing Defendants to benefit from the confusing procedures they have established would be inconsistent with Co ngress's intent to facilitate emplo yees' access to plan benefits. See, e.g., 29 U.S.C. § 1133(1) (claim denials must be written "in a manner calculated to be understood by the particip ant"); 29 U.S.C. § 1133(2) (requ iring plans to provide adeq uate notice of the reasons for claim denial and to afford a "reaso nable opp ortunity" for a "full and fair review" of claim denials); see also 29 C.F.R. § 2560.503-1(b) (benefit plans must not be administered a way that "unduly inhibits or hampers the initiation or processing of plan claims"). Finally, since the Defendants twice considered and denied Adkins' claim for benefits (i.e., as indicated by their notices dated April 26, 1996 and July 18, 1996), they have presumably developed a record of their rationales for denying the claim. Such record should be

adequate to facilitate this court's review of the merits of Adkins' claims. T o the exten t Defendants failed to properly develop a record for review, Adkins has maintained copies of relevant medical records and opinions that were subm itted to the Defendants for their consideration. See Pl's Opp'n Br. at Ex. 1. *9 Accordingly, the court will deny Defendants' motion to dism iss Counts I, III and IV of the C omp laint.

D. Defendants' Motion to Dismiss Count II of the Comp laint In Count II, Adkins alleges that Bell breached its statutory duties to adequately disclose the reasons her claim for benefits was d enied . See 29 U.S.C. § 1133(1). She also alleges that Be ll failed to disclose the reasons her appeal was denied and failed to advise what information was required to meet the Plan's eligibility requirements. As alluded to above, Defendants contend that their April 26, 1 996 "Susp ension No tice" fully satisfies all of the requirements for claims denial letters as set forth in regulations promulgated under § 1133. As discussed above, De fendants have vigoro usly contended that the April 26, 1996 be nefit denial letter was not a claims denial letter. Indeed, they contend that Adkins did not file a "Claim" until December 20, 1996. It is quite difficult to und erstand how the Ap ril 26th notice could satisfy statutory disclosure requirements for claims d enials, when the "C laim" was-according to Defendants-not even filed until nearly eight months after the purported claims denial notice. Even more surreal is Defendants' explanation as to how the April 26 th notice satisfies the requirement that a claims denial letter set forth information as to how a participant can ap peal a denied claim. See 29 C.F.R . § 2560.503-1(f)(4). Defendants assert: "[T]he Suspension Notice explained in detail M s. Adkins' right to what would have been an appeal had the suspension of benefits been a claim denial." De f's Mem. of Law in Supp. of their Mot. to Dismiss, at 17. T hey then note that the Suspension Notice provided "explicit instructions for perfecting an appeal." Id. This is difficult to comprehend in light of (1) Defendants'

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earlier argument that appeals must be filed with the Appeals Committee; and (2) the fact that the Suspension No tice never even refers to the Ap peals Committee. For these reasons, the co urt will deny Defend ants' motio n to dism iss Count II of the Co mpla int.

which the plan is established or operated. Defendants contend that beca use M r. Stull was not a "participant or beneficiary" of either plan, they were not obligated to provide the requested plan documents. In support of their position, Defendants princ ipally rely on a 1982 Department of Labor Opinion Letter. In that Letter, the DOL concluded that § 1024(b)(4) does not require a plan to provide docum ents to third parties without a written release from a participant or beneficiary. DO L Opinion Ltr. No. 82-021 A (Ex. J.). Defendants suggest that the court should defer to the DOL's interpretation of this statute. The court finds deference unnecessary because the Le tter gives no indication whatso ever that the D OL would consider an attorney acting o n behalf of his client to be a "third party." Instead, the Letter simply addressed the far different issue of whether certain benefit funds were required to provide various documents to an employer that mad e con tribution s to the funds on beha lf of its emp loyees. FN12 Ex. J.

E. Defendants' Motion to Dismiss Count V of the Comp laint In Count V, Adkins alleges that Bell failed to provide her with copies of the plan documents for the SADBP and the Bell Atlantic Long-Term Disability Plan, in violation of ER ISA § 10 4(b)(4), 29 U .S .C. § 1024(b)(4). By letter to the Claims Committee dated December 20, 1996, Mr. Stull unambiguously requested copies of these two plan docume nts. After identifying the plans at issue, Stull stated: "As Ms. Ad kins' representative, I request in her behalf copies of plan doc uments for each plan." Ex. G. By letter dated January 23, 1 997 , the Claims Comm ittee addressed other aspe cts of Stull's letter (i.e., it treated his letter as a "Claim" for benefits and denied it as untimely), but ignored the request for plan documents. Ex. H. Defendants assert two independent bases for dismissal of this claim. First, they contend that they were not required to provide these documents because the request was mad e by Adk ins' attorney, rather than by Adkins herself. Second, they claim that at the time the request was made, Adkins was no longer a plan "participant" entitled to request copies of plan documents. Th e court rejects both arguments.

