Miller et al v. Metropolitan Life Insurance Company et al

OPPOSITION BRIEF re: 108 Response in Opposition to Motion

S.D.N.Y.March 22, 2019

04785355.11 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------X DALE MILLER et al., Plaintiffs, v. METROPOLITAN LIFE INSURANCE COMPANY, Defendant. Case No. 17-cv-7284 (AT) (SN) DEFENDANT’S RESPONSE TO PLAINTIFFS’ OBJECTIONS TO EVIDENCE SUBMITTED WITH DEFENDANT’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(B) ---------------------------------------------------X DEFENDANT’S RESPONSE TO PLAINTIFFS’ OBJECTIONS TO EVIDENCE SUBMITTED WITH DEFENDANT’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(B) Lee E. Bains, Jr. Edward Morris Holt MAYNARD, COOPER & GALE, P.C. 1901 Sixth Avenue North 2400 Regions | Harbert Plaza Birmingham, AL 35203 Telephone: 205.254.1000 Facsimile: 205.254.1999 Email: lbains@maynardcooper.com Email: tholt@maynardcooper.com John M. Hintz MAYNARD, COOPER & GALE, P.C. The Fred F. French Building 551 Fifth Avenue – Suite 2000 New York, NY 10176 Telephone: 646.609.9284 Facsimile: 646.609.9281 Email: jhintz@maynardcooper.com Case 1:17-cv-07284-AT-SN Document 110 Filed 03/22/19 Page 1 of 17 04785355.11 TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................................. i TABLE OF AUTHORITIES .......................................................................................................... ii I. INTRODUCTION .............................................................................................................. 1 II. EVIDENTIARY MATTERS AND ISSUES NOT IN DISPUTE ...................................... 2 III. STANDARD FOR CONSIDERATION OF EVIDENCE IN CONNECTION WITH RULE 12(B)(1) MOTION ....................................................................................... 3 IV. ARGUMENT ...................................................................................................................... 5 1. The Barton Letter and the relevant portions of the Skaggs Declaration are properly considered in connection with MetLife’s motion to dismiss pursuant to Rule 12(b)(1). ....................................................................................... 5 2. The Skaggs Declaration does not contain inadmissible hearsay, and the declarant has sufficient knowledge and a proper foundation to make statements relating to the years prior to 2002. ........................................................ 6 3. The Barton Letter is not hearsay. ............................................................................ 8 4. Plaintiffs’ challenges to the relevant facts are unfounded. ................................... 10 V. CONCLUSION ................................................................................................................. 12 CERTIFICATE OF SERVICE ..................................................................................................... 13 Case 1:17-cv-07284-AT-SN Document 110 Filed 03/22/19 Page 2 of 17 04785355.11 ii TABLE OF AUTHORITIES Page(s) CASES Amnesty Am. v. Town of W. Hartford, 361 F.3d 113 (2d Cir. 2004)................................................................................................ 8 Carter v. HealthPort Techs., LLC, 822 F.3d 47 (2d Cir. 2016).............................................................................................. 3, 4 Celotex Corp. v. Catrett, 477 US 317 (1986) .............................................................................................................. 6 Cortlandt St. Recovery Corp. v. Deutsche Bank AG, 2013 WL 3762882 (S.D.N.Y. July 18, 2013) ..................................................................... 5 Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.À.R.L., 790 F.3d 411 (2d Cir. 2015)............................................................................................ 4, 5 First Capital Asset Mgmt., Inc. v. Brickellbush, Inc., 218 F. Supp. 2d 369 (S.D.N.Y 2002).................................................................................. 5 Jones v. U.S. Dep’t of Educ., 2010 WL 10092765 (S.D.N.Y. Feb. 1, 2010) ..................................................................... 6 Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006 (2d Cir. 1986).............................................................................................. 6 Kassim v. City of Schenectady, 415 F.3d 246 (2d. Cir. 2005)........................................................................................... 7, 8 Kramer v. Time Warner Inc., 937 F.2d 767 (2d Cir. 1991)................................................................................................ 