Opinion
Case No. 10-4109 SC
01-24-2012
RUSSELL L. DEMAN, Plaintiff, v. ALLIED ADMINISTRATORS, INC., NORTHERN CALIFORNIA TILE INDUSTRY TRUST FUNDS, SHARON TURNER, and LINDA MARTINEZ, Defendants.
ORDER RE: DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS OR SUMMARY
JUDGMENT, DEFENDANTS' MOTION TO STRIKE, AND DEFENDANTS' EX PARTE
APPLICATION TO VACATE JURY TRIAL AND SET CASE FOR BENCH TRIAL
I. INTRODUCTION
This case concerns claims arising under the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 et seq. ("ERISA"), brought by Plaintiff Russell L. Deman ("Plaintiff" or "Deman") against Defendants Allied Administrators, Inc., Northern California Tile Industry Trust Funds, Sharon Turner, and Linda Martinez (collectively, "Defendants"). The FAC asserts three claims: (1) denial of benefits under 29 U.S.C. § 1132(a)(1)(B);(2) breach of fiduciary duty under § 1132(a)(2); and (3) delay in providing required information under § 1132(c)(1)(B).
All further statutory citations refer to Title 29 of the United States Code.
Defendants move for judgment on the pleadings with respect to the second and third claims and summary judgment with respect to the first claim. ECF No. 27 ("Mot."). Defendants also move for an award of attorney fees and costs. Id. Separate from the present motion, Defendants have filed (1) an ex parte application to vacate the jury trial scheduled for this case and set it for bench trial, ECF No. 37, and (2) a motion to strike portions of Plaintiff's declaration supporting his opposition brief, ECF No. 32.
Pursuant to Civil Local Rule 7-1(b), the Court finds this case suitable for decision without oral argument. For the reasons set forth below, the Court GRANTS Defendants' motion for judgment on the pleadings, GRANTS Defendants' motion for summary judgment, and DENIES AS MOOT Defendants' ex parte application and motion to strike. Consistent with Ninth Circuit precedent, Plaintiff's first claim is DISMISSED WITHOUT PREJUDICE and not on the merits, and his second and third claims are DISMISSED WITH PREJUDICE.
II. BACKGROUND
A. The Parties
Plaintiff Russell Deman began working for a tile company in 1956. ECF No. 18 ("FAC") § 5. No later than the end of 1961 he had joined a union and begun to participate in its pension plan. Mot. at 2. That pension plan has become, through a series of mergers, Defendant Northern California Tile Industry Pension Plan ("Plan"), a defined benefit plan governed by ERISA. Id.
For purposes of a motion for judgment on the pleadings, all of the nonmovant's factual allegations must be taken as true. Nevertheless, Plaintiff's FAC is no model of clarity. Solely to provide background, the Court supplements the FAC's allegations with the account contained in Defendant's Motion, which in turn is derived from the administrative record. The administrative record consists of exhibits attached to the declaration of Polly Baney.
ECF No. 28 ("Baney Decl.") and Exs. 16 ("AR").
For purposes of a summary judgment motion, the Court not only may consider evidence outside of the pleadings, but must consider the administrative record. See, e.g., Graeber v. Hewlett Packard Co. Employee Benefits, 421 F. Supp. 2d 1246, 1252 (N.D. Cal. 2006). The Court is cognizant of Plaintiff's numerous objections to Baney's declaration and its exhibits. ECF No. 29; Opp'n at 213. They are not wellfounded. To the extent that Plaintiff objects to Baney's declaration for lack of personal knowledge, the objection is OVERRULED. The declaration itself establishes Baney's personal knowledge that the documents constitute the administrative record of Deman's case. Federal Rule of Evidence ("FRE") 603. To the extent that Plaintiff objects to the exhibits attached to Baney's declaration as hearsay, the objection is OVERRULED. The exhibits are business records and Baney is their custodian. FRE 804(6). To the extent that Plaintiff objects to Baney's declaration on the ground that she offers expert testimony without having been qualified as an expert, the objection is OVERRULED. Baney's declaration is not expert in nature. To the extent that Plaintiff objects to lay opinions and legal conclusions contained in Baney's declaration, the objection is SUSTAINED. The Court has not considered Baney's lay opinions or legal conclusions.
