Opinion
Civil Action No. 3:01-CV-1148-D
April 17, 2002
MEMORANDUM OPINION AND ORDER
The question presented by defendants' motion to dismiss for failure to state a claim on which relief can be granted is whether plaintiff's action under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001-1461, and for violations of Texas state law is barred by limitations. Concluding that it is, the court grants the motion.
I
Plaintiff Stephen Simon ("Simon") sues defendants Telsco Industries Employee Benefit Plan a/k/a Weathermatic Corporation Employee Benefit Plan ("Telsco Plan"), Telsco Industries, Inc. a/k/a Weathermatic Corporation ("Telsco"), Woody Conradt ("Conradt"), individually and as Plan Administrator, CIGNA HealthPlan of Texas, Inc. ("CIGNA"), and Does 1-100. He alleges that defendants are liable under ERISA for denying benefits due under the Telsco Industries Employee Benefit Plan (the "Plan") and breach of fiduciary duty, and under Texas state law for breach of contract, breach of fiduciary duty, promissory estoppel, fraud, conspiracy, discrimination under Texas statutes (including the Texas Insurance Code), unfair and deceptive trade practices, violations of the Texas Anti-Trust Act, misrepresentation, and negligent misrepresentation. Simon brings this action pro se on behalf of himself and as assignee of seven "Doe" plaintiffs, including a Plan participant/beneficiary identified in his first amended complaint ("complaint") as "D.R." In sum, Simon alleges that he and other Plan participants and/or beneficiaries, including D.R., were denied Plan benefits for professional medical and/or mental health related services rendered by Humanistic Mental Health Foundation, Sunstar Health Care, HolistiCare, and/or College Hospital.
This is not Simon's first attempt to sue under ERISA as the assignee of others. See Simon v. Value Behavioral Health Inc., 955 F. Supp. 93, 95 (C.D. Cal. 1997) (holding that Simon, who was not a health care provider, lacked standing to sue on assigned claim for ERISA benefits), aff'd, 208 F.3d 1073. amended by, 234 F.3d 428 (9th Cir. 2000), cert. denied, 531 U.S. 1104 (2001).
Three defendants, Telsco Plan, Telsco, and Conradt move to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim on which relief can be granted. They maintain that (1) they are not proper parties, (2) Simon does not have standing to sue, (3) his state-law claims are preempted by ERISA, and (4) all his claims are barred by the statute of limitations. They filed their motion to dismiss on March 22, 2002. Under N.D. Tex. Civ. R. 7.1(e), Simon's response was due April 11, 2002. See Rule 7.1(e) ("A response and brief to an opposed motion must be filed within 20 days from the date the motion is filed."). The local civil rules apply to Simon despite his pro se status. See Rule 83.14 ("Pro se parties must read and follow the local civil rules of this court and the Federal Rules of Civil Procedure."). Accordingly, defendants' motion is ripe for decision.
II
The court need only consider defendants' contention that Simon's action is barred by limitations. "[W]hen a successful affirmative defense appears on the face of the pleadings, dismissal under Rule 12(b)(6) may be appropriate." Kansa Reinsurance Co. v. Congressional Mtg. Corp. of Tex., 20 F.3d 1362, 1366 (5th Cir. 1994) (citing Clark v. Amoco Prod Co., 794 F.2d 967, 970 (5th Cir. 1986)). In the usual case, this court is unable to grant dismissal under Rule 12(b)(6) based on an affirmative defense because it rarely appears on the face of the complaint. The present case, however, is exceptional. Simon alleges that the benefits for which he sues relate to services rendered in 1991. See Compl. ¶ 8. He acknowledges that, at least by June 1996, he knew that Telsco Plan had denied benefits because he filed suit against it, Telsco, and numerous other defendants in the Central District of California. See supra note 1. Simon did not file the instant case until June 15, 2001.
In the case of "DR.," this person entered College Hospital on May 8, 1991 and was discharged June 8, 1991. Id.
Simon's ERISA claims are governed by three- and six-year limitations periods. See 29 U.S.C. § 1113. Limitations expired six years after the date of the last action that constituted a part of the breach or violation, or, in the case of an omission, the latest date on which the fiduciary could have cured the breach or violation, or three years after the earliest date on which he had actual knowledge of the breach or violation. From the face of Simon's complaint, it is clear that he knew of the alleged violation in June 1996, over three years before he filed the present suit in June 2001.
Section 1113:
No action may be commenced under this subchapter with respect to a fiduciary's breach of any responsibility, duty, or obligation under this part, or with respect to a violation of this part, after the earlier of — (1) six years after (A) the date of the last action which constituted a part of the breach or violation, or (B) in the case of an omission, the latest date on which the fiduciary could have cured the breach or violation, or (2) three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation; except that in the case of fraud or concealment, such action may be commenced not later than six years after the date of discovery of such breach or violation.
Simon also brings pendent state-law claims. Assuming arguendo that they are not preempted, they are also time-barred. The state causes of action that he asserts are governed either by two- or four-year limitations periods. As noted, it is apparent from the face of Simon's complaint that he learned of these claims at least by June 1996, over four years before he filed suit. Accordingly, his state-law claims are time-barred.
III
As noted, in addition to the three defendants who have moved to dismiss, Simon has sued CIGNA and Does 1-100. Although he filed suit on June 15, 2001, he has not effected service on CIGNA. Additionally, he has not attempted to amend to identify specifically the Doe defendants.
Pursuant to Rule 4(m), the court orders that Simon demonstrate good cause, in accordance with Rules 4(m) and 6(b), for failing to effect service on CIGNA. This must be done by filing a written response with the clerk of court no later than May 10, 2002. If the court does not receive the required response on or before the due date, or if the response received by the court fails to demonstrate good cause, the court will dismiss this action as to CIGNA without prejudice, by authority of Rule 4(m).
The other remaining defendants are "Does 1-100." No later than May 10, 2002, Simon must move for leave to amend to name specifically identifiable persons as defendants or must demonstrate good cause for failing to do so. If he fails to move for leave to amend or to show good cause, his action against Does 1-100 will be dismissed without prejudice.
* * *
The March 22, 2002 motion to dismiss of defendants Telsco Plan, Telsco, and Conradt is granted and this action is dismissed as to them. The court will await entering a final judgment until it has determined whether the action against CIGNA and individuals presently identified as "Does" will proceed. Simon must comply with the court's order concerning CIGNA and the Doe defendants no later than May 10, 2002.
SO ORDERED.