FN12. Th at is, the employer made contributions to the funds on beha lf of the employees. There is no suggestion that the employer requ ested the docu ments on behalf of its employees. In fact, the L etter expressly states that none of the employees had requested any documents. Ex. J. Defendants also rely on Bartling v. Frueha uf Co rp., 29 F.3d 1062, 1072 (6th Cir.1994), in which the cou rt held that a plan adm inistrator was not obligated to disclose plan documents to participants' attorney without the written authorization of the participants. The court finds Bartling unpersuasive. First, that court "acknowledged the force of [the plaintiff's] arguments," but nevertheless felt compelled to defer to the DOL Opinion Letter discussed above. As already indicated, this court finds such deference to be misplaced. Second, the court has found no other case accepting D efendants' position, and se veral cases reje cting it. See, e.g., Mo othart v. Bell, 21 F.3d 1499, 150 3 (10th Cir.1994); Jandek v. AT & T Co rp., 1996 WL 147919, at *4 (N.D.Ill.1996) (rejecting Bartling ); Algie v. RCA

1. Defendants Could Not Refuse Adkins' Request for Plan Documents on the Basis That the Request Was Made by Her Attorney *10 Section 1024(b)(4) provides, in pertine nt part, that: The administrator shall, upon written request of any participant or be neficiary, furnish a co py of the latest updated summary plan description, and the latest annual repo rt, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under

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Communications, Inc., 891 F.Supp. 839, 869 n. 22 (S.D.N.Y.1994), aff'd, 60 F.3d 956 (2d Cir.1995); Curry v. Contract Fabricators Inc. Profit Sharing Plan, 744 F.Supp. 1061, 1066 (M.D.Ala.1988), aff'd, 891 F.2d 842 (11th Cir.1990). Further, Bartling appears to be distinguishable because in that case, the benefit plan had actually asked the requesting attorney to provide written authorizations from his clients. See Bartling, 29 F.3d at 1065-66. Defendants here made no such request. Nor is their any suggestion that Defendants had any reason to believe Stull was not authorized to act on behalf of Adkins. To the contrary, the Claims Committee was more than happy to accept Stull's Dece mber 2 0th letter as a "Claim" by Adkins. It then summarily denied the Claim as untimely and advised Stull that the decision of the Committee was final. Indeed, the Comm ittee did not even bother to copy Adkins on its denial letter. Ex. H. *11 Under these circumstances, the court cannot imagine a single reason why S tull's request for these non-confidential plan d ocuments should be deemed insufficient under § 1024(b)(4). Accordingly, the court rejects this argument as a ba sis for dism issing Count V of the C omp laint.

who have ... a colorable claim to vested benefits ." Id. at 117. The co urt further explained that to fall within the category of one who "may become eligible" for benefits, "a claimant must have a colorable claim that (1) he or she will prevail in a suit for benefits, or that (2) eligibility requirements will be fulfilled in the future." Id. at 117-18. Defendants contend that by the time Adkins requested the plan documents on Decemb er 20, 1996, she no longer had a "colorable claim" for benefits because it was by then too late to file a "C laim" and, thereby, begin the process of exhausting administrative remed ies. The cou rt has already co ncluded, however, that Adkins has sufficiently exhausted administrative remed ies. As such, it follows that her alleged failure to do so cannot support Defendants' claim that Adkins no longer had a "colo rable claim" for benefits. FN13

2. Ad kins W as Entitled to the Plan Do cuments Because She H ad, at the Very Least, a Colorab le Claim for Vested Benefits Defendants next contend that at the time of Adkins' December 20, 1996 request for plan documents, she was no longer a "participant" entitled to such disclosures. T he court disagrees. ERISA defines the term "participant" as "any employee or forme r emp loyee o f an employer ... who is or may become eligible to receive a benefit of any type from an employee benefit plan." 29 U.S.C. § 1002(7). In Firestone Tire & Rubber Co. v. Bruch, 489 U .S. 101 (1989), the Supreme Court addressed the issue of how this definition should be applied in the context of a former employee requesting plan documents pursuant to 29 U.S.C. § 1024(b)(4). The Court held that the term "participant" includes, inter alia, "former employees

FN13. In their reply brief, Defendants presented an additional argument. They contend that because only pension bene fits "vest," Adkins claim for disab ility bene fits cannot qualify as a "colorable claim to vested benefits" as required b y Firestone. Aside from the fact that this argument was improperly raised for the first time in a reply brief, see D. Del. LR 7 .1.3(c )(2), this argument has no merit. First, although the Firestone Court first referred to a "colorable claim to vested benefits," it immed iately followed that comment by stating that a claimant must have a "colorable claim tha t ... he or she will prevail in a suit for benefits." Firestone, 489 U.S. at 117. Second, the Court in no away implied that its holding was limited to pension benefits. Indeed, it appears that two of the three plans at issue in Firestone were not pension bene fit plans. See id. at 105. Fina lly, in adopting the "colorable claim" standard, the Firestone Court intende d to give meaning to the phrase "or may become eligible" for benefits as that phrase is used in 29 U .S.C. § 1002(7). Firestone, 489 U.S. at 117. But the full phrase in that section reads: "or may become eligible to receive a benefit of any

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type from an employee benefit plan." § 1002(7) (emphasis added). Defendants offer no reaso n why, despite this language, different standards should be applied for different types of benefits. For these reasons, the co urt will deny Defend ants' motio n to dism iss Count V of the C omp laint.