6 Major League Baseball Props. Inc. v. Salvino, Inc., 542 F.3d 290 (2d Cir. 2008).......................................................................................... 6, 10 Makarova v. United States, 201 F.3d 110 (2d Cir. 2000)............................................................................................ 4, 5 Mori v. El Asset Mgmt., Inc., 2016 WL 859336 (S.D.N.Y. Jan. 28, 2016) ....................................................................... 4 Phoenix Assocs. III v. Stone, 60 F.3d 95 (2d Cir. 1995).................................................................................................... 7 Romano v. Kazacos, 609 F.3d 512 (2d Cir. 2010)................................................................................................ 5 Saks Int’l, Inc. v. M/V “Export Champion”, 817 F.2d 1011 (2d Cir. 1987).............................................................................................. 9 Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239 (2d Cir. 2014)................................................................................................ 4 Case 1:17-cv-07284-AT-SN Document 110 Filed 03/22/19 Page 3 of 17 04785355.11 iii Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) ............................................................................................................ 6 Tolin v. Standard & Poor’s Fin. Servs., LLC, 950 F. Supp. 2d 714 (S.D.N.Y. 2013)................................................................................. 5 Tradax Energy, Inc. v. Cedar Petrochemicals, Inc., 317 F. Supp. 2d 373 (S.D.N.Y. 2004)................................................................................. 7 United States ex rel. Wood v. Allergan, Inc., 899 F.3d 163 (2d Cir. 2018)................................................................................................ 6 United States v. Atchley, 699 F.2d 1055 (11th Cir. 1983) .......................................................................................... 9 United States v. Basey, 613 F.2d 198 (9th Cir. 1979) ........................................................................................ 9, 10 United States v. Consol. Edison Co., 580 F.2d 1122 (2d Cir. 1978).............................................................................................. 9 United States v. Gotti, 457 F. Supp. 2d 395 (S.D.N.Y. 2006)................................................................................. 8 United States v. Hathaway, 798 F.2d 902 (6th Cir. 1986) .............................................................................................. 9 United States v. Lavin, 480 F.2d 657 (2d Cir. 1973).......................................................................................... 9, 10 United States v. Mendel, 746 F.2d 155 (2d Cir. 1984)................................................................................................ 9 RULES Fed. R. Civ. P. 12(b) ....................................................................................................................... 1 Fed. R. Civ. P. 12(b)(1)............................................................................................... 1, 2, 3, 4, 5, 6 Fed. R. Civ. P. 12(b)(6) ...................................................................................................... 1, 2, 3, 5 Fed. R. Civ. P. 56(c)(4) ................................................................................................................... 6 Fed. R. Evid. 201(b)(2) ................................................................................................................... 6 Fed. R. Evid. 801(c) ........................................................................................................................ 8 Fed. R. Evid. 801(d)(2) ................................................................................................................... 8 Fed. R. Evid. 801(d)(2)(A) ............................................................................................................. 9 Fed. R. Evid. 803(6) ........................................................................................................................ 