Theriot v. Bldg. Trades United Pension Tr. Fund

DEBORAH THERIOT v. BUILDING TRADES UNITED PENSION TRUST FUND, ET AL.

CIVIL ACTION No. 18-10250 SECTION I

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

November 4, 2019

ORDER & REASONS

Before the Court is defendants Building Trades United Pension Trust Fund ("the Fund") and the Fund's Board of Trustees' ("Trustees")¹ (collectively, the "defendants") motion² for summary judgment with respect to count III of plaintiff Deborah Theriot's ("Theriot") second amended complaint.³ Theriot opposes their motion.⁴

Five days after filing her opposition, Theriot filed a motion for leave to supplement her opposition to defendants' motion with two exhibits, which this Court granted.⁵ One of these exhibits was Theriot's sworn declaration.⁶ Defendants moved for sanctions and to strike Theriot's declaration pursuant to the "sham affidavit rule"⁷and Theriot opposed that motion.⁸ Defendants then moved to supplement their motion for summary judgment with "an order by the 24^th Judicial District Court of the State of Louisiana to appoint Deborah Theriot as the independent administrator to the Audry Hamann Estate on November 28, 2018" ("Order of Appointment").⁹ Theriot then filed a supplemental memorandum in opposition to defendants' motion for summary judgment.¹⁰ Defendants moved to strike Theriot's supplemental memorandum¹¹ and Theriot opposed that motion.¹² For the following reasons, the motion for summary judgment is granted.

I.

Count III of Theriot's second amended complaint alleges that the Fund, through its Trustees, failed to timely produce requested plan documents in violation of ERISA, 29 U.S.C. § 1024(b)(4) and that, therefore, Theriot is entitled to penalties under 29 U.S.C. § 1132(c).¹³ Theriot made two separate requests for documents that are at issue: a request on November 1, 2017 (the "2017 request"), and two identical requests on November 2, 2018 and December 19, 2018 (the "2018 requests").

Defendants move for summary judgment on the basis that Theriot did not have standing to request either set of documents under § 1024(b)(4).¹⁴ Alternatively, defendants argue that they complied with the 2017 request and did not fail to produceany documents in response to the 2018 requests that must be provided under § 1024(b)(4).¹⁵

II.

Summary judgment is proper when, after reviewing the pleadings, the discovery and disclosure materials on file, and any affidavits, the Court determines that there is no genuine dispute of material fact. See Fed. R. Civ. P. 56. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary judgment need not produce evidence negating the existence of a material fact; it need only point out the absence of evidence supporting the other party's case. Id.; see also Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th Cir. 1986).

Once the party seeking summary judgment carries its burden, the nonmoving party must come forward with specific facts showing that there is a genuine dispute of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The showing of a genuine issue is not satisfied by creating "'some metaphysical doubt as to the material facts,' by 'conclusory allegations,' by 'unsubstantiated assertions,' or by only a 'scintilla' of evidence." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted).

A genuine issue of material fact exists when the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Although the substance or content of the evidence submitted to support or dispute a fact on summary judgment must be admissible . . . , the material may be presented in a form that would not, in itself, be admissible at trial." Lee v. Offshore Logistical & Transp., LLC, 859 F.3d 353, 355 (5th Cir. 2017) (citations omitted). The party responding to the motion for summary judgment may not rest upon the pleadings but must identify specific facts that establish a genuine issue. Anderson, 477 U.S. at 248. The nonmoving party's evidence, however, "is to be believed, and all justifiable inferences are to be drawn in [the nonmoving party's] favor." Id. at 255; see also Hunt v. Cromartie, 526 U.S. 541, 552 (1999).

"[A] district court has somewhat greater discretion to consider what weight it will accord the evidence in a bench trial than in a jury trial." Matter of Placid Oil Co., 932 F.2d 394, 397 (5th Cir. 1991). "[W]here 'the evidentiary facts are not disputed, a court in a nonjury case may grant summary judgment if trial would not enhance its ability to draw inferences and conclusions.'" Id. (quoting Nunez v. Superior Oil Co., 572 F.2d 1119, 1124 (5th Cir. 1978)); see also Manson Gulf, L.L.C. v. Modern Am. Recycling Serv., Inc., 878 F.3d 130, 134 (5th Cir. 2017).

III.