F. Adkins' Motion for Summary Judgment To the extent that Adkins has attemp ted to file a motion for summary judgment, she has failed to do so with sufficient clarity. FN14 Other than its title and a brief reference in its conclusion, Adkins' resp onse to Defend ants' motion to dismiss doe s little to suggest that she is seeking summ ary jud gment in her fav or. FN15 Although the above discussion suggests that Adkins may be able to assert meritorious arguments for summary judgment, her present request did not give Defendants sufficient notice that they needed to opp ose summary judgment at this time. FN16 Accordingly, to the extent Adkins has, in fact, moved for summary judgment, the court will deny her motion.

FN16. In their reply brief in suppo rt of their motion to dismiss, Defendants did not respond at all to Adkins' cursory request for summary judgment. For example, D efendants note that the medical records attached to Adkins' brief are not relevant to the reso lution of their motion to dism iss. W hile that is true, such records would be relevant to a pro perly filed motion for sum ma ry judgme nt. In the cou rt's view, the Defendants would have been wise to at least acknowledge the possibility that Adkins had m oved for summary jud gment. Neve rtheless, it would be incongruous to reject Defendants' exhaustion arguments on the basis of undue con fusion resulting from their claims administration procedures, yet grant Adkins' request for summary judgment desp ite undue confusion caused by the brief filed on her behalf. IV. CONCLUSION For the foregoing reasons, IT IS HEREBY ORDERED that: 1. D efe ndants' M otion to Dismiss the Complaint (D.I.12) is DEN IED; and

FN14. In resp onse to Defendants' motio n to dismiss, Adkins filed a document entitled: "Plain tiff Linda Adkins' Response in Opposition to Defendants' Motion to Dismiss Comp laint Pursuant to Fed eral Rule of C ivil Procedure 12(b)(6) Plaintiff's Motion for Summary Judgm ent." FN15. For example, the brief's introductory paragraph suggests that Adkins seeks nothing more than the denial of Defendants' motions to dismiss. The two section headings that refer to summary judgment do so cryptica lly, at best. See, e.g., Def's Opp'n Br. at 3 ("Guidelines for Substantive Review of C laim for Benefits (Summary Judg ment) in the M otion to Dismiss"). Further, the body of the brief neither cites Rule 56 of the Federal Rules of Civil Procedure nor states the standard of review on a m otion for sum mary judgm ent.

*12 2. Plaintiff's Motion for Summary Judgment (D.I.13) is DENIED. D.Del.,2000. Adkins v. Bell Atlantic Corp. Not Reported in F.Supp.2d, 2000 WL 1728368 (D.D el.) END OF DOCUMENT

© 2006 Tho mson/W est. No C laim to Orig. U .S. Govt. Wo rks.

Case 1:04-cv-01394-GMS

Document 158

Filed 02/14/2006

Page 29 of 59

Not Reported in F.Supp.2d No t Rep orted in F.Supp.2 d, 20 00 W L 13 512 9 (D .Del.) (Cite as: Not Reported in F.Supp.2d)

Page 1

Briefs and O ther Related Do cuments Only the Westlaw citation is currently available. United States District Court, D. Delaware. AU BR EY RO GE RS AG EN CY , INC ., Plaintiff, v. AIG LIFE INS UR AN CE CO MPA NY , Defendant. No. Civ.A.97-529 MM S. Jan. 13, 2000.

Pretrial Ord er, AR A identified citations from the transcript of Mr. W ise's deposition that it intended to offer into evid ence in lieu of Mr. W ise's live appearance at trial. On November 30, 1999, AIG filed a M otion in Limine to exclud e the depo sition testimony of George Wise. AIG argues that Mr. Wise's deposition testimony is inadm issible hearsay. ARA counters that the deposition testimony falls under two hearsay exceptions: Rule 804 of the Federal Rules of Evidence and Rule 32 o f the Federal Rules of Civil Procedure. For the reasons set forth infra, the Co urt will not permit ARA to introduce into evidence Mr. W ise 's deposition testimony in lieu of his live testimony at trial.

Jeffrey C. Wisler, of Connolly Bove Lodge & Hutz, L.L.P ., W ilmington, D elaware, Jeffrey H. M arsh, and Michael J. Filla, of M attingly & Marsh, L.L.P., Ho uston, T exas; for plaintiff, of co unsel. Stephen E. Jenk