The Plan is administered by a Board of Trustees, currently the board of Defendant Northern California Tile Industry Trust Funds ("Board"). Id. The Board employs Defendant Allied Administrators to manage the Plan. Id. Defendants Sharon Turner ("Turner") and Linda Martinez ("Martinez") are employees of Allied Administrators. Baney Decl. § 51. Turner signed a November 17, 2009, letter stating that Plaintiff was ineligible for benefits. AR at 81. In that letter, she indicated that Plaintiff's counsel could call her or Martinez with any questions. Id.
B. The Dispute
In September 1992, Deman wrote a letter to his pension plan, a forerunner of the current Plan, seeking information about his retirement and pension benefits. Neither party has come forward with a copy of Deman's letter, but it is clear that the plan sent him a letter in response ("the 1992 Letter"), informing him that he was not eligible for benefits at that time. AR at 85; see also FAC ¶ 6. The 1992 letter explained that Deman's pension benefit would vest after he accumulated 15 credits. Participants earned credits by working for a qualifying union employer a certain number of hours per year; the employer then reported the hours to the plan. The 1992 letter explained that due to breaks in service -- that is, periods of consecutive years in which no employer reported hours to the plan for Deman -- all of Deman's credits had been lost. It also stated that Deman could still qualify for a pension if he "return[ed] to covered employment." AR at 86. The letter purported to enclose documents describing "the procedures you should follow if you wish to appeal this decision." Id.
Plaintiff appears to have taken no further action until August 31, 2009, when his attorney faxed a letter to Martinez stating that he represented Deman and requesting a copy of Deman's work record and information about his pension eligibility. Id. at 84. On November 17, 2009, Turner responded, asserting that the 1999 letter was correct and that if Deman "does not agree with the record provided and has supporting written documentation, please provide [it]." Id. at 81. The administrative record does not disclose that Deman did so before filing this lawsuit in August 2010, nor does he allege that he did.
C. The Claims
In a previous order dismissing Deman's initial Complaint, the Court set forth the procedural history of this case's initial filing in state court and subsequent removal to federal court. See ECF No. 16 ("Order"). Plaintiff filed the First Amended Complaint on January 13, 2011. ECF No. 18. Defendants filed an Answer on January 24, 2011. ECF No. 20 ("Answer").
In an apparent clerical error, Defendants filed two documents designated as Answers to the First Amended Complaint. The Court considered only the second-filed document, ECF No. 20.
Because Defendants move for judgment on the pleadings, and Plaintiff's FAC is less than clear, the Court reviews the FAC's claims here. In doing so, the Court is mindful that "[s]pecific legal theories need not be pleaded so long as sufficient factual averments show that the claimant may be entitled to some relief." Young v. City of Visalia, 687 F. Supp. 2d 1141, 1145 (E.D. Cal. 2009) (quoting Fontana v. Haskin, 262 F.3d 871, 877 (9th Cir. 2001)); see also Ronald J. Cook, 2 ERISA Practice and Procedure § 8:8 ("[C]ourts generally examine actions for benefits with some liberality and do not hesitate to look behind the allegations of the pleadings to see if an action . . . can be stated.").
The FAC asserts, first, that the present action arises under ERISA — specifically, under §§ 1132(a)(1)(B) and 1132(c). FAC 1 1. Section 1132(a)(1)(B) provides:
A civil action may be brought . . . by a participant or beneficiary . . . to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan[.]
Section 1132(c) primarily describes the powers of the Secretary of Labor (as opposed to private individuals) to issue fines for a plan's failure to supply requested information. However, one subsection, § 1132(c)(1)(B), provides plan participants with a right to recover statutory damages for a plan administrator's failure to supply requested information "within 30 days after such request . . . ." § 1132(c)(1)(B). Although Deman does not specify that his claim for relief arises from § 1132(c)(1)(B), he alleges in his FAC that he requested information from Defendants on August 31, 2009, and that Defendants failed to respond until December 2, 2009. FAC 55 7, 8, 18, 19. On the basis of those facts, the Court construes the pleading as asserting a claim under § 1132(c)(1)(B).
