Opinion
No. C 04-0124 PJH.
November 3, 2004
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Defendant Inspro's motion for summary judgment came on for hearing on November 3, 2004 before this court. Inspro appeared through its counsel, Michael Caples, and plaintiff Ingrid Maya appeared through her counsel, William Maya. Having read the papers and carefully considered the relevant legal authority and oral argument, the motion is GRANTED for the reasons that follow.
Ingrid Maya ("Maya") is represented by her husband ("W. Maya").
Pursuant to Civil Local Rule 7-13, this order may not be cited except as provided by Civil Local Rule 3-4(e).
BACKGROUND
Maya claims that her former employer, defendant Inspro Corporation, failed to mail her notices about post-employment election for group medical and dental coverage, and thus has violated COBRA.Inspro claims that they mailed a full packet of the required notices to Maya's address of record, 1922 Baxter Court, Concord, California 94521. See, e.g., Weaver Decl. Exhs. B, D (letters sent to Baxter Court address). Maya had also requested that all documentation be sent to that address. Graff Decl. Exh. A (deposition exhibit 2, letter dated July 30, 2003). At her deposition, Maya stated that she has lived at the Baxter Court address since 1988 and continues to live there now. Id. at 13:9-13.
Inspro mailed the notices three times to Maya — twice to the Baxter Court address, and after Inspro received notice from W. Maya that no notices had been received there, it mailed the notices a third time to W. Maya's office. Inspro states that none of the letters were returned as undeliverable. Maya claims she received the correspondence sent the second time to the Baxter Court address, with only one form enclosed, but no other correspondence from Inspro. I. Maya Decl. ¶¶ 3, 4; W. Maya ¶ 5.
ANALYSIS
A. Legal Standard: Summary Judgment
Summary judgment is appropriate when the evidence shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c);Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
B. Mailing of Notices
Inspro is correct that COBRA does not require that the employee actually receive notice, but only that the employer make a good faith effort to send the notice in a manner that is reasonably calculated to reach the former employee. See, e.g., Jachim v. KUTV, Inc., 783 F. Supp. 1328, 1333 (D. Ut. 1992) (citing cases); see also Smith v. Rogers Galvanizing Co., 128 F.3d 1380, 1383-84 (10th Cir. 1997) (requiring "good faith attempt to comply with a reasonable interpretation of the statute"). Thus, several courts have found that sending notice by first-class mail to the last known address of the former employee is sufficient notice as a matter of law. See, e.g., Holmes v. Scarlet Oaks Retirement Comm., 277 F.Supp. 2d 829, 834 (S.D. Oh. 2003) (citing cases); Jachim, 783 F.Supp. at 1333; Keegan v. Bloomingdale's, Inc., 992 F. Supp. 974, 977-78 (N.D. Ill. 1998).
The Ninth Circuit has not ruled on this issue.
Here, Inspro provides evidence that it prepared and mailed letters containing the requisite COBRA forms as part of its ordinary course of business to Maya's last-known address twice, and one additional time to her attorney. See Weaver Decl. ¶¶ 5, 7, 9; Sullivan Decl. ¶¶ 3-9. Maya provides no admissible evidence to refute the fact that Inspro in fact sent the letters out in a good faith attempt to contact her. Summary judgment in favor of Inspro is thus warranted.
Maya's speculations that Weaver's failure to include a discussion of the previous letters sent to Maya or any conversations she may have had with the Department of Labor in her cover note are not sufficiently supported by evidence to raise a material issue of disputed fact. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts;" if "record taken as a whole could not lead a rational trier of fact to find for the nonmoving party," summary judgment is warranted).
C. Content of Notices
In her opposition, Maya argues for the first time in this case that the content of the notices provided by Inspro failed to comply with COBRA requirements. As discussed at the hearing, however, Maya's complaint cannot be read as having included this claim, and Maya has not requested leave to amend her complaint to add this cause of action under either Rule 15 or 16. Trial is scheduled in six weeks in this matter. Maya provides no explanation for the delay in asserting this new claim, and if the claim were to be asserted, the trial would need to be postponed to permit Inspro discovery on the matter. Thus, because it would cause Inspro severe prejudice if Maya were permitted to raise this argument now, the court declines to permit Maya to amend her complaint. See, e.g., Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000); Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 2001).
Accordingly, summary judgment is GRANTED in favor of Inspro. This order fully adjudicates the matter listed at no. 13 on the clerk's docket for this case, and all other pending matters. The clerk is ordered to close the file.
IT IS SO ORDERED.