9 Case 1:17-cv-07284-AT-SN Document 110 Filed 03/22/19 Page 4 of 17 04785355.11 1 I. INTRODUCTION Defendant Metropolitan Life Insurance Company (“MetLife”) respectfully submits this Response in Opposition to Plaintiffs’ Objections to Evidence Submitted with Defendant’s Motion to Dismiss pursuant to Federal Rules of Civil Procedure (“Rule”) 12(b) (D.E. 108) (“Plaintiffs’ Objections”). Plaintiffs object to the Court considering certain statements in the Declaration of Mary Skaggs (D.E. 76) (the “Skaggs Declaration”) and Exhibit 141 thereto (D.E. 76-14) when ruling on MetLife’s Motion to Dismiss the Second Amended Complaint (“SAC”). Specifically, Plaintiffs contend that certain statements in the Skaggs Declaration are inadmissible hearsay, that Skaggs lacks personal knowledge of certain statements, and that the Barton Letter is not properly considered on a motion to dismiss pursuant to Rule 12(b)(6).2 Plaintiffs’ Objections fail for at least five reasons: First, the Barton Letter and the relevant portions of the Skaggs Declaration may properly be considered in the procedural context of MetLife’s Motion to Dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction based on SLUSA preclusion. Second, Plaintiffs previously authenticated the Barton Letter; thus the Court may take judicial notice of the Barton Letter when ruling on MetLife’s Motion to Dismiss. Third, neither the Barton Letter nor the relevant portions of the Skaggs Declaration contain inadmissible hearsay. Fourth, Ms. Skaggs has sufficient knowledge and a proper foundation to make statements relating to the years prior to 2002. Fifth, Plaintiffs’ challenges to the relevant facts are unfounded. 1 Exhibit 14 to the Skaggs Declaration is a true and correct copy of a letter that Plaintiff Barton sent to MetLife regarding the insurance policy at issue in this litigation (D.E. 76-14) (hereafter “Barton Letter”). Skaggs Declaration, D.E. 76 at ¶ 17. 2 Plaintiffs’ Objections, D.E. 108. Case 1:17-cv-07284-AT-SN Document 110 Filed 03/22/19 Page 5 of 17 04785355.11 2 For the reasons discussed in this Response, the Court should overrule Plaintiffs’ Objections and consider the Barton Letter and the relevant portions of the Skaggs Declaration when ruling on MetLife’s Motion to Dismiss the SAC pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction based on SLUSA preclusion. II. EVIDENTIARY MATTERS AND ISSUES NOT IN DISPUTE Plaintiffs do not object to this Court’s consideration of the prospectuses that were attached to the Skaggs Declaration.3 This Court has already determined that the GVUL Policy prospectuses (Exhibit 5 (D.E. 76-5), Exhibit 6 (D.E. 76-6), Exhibit 7 (D.E. 76-7), Exhibit 8 (D.E. 76-8), and Exhibit 9 (D.E. 76-9)) attached as exhibits to the Skaggs Declaration are properly considered on a motion to dismiss this civil action.4 Although Plaintiffs object to the Barton Letter and portions of the Skaggs Declaration on the grounds that they “are not properly considered on a motion pursuant to Rule 12(b)(6),”5 Plaintiffs do not appear to challenge the Court’s consideration of the Barton Letter or the portions of the Skaggs Declaration in ruling on MetLife’s Motion to Dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction. Plaintiffs object to five statements in the Skaggs Declaration as inadmissible hearsay.6 In its Motion to Dismiss the SAC, MetLife does not rely on four of the five statements that are identified in Plaintiffs’ Objections.7 MetLife relies on only one of the five statements that are 3 D.E. 104 at 1 (identifying the prospectuses attached to the Skaggs Declaration that were submitted in support of MetLife’s Motion to Dismiss: Exhibit 5 (D.E. 76-5), Exhibit 6 (D.E. 76-6), Exhibit 7 (D.E. 76-7), Exhibit 8 (D.E. 76- 8), and Exhibit 9 (D.E. 76-9)); Plaintiffs’ Objections, D.E. 108. 4 Report & Recommendation, D.E. 86 (“R&R”) at 5–6; Order adopting R&R, D.E. 94 at 14 (“Order”) (adopting R&R, D.E. 86, in full); D.E. 83 at 6–8. 5 Plaintiffs’ Objections, D.E. 108 at 2. 6 Plaintiffs’ Objections, D.E. 108 at 2–3. 7 MetLife’s Motion to Dismiss the SAC does not rely on the following four statements in the Skaggs Declaration that are listed in Plaintiffs’ Objections: (1) Plaintiffs’ Objections, D.E. 108 at ¶ 2(a) (“A true and correct copy of the June 1999 letter from MetLife (Paige Scott) to United Pilots is attached is as Exhibit 1.”) (quoting Skaggs Declaration, D.E. 76 at ¶ 8); Case 1:17-cv-07284-AT-SN Document 110 Filed 03/22/19 Page 6 of 17 04785355.11 3 identified in Plaintiffs’ Objections—the statements relating to the prospectuses.8 The Barton Letter and the relevant portions of the Skaggs Declaration are not submitted in connection with MetLife’s Motion to Dismiss pursuant to Rule 12(b)(6) relating to the statute of limitations, the dismissal of Plaintiffs’ four causes of action for the reasons discussed in Sections III–VI of MetLife’s Brief, or the dismissal of Plaintiffs’ Rule 23(b)(1) and 23(b)(2) class action allegations.9 As a result, the only evidentiary matters in dispute based on Plaintiffs’ Objections relate to the Barton Letter and the relevant statements in the Skaggs Declaration relating to the prospectuses, to the extent that the Plaintiffs object to the consideration of the Barton Letter and those statements in the context of MetLife’s Motion to Dismiss the SAC pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction based on SLUSA preclusion. III. STANDARD FOR CONSIDERATION OF EVIDENCE IN CONNECTION WITH RULE 12(B)(1) MOTION Plaintiffs acknowledge that, “[i]n deciding a motion to dismiss for lack of subject matter jurisdiction, a defendant is entitled to proffer evidence beyond the pleading, which a court may consider at its discretion. Carter v. HealthPort Techs., LLC, 822 F.3d 47, 57 (2d Cir. 2016).”10 The Second Circuit has ruled that, “[i]n deciding a Rule 12(b)(1) motion, the court may . . . rely (2) Plaintiffs’ Objections, D.E. 108 at ¶ 2(b) (“[I]t was MetLife’s business practice in 1999 and 2000 to send via U.S. Mail correspondence such as Exhibits 1–3 to the addresses on file for United pilots.”) (quoting Skaggs Declaration, D.E. 76 at ¶ 11); (3) Plaintiffs’ Objections, D.E. 108 at ¶ 2(d) (“There is no indication in MetLife’s records that the December 19, 2007 letter sent to Plaintiffs was returned as undeliverable.”) (quoting Skaggs Declaration, D.E. 76 at ¶ 15); and (4) Plaintiffs’ Objections, D.E. 108 at ¶ 2(e) (“There is no indication in MetLife’s records that the December 7, 2009 letter sent to Plaintiffs was returned as undeliverable.”) (quoting Skaggs Declaration, D.E. 76 at ¶ 16). 8 Plaintiffs’ Objections, D.E. 108 at 2 (2(c)) (“True and correct copies of prospectuses provided to all United pilots participating in the GVUL Policy in 2000, 2009, 2010, 2014, are attached as Exhibits 5, 6, 7, 8, and 9, respectively. It was MetLife’s business practice to mail a copy of each prospectus to United pilots at the addresses on file with MetLife . . . there is no indication in MetLife’s records that the prospectuses sent to Plaintiffs were returned as undeliverable.”) (quoting Skaggs Declaration, D.E. 76 at ¶ 13). 9 See Brief, D.E. 105 at 12–25. 10 D.E. 107 at 4. Case 1:17-cv-07284-AT-SN Document 110 Filed 03/22/19 Page 7 of 17 04785355.11 4 on evidence outside the complaint.” Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.À.R.L., 790 F.3d 411, 417 (2d Cir. 2015) (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). In this civil action, Judge Torres explained that “[a] Rule 12(b)(1) motion . . . is fact-based and a court can properly consider evidence beyond the pleadings.”11 When the jurisdictional facts are at issue, “the court has the power and obligation to decide issues of fact by reference to evidence outside the pleadings, such as affidavits.” Mori v. El Asset Mgmt., Inc., No. 15 Civ. 1991 (AT), 2016 WL 859336, at *2 (S.D.N.Y. Jan. 28, 2016) (Torres, J.) (quoting Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014)). The R&R explained that, “[e]valuating SLUSA preclusion as a matter of subject matter jurisdiction is appropriate given the limits to the law’s mandate.”12 In explaining that a court may look beyond the four corners of the complaint in assessing SLUSA preclusion, the Second Circuit has stated: [I]f subject matter jurisdiction is contested, courts are permitted to look to materials outside the pleadings. . . . The District Court was entitled to look beyond the four corners of appellants’ amended complaints because determining whether the cases were properly removed under SLUSA is essentially a jurisdictional question. . . . [T]he task of determining whether SLUSA applies is not limited simply to an examination of the relevant pleadings. If that were so, the statute could be avoided merely by consciously omitting references to securities or to the federal securities law. SLUSA requires our attention to both the pleadings and the realities underlying the claims. 11 Order, D.E. 94 at 3 (citing Carter, 822 F.3d at 57). 