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Barry Strawn v. Federal Express Corporation Long

August 31, 2011


The opinion of the court was delivered by: Oliver W. Wanger United States District Judge



Plaintiff Barry Strawn ("Plaintiff") proceeds with this action for long term disability benefits under the Federal Express Corporation Long Term Disability Plan ("Defendant" or "LTD Plan") pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"). Before the court is Plaintiff‟s motion to strike. Doc. 16. Defendant filed an opposition (Doc. 20), to which Plaintiff replied (Doc. 22). Also before the court is Plaintiff‟s motion regarding the standard of review (Doc. 15). Defendants filed an opposition (Doc. 19), to which Plaintiff replied (Doc. 23). Both motions were heard August 29, 2011.


Plaintiff was an employee of Federal Express Corporation ("Federal Express") and a participant in the LTD Plan. Doc. 1, ¶ 3. Plaintiff contends that he became "totally disabled" within the meaning of the LTD plan. Plaintiff made a claim for long-term disability benefits under the LTD Plan to Aetna Life Insurance Company ("Aetna"), the LTD Plan‟s claims paying administrator.

Id. at ¶¶ 6, 8. Aetna initially accepted and paid Plaintiff‟s claim for long-term disability benefits. Id. at ¶ 8. On May 17, 2010, Aetna denied Plaintiff‟s claim for continued benefits. Id. at ¶ 9. Plaintiff filed an appeal, which Aetna denied on November 10, 2010. Id. Plaintiff filed this lawsuit on December 6, 2010. Doc. 1.

The parties participated in a scheduling conference on June 2, 2011. Doc. 12. A scheduling conference order mandated: (1) Defendant to provide Plaintiff with the administrative record on or before June 15, 2011; (2) the parties to make initial disclosures on or before July 7, 2011; (3) the administrative record to be filed on or before July 7, 2011; and (4) either (i) the parties to agree on the appropriate standard of review by July 18, 2011, or (ii) Plaintiff to file a motion to determine the appropriate standard of review by July 18, 2011. Doc. 12, 6.


Plaintiff moves to strike: (1) the complete administrative record filed July 7, 2011; (2) Amendment to Service Agreement between Federal Express and Aetna dated September 1, 2008; and

(3) excerpts of the Summary Plan Description of the LTD Plan, attached as Exhibit A to the declaration of Robin Marsh, a Senior Paralegal in Federal Express‟ legal department declaration.


Federal Rule of Civil Procedure 26(a)(1)(A)(ii) provides that "a party must, without awaiting a discovery request, provide to the other parties . . . a copy--or a description by category and location--of all documents, electrically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment."

Fed. R. Civ. P. 26(a)(1)(A)(ii).

Federal Rule of Civil Procedure 37 "gives teeth" to Rule 26‟s disclosure requirements, and is a "self-executing," "automatic" sanction. Goodman v. Staples the Office Superstore, LLC , 644 F.3d 817, *24 (9th Cir. 2011). If a party fails to provide information in compliance with Rule 26(a), "the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c). The party facing sanctions for belated disclosure has the burden to show that its failure to comply with Rule 26 was justified or harmless. Yeti by Molly, Ltd. v. Deckers Outdoor Corp ., 259 F.3d 1101, 1107 (9th Cir. 2001).


1.Local Rule 251(b)

Defendant points out that Plaintiff has not satisfied the Eastern District of California Local Rule 251(b)‟s threshold requirement of conferring before filing a motion pursuant to Federal Rule of Civil Procedure 26. Local Rule 251(b) requires:

Except as hereinafter set forth, a motion made pursuant to Fed. R. Civ. P. 26 through 37, including any motion to exceed discovery limitations or motion for protective order, shall not be heard unless (1) the parties have conferred and attempted to resolve their differences, and (2) the parties have set forth their differences and the bases therefor in a Joint Statement re Discovery Disagreement. Counsel for all interested parties shall confer in advance of the filing of the motion or in advance of the hearing of the motion in a good faith effort to resolve the differences that are the subject of the motion. Counsel for the moving party or prospective moving party shall be responsible for arranging the conference, which shall be held at a time and place and in a manner mutually convenient to counsel.

E.D. Cal. R. 251(b). Plaintiff does not respond to Defendant‟s argument or address his failure to comply with Local Rule 251(b).

Plaintiff‟s motion to strike is DENIED for failure to comply with Local Rule 251(b). Even if Plaintiff had satisfied Local Rule 251(b), his motion to strike would be DENIED for the following reasons.

2. July 7, 2011 Administrative Record

Plaintiff moves to strike the 2,682-page administrative record filed July 7, 2011, almost two months after Defendant gave Plaintiff a 1,710-page administrative record. Plaintiff‟s counsel asserts that he spent a substantial amount of time scanning, organizing, and bookmarking the original administrative record, and that production of an entirely new record would unfairly result in substantial extra work. Plaintiff asks that the administrative record be reorganized with the original administrative record in front, followed by the new material.

The June 2, 2011 scheduling conference order required Defendant to give Plaintiff the administrative record on or before June 15, 2011. Doc. 12, 6. Federal Express received a 1,710-page administrative record from Aetna, and gave Plaintiff that version of the administrative record on May 11, 2011. On May 15, 2011, Plaintiff‟s counsel sent Federal Express a letter questioning the completeness of the administrative record.

Ms. Marsh declares that she then conducted a page-by-page review of the administrative record and confirmed that it was incomplete. Doc. 19-1, ¶ 17. Ms. Marsh declares that on Monday, May 16, 2011, she requested a complete copy of Plaintiff‟s appeal brief from Aetna, and was in contact with Aetna over the next several weeks to obtain a correct copy of the administrative record. Id. at ¶¶ 17-18. Ms. Marsh declares that Aetna compiled a correct copy of Plaintiff‟s appeal brief on or about June 27, 2011. Id. at ¶ 19. Ms. Marsh declares that she: (1) manually bates-labeled the administrative record on June 27 and 28, 2011; (2) sent a paper copy to Aetna for final review on June 29, 2011, Id. at ¶ 22; (3) redacted the administrative record on July 5, 2011; (4) and made two copies of it on July 6, 2011, Id. at ¶ 25. Defendant filed a paper copy of the administrative record on July 7, 2011. Doc. 13. Ms. Marsh declares and provides documentation that the administrative record was sent via overnight delivery to Plaintiff‟s counsel on July 7, 2011 and was received July 8, 2011. Id. at ¶ 27-28. Plaintiff‟s counsel declares that he did not "see" the administrative record until Sunday, July 10, 2011. Doc. 16-1, ¶ 25.

Defendant provided Plaintiff with what it believed was the administrative record thirteen days before the June 15, 2011 deadline, and took steps to obtain the complete record when it learned that it did not possess the complete record. The Federal Rules of Civil Procedure recognize that parties must often supplement or correct their initial disclosures "in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect." Fed. R. Civ. P. 26(e)(1)(A). Defendant timely filed a complete copy of the administrative record on July 7, 2011, and provided Plaintiff with the complete administrative record July 8, 2011, ten days before the deadline to determine, or file a motion to determine, the proper standard of review. There is no evidence that Defendant was at fault for the delay in providing Plaintiff the complete administrative record. Defendant has provided evidence that the incomplete record resulted from a malfunction at Aetna‟s facility. Plaintiff does not point to any provision in ERISA or federal law that authorizes an order instructing Defendant to reorganize the evidentiary record for Plaintiff‟s convenience.

There is no evidence that the delay in providing the complete administrative record was prejudicial. If necessary, the parties could have requested an extension of time to file ...

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