Morris v. Microsoft Corporation et al

MEMORANDUM in Support of 112 MOTION for Summary Judgment

M.D. Tenn.July 20, 2018

47559261v.2 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE JOHN H. MORRIS, MELISSA MORRIS, Plaintiffs, vs. MICROSOFT CORPORATION, as employer; MICROSOFT CORPORATION, as Plan Sponsor, MICROSOFT WELFARE BENEFIT PLAN; and PRUDENTIAL FINANCIAL, INC., THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Case No. 3:16-cv-03131 Judge Waverly D. Crenshaw, Jr Magistrate Judge Alistair Newbern PRUDENTIAL DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT Defendants PRUDENTIAL FINANCIAL, INC. (“Prudential Financial”), and THE PRUDENTIAL INSURANCE COMPANY OF AMERICA (“Prudential”) (collectively “Defendants”), through their attorneys and pursuant to Fed. R. of Civ. P. 56 and Local Rule 56.01, submit this memorandum of law in support of their motion for summary judgment. For the reasons set forth in Defendants’ motion and below, the Court should grant Defendants’ motion and dismiss Counts VI, VII, VIII, IX, X, and XI against Prudential in their entirety and with prejudice. If any claims survive, Prudential Financial should be dismissed from the case.1 I. INTRODUCTION Despite Plaintiffs’ scattershot complaint, as to the Prudential Defendants this case boils down to whether Plaintiff John Morris’2 qualified for short-term disability (“STD”) and long- term (“LTD”) benefits. To qualify, Plaintiff must have been unable to perform the material duties 1 Prudential Financial, Inc. is named as a co-defendant in Counts VII, VIII, and IX. 2 Plaintiff Melissa Morris is only a proper plaintiff as the loss of consortium claim Count XI. Unless otherwise noted, “Plaintiff” refers to John Morris only. Case 3:16-cv-03131 Document 113 Filed 07/20/18 Page 1 of 27 PageID #: 2278 2 47559261v.2 of his own occupation. Plaintiff brazenly claims that he was unable to work despite attending law school full time during the period he claims he could not work and beginning to practice law full time shortly after going out of work. This is not the behavior of someone who is unable to work. Tellingly, not a single physician supported Plaintiff’s claim that he was unable to work beyond the termination date of his STD benefits. Indeed, Plaintiff has admitted through his allegations in the complaint in this action that he was, at all times, ready, willing, and able to perform his job at Microsoft Corporation (“Microsoft”). As such, while Plaintiff asks the Court to ignore the facts and logic to conclude that he was too disabled to work because he was depressed, there is no question that Prudential reached the correct decision here -- Plaintiff simply did not qualify for benefits because he was able to work. This proves fatal to the Plaintiff’s entire Complaint. While this case presents a straightforward claim for disability benefits, Plaintiff employs a kitchen-sink approach in asserting all manner of wild claims against the Prudential Defendants by him and his attorney wife, who is both representing him in this case and a purported co- plaintiff. Plaintiff is thus seeking STD and LTD benefits, but attempts to shoehorn these claims into a panoply of baseless legal theories ranging from invasion of privacy to loss of consortium to civil conspiracy. These remaining haphazard claims against the Prudential Defendants all fail as well. For the various reasons set forth below, those claims are not plausible on the face of the complaint and thus fail to state claims upon which relief may be granted. In short, Prudential and Prudential Financial are entitled to summary judgment on each of Plaintiffs’ claims, and Plaintiffs’ Second Amended Complaint as against the Prudential Defendants should be dismissed in its entirety and with prejudice. Case 3:16-cv-03131 Document 113 Filed 07/20/18 Page 2 of 27 PageID #: 2279 3 47559261v.2 II. STATEMENT OF MATERIAL FACTS Defendants incorporate by reference their proposed statement of undisputed material facts (hereinafter “SOF”), which have been submitted pursuant to Local Rule 56.01. III. ARGUMENT A. Standard of Review. Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once a moving party meets its burden, the non-moving party must go beyond pleadings and set forth facts showing a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986). The non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “[A] scintilla of evidence in support of the [non-moving party’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252. As to the claim for LTD benefits in Count VI, because the contents of the administrative record make clear that Prudential’s decision to deny benefits was reasonable and supported by substantial evidence, the Court should grant Defendants’ motion. Plaintiffs’ remaining claims are baseless as a matter of law and fact, and summary judgment in favor of Defendants is warranted. B. Count VI Fails as a Matter of Fact and Law Because Plaintiff Admits He Has Been Able to Perform His Occupation at All Times. Counts I through V are brought solely against Microsoft. (ECF No. 66 at pp. 20-37.) Count VI claims that Prudential and Microsoft erroneously failed to pay STD and LTD benefits Case 3:16-cv-03131 Document 113 Filed 07/20/18 Page 3 of 27 PageID #: 2280 4 47559261v.2 to Plaintiff. Quite simply, this claim fails because Plaintiff admits that he was able to work at his position, or even a higher position, at all times. To be eligible for STD benefits, a claimant must demonstrate that he is “unable to perform the material and substantial duties of [his] regular occupation due to a sickness or injury.” (SOF ¶ 13). Similarly, the LTD Booklet-Certificate instructs claimants that “[y]ou are disabled when Prudential determines that, due to your sickness or injury: you are unable to perform the material and substantial duties of your regular occupation, or you have a 20% loss or more in your monthly earnings.” (SOF ¶ 14.) Plaintiff does not allege that he was unable to perform the material and substantial duties of his occupation or that he had a loss of earnings due to a sickness or injury. In fact, Plaintiff flatly admits the opposite: that he was able to perform his occupation at all times. He alleges that, “[a]t all relevant times, Plaintiff has been ready[,] willing[,] and able to perform the duties of his employment at MICROSOFT . . . .” (Compl. ¶ 116) (emphasis added). He does not stop there, however. Plaintiff further admits that he was able “to transfer to and perform the duties of another position of equal, higher or lower grade level, requiring his skills and experience.” (Id.) (emphasis added). Plaintiff admits that he did not meet the STD or LTD definitions of disability and thus admit that Count VI fails as a matter of law. This is fatal to Plaintiff’s disability claims. C. Prudential’s Decision to Deny Plaintiff’s STD and LTD Claims Should Be Upheld. 