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Swenson v. Eldorado Casino Shreveport Joint Venture

United States District Court, W.D. Louisiana, Shreveport Division

April 7, 2017





         Before the Court are two motions to dismiss, filed by Defendant Eldorado Casino Shreveport Joint Venture (“Eldorado”) [Record Document 61] and Defendant United of Omaha Life Insurance Co. (“United of Omaha”) [Record Document 62], and a motion to strike affidavits filed by Plaintiff Katheryn Swenson [Record Document 69]. These are the third motions to dismiss filed by these Defendants. Previously, the Court dismissed all claims against Defendant Lincoln National Life Insurance Co., but was unable to consider motions to dismiss by United of Omaha and Eldorado because the Court lacked the necessary information to determine whether Plaintiff's claims are governed by ERISA, and therefore whether this Court had subject matter jurisdiction. Defendants have now re-urged their motions with additional supporting evidence of jurisdiction under ERISA. These motions incorporate the earlier motions to dismiss brought by each Defendant. Record Documents 17, 18, 45, 51.

         For the reasons discussed below, Defendant Eldorado's motion to dismiss [Record Document 61] and Defendant United of Omaha's motion to dismiss [Record Document 62] are GRANTED. Plaintiff's state law claims against both Defendants are dismissed with prejudice as preempted by ERISA. Plaintiff's claim for denial of benefits under ERISA is dismissed without prejudice for failure to exhaust administrative remedies. Plaintiff's claims for equitable relief under ERISA and her claim for violation of COBRA are dismissed with prejudice. Plaintiff's motion to strike affidavits [Record Document 69] is DENIED. Plaintiff's motion to conduct discovery [Record Document 76] is DENIED as moot.

         I. Background

         The facts in this matter have been amply stated in the Court's earlier opinions. Record Documents "35, 60. Plaintiff's amended complaint alleges six state law claims against the remaining Defendants: negligence, equitable estoppel, detrimental reliance, "negligence in law/negligence per se, '' bad faith, and breach of contract. Record Document 36, pp. 10-17. Plaintiff further alleges thirteen "federal causes of action" against these Defendants, entitled: breach of fiduciary duty under ERISA, Conversion/Portability/Continuation/Eligibility Waiting Period rights, detrimental reliance, promissory estoppel or equitable estoppel, futility of administrative appeals, reformation, breach of fiduciary duty by misrepresentation of plan terms, injunctive relief, declaratory judgment relief, attorney fees, unjust enrichment, discovery sought for complete administrative record, and an "uninsured status claim against Eldorado, " which is essentially a restatement of her breach of fiduciary duty claim. Id., pp. 18-46; Record Document 67, p. 24 ("This claim pleads Eldorado violated its fiduciary duties under ERISA...").

         As the Court has noted previously, injunctive relief, attorney's fees, and discovery are not stand-alone causes of action, and are treated as part of Plaintiff's prayer for relief. Record Document 60, p. 4. The remaining federal claims essentially fall into two categories: denial of benefits under ERISA, and claims for equitable remedies under ERISA.

         II. Discussion

         A. Standard of Review

         In order to survive a motion to dismiss under Rule 12(b)(6), a plaintiff's complaint must "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "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. at 678. In determining whether the plaintiff has stated a plausible claim, the court must construe the complaint in the light most favorable to the plaintiff, see In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 210 (5th Cir. 2010), and accept as true all of the well-pleaded factual allegations in the complaint. See Bell Ath Corp. v. Twombly, 550 U.S. 544, 555 (2007); In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2009). However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. Thus, the Court does not have to accept as true "conclusory allegations, unwarranted factual inferences, or legal conclusions." Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005).

         Plaintiff devotes several pages of her opposition to these motions to the argument that the plan should be construed in her favor, and several more to a section she labels "Uncontested Facts/7 Record Document 68, pp. 4-11. She also argues that "there are questions of fact" that warrant denial of the motions to dismiss. Ig\, p. 16. The Court notes that, at this stage, no substantive question of construction of the plan has been reached, nor does the Court inquire into disputes of fact. As discussed above, the standard of review for a motion to dismiss requires the Court to accept all of Plaintiff's factual allegations as true.

         B. Motion to Strike Affidavits

         At the outset, the Court considers Plaintiff's motion to strike Defendants' affidavits. As discussed below in more detail, in order to establish jurisdiction under ERISA, Defendants must show that the benefit arrangement at issue in this case is an ERISA plan. In order to make this showing, Defendants submitted two affidavits, one from an employee of Eldorado and one from an employee of United of Omaha, setting out the administration, funding, and maintenance of the United of Omaha policy issued to Eldorado. Record Documents 61-1, 62-2.

         A motion to strike may be brought under Rule 12(f) to strike matter that is "redundant, immaterial, impertinent, or scandalous." Fed.R.Civ.P. 12(f)- Plaintiff does not contend that the affidavits are any of these things, instead objecting that the affidavits cannot be submitted because the Court is required to consider only the administrative record, and that Renee Turco's affidavit, submitted by United of Omaha, contains the impermissible legal conclusion that Plaintiff failed to exhaust her administrative remedies and other factual conclusions. Record Document 69-1. In support of her argument as to the administrative record, Plaintiff cites a First Circuit case in which the district court excluded from consideration an affidavit of a physician written several weeks after an insurer's denial of coverage. Lopes v. Met. Life Ins. Co., 332 F.3d 1 (1st Cir. 2003). The district court was conducting a substantive review of the plan administrator's decision, and the court of appeals confirmed that it was proper for the district court to only consider the administrative record that was available to the plan administrator at the time of its decision, and not an additional affidavit submitted weeks later. 14 That is not the analysis the Court undertakes here. The Court has not reached any substantive review of the plan administrator's decision, and the affidavits are not related to the administrative record. Defendants ...

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