The subsection sets forth various additional terms, only one of which is relevant here: it makes the award of damages or other relief under this subsection a matter of discretion for the district court. See § 1132(c)(1)(B). As discussed in Section IV.C, infra, district courts generally require a § 1132(c)(1)(B) claimant to show prejudice. See Kaiser Permanente Employees Pension Plan v. Bertozzi, 849 F. Supp. 692, 702 (N.D. Cal. 1994).
Defendants assume that, in addition to the two claims Deman expressly asserts, Deman also has asserted a claim for breach of fiduciary duty arising under either § 1132(a)(2) or § 1132(a)(3). See Mot. at 10-12; see also FAC §§ 13, 14. Any such claim would have to be implied from the pleading since the FAC does not mention §§ 1132(a)(2) or 1132(a)(3).
The Court construes the FAC as intending to allege a claim under § 1132(a)(2) but not under § 1132(a)(3). Section 1132(a)(2) provides that a plan participant may sue for appropriate relief under § 1109. Section 1109, in turn, provides in relevant part:
Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this subchapter shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate, including removal of such fiduciary.The Court notes that Plaintiff prays for general and special damages, which is not inconsistent with the remedial scheme contemplated by § 1109 and hence with a § 1132(a)(2) claim. Cf. Wise v. Verizon Commc'ns, Inc., 600 F.3d 1180, 1190 (9th Cir. 2010) (interpreting putatively equitable claim for recovery of past and future benefits as one for money damages). Accordingly, the Court construes the FAC as alleging a claim under § 1132(a)(2).
Section 1132(a)(3), on the other hand, is a "catchall or safety net" provision providing equitable relief, and only equitable relief, for breaches of fiduciary duty not otherwise remedied by ERISA. Id. at 1190. Plaintiff does not pray for equitable relief; he seeks only money damages. FAC at 6-7 (prayer for relief). "Money damages are the classic form of legal relief, and are not an available remedy under ERISA's equitable safety net." Wise, 600 F.3d at 1190 (internal quotation marks omitted). Because Deman's FAC does not expressly assert a claim under § 1132(a)(3) or seek the relief contemplated there, the Court does not construe the FAC to assert a § 1132(a)(3) claim.
To summarize, the Court finds that the FAC asserts the following three ERISA claims against Defendants:
(1) for general and special damages under § 1132(a)(1)(B);
(2) for general and special damages under § 1132(a)(2); and
(3) for statutory damages under § 1132(c)(1)(B).
III. Legal Standards
A. Judgment on the Pleadings
"After the pleadings are closed -- but early enough not to delay trial -- a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). "Judgment on the pleadings is proper when the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law." Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1990). Moreover, the pleading must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Johnson v. Rowley, 569 F.3d 40, 44 (2d Cir. 2 009); see also Cafasso, U.S. ex rel. v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1055 n.4 (9th Cir. 2011) (citing Johnson with approval).
"Judgment on the pleadings is improper when the district court goes beyond the pleadings to resolve an issue; such a proceeding must properly be treated as a motion for summary judgment." Id.; see also Fleming v. Pickard, 581 F.3d 922, 925 n.4 (9th Cir. 2009) (refusing to consider supporting declarations in deciding motion for judgment on the pleadings).
B. Summary Judgment
Entry of summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The district court may consider only evidence that would be admissible at trial. See Fed. R. Civ. P. 56(c)(2). Summary judgment should be granted if the evidence would require a directed verdict for the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). Thus, "Rule 56[] mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255. However, "[t]he mere existence of a scintilla of evidence in support of the [nonmovant]'s position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant]." Id. at 252.
IV. DISCUSSION
A. Deman's § 1132(a)(1)(B) Claim for Denial of Benefits
As explained in Section II.C supra, the FAC asserts a § 1132(a)(1)(B) claim. On that claim, Defendants move for summary judgment rather than judgment on the pleadings. Mot. at 12.
Defendants argue that they are entitled to summary judgment because (1) Deman's claim is both statutorily and contractually time-barred as a result of the 1992 letter; (2) Deman has failed to file a formal claim and thus failed to exhaust his administrative remedies; and (3) the 1992 letter constituted a reasonable decision that Deman cannot successfully challenge under the "arbitrary and capricious" standard of review. See id. at 12. As set forth below, the Court needs only to address the first two.
i. The Court Cannot Determine as a Matter of Law that Deman's Claim for Benefits Is Time-Barred.