1. Legal standards On an ERISA claim for benefits such as Plaintiff’s LTD claim, the highly deferential arbitrary and capricious standard applies where the benefit plan “gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). This is “the least Case 3:16-cv-03131 Document 113 Filed 07/20/18 Page 4 of 27 PageID #: 2281 5 47559261v.2 demanding form of judicial review of administrative action. Therefore, if the Plan Administrator’s decision is supported by substantial evidence, then it should be upheld. In other words, the Plan Administrator’s decision should be rational in light of the Plan’s provisions.” Farhner v. United Transp. Union Discipline Income, 645 F.3d 338, 343 (6th Cir. 2011). Prudential’s decision need not be the only appropriate choice or even the best one. Rather, the Court must defer to the decision so long as it is rational. See Firestone, 489 U.S. at 111; Frazier v. Life Ins. Co. of N. Am., 725 F.3d 560, 567 (6th Cir. 2013) (affirming judgment to plan administrator). “Under this deferential standard, when it is possible to offer a reasoned explanation, based on the evidence for a particular outcome, that outcome is not arbitrary or capricious.” Cox v. Standard Ins. Co., 585 F.3d 295, 299 (6th Cir. 2009). The STD benefits at issue are not governed by ERISA. Accordingly, Prudential’s decision is reviewed as one for a breach of contract.3 See, e.g., Trout v. Elec. Data Sys. Corp., 151 F. App’x 390, 400-02 (6th Cir. 2005) (reviewing non-ERISA disability claim as a breach of contract claim). Under a breach of contract claim, Plaintiff must show, inter alia, “a deficiency in the performance amounting to a breach.” Federal Ins. Co. v. Winters, 354 S.W.3d 287, 291 (Tenn. 2011). Here, that means Plaintiff must show he was “unable to perform the material and substantial duties of [his] regular occupation due to a sickness or injury.” (SOF ¶ 13.) Plaintiff cannot meet either standard. 2. Prudential’s decision to deny STD and LTD benefits was correct. Prudential approved Plaintiff claim for STD benefits from October 15, 2014 through November 18, 2014. (SOF ¶ 32.) This approval was based solely on the opinion of Plaintiff’s psychiatrist, Dr. Islam, who reported that Plaintiff was suffering from depression and acute stress, 3 As discussed below, Plaintiff did not assert a breach of contract claim against Prudential. The claim for STD benefits fails for this reason alone. Case 3:16-cv-03131 Document 113 Filed 07/20/18 Page 5 of 27 PageID #: 2282 6 47559261v.2 and a note from psychologist Dr. Wood, who diagnosed Plaintiff with ADHD and depression. (SOF ¶¶ 28-31.) Dr. Islam recommended in an October 16 Attending Physician Statement (“APS”) that Plaintiff be out of work beginning October 7 due to his mental conditions. (SOF ¶ 29.) After Dr. Islam’s APS, Plaintiff did not submit a single medical record or other document from a physician that stated Plaintiff was unable to work or that he had any medically necessary restrictions or limitations. (See generally PRU 1-209.) Plaintiff submitted another APS, this one from Dr. Daniel Wood dated November 17, 2014, which did not recommend keeping Plaintiff out of work and failed to identify any restrictions or limitations. (SOF ¶ 35.) Plaintiff also submitted an Activities of Daily Living Questionnaire (“ADLQ”) (SOF ¶ 34.) On that form, Plaintiff claimed disability due to “stress induced depression” and stated that “[t]he issues are around my current role/manager and the negativity created since he arrived. Very negative, toxic environment very unfairly treated.” (SOF ¶ 34.) He also admitted to attending law school at that time. (SOF ¶ 34.) Quite simply, Plaintiff failed to submit sufficient evidence to show that he was unable to perform the material and substantial duties of his regular occupation. (SOF ¶¶ 33-37.) Prudential’s ongoing review confirmed this fact. Prudential had Plaintiff’s additional medical records reviewed by three registered nurses, none of whom found Plaintiff to be disabled: • On November 11, 2014, Cheryl McDermott, R.N., noted that Plaintiff’s symptoms appeared to be work-related and that Plaintiff was in law school. (SOF ¶ 33.) She acknowledged that Plaintiff’s psychiatrist claimed he was unable to work due to the high stress environment, but found this statement unsupported because Plaintiff’s high executive functioning allowed him to attend law school and his mental status exam of October 14, 2014 was normal. (Id.) Nurse McDermott opined that restrictions or limitations were not supported beyond that date. (Id.) • In a November 26, 2014 review, Denise Chase, R.N., agreed with Nurse McDermott. (SOF ¶ 36.) She reviewed additional information Plaintiff had submitted, including (1) an Attending Physician Statement dated November 17, Case 3:16-cv-03131 Document 113 Filed 07/20/18 Page 6 of 27 PageID #: 2283 7 47559261v.2 2014 from Dr. Wood, which answered “no” to the question “Do you recommend this patient to be off work?” and did not specify any restrictions or limitations, and (2) an ADLQ completed by Plaintiff, which stated that Plaintiff was in law school and planned to return to work, but that Plaintiff “requested reassignment.” (Id.) This implied that Plaintiff was able to do his job, but with a different manager. (Id.) She also noted that law school would require an ability to focus, problem solve, and concentrate. (Id.) • Finally, on December 8, 2014, Susan Kelly, R.N., conducted another file review. (SOF ¶ 37.) She found no evidence of global impact of Plaintiff’s complaints based on his ADLQ and admitted attendance at law school. (Id.) Nurse Kelly concluded that the medical information did not describe functional impairment of sufficient intensity and severity to preclude Plaintiff from working as of November 19, 2014. (Id.) Nurse Kelly noted that in a December 1, 2014 phone call with Plaintiff, he reported that his manager had been terminated and that Plaintiff expected to return to work in January 2015. (Id.) On appeal, Plaintiff was given the opportunity to submit additional records. He submitted a letter claiming disability due to insomnia, depressions, weight loss, fatigue, shingles, back pain and a sinus infection and again acknowledged that he was attending law school. (SOF ¶ 39.) Prudential gave Plaintiff two extensions to submit additional evidence, including updated medical records, an ADLQ, and Plaintiff’s law school transcripts. (SOF ¶ 42.) Prudential received new documents only from Dr. Wood, which did not identify any restrictions. (SOF ¶ 42.) On the appeal, Prudential