12 R&R, D.E. 86 at 9; id. at 10 (“Because SLUSA applies to the facts here (taken both from the Amended Complaint and relevant extrinsic documents), I recommend dismissing the relevant claims for lack of subject matter jurisdiction.”). Case 1:17-cv-07284-AT-SN Document 110 Filed 03/22/19 Page 8 of 17 04785355.11 5 Romano v. Kazacos, 609 F.3d 512, 520, 521, 523 (2d Cir. 2010) (citations omitted). In accordance with that case authority, MetLife submitted the Barton Letter and the relevant portions of the Skaggs Declaration for consideration in connection with its Motion to Dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction based on SLUSA preclusion.13 IV. ARGUMENT 1. The Barton Letter and the relevant portions of the Skaggs Declaration are properly considered in connection with MetLife’s motion to dismiss pursuant to Rule 12(b)(1). The Court is clearly entitled to consider the Barton Letter and the relevant portions of the Skaggs Declaration when determining subject matter jurisdiction. “In deciding a Rule 12(b)(1) motion, the court may . . . rely on evidence outside the complaint.” Cortlandt St., 790 F.3d at 417 (citing Makarova, 201 F.3d at 113); see also D.E. 94, at 3–4. Courts routinely consider evidence 13 D.E. 104, 105. In this civil action, Judge Torres explained that courts in the Second Circuit have considered extrinsic documents in conducting a SLUSA preclusion analysis under Rule 12(b)(6): Moreover, courts in this Circuit have considered extrinsic documents in conducting a SLUSA preclusion analysis under Rule 12(b)(6). “When determining whether actions are covered by SLUSA, courts . . . are ‘free to look beyond the face of the . . . complaints to determine whether they allege securities fraud in connection with the purchase or sale of covered securities.’” Tolin v. Standard & Poor’s Fin. Servs., LLC, 950 F. Supp. 2d 714, 719 (S.D.N.Y. 2013) (quoting Romano v. Kazacos, 609 F.3d 512, 519–20 (2d Cir. 2010)). In Tolin, the court decided a Rule 12(b)(6) motion to dismiss based on SLUSA preclusion, and considered “documents publicly filed with the SEC” as well as a declaration submitted in support of the defendants’ motion to dismiss. 950 F. Supp. 2d at 719–20 & n.1. The distinction between considering dismissal on the basis of SLUSA preclusion pursuant to Rule 12(b)(1) or 12(b)(6) is, therefore, “academic, . . . because even when a [SLUSA] motion is considered under Rule 12(b)(6), the district court is authorized to consider matters outside the pleadings and to make findings of fact when necessary.” First Capital Asset Mgmt., Inc. v. Brickellbush, Inc., 218 F. Supp. 2d 369, 378 (S.D.N.Y 2002) (discussing whether dismissal for lack of standing is properly sought under Rule 12(b)(6) or Rule 12(b)(1)); see also Cortlandt St. Recovery Corp. v. Deutsche Bank AG, No. 12 Civ. 9351, 2013 WL 3762882, at *1 n.1 (S.D.N.Y. July 18, 2013) (construing motion to dismiss “as being brought under Rule 12(b)(1)” because the defendant “argue[d] that the Court lack[ed] subject matter jurisdiction,” even though the defendant “purport[ed] to move solely under Rule 12(b)(6)”). It did not matter, then, whether Judge Netburn conducted a SLUSA preclusion inquiry under Rule 12(b)(6) or 12(b)(1) because she could have properly considered both the Skaggs Declaration and the SEC prospectuses under both rules. Order, D.E. 94 at 4–5. Case 1:17-cv-07284-AT-SN Document 110 Filed 03/22/19 Page 9 of 17 04785355.11 6 presented by declaration when deciding motions to dismiss based on subject matter jurisdiction. See Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986) (acknowledging that “evidentiary matter may be presented by affidavit or otherwise” in connection with a 12(b)(1) motion); Jones v. U.S. Dep’t of Educ., No. 09-Civ-00088 BSJ, 2010 WL 10092765, at *2 (S.D.N.Y. Feb. 1, 2010) (same). Plaintiffs have also admitted to the authenticity of the Barton Letter. D.E. 80 at 5 (describing the exhibit as “a letter Barton sent MetLife in which he inquires into MetLife’s concealment and/or suppression of the fact it charged him smoker rate premiums for his GVUL coverage by default.”). The authenticity of the Barton Letter is not subject to reasonable dispute, and this Court may take judicial notice of its contents. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); United States ex rel. Wood v. Allergan, Inc., 899 F.3d 163, 169 (2d Cir. 2018); Kramer v. Time Warner Inc., 937 F.2d 767, 773–74 (2d Cir. 1991); FED. R. EVID. 201(b)(2). Therefore, this Court may consider the Barton Letter and relevant statements in the Skaggs Declaration in the context of MetLife’s Motion to Dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction based on SLUSA preclusion. 2. The Skaggs Declaration does not contain inadmissible hearsay, and the declarant has sufficient knowledge and a proper foundation to make statements relating to the years prior to 2002. Citing Major League Baseball Properties Inc. v. Salvino, Inc., 542 F.3d 290 (2d Cir. 2008) (“Major League Baseball”), Plaintiffs object to statements in the Skaggs Declaration as inadmissible hearsay.14 However, the statements made by the declarant in a declaration by themselves are not inadmissible hearsay for purposes of a pre-trial motion. See Kamen, 791 F.2d at 1011 (2d Cir. 1986); Jones, 2010 WL 10092765, at *2.15 Consistent with that principle, the R&R 14 See Plaintiffs’ Objections, D.E. 108 at 3. 