Defendants argue that Deman's claims are both statutorily and contractually time-barred. As the Ninth Circuit recently explained in Withrow v. Halsey, 655 F.3d 1032, 1035 (9th Cir. 2011), the two bars are distinct. The statutory time bar arises from cases interpreting ERISA. Id. The contractual time bar imposes a second, distinct time limitation which arises as a matter of contract from the limitations term in the claimant's policy. Id. The statutory time limitation for claims arising in California, as Deman's have, is four years. Id. at 1036.
Defendants have not carried their burden of showing that Deman's claims are time-barred. With respect to the statutory time bar, Defendants must make a preliminary showing that Deman's § 1132(a)(1)(B) claim "accrued" -- that is, that the statute of limitations has started to run. Defendants argue, apparently referencing the 1992 letter, that Deman's claim "accrued, if at all, in 1992 . . . ." Mot. at 14.
The matter is not nearly so clear-cut. The Withrow court explained that
[a]n ERISA cause of action accrues either at the time benefits are actually denied, or when the insured has reason to know that the claim has been denied. A claimant has a "reason to know" under the second prong of the accrual test when the plan communicates a clear and continuing repudiation of a claimant's rights under a plan such that the claimant could not have reasonably believed but that his or her benefits had been finally denied.655 F.3d at 1036 (citations and quotation marks omitted). Defendants do not argue that Deman's claim for benefits has been "actually denied," and such a position would be inconsistent with their argument that Deman never submitted a claim, see Section IV.A.ii infra. Instead, Defendants appear to rest their argument on the "reason to know" prong. But it is far from obvious that the 1992 letter communicated a clear and continuing repudiation of Deman's rights such that he could reasonably believe only that his benefits had been finally denied. The 1992 letter said that it was "still possible for [Deman] to qualify for a pension . . . ." AR at 86. The Court cannot say that this language communicates a "clear" repudiation of Deman's rights, tantamount to a final denial of benefits. On the contrary, the 1992 letter informed Deman that he could still qualify for benefits.
Moreover, the Court cannot find a "continuing" repudiation on the basis of one letter. Defendants cite out-of-circuit authority for the proposition that "a" repudiation (that is, any repudiation) suffices to trigger ERISA's statutory time bar. Reply at 8. Such a test would omit the Ninth Circuit's requirement of a "continuing" repudiation. Defendants do not approach the requisite evidentiary showing of a clear and continuing repudiation. Thus, on the record before it, the Court cannot say that Deman's § 1132(a)(1)(B) claim accrued in 1992 for the purposes of the statutory four-year bar.
Nor can the Court find on this record that no genuine dispute exists concerning which iteration of the plan policy covered Deman in 1992. On a motion for summary judgment, "[w]here the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant." Dias v. Nationwide Life. Ins. Co., 700 F. Supp. 2d 1204, 1214 (E.D. Cal. 2010). The contractual bar Defendants seek to impose here is an affirmative defense, Answer § 23, and as such Defendants would bear the burden of proving it at trial. See Barnes v. AT&T Pension Ben. Plan-Nonbargained Program, 718 F. Supp. 2d 1167, 1174-75. Thus, to win summary judgment on this point, Defendants must "affirmatively demonstrate" that the applicable policy bars Plaintiff's claim.
Defendants have yet to make the prerequisite showing of which policy applies. They assert that the 1992 letter contained a copy of the benefits appeal procedures then in effect, denominated "Article X of the Plan." Mot. at 6 (reciting Baney Decl. ¶ 34). But nowhere do they demonstrate that this was the policy then in effect. Drawing inferences favorably to Deman, as required on summary judgment, Defendants can be read to equivocate on this point, in that they provide alternate calculations under two different iterations of the plan. See id. If evidence in the administrative record establishes which version of the policy applies, Defendants do not cite to it. On summary judgment, "[t]he court need consider only the cited materials . . . ." Fed. R. Civ. P. 56(c)(3). The cited materials do not affirmatively demonstrate which version of the plan relied upon by Defendants, if either, actually controlled in Deman's case.
Deman has every right to put Defendants to the proof of their affirmative defense and Defendants have not carried their burden. Accordingly, the Court cannot say on the record before it that Deman's claim for benefits is time-barred.
ii. Deman Has Not Exhausted His Administrative Remedies.
