United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
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
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.
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.
REQUEST FOR APPOINTMENT OF COUNSEL
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.
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.
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
MOTION TO DISMISS
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.
Standards Under Rule 12(b)(6)
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).
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.”
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).
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).
same standards apply where, as here, defendant moves to
dismiss based upon the affirmative defense of
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).
Breach of Fiduciary Duty Claim
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.
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 §§ 1101 et
seq.], or with respect to a violation of this part [29 ...