obtained a review from Dr. Rajesh Wadhwa, who is board- certified in internal and occupational medicine. (SOF ¶ 43.) He noted that Plaintiff’s limitations were self-reported, non-specific, and unsupported by clinical evidence. (Id.) Other than for seven to ten days around January 21, 2015, due to a shingles rash, Dr. Wadhwa found no impairments. (Id.) He concluded that Plaintiff’s sinus infections were short-term illnesses with no evidence to support impairments. (Id.) Dr. Wadhwa also said that Plaintiff’s alleged psychological incapacity was due to “negativity” at work and that this and his request for reassignment constituted self- reported limitations that were not supported by clinical findings. (Id.) Dr. Wadhwa also noted Plaintiff’s law school attendance and a recent trip to South America. (Id.) Case 3:16-cv-03131 Document 113 Filed 07/20/18 Page 7 of 27 PageID #: 2284 8 47559261v.2 Prudential also obtained an independent file review by a board-certified psychiatrist, Dr. Marcus Goldman, M.D. (SOF ¶ 44.) Dr. Goldman found no restrictions and limitations due to a psychological condition from November 19, 2014 forward. (Id.) Dr. Goldman wrote that the documentation “strongly suggest conflicts in the workplace, job stress, and job dissatisfaction.” (Id.) He also noted Plaintiff’s trip to South America in early 2015 and reports of staying focused at law school, which are inconsistent with profound depression. (Id.) Dr. Goldman found nothing establishing cognitive deficits as Plaintiff’s mental status exams were all unremarkable. (Id.) Finally, Dr. Goldman noted that Plaintiff’s type and frequency of treatment were not consistent with his reported incapacity. (Id.) There was no transition to a more intense level of treatment, and there were large gaps in his psychotherapy of one or two months. (Id.) The evidence was thus overwhelming. Plaintiff submitted no evidence supporting disability beyond November 18, 2014. And each of Prudential’s reviewers -- three internal nurses, one internal physician, and one independent psychiatrist -- agreed that Plaintiff had no restrictions or limitations. The conclusions of Prudential’s reviewers are thorough and detailed and show that Prudential’s decision was correct. The information gleaned through discovery further supports Prudential’s decision.4 By February 2015--just three months after Plaintiff alleges that he was still unable to work--Plaintiff obtained his mediator’s license. (SOF ¶ 47.) Between February and March 2015, he served as mediator in roughly a dozen matters. (SOF ¶ 47.) In March 2015, he began interning for 30 to 40 hours per week with the Nashville Public Defender’s Office. (SOF ¶ 48.) On June 9, 2015, Plaintiff received his Rule Seven license to be able to practice law as a student attorney. (SOF ¶ 4 This information exists outside the administrative record of Plaintiff’s LTD claim and should thus not be considered with respect to that claim. See Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 614-15 (6th Cir. 1998). Because the STD benefits at issue are not governed by ERISA, however, this evidence may be considered on that claim. Case 3:16-cv-03131 Document 113 Filed 07/20/18 Page 8 of 27 PageID #: 2285 9 47559261v.2 48.) From that time through August 2016, he worked between 30 and 40 hours per week as a practicing attorney, drafting over 50 motions, arguing in court, and conducting bench trials. (SOF ¶ 48.) Plaintiff was thus clearly able to work at least as early as March 2015 and even admits to being able to perform a gainful occupation during the entire period he was out of work. (SOF ¶¶ 47-48.) Indeed, Plaintiff stopped seeing Dr. Islam--the only physician supporting his disability claim--in November 2014. (SOF ¶ 50.) Quite simply, Plaintiff is not entitled to any additional benefits and he cannot prevail on Count VI for either STD or LTD benefits. 3. At a Minimum, Prudential’s Decision to Deny LTD Benefits Was Reasonable and Supported by Substantial Evidence. While the record makes clear that Prudential’s LTD decision was correct, at a minimum, that decision reasonable and supported by substantial evidence. First, the LTD Plan clearly grants discretion to Prudential. In order to confer discretion, the plan need not state the word “discretion” or any other “magic word.” Johnson v. Eaton Corp., 970 F.2d 1569, 1572 n. 2 (6th Cir. 1992). “Rather, the Supreme Court directed lower courts to focus on the breadth of the administrators’ power—their authority to determine eligibility for benefits or to construe the terms of the plan.” Perez v. Aetna Life Ins. Co., 150 F. 3d 550, 555 (6th Cir. 1998) (concluding that the arbitrary and capricious standard applied) (quotation omitted). Moreover, ERISA does not require “that the terms of an ERISA plan be contained in a written instrument, require that it be a single document.” Rinard v. Eastern Co., 978 F.2d 265, 268 n.2 (6th Cir. 1992). Here, the plan documents state clearly that Microsoft, as Plan Sponsor and Administrator, conferred discretion upon Prudential to determine LTD claims for benefits. The Plan provides that “Benefits under this Plan will be paid only if the Plan Administrator decides in his discretion that the claimant is entitled to them,” and allows the Plan Administrator to delegate such Case 3:16-cv-03131 Document 113 Filed 07/20/18 Page 9 of 27 PageID #: 2286 10 47559261v.2 discretion. (SOF ¶¶ 17-19.) The Plan and the Summary Plan Descriptions (SPDs) delegate such discretion to Prudential. (SOF ¶¶ 5, 19-20, 22.) Specifically, the Plan states: “No Participant or covered dependent shall be entitled to benefits unless the Plan Administrator (or its delegate, such as an insurer providing benefits under this Plan) determines in its discretion that the Participant or covered dependent is entitled to benefits.” (SOF ¶ 19.) The SPDs state: All decisions and interpretations Microsoft made pursuant to the plan options, programs and policies described in this SPD shall be final, conclusive and binding on all persons and may not be overturned unless found by a court to be arbitrary and capricious, or unless found by an independent medical review organization, after external review, to be made in error. Microsoft may delegate this discretionary authority to select service providers. (SOF ¶ 22.) The Plan lists Prudential as the insurer providing LTD benefits. (SOF ¶ 8.) Thus, there is no question that the Microsoft plan documents provide Prudential with discretion to determine claims for benefits and the arbitrary and capricious standard applies. Farhner v. United Transp. Union Discipline Income, 645 F.3d 338, 343 (6th Cir. 2011) (concluding that the arbitrary and capricious standard applied; Byrd