It is axiomatic that, before suing under § 1132(a)(1)(B), an ERISA claimant must challenge the denial of his or her benefits by filing a claim and exhausting the internal administrative review processes provided by his or her plan. Diaz v. United Agr. Employee Welfare Ben. Plan and Trust, 50 F.3d 1478, 1483 (9th Cir. 1995). Exceptions to the exhaustion doctrine exist where a claimant can show, in a demonstration that goes beyond bare assertion, that the administrative remedies are inadequate or that exhaustion would be futile. See id. at 1485-87.
Defendants argue that Deman has not exhausted his administrative remedies for the elementary reason that he has yet to file a claim pursuant to the Plan's claim procedures. MTS at 12-14. The Court agrees. The relevant material facts here are that Deman is a plan participant, that the plan provided administrative remedies, and that Deman has not availed himself of them. The first two facts are undisputed. As to the third, Deman presents no evidence that he has ever filed a claim. The only evidence Deman has offered in this case is his own declaration in support of his opposition brief. See ECF No. 30 ("Deman Decl.").Plaintiff's opposition brief addresses Defendants' exhaustion argument, but the declaration is silent as to the existence of a formal claim. This silence is consistent with the administrative record's lack of any documents suggesting the existence of a claim, let alone an appeal. The only justifiable inference is that Deman has never availed himself of the Plan's administrative remedies.
Deman's declaration contains legal argument and opinion, both of which the Court disregards. Given the ultimate disposition of this case, Defendants' motion to strike portions of Deman's declaration and its exhibits, ECF No. 32, is DENIED AS MOOT.
Deman will have an opportunity to do so. Though Defendants have moved for summary judgment, the proper motion on which to raise a claimant's failure to exhaust nonjudicial remedies is an unenumerated Rule 12 motion to dismiss. Wyatt v. Terhune, 315 F.3d 1108, 1119-1120 (9th Cir. 2003). Under that procedure, the appropriate resolution of a § 1132(a)(1)(B) claim like Deman's is to dismiss it as unripe -- without prejudice and not on the merits -- to permit the claimant to develop a factual record and file a formal claim with his pension plan. Foster v. Blue Shield of California, No. CV 05-03324 DDP, 2009 WL 1586039, at *4 (C.D. Cal. June 3, 2009). Therefore, the Court GRANTS Defendants' summary judgment motion with respect to Deman's § 1132(a)(1)(B) claim and dismisses that claim without prejudice. This dismissal does not operate as an adjudication on the merits. Wyatt, 315 F.3d at 1119.
The unenumerated Rule 12 motion is "a procedure closely analogous to summary judgment." Wyatt, 315 F.3d at 1120 n.14. Perceiving no difference between the two procedures in this case, the Court has considered Defendants' summary judgment motion as written.
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The Court does not reach Defendants' argument that the 1992 letter constituted a reasonable final determination of Deman's entitlement to pension benefits.
B. Deman's § 1132(a)(2) Claim for Breach of Fiduciary Duty
With respect to Deman's second claim, Defendants move for judgment on the pleadings rather than summary judgment. The Court therefore confines itself to reviewing only the FAC and the Answer. Deman's second claim asserts that by denying benefits to Deman, Defendants have breached fiduciary duties allegedly owed to him. FAC § 13. Defendants respond that none of the Defendants owe Deman any fiduciary duties and that, even if they did, Deman's claim under § 1132(a)(2) must fail because Deman is suing on his own behalf rather than to recover losses incurred by the Plan itself. Mot. at 8-11.
It is doubtful that Defendants owed Deman a fiduciary duty, but the Court need not decide that question because Defendants' second argument is clearly correct and provides a narrower ground for decision. "The [§ 1132(a)(2)] claim for fiduciary breach gives a remedy for injuries to the ERISA plan as a whole, but not for injuries suffered by individual participants as a result of a fiduciary breach." Wise, 600 F.3d at 1189. The FAC nowhere alleges harm to the plan as a whole. In his opposition brief, Plaintiff cites language which only confirms Defendants' point, in that it speaks only of losses to Plaintiff. Opp'n at 16 (quoting FAC ¶¶ 10-11). Accordingly, the Court GRANTS Defendant's motion for judgment on the pleadings with respect to Plaintiff's § 1132(a)(2) claim and DISMISSES that claim WITH PREJUDICE.