15 In Kamen, the Second Circuit held that, “[w]hile a 12(b)(1) motion cannot be converted into a Rule 56 motion, Rule 56 is relevant to the jurisdictional challenge in that the body of decisions under Rule 56 offers guidelines in considering evidence submitted outside the pleadings.” 791 F.2d at 1011. Thus, the court may consider the Skaggs Declaration Case 1:17-cv-07284-AT-SN Document 110 Filed 03/22/19 Page 10 of 17 04785355.11 7 noted that it would rely on the facts the Skaggs Declaration placed into the record for the “limited purpose” of the Court’s 12(b)(1) analysis.16 There is no hearsay issue with the relevant statements made in the Skaggs Declaration. With regard to assertions relating to years prior to 2002, Plaintiffs contend that Skaggs has no personal knowledge and lacks foundation to make such assertions. Not so. As noted, Skaggs clearly stated that the statements in her Declaration were “based upon [her] personal knowledge and information and records of the regularly conducted business activities” of MetLife.17 Plaintiffs seemingly take the position that Skaggs cannot have personal knowledge of MetLife documents and business practices that precede the date she began serving in her role that provides her access to the relevant documents and information. But Plaintiffs’ position is not grounded in the law. See Tradax Energy, Inc. v. Cedar Petrochemicals, Inc., 317 F. Supp. 2d 373, 378 (S.D.N.Y. 2004) (“The custodian or other qualified witness ‘need not have personal knowledge of the actual creation of the document.’” (quoting Phoenix Assocs. III v. Stone, 60 F.3d 95, 101 (2d Cir. 1995))). Further, Plaintiffs’ citation to Kassim v. City of Schenectady, 415 F.3d 246 (2d. Cir. 2005),18 is wholly unpersuasive. In Kassim, the exhibit at issue was purportedly a translation of an Arabic document. Id. The “translator,” however, admitted that she neither spoke nor read Arabic and any statements therein on a pre-trial motion to dismiss if the statements can be reduced to admissible evidence at trial. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (the court may consider inadmissible evidence on a dispositive motion if it can be “reduced to admissible evidence” at trial). Under Rule 56, “[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” FED. R. CIV. P. 56(c)(4). Here, Skaggs clearly specified that the statements in her Declaration were “based upon [her] personal knowledge and information and records of the regularly conducted business activities” of MetLife. Skaggs Declaration, D.E. 76 at ¶ 1. The facts in the Skaggs Declaration would also be admissible in evidence—Plaintiffs do not challenge the substance of those facts in their opposition to MetLife’s Motion to Dismiss. Finally, Skaggs clearly demonstrated she is competent to testify on the matters stated as she is over 21 years of age, serves in a managerial position for MetLife, and has access and reviewed MetLife’s business records disclosing the information contained in her Declaration. Skaggs Declaration, D.E. 76 at ¶¶ 1–3. 16 R&R, D.E. 86 at 6; accord id. at 5–6. 17 Skaggs Declaration, D.E. 76 at ¶ 1. 18 See Plaintiffs’ Objections, D.E. 108 at 3. Case 1:17-cv-07284-AT-SN Document 110 Filed 03/22/19 Page 11 of 17 04785355.11 8 and that her so-called translation consisted of what the plaintiff had told her to write. Id. The “translator” did not testify that she had accurately translated the document. Id. Here, Skaggs testified that she has access to and reviewed MetLife’s business records.19 The relevant statements in the Skaggs Declaration are properly before the Court. 3. The Barton Letter is not hearsay. Citing Major League Baseball, Plaintiffs object to the Barton Letter as hearsay.20 However, the Barton Letter escapes the exclusionary bar of the hearsay rule under FED. R. EVID. 801(d)(2), which allows a party’s admissions to be received as substantive evidence of the facts admitted and not merely for impeachment. Federal Rule of Evidence 801(c) defines hearsay as “a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” Rule 801 also defines statements that are not hearsay, including an opposing party’s statement, that “is offered against an opposing party and: (A) was made by the party . . . ; (B) is one the party manifested that it adopted or believed to