v. Prudential Ins. Co. of Am., 785 F. Supp. 2d 492, 509 (M.D. Tenn. 2010) (finding plan conferred discretion upon Prudential, granting summary judgment to Prudential). Plaintiff’s LTD decision should be upheld under the highly deferential arbitrary and capricious standard because it was plainly reasonable. As discussed above, Prudential thoroughly analyzed Plaintiff medical records and other submissions. It first had those record reviewed by three registered nurses, who all agreed that Plaintiff failed to submit evidence showing he could not work. (SOF ¶¶ 33-37.) On appeal, Prudential had Plaintiff’s records reviewed by an independent psychiatrist as well as an internal physician board-certified in internal and occupational medicine. Both agreed that Plaintiff had no restrictions or limitations that prevented him from working. (SOF ¶¶ 43-44.) This is the only conclusion support by the record. Plaintiff Case 3:16-cv-03131 Document 113 Filed 07/20/18 Page 10 of 27 PageID #: 2287 11 47559261v.2 simply failed to submit any evidence that he was disabled beyond November 18, 2014. Not one treating physician stated that Plaintiff was unable to work or that he had any limitations after that date. In fact, Plaintiff was attending law school at that time. Prudential’s LTD decision was clearly reasonable and based on substantial evidence. See, e.g., Cox, 585 F.3d at 299 (stating that a decision is to be upheld under the arbitrary and capricious standard “when it is possible to offer a reasoned explanation”). D. Any Claim for STD Benefits in Count VI Fails for Additional Reasons. To the extent Count VI seeks STD benefits, that claim fails for additional reasons beyond the fact that Plaintiff admitted he has been able to work at all times and that the record simply does not support a finding of continued disability. Count VI seeks relief only under 29 U.S.C. § 1132(a)(1)(B). The STD benefits at issue, however, are not governed by ERISA, because they were not provided subject to an ERISA governed plan, but rather paid as a payroll practice. (SOF ¶ 6; see also ECF No. 107 at pp 20-21.) Accordingly, that statute cannot provide the relief Plaintiffs seek. Further, the STD benefits at issue are self-insured by Microsoft. (SOF ¶ 6.) Thus any claim for STD benefits against Prudential or Prudential Financial must fail because they are not the parties liable for STD benefits if any such benefits due. For all these reasons, Defendants are entitled to summary judgment on Count VI with respect to any claim for STD benefits. E. Plaintiffs’ ERISA Claims in Counts VII and VIII Fail as a Matter of Law. Count VII is a claim under 29 U.S.C. § 1132(c) against Microsoft, Prudential, and Prudential Financial for failure to provide plan documents in violation of 29 U.S.C. §§ 1024(b)(4). (Compl. ¶¶ 247-59). Count VIII alleges that Microsoft, Prudential, and Prudential Financial violated 29 U.S.C. § 1140 by interfering with Plaintiff’s rights protected under ERISA Case 3:16-cv-03131 Document 113 Filed 07/20/18 Page 11 of 27 PageID #: 2288 12 47559261v.2 and also seeks equitable remedies under 29 U.S.C. § 1132(c). (Compl. ¶¶ 260-72). Both Counts VII and VIII fail as a matter of law against Prudential and Prudential Financial. 1. Count VII Fails as a Matter of Law Against Prudential and Prudential Financial. Plaintiffs bring Count VII against Microsoft, Prudential, and Prudential Financial for failure to provide various plan documents upon request. Plaintiffs claim that Defendants violated 29 U.S.C. § 1024(b)(4), which requires that the Plan Administrator (here, Microsoft) furnish copies of various plan documents to a plan participant or beneficiary upon request. (Compl. ¶¶ 248-49, 252, 242). Plaintiffs bring Count VII pursuant to 29 U.S.C. § 1132(c), which provides for civil penalties when a plan administrator (again, Microsoft) fails to provide requested information to a participant or beneficiary. ERISA defines “administrator,” in relevant part as “the person specifically so designated by the terms of the instrument under which the plan is operated.” 29 U.S.C. § 1002(16). Here, the operable plan document clearly designates Microsoft as that entity. (SOF ¶ 4). Thus, Count VII as pled against Prudential and Prudential Financial fails as a matter of law because neither Prudential nor Prudential Financial is a proper defendant. See, e.g., Caffey v. Unum Life Ins. Co., 302 F.3d 576, 584 (6th Cir. 2002) (stating that “[i]t is well established that only plan administrators are liable for statutory penalties under § 1132(c)” and that “an insurance company, which is not a plan administrator, cannot be liable for statutory damages for failure to comply with an information request”). Moreover, Count VII fails because Plaintiffs have not alleged that any Defendant has failed to provide the documents required to be produced upon request under ERISA. Plaintiffs only allege that Defendants failed to provide the Administrative Services Agreement (“ASA”) between Prudential and Microsoft. (Compl. ¶ 250). The ASA governs Prudential’s Case 3:16-cv-03131 Document 113 Filed 07/20/18 Page 12 of 27 PageID #: 2289 13 47559261v.2 administration of certain of Microsoft’s STD benefits. The STD benefits at issue, however, are not provided pursuant to an ERISA-governed plan. Accordingly, no party was required by ERISA to provide the ASA upon written request. This claim thus fails on its face. 2. Count VIII Fails as a Matter of Law Against Prudential and Prudential Financial. Count VIII seeks relief under 29 U.S.C. § 1132 and § 1140. Plaintiffs first allege that Defendants somehow interfered with Plaintiff’s ERISA rights under § 1140. Plaintiffs, however, do not allege that Prudential interfered with any of John Morris’s rights under ERISA. (Compl. ¶¶ 261-72). Under § 1140, it is illegal “for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan . . . or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan.” 29 U.S.C. § 1140. To establish a § 1140 claim, Plaintiffs must demonstrate through either direct or circumstantial evidence that “an employer had specific intent to violate ERISA.” Smith v. Ameritech, 129 F.3d 857, 865 (6th Cir. 1997). In the absence of direct evidence, Plaintiffs can establish a prima facie case by showing “(1) prohibited employer conduct (2) taken for the purpose of interfering (3) with the attainment of any right to which the employee may become entitled.” Smith, 129 F.3d at 865. For a plaintiff to prevail, there must be a “causal between the likelihood of future benefits and an adverse employment action.” Id. Plaintiffs fail to allege any facts that would allow them to prevail against Prudential or Prudential Financial on this claim. Plaintiffs can only direct this unsupported claim at Microsoft as they allege that Plaintiff’s termination of employment from Microsoft constitutes unlawful interference. (Compl. ¶ 268). The Supreme Court has recognized that § 1140 “protects plan participants from termination motivated by an employer's desire to prevent a pension from Case 3:16-cv-03131 Document 113 Filed 07/20/18 Page 13 of 27 PageID #: 2290 14 47559261v.2 vesting. Congress viewed this section as a crucial part of ERISA because, without it, employers would be able to circumvent the provision of promised benefits.” Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 143 (1990 (emphasis added); see also Inter-Modal Rail Emps. Ass’n v. Atchison, Topeka and Santa Fe Ry. Co., 520 U.S. 510, 515-16 (1997) (discussing § 1140 as a counterbalance to an employer’s flexibility to amend plans “by ensuring that employers do not circumvent the provision of promised benefits”) (emphasis added). Plaintiffs cannot allege any “prohibited employer conduct” by Prudential or Prudential Financial because neither entity has ever employed Plaintiff let alone that any action was taken with specific intent to interfere with his benefits. Smith, 129 F.3d at 865. There are simply no facts that could show Prudential or Prudential Financial violated § 1140. Plaintiffs’ claim for “equitable remedies” under 29 U.S.C. § 1132(c) in Count VIII also fails as a matter of law. (Compl. ¶ 261). Plaintiffs allege that Prudential or Prudential Financial “breached its fiduciary duty in failing to administer the claims process in the participants best interest.” (Compl. ¶ 270). Nothing in § 1132(c) provides for equitable remedies for a breach of fiduciary duty; rather, that section provides for civil penalties when a plan administrator fails to provide requested information to a participant or beneficiary. As noted, that claim fails because Prudential and Prudential Financial are not proper defendants. It fails for the additional reason that a claim for breach of fiduciary duty or other equitable relief is only properly brought under 29 U.S.C. § 1132(a)(3), and Plaintiffs bring no such claim in the Second Amended Complaint. Moreover, any claim that Plaintiffs could allege for breach of fiduciary duty under § 1132(a)(3) on the facts of the Complaint would fail as a matter of law. Such claim would seek relief wholly provided by § 1132(a)(1)(B) and would be impermissibly duplicative of that claim. In recently addressing this issue, the Sixth Circuit noted that § 1132(a)(3) provides “appropriate Case 3:16-cv-03131 Document 113 Filed 07/20/18 Page 14 of 27 PageID #: 2291 15 47559261v.2 equitable relief,” i.e., “relief for injuries caused by violations that § [1132] does not elsewhere remedy.” Rochow v. Life Ins. Co. of N. Am., 780 F.3d 364, 371 (6th Cir. 2015) (quoting Varity Corp. v. Howe, 516 U.S. 489, 513 (1996)). Plaintiffs have not alleged -- and cannot allege -- an injury “separate and distinct from the denial of benefits.” Id. at 372. Plaintiff’s injury for denial of his LTD claim may be fully remedied, if at all, by § 1132(a)(1)(B) with an award of ERISA benefits. Any potential claim for breach of fiduciary duty would thus fail as a matter of law. Thus, Count VIII against Prudential and Prudential Financial under ERISA § 1132(c) or § 1140 should be dismissed. 3. Plaintiff Melissa Morris Has No Standing to Bring Counts VII and VIII, as She Was Neither a Participant Nor a Beneficiary of the Microsoft Plan. Under 29 U.S.C. § 1132(a), a civil action to enforce ERISA may be brought only a “participant” or a “beneficiary.” See Teagardener v. Republic-Franklin Inc. Pension Plan, 909 F.2d 947, 951 (6th Cir. 1990). ERISA defines “participant” as “any employee or former employee of an employer, or any member or former member of an employee organization, who is or may become eligible to receive a benefit of any type from an employee benefit plan which covers employees of such employer or members of such organization, or whose beneficiaries may be eligible to receive any such benefit.” 29 U.S.C. § 1002(7). ERISA defines “beneficiary” as “a person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a benefit thereunder.” 29 U.S.C. § 1002(8). Plaintiffs’ Second Amended Complaint does not they allege that Plaintiff Melissa Morris is or was ever a participant in the Microsoft Plan or a beneficiary of any benefits provided by the Microsoft Plan. As such, Plaintiff Melissa Morris has no standing to bring Counts VII and VIII. Case 3:16-cv-03131 Document 113 Filed 07/20/18 Page 15 of 27 PageID #: 2292 16 47559261v.2 F. To the Extent Counts IX, X, and XI of Plaintiffs’ Complaint Relate to Plaintiff’s LTD Claim, They Are Preempted by ERISA. Three of the counts alleged against Defendants are state law claims (Counts IX, X, and XI). To the extent each of these counts asserts purported violations related to Plaintiff’s claim for LTD benefits, it is preempted by ERISA. Count IX claims that Prudential, Prudential Financial, and Microsoft violated Plaintiff’s purported rights to privacy and confidentiality. (Compl. ¶¶ 273-290). The event purportedly giving rise to this claim was Prudential’s engagement of a private investigator in evaluating Plaintiff’s disability benefits claims. (Compl. ¶¶ 277-285). Count X alleges a civil conspiracy between Prudential and Microsoft. (Compl. ¶¶ 291- 301). The substance of that count is that the defendants “acted together in a scheme to wrongfully deny short term and long term disability claims in direct violation with the terms of the plan” and that “Prudential aided MICROSOFT in a plan to completely cut off any and all income for Plaintiff so MICROSOFT could terminate him, offer him a severance package which Plaintiff would then be desperate for income and would accept.” (Compl. ¶¶ 293-294). Finally, Count XI alleges loss of consortium against Prudential and Microsoft, but alleges no specific facts relating to Prudential. (Compl. ¶¶ 302-309.) This claim is based on Plaintiff Melissa Morris’s loss of “services, support, companionship, and society” and “impairment and loss of benefits of the marital relationship” as a result of Microsoft’s “wrongful acts” toward Plaintiff John Morris. (Compl. ¶¶ 304-308.) Because LTD benefits under the Plan are governed by ERISA, Counts IX, X, and XI of the Complaint are preempted and must be dismissed to the extent they relate to Prudential’s handling and denial of Plaintiff’s LTD claim. Case 3:16-cv-03131 Document 113 Filed 07/20/18 Page 16 of 27 PageID #: 2293 17 47559261v.2 1. The LTD Benefits at Issue Are Governed by ERISA. The LTD benefits at issue are provided pursuant to a plan that falls squarely within ERISA’s definition of an “employee welfare benefit plan.” ERISA broadly defines an “employee welfare benefit plan” as: [A]ny plan, fund, or program which was . . . established or maintained by an employer . . . to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants . . . benefits in the event of sickness, accident, disability, death or unemployment . . . . 