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Zelhofer v. Metropolitan Life Insurance Co.

United States District Court, E.D. California

March 28, 2017




         Plaintiff is proceeding in this action pro se, and the case was accordingly referred to the undersigned by Local Rule 302(c)(21). Defendants' Motion to Dismiss, ECF No. 52, came before the undersigned for hearing on January 25, 2016. Plaintiff appeared at the hearing in pro se, and Defendants were represented by attorney Robert E. Hess. For the reasons set forth below, the court will recommend that Defendants' Motion to Dismiss be granted in part and denied in part. Plaintiff's Motion for Appointment of Counsel, ECF No. 45, is also before the court and will be denied.

         I. BACKGROUND

         According to the First Amended Complaint (“FAC”), ECF No. 49, Plaintiff became disabled following two consecutive heart procedures on October 1, 2009. As a consequence of his “primary physical disability of heart disease, ” plaintiff developed the “secondary mental disorder of severe depression, anxiety and hopelessness with thoughts of suicide.” Id. at 32. As an employee of Thompson Inc., predecessor to Technicolor USA, Inc. (“Technicolor”), Plaintiff was a participant in their Long Term Disability Insurance Plan (the “Plan”). The Plan, which is funded through a group insurance policy issued by Metropolitan Life Insurance Company (“Met life”), provides benefits to all eligible employees. Met life is also the claims administrator of Plaintiff's Plan. On March 27, 2010, Plaintiff was approved for long term disability benefits. Plaintiff received benefits for almost two years until they were terminated on March 22, 2012, pursuant to a two-year benefits limitation for mental disorders. On June 6, 2012, Plaintiff appealed Met life's determination for denial of benefits. In a letter dated October 11, 2012, Met life affirmed its decision to deny Plaintiff benefits. Plaintiff was later offered a “courtesy review” which was completed on January 15, 2013.


         Plaintiff filed this action in state court on March 7, 2016, asserting state law causes of action, and the case was subsequently removed to federal court. ECF No. 1. Plaintiff's motion for remand was denied on grounds that this benefits-related dispute is governed by the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001, et seq., and therefore comes within the exclusive jurisdiction of the federal courts. ECF No. 42. The original complaint was dismissed on statute of limitations grounds, and Plaintiff was granted leave to amend in order to allege facts to support a theory of timeliness. ECF No. 42.


         Plaintiff has requested the appointment of counsel. ECF No. 45. The district court “may request an attorney to represent any person unable to afford counsel, ” where willing counsel is available. 28 U.S.C. § 1915(e)(1); Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004), cert. denied, 545 U.S. 1128 (2005).

         The district court may appoint such counsel where “exceptional circumstances” exist. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009), cert. denied, 559 U.S. 906 (2010) (citing Agyeman, 390 F.3d at 1103). In determining whether or not exceptional circumstances exist, “a court must consider ‘the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.'” Palmer, 560 F.3d at 970 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). Circumstances common to most pro se litigants, such as lack of formal legal education, do not establish exceptional circumstances that would warrant a request for voluntary assistance of counsel.

         Having considered the factors under Palmer, the court finds that Plaintiff has failed to meet his burden of demonstrating exceptional circumstances warranting the appointment of counsel at this time. Accordingly, the motion will be denied without prejudice.


         An ERISA action must be dismissed as untimely if (1) it is time barred by the applicable statute of limitations, or (2) it is contractually barred by the limitations provision in the Plan's policy. Withrow v. Bache Halsey Stuart Shield, Inc., 655 F.3d 1032, 1035 (9th Cir. 2011) (citing Wetzel v. Lou Ehlers Cadillac Group Long Term Disability Ins. Program, 222 F.3d 643 (9th Cir. 2000) (en banc)). Here defendants contend that the complaint is barred both by the applicable statute of limitations for ERISA claims and by the Plan's contractual limitations provision.

         A. Standards Under Rule 12(b)(6)

         The purpose of a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

         In order to survive dismissal for failure to state a claim, a complaint must contain more than a “formulaic recitation of the elements of a cause of action;” it must contain factual allegations sufficient to “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). It is insufficient for the pleading to contain a statement of facts that “merely creates a suspicion” that the pleader might have a legally cognizable right of action. Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-35 (3d ed. 2004)). Rather, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         In reviewing a complaint under this standard, the court “must accept as true all of the factual allegations contained in the complaint, ” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Twombly, 550 U.S. at 555-56), construe those allegations in the light most favorable to the plaintiff, Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010) (citing Twombly, 550 U.S. 544), cert. denied, 131 S.Ct. 3055 (2011), and resolve all doubts in the plaintiffs' favor. Hebbe v. Pliler, 627 F.3d 338, 340 (9th Cir. 2010) (citing Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738 (1976)). The court need not accept as true, legal conclusions “cast in the form of factual allegations.” Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

         Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that plaintiff can prove no set of facts in support of the claim that would entitle him to relief. See Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011).

         The same standards apply where, as here, defendant moves to dismiss based upon the affirmative defense of untimeliness.[1]

Dismissal under Rule 12(b)(6) on the basis of an affirmative defense is proper only if the defendant shows some obvious bar to securing relief on the face of the complaint. If, from the allegations of the complaint as well as any judicially noticeable materials, an asserted defense raises disputed issues of fact, dismissal under Rule 12(b)(6) is improper.

ASARCO, LLC v. Union Pacific R. Co., 765 F.3d 999, 1004 (9th Cir. 2014) (citations omitted); see also, Jones v. Bock, 549 U.S. 199, 215 (2007) (“[w]hether a particular ground for opposing a claim may be the basis for dismissal for failure to state a claim depends on whether the allegations in the complaint suffice to establish that ground”). A complaint may not be dismissed unless “it appears beyond doubt that the plaintiff can prove no set of facts that would establish the timeliness of the claim.” Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206-07 (9th Cir. 1995).

          B. Breach of Fiduciary Duty Claim

         Both parties proceed on the assumption that plaintiff's “breach of fiduciary duty” claim arises under 29 U.S.C. §§ 1101 e seq., and accordingly is governed by ERISA's internal statute of limitations for such claims, § 1113. Because the motion before the court attacks only the timeliness of the complaint, the undersigned does not address the question whether plaintiff's allegations substantively state a claim under ERISA's fiduciary duty provisions.[2]

         Section 1113 provides as follows:

Limitation of actions
No action may be commenced under this title with respect to a fiduciary's breach of any responsibility, duty, or obligation under this part [29 USCS ยงยง 1101 et seq.], or with respect to a violation of this part [29 ...

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