be true; (C) was made by a person whom the party authorized to make a statement on the subject; [or] (D) was made by the party’s agent or employee on a matter within the scope of that relationship while it existed . . . .” FED. R. EVID. 801(d)(2). It is well established that a party’s own statement, or that made by his agent, such as an attorney, is non-hearsay. See Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 132 n.13 (2d Cir. 2004) (noting that letters from party’s attorney “are statements of the party-opponent or its agents, and thus may be admissible non-hearsay under FED. R. EVID. 801(d)(2)”); United States v. Gotti, 457 F. Supp. 2d 395, 397 (S.D.N.Y. 2006) (“A party’s own statements are admissible as non-hearsay admissions regardless of whether such statements 19 Skaggs Declaration, D.E. 76 at ¶ 2. 20 See Plaintiffs’ Objections, D.E. 108 at 3. Case 1:17-cv-07284-AT-SN Document 110 Filed 03/22/19 Page 12 of 17 04785355.11 9 were against his interest when made.” (citation and internal quotation marks omitted)); FED. R. EVID. 801(d)(2)(A) advisory committee’s note to 1972 proposed rules (“A party’s own statement is the classic example of an admission.”). Here, Plaintiffs have admitted that the Barton Letter was written by Plaintiff John F. Barton, Jr. D.E. 80 at 5 (describing the exhibit as “a letter Barton sent MetLife in which he inquires into MetLife’s concealment and/or suppression of the fact it charged him smoker rate premiums for his GVUL coverage by default.”). Accordingly, the Barton Letter falls outside the definition of hearsay, and it is otherwise admissible for purposes of a motion to dismiss pursuant to Rule 12(b). The Barton Letter is also admissible under the business records exception to the rule against hearsay. “The principal precondition to admission of documents as business records pursuant to FED. R. EVID. 803(6) is that the records have sufficient indicia of trustworthiness to be considered reliable.” Saks Int’l, Inc. v. M/V “Export Champion”, 817 F.2d 1011, 1013 (2d Cir. 1987) (citing United States v. Mendel, 746 F.2d 155, 166 (2d Cir. 1984)); United States v. Lavin, 480 F.2d 657, 662 (2d Cir. 1973)). “Documents may properly be admitted under this Rule as business records even though they are the records of a business entity other than one of the parties and even though the foundation for their receipt is laid by a witness who is not an employee of the entity that owns and prepared them.” Saks, 817 F.2d at 1013 (citing United States v. Consol. Edison Co., 580 F.2d 1122, 1131 n.18 (2d Cir. 1978); Mendel, 746 F.2d at 166; United States v. Hathaway, 798 F.2d 902, 906 (6th Cir. 1986)). “Further, there is no requirement that the person whose first-hand knowledge was the basis of the entry be identified, so long as it was the business entity’s regular practice to get information from such a person.” Id. (citing United States v. Atchley, 699 F.2d 1055, 1059 (11th Cir. 1983); United States v. Basey, 613 F.2d 198, 201 n.1 (9th Cir. 1979)). Case 1:17-cv-07284-AT-SN Document 110 Filed 03/22/19 Page 13 of 17 04785355.11 10 Fundamentally, “[t]he determination of whether, in all the circumstances, the records have sufficient reliability to warrant their receipt in evidence is left to the sound discretion of the trial judge.” Id. (citing Lavin, 480 F.2d at 662). Here, Skaggs attested to locating the Barton Letter in the “records of the regularly conducted business activities” of MetLife.21 As a result, the Skaggs Declaration’s authentication of the Barton Letter satisfies the business records exception to the hearsay rule. See Major League Baseball, 542 F.3d at 312. In Major League Baseball, the objections to the evidence at issue lacked merit because the evidence was accompanied by a sworn declaration from Major League Baseball Properties, Inc.’s (“MLBP”) Senior Vice President and General Counsel which stated that based on his personal knowledge the documents were true and correct copies of MLBP’s business records kept in the ordinary course of business. Id. at 312–13. The Skaggs Declaration likewise so states. 4. Plaintiffs’ challenges to the relevant facts are unfounded. Contrary to Plaintiffs’ assertion, there are no “unfounded assertions”22 in MetLife’s Statement of Facts. MetLife correctly stated: “Plaintiffs possessed the GVUL Policy and attached it to their SAC.”23 Plaintiffs claim MetLife “appears to suggest” that they possessed their GVUL policies in 2000.24 MetLife did not say that. Plaintiffs take issue with MetLife stating that “Miller reviewed a table”25 in filling out his GVUL Special Enrollment Change Form, claiming there is “no foundation for any assertion that Miller saw any specific table.”26 MetLife did not state a specific table.27 Miller’s GVUL Special 21 Skaggs Declaration, D.E. 76 at ¶ 1. 