C. Deman's § 1132(c)(1)(B) Claim for Delay
With respect to Deman's third claim, Defendants move for judgment on the pleadings rather than summary judgment. The Court therefore confines itself to reviewing only the FAC and the Answer. Deman's third claim, construed at Section II.C infra, asserts that Defendants unlawfully delayed in responding to Deman's requests for information. The allegations supporting this charge are paragraphs 7, 8, 18, and 19, which describe Deman sending a letter through counsel on August 31, 2009, and receiving an answer on December 2, 2009. Section 1132(c)(1)(B) imposes a thirty-day deadline for responding to requests for information that ERISA requires an administrator to furnish. Section 1132(c)(1)(B) further provides for statutory damages of $100 per day for every day after the thirtieth; the award of any such damages or other relief is committed to the discretion of the district court. District courts generally require a § 1132(c)(1)(B) claimant to show prejudice resulting from the delay. Kaiser Permanente Employees Pension Plan v. Bertozzi, 849 F. Supp. 692, 702 (N.D. Cal. 1994).
The Court is not inclined to award relief in this case. Plaintiff has not alleged any prejudice resulting from Defendants' alleged delay. Nor does Plaintiff allege specifically which information Defendants were required, but failed, to provide. Consequently, the Court cannot determine what Plaintiff thought he should have received or when the thirty day period would have begun, if ever. Plaintiff has not even stated a claim, let alone presented facts that would move the Court to exercise its discretion to award Plaintiff damages. The Court GRANTS Defendants' motion for judgment on the pleadings with respect to Deman's § 1132(c)(1)(B) claim and DISMISSES it WITH PREJUDICE.
D. Defendants' Motion for Attorney Fees and Costs
Defendants move for attorney fees and costs under § 1132(g). That section commits the award of attorney fees and costs to the discretion of the district court. The Ninth Circuit has set forth five factors to guide the district court's exercise of discretion:
(1) the degree of the opposing parties' culpability or bad faith; (2) the ability of the opposing parties to satisfy an award of fees; (3) whether an award of fees against the opposing parties would deter others from acting under similar circumstances; (4) whether the parties requesting fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA; and (5) the relative merits of the parties' positions.Hummell v. S. E. Rykoff & Co., 634 F.2d 453 (9th Cir. 1980).
Considering these factors, the Court is not inclined to award attorney fees and costs in this case. The Court cannot say that Deman has acted culpably or that his positions must have appeared meritless to him or to his counsel when viewed prospectively rather than with the benefit of hindsight. Moreover, the Court is not persuaded that Deman could satisfy an award of attorney fees. Defendants make much of the deterrent aspect of attorney fee awards. But deterrence cuts both ways. In light of ERISA's policy favoring administrative resolution of claims, it is more appropriate to funnel plaintiffs like Deman into administrative appeal procedures than to deter them from asserting their rights in court in the first instance. A grant of attorney fees and costs at this point in the case -- though perhaps not at a later one -- would risk over-deterrence, which may further the policies underlying ERISA no better than under-deterrence would. The Court DENIES Defendants' motion for attorney fees and costs.
V. CONCLUSION
For the reasons set forth above, the Court GRANTS Defendants' motion for judgment on the pleadings with respect to Plaintiff's claims under Sections 1132(a)(2) and 1132(c)(1)(B) and DISMISSES those claims WITH PREJUDICE. The Court also GRANTS Defendants' motion for summary judgment with respect to Plaintiff's claim under Section § 1132(a)(1)(B) and DISMISSES that claim WITHOUT PREJUDICE. This dismissal does not operate as an adjudication on the merits. Before filing another claim under Section 1132(a)(1)(B), Plaintiff must file a formal claim for pension benefits pursuant to the terms provided by his plan and, if his claim is denied, exhaust his administrative remedies or make a good faith argument explaining why he is excused from doing so.
The Court DENIES Defendants' motion for attorney fees and costs. The Court DENIES AS MOOT Defendants' ex parte application and motion to strike. The Court VACATES the jury trial set for Tuesday, February 21, 2012. Accordingly, the Court DENIES Defendants' ex parte request to continue the trial date, ECF No. 39. IT IS SO ORDERED.
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UNITED STATES DISTRICT JUDGE