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Polly A. Smith v. Unum Life Insurance Company of America

November 22, 2011

POLLY A. SMITH,
PLAINTIFF,
v.
UNUM LIFE INSURANCE COMPANY OF AMERICA; CHEVRON TEXACO CORPORATION EMPLOYEE WELFARE BENEFIT PLAN, DEFENDANTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Plaintiff, Polly A. Smith, brought suit against Defendants UNUM Life Insurance Company of America and Chevron Texaco (collectively referred to as "Defendants") alleging unlawful denial of disability benefits. This Court dismissed the case for failure to comply with Fed. R. Civ. P. 4(m) and Local Rule 4-210(b), and for failure to file a Joint Status Report and a Response to an Order to Show Cause.

Presently before the Court is Plaintiff's motion to re-open the case pursuant to Fed. R. Civ. P. 60.*fn1 For the reasons set forth below, Plaintiff's motion, made some three and-a-half years after the matter was originally dismissed, is DENIED.*fn2

BACKGROUND

The facts of the case are undisputed.*fn3 Plaintiff worked for Chevron Texaco Corporation in California for nineteen years as a fire security specialist.

In 1987 while fighting a fire, Plaintiff was injured. As a result of the injury, Plaintiff became disabled and was reassigned to a job as a communication specialist where she remained until March 2003.

In or around March 2003, Plaintiff's physician determined that Plaintiff was permanently and totally disabled. Chevron Texaco provided Plaintiff with short-term disability coverage through UNUM Insurance Company of America (UNUM).

After the short-term plan expired, Plaintiff applied for long-term disability. In or around December 2004, UNUM sent Plaintiff a letter denying Plaintiff's request.

Shortly thereafter, Plaintiff retained attorney Sara Ray to file a complaint. After sending Ray a retainer and signed authorization, Plaintiff did not hear from Ray for several months. Plaintiff called for an update, at which point Ray stated she was preparing the complaint. A month later, Plaintiff again contacted Ray for an update. Ray told Plaintiff she filed the complaint. Plaintiff later found out that, in fact, Ray had not filed the complaint at that time. Court records indicate that Ray did not file the complaint until December 2006. It is unclear from the record, however, when Ray falsely told the Plaintiff she had filed the complaint.

Plaintiff then started a pattern of calling Ray once a month. Ray generally assured Plaintiff that the case was on track and that they were waiting to hear back from the court. Ray, however, did not attempt to solicit information or additional facts from the Plaintiff.

In or around March 2007, having grown tired of the lack of information, Plaintiff asked Ray to explain the details of the case and how much she was suing for. Ray explained that they were still waiting to hear back from the court, and that they would talk "dollars and cents" at a later time. Plaintiff continued her pattern of calling once a month.

In or around July 2008, Plaintiff moved to Tennessee to be closer to family because of health concerns. By that time, Ray had stopped returning Plaintiff's phone calls. Plaintiff decided to contact Ray's law partner, Mr. Altman. Mr. Altman, however, told Plaintiff he could not speak about the case.

Plaintiff asked a friend of hers to contact Ray. Her friend called Ray from her work number and Ray answered the phone. Ray explained that the case was on track and that she would call Plaintiff in a few days. Ray then called Plaintiff and assured her everything was fine.

At that point, Plaintiff states that she "was not very confident." So she asked Ray to send her the documents filed with the ...


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