29 U.S.C. § 1002(1) (emphasis added). Here, the Plan meets ERISA’s definition of an employee welfare benefit plan. The Group Contract and LTD Booklet-Certificate show that LTD benefits were provided under the Plan as sponsored by Microsoft and maintained for the purpose of providing benefits to Microsoft employees. (SOF ¶¶ 9-11.) Moreover, the Booklet-Certificate describes the scope of benefits and procedures for receiving benefits. (SOF ¶¶ 10-11.) Therefore, the LTD benefits at issue are clearly provided pursuant to an ERISA-covered plan. 2. ERISA Broadly Preempts All Claims Related To An Employee Benefit Plan. ERISA’s preemption provision, ERISA § 514(a), 29 U.S.C. § 1144(a), expressly provides that ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” governed by ERISA. 29 U.S.C. § 1144. The Supreme Court has declared that § 1144(a) is “conspicuous for its breadth” and has recognized that Congress expressed its intent in enacting ERISA to make regulation of benefit plans solely a federal concern. FMC Corp. v. Holliday, 498 U.S. 52, 58 (1990); Cromwell v. Equicor-Equitable HCA Corp., 944 F.2d 1272, 1276 (6th Cir. 1991) (recognizing “that virtually all state law claims relating to an employee benefit plan are preempted by ERISA”). ERISA preempts a state law to the extent such law “relates to” an ERISA plan – i.e., “has a connection with or reference to” Case 3:16-cv-03131 Document 113 Filed 07/20/18 Page 17 of 27 PageID #: 2294 18 47559261v.2 such plan. 29 U.S.C. § 1144(a); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97 (1985). ERISA’s preemption provision does not “pre-empt only state laws dealing with the subject matter covered by ERISA – reporting, disclosure, fiduciary responsibility and the like,” but it preempts all claims, like Plaintiffs’ claims here, that relate in any manner to an employer- sponsored plan. Shaw, 463 U.S. at 98. State law claims are preempted if they seek “to rectify a wrongful denial of benefits promised under ERISA-regulated plans.” Aetna Health, Inc. v. Davila, 542 U.S. 200, 214 (2004). “What triggers ERISA preemption is not just any indirect effect on administrative procedures but rather an effect on the primary administrative functions of benefit plans, such as determining an employee’s eligibility for a benefit and the amount of that benefit.” Id. at 146–47. Sixth Circuit courts routinely hold that ERISA preempts state common law claims seeking benefits under ERISA-regulated plans. In deciding if a state law claim is preempted by ERISA, the focus is on “whether the remedy sought by a plaintiff is primarily plan related.” Bolden v. Hyde Park Landscape & Tree Serv., Inc., No. C-1-09-267, 2010 WL 3168110, at *2 (S.D. Ohio Aug. 11, 2010) citing Thurman v. Pfizer, Inc., 484 F.3d 855, 861 (6th Cir. 2007)); see also Nester v. Allegiance Healthcare Corp., 315 F.3d 610, 613 (6th Cir. 2003) (stating that any judicial complaint for recovery of any benefits allegedly due under an employee benefit plan is strictly governed by ERISA); Caffey v. Unum Life Ins. Co., 302 F.3d 576, 582 (6th Cir. 2003) (holding claims stemming from the processing of plaintiff’s claim for benefits to be preempted); Cromwell, 944 F.2d at 1276 (holding that misrepresentation, breach of contract, and specific performance claims are all pre-empted by ERISA). The Sixth Circuit has also noted that “[i]t is not the label placed on a state law claim that determines whether it is preempted, but whether in essence such a claim is for the recovery of an ERISA plan benefit.” Cromwell, 944 F.2d at 1276; Case 3:16-cv-03131 Document 113 Filed 07/20/18 Page 18 of 27 PageID #: 2295 19 47559261v.2 see also Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475-76 (1998) (holding that a plaintiff may not defeat federal subject-matter jurisdiction by “artfully pleading” his complaint as if it arises under state law where the plaintiff's suit is, in essence, based on federal law). In addition to the express preemption provision, ERISA § 502, 29 U.S.C. § 1132, provides for a civil enforcement mechanism that is the “exclusive federal cause of action for resolution of such [recovery of benefits] disputes.” Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987) (emphasis added). The Supreme Court has noted that ERISA’s exclusive civil enforcement mechanism would be “completely undermined” if ERISA-plan beneficiaries “were free to obtain remedies under state law that Congress rejected in ERISA.” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 50-52 (1987); see also Metro. Life Ins. Co., 481 U.S. at 58, 64-65. The Supreme Court has thus concluded that “any state-law cause of action that duplicates, supplements, or supplants the ERISA civil enforcement remedy conflicts with the clear congressional intent to make the ERISA remedy exclusive and is therefore preempted.” Davila, 542 U.S. at 209; Ingersoll-Rand Co., 498 U.S. at 143-145 (1990). 3. ERISA Preempts Plaintiffs’ State Law Claims Related to LTD Benefits. Counts IX, X, and XI are each preempted by ERISA to the extent they relate to Plaintiff’s LTD claim. Count IX claims that Prudential and Prudential Financial’s engagement of an investigator in evaluating Plaintiff’s disability claim breached his right to privacy (Compl. ¶¶ 277-285); Count X alleges a civil conspiracy between Prudential and Microsoft to deny his benefit claims. (Compl. ¶¶ 293-294). Count XI is a common law claim for loss of consortium against Microsoft and Prudential. (Compl. ¶¶ 302-09). Plaintiff Melissa Morris claims “impairment and loss of the benefits of the marital relationship” as a result of Prudential’s wrongful acts. (Compl. ¶ 308). These claims explicitly seek to recover LTD benefits under the Case 3:16-cv-03131 Document 113 Filed 07/20/18 Page 19 of 27 PageID #: 2296 20 47559261v.2 Plan and/or allege various violations in processing Plaintiff’s claim for benefits. Accordingly, they “relate to” the Plan and are preempted by ERISA. 