Miller et al v. Metropolitan Life Insurance Company et al

MOTION to Dismiss Pursuant to Federal Rule of Civil Procedure 12

S.D.N.Y.February 1, 2019

04727895.3 1 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) NOTICE OF MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(B) ---------------------------------------------------X PLEASE TAKE NOTICE that upon the declaration of Mary Shields Skaggs dated January 29, 2018 (D.E. 76) (“Skaggs Declaration”), and certain exhibits annexed thereto (Exhibit 5 (D.E. 76-5), Exhibit 6 (D.E. 76-6), Exhibit 7 (D.E. 76-7), Exhibit 8 (D.E. 76-8), Exhibit 9 (D.E. 76-9),1 and Exhibit 14 (D.E. 76-14)2) and the declaration of Robert Scott Connally dated February 1, 2019, and the exhibits annexed thereto; Defendant Metropolitan Life Insurance Company’s Memorandum of Law in Support of Defendant’s Motion to Dismiss Plaintiffs’ Second Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b) dated 1 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. (Report & Recommendation, D.E. 86 (“R&R”), at 5–6; Order adopting R&R, D.E. 94 (“Order”) (adopting D.E. 86 in full)). 2 While the R&R regarding MetLife’s motion to dismiss Plaintiffs’ First Amended Complaint concluded that the letter written by Plaintiff Barton attached to the Skaggs Declaration as Exhibit 14 (D.E. 76-14) (“Barton Letter”) would not be considered in connection with MetLife’s Rule 12(b)(6) motion to dismiss, (R&R, D.E. 86, at 3-4), MetLife is submitting the Barton Letter for consideration in connection with its Rule 12(b)(1) motion to dismiss based on SLUSA preclusion. “In deciding a Rule 12(b)(1) motion, the court may . . . rely on evidence outside the complaint.” Cortlandt St. Recovery Corp. v. Hellas Telecommunications, S.A.R.L., 790 F.3d 411, 417 (2d Cir. 2015) (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)); see Order, D.E. 94, at 3-4. Plaintiffs have 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 enquires into MetLife’s concealment and/or suppression of the fact it charged him smoker rate premiums for his GVUL coverage by default.”)). Case 1:17-cv-07284-AT-SN Document 98 Filed 02/01/19 Page 1 of 3 04727895.3 2 February 1, 2019; and all other pleadings, Orders and proceedings herein, Metropolitan Life Insurance Company (“MetLife”) will move this Court at the courthouse for the United States District Court for the Southern District of New York, located at 500 Pearl Street, New York, NY 10007, at a date and time to be determined by the Court, for an Order pursuant to Federal Rule of Civil Procedure 12(b) granting MetLife’s motion to dismiss this civil action. PLEASE TAKE FURTHER NOTICE that in accordance with Southern District of New York Local Rule 6.1(b), Plaintiffs’ opposing papers, if any, must be served on the undersigned by February 15, 2019, unless the Court supercedes that deadline by Order setting a different briefing schedule. Dated: February 1, 2019 Respectfully submitted, /s/ Edward M. Holt 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 98 Filed 02/01/19 Page 2 of 3 04727895.3 3 CERTIFICATE OF SERVICE I hereby certify that on this 1st day of February 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 98 Filed 02/01/19 Page 3 of 3