Opinion
Case No. 1:04CV00036 DAK.
April 14, 2005
MEMORANDUM DECISION AND ORDER
This matter is before the court on Defendant Wyeth's Rule 12(b)(6) Motion to Dismiss. A hearing on the motion was held on April 12, 2005 at 3:00 p.m. At the hearing, Plaintiff was represented by Brian S. King and Defendant Wyeth was represented by Robert R. Harrison. Before the hearing, the court carefully considered the memoranda and other materials submitted by the parties. Since taking the motion under advisement, the court has further considered the law and facts relating to the motion. Now being fully advised, the court renders the following Memorandum Decision and Order.
BACKGROUND
Plaintiff is the assignee of health benefits to which John Doe, a minor child who was the beneficiary of an employee welfare benefits plan (the "Plan"), was entitled. John Doe received treatment at Plaintiff's facility beginning in April of 2001 and extending to April of 2002. Plaintiff believes that a significant portion of the medical expenses arising out of John Doe's treatment should be paid by the insurers for the Plan. Payment under the Plan, however, has been denied. Plaintiff attempted to obtain copies of the Plan document and Summary Plan Description ("SPD") so that it can determine the extent to which the Plan is obligated to pay for expenses arising out of the treatment of John Doe.
Plaintiff retained the services of Claims Management, Inc. ("CMI") to assist it in obtaining the Plan document and SPD. On April 14, 2003, CMI sent a letter to Defendant Genetics Institute ("Genetics Institute"), to the attention of the plan administrator, requesting a copy of the Plan document and SPD. To date, Genetics Institute has not provided Plaintiff with the requested documents. On October 15, 2004, Plaintiff filed an Amended Complaint naming Genetics Institute and Wyeth as Defendants. The Plaintiff specifically alleges that Defendant Wyeth ("Wyeth") is the parent company of Genetics Institute, that Wyeth and/or Genetics Institute are the administrator(s) of the Plan, that Plaintiff specifically requested the Plan documents and SPD from Genetics Institute, and that the requested documents have never been provided. The Amended Complaint alleges a cause of action against the Defendants for their failure to provide the requested Plan documents and SPD as required by ERISA and requests that the Court impose a statutory penalty against the Defendants pursuant to 29 U.S.C. § 1132(c)(1).
STANDARD OF REVIEW
In ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court must determine whether the factual allegations in the complaint, if true, would entitle the plaintiff to a legal remedy. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Dismissal is appropriate only when it appears beyond doubt "that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." GFF Corp. v. Assoc. Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997). The court's function on a Rule 12(b)(6) motion is not to "weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Sutton v. Utah School for the Deaf and Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (quoting Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991)). In making such a determination, the court must accept all well-pleaded facts as true, construe those facts liberally in a light most favorable to the plaintiff, and "resolve all reasonable inferences in plaintiff's favor." Seamons v. Snow, 84 F.3d 1226, 1231 (10th Cir. 1996).
DISCUSSION
Pursuant to ERISA, plan administrators must respond to informational requests by plan participants. See 11 U.S.C. § 1024(b)(4). A failure to do so may result in the imposition of a penalty by the court. 11 U.S.C. § 1132(c)(1) provides that:
[a]ny administrator . . . (B) who fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant or beneficiary . . . 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. . . .
In its memorandum in support of its Motion to Dismiss, Wyeth argues that Plaintiff's Amended Complaint fails to state a claim for which relief may be granted because it does not allege that a request for the Plan document or SPD was ever made to Wyeth.
Wyeth argues that based on the plain language of this statute, it is clear that penalties cannot be imposed on a plan administrator in the absence of a request to that administrator. Defendant relies on Wilcott v. Matlack, Inc., 64 F.3d 1458, 1461 (10th Cir. 1995) to support this interpretation. In Wilcott, the court upheld a district court's decision not to impose a penalty upon a plan administrator pursuant to § 1132(c)(1), a decision which was based partly on the basis that the plaintiff had failed to address his request for plan documents directly to the plan administrator. Wyeth argues that because the Amended Complaint does not allege that a request for the Plan document and SPD was ever made to Wyeth, the Plaintiff cannot claim that Wyeth should be assessed a penalty pursuant to § 1132(c)(1).
A number of Tenth Circuit cases have held, however, that under certain circumstances, a § 1132(c) penalty may be based on requests which were not made directly to the plan administrator. In McKinsey v. Sentry Insurance, 986 F.2d 401, 404 (10th Cir. 1993), the court rejected the proposition that penalties can be assessed against a " de facto" plan administrator, but stated that "if in practice, company personnel other than the plan administrator routinely assume responsibility for answering requests from plan participants and beneficiaries . . . the actions of the other employees may be imputed to the plan administrator." In Boone v. Leavenworth Anesthesia, Inc., 20 F.3d 1108, 1110 (10th Cir. 1994), the court assessed a penalty against a plan administrator even though the request for plan documents was directed to the plan administrator's counsel. The court reasoned that the request was sufficient not only because there was legal agency between the parties, but because it was the plan administrator's counsel who had initiated the pension and profit sharing plan and handled all of the business having to do with the plan. Id.
The holdings in McKinsey and Boone are reaffirmed in Wilcott v. Matlack, Inc., 64 F.3d at 1461. As Wyeth points out, in Wilcott the Tenth Circuit upheld a district court decision to not impose a penalty where the beneficiary failed to send a request directly to the plan administrator. Wilcott, 64 F.3d at 1110. In doing so, however, the court cited to McKinsey and Boone for the proposition that "under appropriate circumstances, a § 1132(c) penalty may be based on information requests such as plaintiff's that were not directed to the plan administrator." Id.
In reaching the holdings in these cases, the court focused not just on the specific type of relationship between the plan administrator and the third party upon whom the request was made, but also on whether the third party was someone who routinely administered the plan or routinely took responsibility for such a request. See McKinsey, 986 F.2d at 404; Boone, 20 F.3d 1110. Since no discovery has been conducted, the nature of the relationship between Wyeth and Genetics Institute is unknown, as are their respective responsibilities regarding the administering of the Plan. Plaintiff, however, has alleged in its Amended Complaint that Wyeth and Genetics Institute are both administrators of the Plan, a fact which must be accepted as true and which implies that Genetics Institute routinely handled Plan requests or the administering of the Plan. Plaintiff also alleges that Genetics Institute is a subsidiary of Wyeth, that Plaintiff requested the Plan Documents from Genetics Institute on April 14, 2003, and that the requested Plan documents have not been provided to the Plaintiff.
For purposes of this Motion, these alleged facts are accepted as true and construed liberally in a light most favorable to the Plaintiff. See Seamons, 84 F.3d at 1232. Based on these allegations, and in light of the holdings in Wilcott, Boone and McKinsey, a court could find that it is appropriate to impute knowledge of the request made to Genetics Institute upon Wyeth. It therefore does not appear beyond doubt that "the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." GFF Corp., 130 F.3d at 1384. Therefore, Wyeth's Motion is denied.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Defendant Wyeth's Motion to Dismiss is DENIED.