22 D.E. 107 at 4. 23 Brief, D.E. 105 at 2–3. 24 D.E. 107 at 4. 25 D.E. 107 at 5 (quoting Brief, D.E. 105 at 3). 26 D.E. 107 at 5. 27 Brief, D.E. 105 at 2–3. Case 1:17-cv-07284-AT-SN Document 110 Filed 03/22/19 Page 14 of 17 04785355.11 11 Enrollment Change Form (“Change Form”) is Exhibit 1 to Plaintiffs’ SAC.28 The Change Form, inter alia, allowed pilots to change coverage for dependents in sections 4 (spouse) and 6 (children).29 Miller signed Section 4, and directly above his signature the form states: “Note: Be sure to use the appropriate smoker/non-smoker rate. New Monthly Spouse Premium (see page 7 of GVUL Program Brochure for rates).”30 On March 15, 2000, Miller handwrote “1.72” next to that statement and the accompanying Dollar sign ($): D.E. 97-1 at 2. It is clear, as the R&R concluded, that Miller must have consulted something giving the smoker and nonsmoker rates when he completed the Change Form, whether it was “page 7 of the GVUL Program Brochure”31 or the GVUL Policy32 or otherwise.33 After all, MetLife set the rates, and Miller wrote in the correct rate on the Change Form. Nonetheless, Plaintiffs protest the generic use of the word “table.” Plaintiffs complain about MetLife’s “suggestion”34 that Plaintiffs’ premium rates did not change when the GVUL policy went into effect. Miller’s Change Form evidences that whatever category (either smoker or nonsmoker) an insured was in before the GVUL policy, continued after the GVUL policy. The Change Form asks for a “Change in Smoker or Non-Smoker Status,”35 evidencing that MetLife had previously requested smoker/non-smoker status of insureds. The Change Form, in both its Section 2 (Pilot’s Life Insurance Coverage Change) and in its Section 4 28 D.E. 97-1. 29 D.E. 97-1 at 2. 30 D.E. 97-1 at 2. 31 D.E. 97-1 at 2. 32 D.E. 97-2 at 14 (B-13). 33 See R&R, D.E. 86 at 4. 34 D.E. 107 at 5. 35 D.E. 97-1 at 2 (emphasis added). Case 1:17-cv-07284-AT-SN Document 110 Filed 03/22/19 Page 15 of 17 04785355.11 12 (Spouse’s Life Insurance Coverage Change, which Miller filled in for insurance coverage for his wife) specifically state: “Note: Be sure to use the appropriate smoker/non-smoker rate.”36 Immediately below those statements, Sections 2 and 4 state: “see page 7 of GVUL Program Brochure for rates.”37 All of those sections together evidence that whatever premiums were being charged at that time based on prior notification from insureds (or lack of such prior notification) would continue absent a “Change in Smoker or Non-Smoker Status.”38 V. CONCLUSION This Court should reject Plaintiffs’ attempt to strike the Barton Letter that was sent to MetLife accusing MetLife of fraud and the relevant statements in the Skaggs Declaration. The Barton Letter and the relevant portions of the Skaggs Declaration may properly be considered by this Court in the procedural context of MetLife’s Motion to Dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction based on SLUSA preclusion. Respectfully submitted, /s/ Lee E. Bains, Jr. Lee E. Bains, Jr. Edward Morris Holt MAYNARD, COOPER & GALE, P.C. 1901 Sixth Avenue North 2400 Regions | Harbert Plaza Birmingham, AL 35203 Telephone: 205.254.1000 Facsimile: 205.254.1999 Email: lbains@maynardcooper.com Email: tholt@maynardcooper.com John M. Hintz MAYNARD, COOPER & GALE, P.C. The Fred F. French Building 551 Fifth Avenue – Suite 2000 New York, NY 10176 Telephone: 646.609.9284 Facsimile: 646.609.9281 Email: jhintz@maynardcooper.com 36 D.E. 97-1 at 2. 37 D.E. 97-1 at 2. 38 D.E. 97-1 at 2. Case 1:17-cv-07284-AT-SN Document 110 Filed 03/22/19 Page 16 of 17 04785355.11 13 CERTIFICATE OF SERVICE I hereby certify that on this 22nd day of March 2019, I caused a true and correct copy of the foregoing to be served by email on the following counsel for Plaintiffs: Michael Louis Kelly, Esq. Behram V. Parakh Joshua A. Fields KIRTLAND & PACKARD LLP 2041 Roscrans Avenue – 3rd Floor El Segundo, CA 90245 Phone: (310)-536-1002 Fax: (310)-536-1001 Email: mlk@kirtlandpackard.com Email: bvp@kirtlandpackard.com Email: jf@kirtlandpackard.com Hunter Shkolnik, Esq. Salvatore Charles Badala NAPOLI SHKOLNIK PLLC 360 Lexington Avenue – 11th Floor New York, NY 10017 Phone: (212) 397-1000 Fax: (646) 843-7603 Email: hunter@napolilaw.com Email: sbadala@napolilaw.com /s/ Edward M. Holt Edward M. Holt Case 1:17-cv-07284-AT-SN Document 110 Filed 03/22/19 Page 17 of 17