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United States District Court, Eastern District of New York

April 28, 2003


The opinion of the court was delivered by: Frederic Block, District Judge


Pro se plaintiff Christine Fuller ("plaintiff") brings this action pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., claiming that defendant J.P. Morgan Chase & Co. Benefits Appeal Committee ("defendant") implemented its long-term disability plan ("LTD plan") in a discriminatory manner. In her affirmation in opposition to defendant's motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), plaintiff presents a new claim not set forth in her complaint. Defendant submits reply papers to dismiss the claim pursuant to Rule 12(b)(6). For the reasons stated below, the Court grants defendant's motion as to the ADA claim, sua sponte deems the claim presented in plaintiff's affidavit as an amendment to her complaint, converts defendant's Rule 12(b)(6) motion in respect thereto to one for summary judgment, and grants plaintiff 30 days to respond to that motion.


Plaintiffs ADA claim centers on defendant's LTD plan, which provides mentally-disabled employees with benefits for eighteen months, but provides physically-disabled employees with benefits until age 65. Compl. ¶ 8. Plaintiff, who alleges that she suffers from manic depression (bi-polar disorder), a "medically caused mental illness," and that she received eighteen months of benefits under the LTD plan, claims that the plan violates ADA by "discriminat[ing] against employees with mental illnesses." Compl. ¶ 8.

Even construing the facts in the light most favorable to the plaintiff, see Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton College, 128 F.3d 59, 63 (2d Cir. 1997), and reading her complaint "to raise the strongest arguments" it suggests, Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), plaintiff's claim is meritless because "Title I of the ADA does not bar entities covered by the statute from offering different long-term disability benefits for mental and physical disabilities." EEOC v. Staten Island Savings Bank, 207 F.3d 144, 148 (2d Cir. 2000), aff'ing EEOC v. The Chase Manhattan Bank, No. 97-CV-6620, 1998 WL 851605 (S.D.N.Y. Dec. 8, 1998) (discussing LTD plan of Chase Manhattan Bank, defendant's predecessor in interest). The Court will not afford plaintiff leave to amend her ADA claim because to do so would be futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996).*fn1


Plaintiffs second claim, as contained in her affidavit, alleges that "bi-polar disorder is a chemically caused physical disease" and that she should have been treated like other individuals with physical disabilities under the LTD plan. Aff. at 4. Giving her papers a liberal construction, the Court construes plaintiff's new claim as a challenge to the LTD plan administrator's benefit eligibility determination, see ERISA, 29 U.S.C. § 1132; Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 109 (1989), factually predicated on defendant's allegedly improper application of the LTD plan discussed in her complaint. See Cuoco v. Moritsugu, 222 F.3d at 112.

Although defendant moves to dismiss pursuant to Rule 12(b)(6), it relies on documentation outside the complaint to support its argument that it acted within its discretion in denying benefits to plaintiff. Reply Mem. at 4. When "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment." Fed.R.Civ.P. 12(b); see also LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991). Before there can be a disposition on the claim, however, plaintiff, who is pro se, must receive notice pursuant to Local Rule 56.2. a copy of which is attached. Accordingly, plaintiff has 30 days to submit a responsive Local Rule 56.1 statement and any supporting affidavits or other materials pursuant to Fed.R.Civ.P. 56(e) showing that there is a genuine issue of fact for trial.*fn2 See Fed.R.Civ.P. 12(b)(6); Friedl v. City of New York, 210 F.3d 79, 83-84 (2d Cir. 2000) (nonmovant must be given opportunity to present supporting material when court converts motion to dismiss to one for summary judgment).


The Court grants defendant's Rule 12(b)(6) motion as to the ADA claim, sua sponte deems the complaint amended to assert an ERISA claim, converts defendant's Rule 12(b)(6) motion in regard to that claim to one for summary judgment pursuant to Rule 56, and grants plaintiff 30 days of the date from this memorandum and order to respond to the motion.



The defendant in this case has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. This means that the defendant has asked the court to decide this case without a trial, based on written materials, including affidavits, submitted in support of the motion. THE CLAIMS YOU ASSERT TN YOUR COMPLAINT MAY BE DISMISSED WITHOUT A TRIAL IF YOU DO NOT RESPOND TO THIS MOTION by filing your own sworn affidavits or other papers as required by Rule 56(e). An affidavit is a sworn statement of fact based on personal knowledge that would be admissible in evidence as trial. The full text of Rule 56 is attached.

In short, Rule 56 provides that you may NOT oppose summary judgment simply by relying upon the allegations in your complaint. Rather, you must submit evidence, such as witness statements or documents, countering the facts asserted by the defendant and raising issues of fact for trial. Any witness statements, which may include your own statements, must be in the form of affidavits. You may submit affidavits that were prepared specifically in response to defendant's motion for summary judgment.

Any issue of fact that you wish to raise in opposition to the motion for summary judgment must be supported by affidavits or by other documentary evidence contradicting the facts asserted by the defendant. If you do not respond to the motion for summary judgment on time with affidavits or documentary evidence contradicting the facts asserted by the defendant, the court may accept defendant's factual assertions as true. Judgment may then be entered in defendant's favor without a trial.

If you have any questions, you may direct them to the Pro Se Office.

Rule 56. Summary Judgment

(a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof.

(b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof.

(c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

(d) Case Not Fully Adjudicated on Motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

(e) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

(f) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

(g) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.

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