The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
Sedgwick, Detert Moran & Arnold 125 Broad Street 39th Floor New York, NY 10004 (212) 422-0202 INTRODUCTION Siragusa, J. In this case, brought under the Employment Retirement Income Security Act ("ERISA"), Defendant Hartford Insurance Company ("Hartford") seeks an Order (1) granting it summary judgment; (2) striking additional exhibits attached to the cross-motion of Plaintiff Suzanne Fry ("Fry"); and (3) striking Fry's cross-motion for summary judgment. For the reasons stated below, Hartford's motion for summary judgment is granted, and Fry's cross-motion for summary judgment is stricken.
Fry commenced her lawsuit on December 29, 2009, by filing a complaint in this Court. On March 4, 2010, the Court referred the case under 28 U.S.C. § 636 to the Honorable Marian W. Payson, U.S. Magistrate Judge, for setting a case schedule and ruling on nondispositive pretrial motions. Judge Payson entered a scheduling order on May 18, 2010, with a due date of November 5, 2010 for filing any dispositive motions.
Hartford filed a motion for summary judgment on November 5, 2010, (Docket No. 12) regarding Fry's claim that Hartford's denial of her long term disability claim was arbitrary and capricious under ERISA. On December 9, 2010, Plaintiff filed a cross-motion (Docket No. 19) for summary judgment, along with attached exhibits.*fn1
Hartford has moved to strike Fry's application, pursuant to Federal Rule of Civil Procedure16, since it was filed in violation of Judge Payson's case management order. In addition, Hartford has also asked that the Court not consider the exhibits attached to Fry's motion, since they were not part of the administrative record.*fn2
With respect to its motion for summary judgment, Hartford argues that Fry's lawsuit is not timely. More specifically, Hartford contends that the time clock for filing this lawsuit started when Hartford requested that Fry submit written proof of loss concerning her disability claim. Hartford puts that date at May 3, 2006, which is when Hartford's employee sent a letter to Fry with the request. Fry counters that under the language of the Hartford plan,*fn3 the clock did not start until the additional proofs from Fry, her doctors, and her lawyer were submitted to Hartford, well after May 3, 2006. Both agree that the limitations period is three years and 90 days from the start of the clock. Therefore, Hartford submits that the time expired on August 1, 2009*fn4 (this lawsuit was filed on December 29, 2009), while Fry argues that the limitation period ran out on or about March 12, 2011.
Federal Rule of Civil Procedure 16(b) outlines case management scheduling orders issued by the Court and states in relevant part that: "[a] schedule may be modified only for good cause and with the consent of the court." Fed. R. Civ. P. 16(b)(4) (2007). Summary Judgment Standard
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interroga-tories, 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." Fed. R. Civ. P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 Moore's Federal Practice, § 56.11[a] (Matthew Bender 3d ed.). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. See Amaker v. Foley, 274 F.3d 677 (2d Cir. 2001); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir.1987) (en banc). Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322--23 (1986).
Once that burden has been met, the burden then shifts to the non--moving party to demonstrate that, as to a material fact, a genuine issue exists. Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is "material" only if the fact has some affect on the outcome of the suit. Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine issue exists as to a material fact, the court must view underlying facts contained in affidavits, attached exhibits, and depositions in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover, the court must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving party. Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993); Anderson, 477 U.S. at 248-49; Doe v. Dep't of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001), rev'd on other grounds Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160 (2003); International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir. 1990). However, a summary judgment motion will not be defeated on the basis of conjecture or surmise or merely upon a "metaphysical doubt" concerning the facts. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)); Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir. 1986). Rather, evidentiary proof in admissible form is required. Fed. R. Civ. P. 56(e). Furthermore, the party opposing summary judgment "may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City, Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996).