Pursuant to 29 U.S.C. § 1024(b)(4),

"[t]he administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary[] plan description, and the latest annual report, any terminal report, the bargaining agreement,trust agreement, contract, or other instruments under which the plan is established or operated" (emphasis added).

Section 1132(c) gives courts discretion to award penalty damages for violations of § 1024(b)(4):

"Any administrator . . . who fails or refused to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant or beneficiary. . . within 30 days after such request may in the court's discretion be personally liable to such participant or beneficiary in the amount of up to $100 a day from the date of such failure or refusal, and the court may in its discretion order such other relief as it deems proper" (emphasis added).

A request for plan documents must "provide clear notice to the plan administrator of the information [the plaintiff] desire[s]" to trigger statutory penalties. Van Bael v. United Healthcare Services, Inc., No. 18-6873, 2019 WL 160183, at *3 (E.D. La. Jan. 10, 2019) (Africk, J.) (quoting Kollman v. Hewitt Assocs., LLC, 487 F.3d 139, 145 (3d Cir. 2007); citing Fisher v. Metro. Life Ins. Co., 895 F.2d 1073, 1077 (5th Cir. 1990)) (citations omitted). The "touchstone" of sufficiency "is whether the request provides the necessary clear notice to a reasonable plan administrator which, given the context of the request, should be provided." Center for Restorative Breast Surgery, LLC v. Humana Health Benefit Plan of La., Inc., No. 10-4346, 2015 WL 4394034, at *17 (E.D. La. July 15, 2015) (Fallon, J.) (quoting Kollman, 487 F.3d at 146; citing Fisher, 895 F.2d at 1077). Whether to award statutory penalties for violations of § 1024(b)(4) is within the discretion of the court. 29 U.S.C. § 1132(c)(1).

A. Pending Motions

The Court will first address the motions that have been filed since defendants filed their motion for summary judgment. The exhibits filed by both Theriot and defendants to supplement the summary judgment record relate to whether Theriot, through her counsel at the time (the Javier Firm),¹⁶ had standing to make a request for documents on behalf of Audry Hamann's estate ("the Estate") on November 1, 2017. 29 U.S.C. § 1024(b)(4) only requires plan administrators to respond to requests for information from participants and beneficiaries. Theriot was not a participant or beneficiary under defendants' plan, and she only had derivative standing to request documents as a representative of her mother, Audry Hamann's, estate.¹⁷ See James v. La. Laborers Health & Welfare Fund, 766 F. Supp. 530, 531 (E.D. La. 1991) (Feldman, J.) (discussing Hermann Hosp. v. MEBA Med. & Benefits Plan, 845 F.2d 1286, 1287-89 (5th Cir. 1988), overruled on other grounds by Access Mediquip, L.L.C. v. UnitedHealthcare Ins. Co., 698 F.3d 229 (5th Cir. 2012) (mem.)).¹⁸ Therefore, defendants' response to the 2017 request can only trigger statutory penalties if the Javier Firm represented Theriot, in her capacity as administrator of the Estate, on November 1, 2017. Accordingly, Theriot must have had the authority to act on behalf of the Estate on November 1, 2017.

Theriot swears in her declaration that she:

"engaged the Javier Firm to represent [her], both individually and as a representative of [the Estate]. In that capacity, [she] authorized the Javier Firm to request plan documents, and to take whatever steps necessary to protect [her] mother's right to the lump-sum benefit available under the Fund's ERISA plan. Pursuant to this engagement, on November 1, 2017, the Javier Firm requested that [the Fund] produce a complete copy of the plan agreement and other documents as detailed in Exhibit 8[.]"¹⁹

Defendants filed a motion for sanctions and to strike Theriot's declaration pursuant to the "sham affidavit rule,"²⁰ which Theriot opposes.²¹ Shortly thereafter, defendants filed a motion to supplement the summary judgment record with the Order of Appointment, which shows that Theriot was not appointed independent administrator of the Estate until November 28, 2018.²² Theriot did not object to this motion, provided that she had the opportunity to file a response.²³ Theriot filed a response, making additional arguments as to why summary judgment should not be granted.²⁴ Defendants moved to strike Theriot's supplemental memorandum on the grounds that the memorandum did not address the new evidence, the Order ofAppointment, but rather only made new arguments as to why defendants' summary judgment motion should not be granted.²⁵ Theriot opposed that motion.²⁶

The Court finds good cause to allow defendants to supplement the summary judgment record with the newly discovered evidence because Theriot...