United States District Court, S.D. New York
September 24, 2004.
MARY LOTT Plaintiff
MORGAN STANLEY DEAN WITTER & CO. LONG-TERM DISABILITY PLAN, WELFARE PLAN ADMINISTRATION COMMITTEE OF MORGAN STANLEY DEAN WITTER & CO. as plan administrator, and FIRST UNUM LIFE INSURANCE COMPANY OF AMERICA Defendant.
The opinion of the court was delivered by: HAROLD BAER, JR., District Judge
OPINION & ORDER
Defendants, Morgan Stanley Dean Witter & Co Long-Term
Disability Plan, Welfare Plan Administration Committee of Morgan
Stanley Dean Witter & Co., and First Unum Life Insurance Company
(collectively, "Defendants") move for judgment on the
administrative record to deny Plaintiff, Mary Lott ("Lott" or
"Plaintiff"), long term disability benefits ("LTD") pursuant to a
group disability policy ("Policy") and dismiss the complaint. For
the following reasons, Defendants' motion for judgment on the
administrative record is DENIED.
On August 16, 2004, Defendants filed a two-page notice of
motion and a brief in support of their motion for judgment on the
administrative record. On August 30, 2004, Plaintiff filed a
memorandum of law in opposition to Defendants' motion for
judgment on the administrative record, an attorney affirmation
with exhibits, and a counter-statement of material facts pursuant
to Local Rule 56.1. Defendants filed a reply brief in further
support of their motion for judgment on the administrative record
on September 3, 2004 and, on September 7, 2004, provided courtesy
copies to the Court and a CD-Rom containing the over 400 page
Defendants' motion for judgment on the administrative record
fails for three reasons. First, the Defendants' motion does not appear to be authorized by
the Federal Rules of Civil Procedure. The Second Circuit has
provided district courts with minimal guidance on how to
adjudicate a motion that has no foundation in the Federal Rules
of Civil Procedure, but has opined that a motion for judgment on
the administrative record should be treated as "a motion for
summary judgment." Muller v. First Unum Life Ins. Co.,
341 F.3d 119, 124 (2d Cir. 2003).
Second, the Second Circuit requires the non-moving party be
provided sufficient notice that the district court is considering
a motion for summary judgment. Tholke v. Unisys Corp, 01 Civ.
5495, 2004 WL 960029 (2d Cir. May 5, 2004). In Tholke, the
Second Circuit reversed my decision granting Defendants summary
judgment motion for failure to provide plaintiff with sufficient
notice because "especially in a case like this, where the merits
are difficult and proper briefing might well have been helpful to
the district court, the more prudent course is to give Plaintiff
a full opportunity to present her arguments and evidence." Id.,
2004 WL 960029, at * 4. While in that lawsuit there was, what I
would characterize, as notice galore, that is not the case at bar
and, in any event, not the circuit's perception. Accordingly,
even if the Court were to adjudicate Defendants' motion for
judgment on the administrative record by turning it into a motion
for summary judgment, neither the Court nor Defendants have
provided Lott with sufficient notice to that effect. Id., 2004
WL 960029, at * 4.
Third, motions for summary judgment are subject to not only the
Federal Rules of Civil Procedure but, also, to the Local Civil
Rules. Local Civil Rule 56.1 supplements Federal Rule of Civil
Procedure 56 with three additional requirements:
(a) Upon any motion for summary judgment pursuant to
Rule 56 of the Federal Rules of Civil Procedure,
there shall be annexed to the notice of motion a
separate, short and concise statement, in numbered
paragraphs, of the material facts as to which the
moving party contends there is no genuine issue to be
tried. Failure to submit such a statement may
constitute grounds for denial of the motion.
(b) The papers opposing a motion for summary judgment
shall include a correspondingly numbered paragraph
responding to each numbered paragraph in the
statement of the moving party, and if necessary,
additional paragraphs containing a separate, short
and concise statement of additional material facts as
to which it is contended that there exists a genuine
issue to be tried.
(c) Each numbered paragraph in the statement of
material facts required to be served by the moving
party will be deemed to be admitted for purposes of
the motion unless specifically controverted by a
correspondingly numbered paragraph in the statement required to be served by the opposing
(d) Each statement by the movant or opponent pursuant
to Rule 56.1(a) and (b), including each statement
controverting any statement of material fact, must be
followed by citation to evidence which would be
admissible, set forth as required by Federal Rule of
Civil Procedure 56(e).
Local Civil Rule 56.1.
While I am, in the interest of justice and to perpetuate the
Federal Rules philosophy that cases are to be tried on their
merits, prepared to overlook the lack of foundation and the
Tholke notice deficiencies, Defendants' motion for judgment on
the administrative record fails to provide all the necessary
information to adjudicate a motion for summary judgment under the
Local Rules. Defendants' motion, for example, fails to provide a
"separate short and concise statement of material facts as to
which" it contends there is no genuine issue of material fact.
Local Civil Rule 56.1(a). Absent the documentation required by
the local rules, the motion is fatally deficient.
For all of the foregoing reasons, Defendants' motion for
judgment on the administrative record is DENIED. Defendants are
GRANTED thirty days to file a motion for summary judgment with
all the documentation required by Local Civil Rule 56.1.
Plaintiff is GRANTED thirty additional days to respond to a
motion for summary judgment. Defendant, if necessary, has ten
days to refile, including all the documentation required by Local
Civil Rule 56.1. Fully briefed motion papers are to be filed,
with a courtesy copy to Chambers, on or before November 30, 2004.
The Clerk is instructed to close this motion.
IT IS SO ORDERED.
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