29 U.S.C. § 1144; see also Cromwell, 944 F.2d at 1276 (stating that claims are preempted by ERISA when “in essence such a claim is for the recovery of an ERISA plan benefit”). Consistent with ERISA’s broad preemption, the Sixth Circuit and its District Courts have held that state law claims such as Plaintiffs’ are preempted under ERISA. See, e.g., Girl Scouts of Middle Tenn., Inc. v. Girl Scouts of the U.S.A., 770 F.3d 414, 419-21 (6th Cir. 2014) (breach of contract and breach of fiduciary duty claims preempted by ERISA); McLemore v. Regions Bank, 682 F.3d 414, 424-27 (6th Cir. 2012) (bad faith and unjust enrichment claims preempted); Cataldo v. U.S. Steel Corp., 676 F.3d 542, 557 (6th Cir. 2012) (negligence and breach of fiduciary duty claims preempted); In re Gen. Motors Corp., 3 F.3d 980, 985 (6th Cir. 1993) (claims for breach of contract, invasion of privacy, and misrepresentation were preempted by ERISA); Cromwell, 944 F.2d at 1276 (breach of contract and bad faith claims preempted by ERISA); Youngblood v. Prudential Ins. Co., 706 F. Supp. 2d 831, 841-42 (M.D. Tenn. 2010) (ERISA preempted civil conspiracy claim arising from denial of LTD benefits). Therefore, Counts IX, X, and XI are expressly preempted by ERISA to the extent they relate to Plaintiff’s claim for LTD benefits. Moreover, to the extent not already preempted, Plaintiffs’ requests for compensatory and punitive damages also are preempted by ERISA. As noted, § 1132 provides the exclusive civil enforcement mechanism for claims relating to a benefit plan. Pilot Life, 481 U.S. at 50-52. “It is well established that extracontractual compensatory and punitive damages are not available under ERISA.” Vargas v. Child Dev. Council of Franklin Cnty., Inc., 269 F. Supp. 2d 954, 956 (S.D. Ohio 2003) (citing cases); see also Cummings v. Thomas Indus., Inc., 812 F. Supp. 99, 103 Case 3:16-cv-03131 Document 113 Filed 07/20/18 Page 20 of 27 PageID #: 2297 21 47559261v.2 (W.D. Ky. 1993) (“plain language of [ERISA] excludes punitive damages and other compensatory damages for anxiety and mental anguish”) (citations omitted).5 G. Plaintiffs’ State Law Claims Against Defendants Fail as a Matter of Fact and Law to the Extent They Relate to Plaintiff’s STD Claim. While claims related to Plaintiff’s STD claim are not subject to ERISA preemption, they each fail as a matter of law for other reasons. 1. Defendants Are Entitled to Judgment on Count IX. As noted, Count IX alleges that Prudential, Prudential Financial, and Microsoft violated Plaintiff’s purported rights to privacy and confidentiality by hiring a private investigator to conduct surveillance of Plaintiff. (Compl. ¶¶ 273-290). Tennessee courts have recognized four distinct kinds of “invasion of privacy.” See Beard v. Akzona, Inc., 517 F. Supp. 128, 131 (E.D. Tenn. 1981) (stating that Tennessee recognizes (1) intrusion, (2) public disclosure of private facts, (3) false light, and (4) appropriation for commercial purpose). Plaintiffs do not state under which theory their “invasion of privacy” claim falls. Count IX should be dismissed for this reason alone. Nonetheless, Plaintiffs fail to allege any facts demonstrating the elements of any of the four distinct theories of liability. See, e.g. Seaton v. TripAdvisor, LLC, 728 F. 3d 592, 601 (6th Cir. 2013) (stating that false light invasion of privacy requires showing of “(1) publicity, (2) that places the plaintiff in a false light, (3) that is ‘highly offensive to a reasonable person,’ and (4) that the defendant knew of or acted with reckless disregard to the ‘falsity of the publicized matter and the false light in which the other would be placed.’”(quoting West v. Media Gen. 5 Plaintiffs’ demand for a jury trial is premised on their preempted state law claims. The Sixth Circuit has consistently held that actions under ERISA are fundamentally equitable in nature and that, therefore, no right to a jury trial exists. See Wilkins v. Baptist Healthcare System, Inc., 150 F.3d 609, 616 (6th Cir. 1998) (denying right to jury trial in ERISA action); Bair v. General Motors Corp., 895 F.2d 1094, 1097 (6th Cir. 1990) (same). Case 3:16-cv-03131 Document 113 Filed 07/20/18 Page 21 of 27 PageID #: 2298 22 47559261v.2 Convergence, Inc., 53 S.W.3d 640, 643-44 (Tenn. 2001)); Int’l Union v. Garner, 601 F. Supp. 187, 190 (M.D. Tenn. 1985) (“Appropriation contemplates the unauthorized commercial use of a part of a person's appearance, such that it fairly exploits a person's property right or his right of publicity.”); Beard, 517 F. Supp. 128 (stating that a claim of public disclosure of private facts requires publication “of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.”; “Communication to a single individual or to a small group of people, absent breach of contract, trust, or other confidential relationship, will not give rise to liability.”); Given v. Mullikin, 75 S.W.3d 383, 412 (Tenn. 2002) (dismissing claim of intrusion for failure to plead facts showing (1) that the information sought by the was not properly discoverable or subject to privilege; (2) that the party knew that the information was not discoverable or subject to privilege; (3) that obtaining the information would be highly offensive to a reasonable person; and (4) that injury was suffered). Plaintiffs list a number of purported facts related to Prudential’s engagement of a private investigator to obtain information related to Plaintiff’s claims for benefits. (Compl. ¶¶ 273-290). These alleged facts have no bearing on any of the necessary elements for an “invasion of privacy” claim. There is simply no evidence on which the jury could reasonably find for Plaintiffs on Count IX, and it must be dismissed. Moreover, Count IX fails as a matter of law because Plaintiffs have failed to allege any facts demonstrating that the claim is timely. Invasion of privacy claims are subject to a one-year statute of limitations. See, e.g., Jackson v. Falcon Transp. Co., No. 3:08-0771, 2011 WL 1627319, at *3 (M.D. Tenn. Apr. 29, 2011); West, 53 S.W.3d at 648. Plaintiffs have made no allegation that their purported invasion of privacy claim accrued within a year prior to the Case 3:16-cv-03131 Document 113 Filed 07/20/18 Page 22 of 27 PageID #: 2299 23 47559261v.2 original complaint filed in October 2016. Prudential’s surveillance of Plaintiff occurred in March 2015 (SOF ¶¶ 40-41). It thus fails for this additional reason. Finally, Plaintiffs’ invasion of privacy claim is barred because Plaintiff consented to any purported unlawful disclosure of information. Plaintiff executed an authorization for the release of information, which expressly allows for the disclosure of allegedly confidential information to Prudential. (Dkt. No. 14-2).6 That authorization expressly permits Prudential to utilize that information to administer Plaintiff’s claims for benefits, including to “conduct other legally permissible activities that relate to any coverage or benefits” that Plaintiff applied for. (Id.). Engaging a private investigator falls squarely within the scope of Plaintiff’s consent. Count IX thus fails as a matter of law because it is barred by this absolute defense. See, e.g., Gard v. Harris, No. 2008-01939-COA-R3-CV, 2010 WL 844810, at *3 (Tenn. Ct. App. Mar. 11, 2010). 