Opinion
Case No. C04-2437C.
February 22, 2006
ORDER
This matter has come before the Court on Defendant UnitedHealth's motion for summary judgment (Dkt. No. 24). For the reasons that follow, the motion is hereby GRANTED in part and DENIED without prejudice in part.
Defendant UnitedHealth moved for summary judgment dismissing Plaintiff's ERISA claim against it. In large part, Defendant's motion relied on "admissions" made by Plaintiff through her failure to respond appropriately to Defendant's requests for admissions. However, the Court having allowed Plaintiff another opportunity to respond to these requests, it would be premature for the Court to address Defendant's motion at this time.
That portion of Defendant's reply brief citing Herter v. Dick's Clothing Sporting Goods, Inc., 58 F. Supp. 2d 306 (S.D.N.Y. 1999) is hereby stricken as a new argument presented in a reply to which Plaintiff had no opportunity to respond.
The exception to the above holding is Defendant UnitedHealth's motion to dismiss Plaintiff's emotional distress claims against it. Plaintiff's response failed to oppose this portion of Defendant's motion. Accordingly, this portion of Defendant's motion is GRANTED pursuant to Local Rule CR 7(b)(2). The remainder of Defendant's motion is DENIED without prejudice.
SO ORDERED.