2. Prudential Is Entitled to Judgment on Count X. Count X alleges a civil conspiracy between Prudential and Microsoft. (Compl. ¶¶ 291- 301). The substance of that count is that the defendants “acted together in a scheme to wrongfully deny short term and long term disability claims in direct violation with the terms of the plan” and that “Prudential aided MICROSOFT in a plan to completely cut off any and all income for Plaintiff so MICROSOFT could terminate him, offer him a severance package which Plaintiff would then be desperate for income and would accept.” (Compl. ¶¶ 293-294). Civil conspiracy requires a showing that: (1) a common design between two or more persons, (2) to accomplish by concerted action an unlawful purpose, or a lawful purpose by unlawful means, (3) an overt act in furtherance of the conspiracy, and (4) resulting injury.” Rock Ivy Holding, LLC v. RC Properties, LLC, 464 S.W.3d 623, 643 (Tenn. Ct. App. 2014) (citation 6 This document may properly be considered by the Court as it was incorporated by reference into Plaintiffs’ First Amended Complaint. (See Dkt. No. 23 at ¶ 496; see also Compl. ¶ 280 (alleging that Prudential requested medical information “in violation of the consent given”)). Case 3:16-cv-03131 Document 113 Filed 07/20/18 Page 23 of 27 PageID #: 2300 24 47559261v.2 omitted). Plaintiffs theory of this claim rests solely on the allegedly unlawful denial of his short- term and long-term disability benefits. (Compl. ¶¶ 293-94). But Plaintiff concedes that he was ready, willing, and able to perform the duties of his own occupation or a higher level occupation. (Compl. ¶ 116). The denial of his benefit claims was lawful and a civil conspiracy based on that underlying lawful act must fail. See, e.g. Levy v. Franks, 159 S.W.3d 66, 82 (Tenn. Ct. App. 2004) (“[T]here is no liability under a theory of civil conspiracy unless there is underlying wrongful conduct”; “[I]f the claim underlying the allegation of civil conspiracy fails, the conspiracy claim must also fail.”). There is simply no evidence on which a jury could reasonably find that Defendants acted in concert for any “unlawful purpose.” Count X fails as well. 3. Prudential is Entitled to Judgment on Count XI. Count XI alleges a claim for damages due to loss of consortium by Plaintiff Melissa Morris. This claim as against Prudential fails as a matter of law. There is no evidence on which the jury could reasonably find for Plaintiffs on Count XI. In Count XI, Plaintiff Melissa Morris does not allege any facts against Prudential; all of the allegations are directed at Microsoft. (Compl. ¶¶ 302-309.) The claim against Prudential fails on its face and should be dismissed. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Moreover, loss of consortium is a derivative claim that originates with underlying personal injuries. Hunley v. Silver Furniture Mfg. Co., 38 S.W.3d 555, 557 (Tenn. 2001). Because each of Plaintiffs’ other claims fail as a matter of law, so too must Plaintiff Melissa Morris’ loss of consortium claim. See, e.g., DeJesus v. Geren, No. 3:08cv0043, 2008 WL 2558009, at *20 (M.D. Tenn. June 23, 2008) (dismissing loss of consortium claim because all underlying substantive claims were dismissed). H. Any Remaining Claims Against Defendants Fail. Without further explanation, Plaintiffs allege that Prudential and Microsoft are “jointly and severally liable” for the alleged misconduct. (Compl. ¶ 20). Plaintiffs similarly allege that Case 3:16-cv-03131 Document 113 Filed 07/20/18 Page 24 of 27 PageID #: 2301 25 47559261v.2 each Defendant approved and ratified the alleged unlawful conduct of the others. (Compl. ¶ 22). Plaintiffs recite boilerplate language without any factual support. There is no evidence on which a jury could reasonably find for Plaintiffs on this theory. Therefore, to the extent Plaintiffs allege any additional claims against the Prudential Defendants, those claims fail as a matter of law. I. Prudential Financial, Inc. Is Not a Necessary Party and Should Be Dismissed from the Case. In the Second Amended Complaint, Plaintiffs added Prudential Financial, Inc. as a new defendant. Prudential Financial is the parent company of Prudential, but is not a necessary party here. Prudential concedes that it acted as claims administrator for the disability benefits at issue and that it insures long-term disability benefits. (SOF ¶¶ 5, 8.) Plaintiffs do not set forth in the Second Amended Complaint why they believe Prudential Financial, Inc. is a necessary party. It is not and should be dismissed from the case if any of Plaintiffs’ claims are allowed to proceed. See, e.g., Daniel v. Eaton Corp., 839 F.2d 263, 266 (6th Cir. 1988) (stating that proper party in ERISA action is the one that “is shown to control the administration of the plan”). IV. CONCLUSION For the foregoing reasons, the Court should grant Prudential and Prudential Financial’s motion for summary judgment in its entirety and dismiss Plaintiffs’ Second Amended Complaint with prejudice. Specifically, the Court should dismiss Counts VI, VII, VIII, IX, X, and XI of the Second Amended Complaint and grant any further relief deemed just and appropriate. DATED: July 20, 2018 Respectfully submitted, By: /s/ Christopher M. Busey Christopher M. Busey (pro hac vice) Seyfarth Shaw LLP 233 S. Wacker Drive, Suite 8000 Case 3:16-cv-03131 Document 113 Filed 07/20/18 Page 25 of 27 PageID #: 2302 26 47559261v.2 Chicago, IL 60606 Telephone: 312-460-5234 cbusey@seyfarth.com Cyrus L. Booker CBooker@bookerlegal.com BOOKER LEGAL GROUP, P.C. 1720 West End Avenue, Suite 640 Nashville, TN 37203-2615 Telephone: (615) 815-1634 Attorney for Defendant The Prudential Insurance Company of America Case 3:16-cv-03131 Document 113 Filed 07/20/18 Page 26 of 27 PageID #: 2303 27 47559261v.2 CERTIFICATE OF SERVICE The undersigned attorney hereby certifies that he caused a copy of the foregoing DEFENDANT PRUDENTIAL’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT to be served upon the following counsel of record by the Court’s ECF system, this 20th day of July, 2018: Melissa Morris, BPR #035018 Nashville Vanguard Law PLLC 1350 Rosa L Parks Blvd, Unit 54 Nashville, TN 37208 Melissa.morris@nashvillevanguardlaw.com Benjamin A. Stone MUNGER & STONE, LLP 999 Peachtree Street, NE Suite 2850 Atlanta, Georgia 30309 Email: ben.stone@mungerandstone.com Elizabeth S. Washko Ogletree, Deakins, Nash, Smoak & Stewart, L.L.P. Suntrust Center 424 Church Street Suite 800 Nashville, TN 37219 liz.washko@ogletreedeakins.com /s/ Christopher M. Busey Christopher M. Busey Case 3:16-cv-03131 Document 113 Filed 07/20/18 Page 27 of 27 PageID #: 2304