The opinion of the court was delivered by: Hon. Norman A. Mordue, U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Defendants move (Dkt. No. 12) to dismiss the complaint for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). As explained below, the Court grants the motion and dismisses the complaint.
On May 16, 2011, plaintiff commenced this action in New York State Supreme Court, Schenectady County (Index No. 2011-917). On June 10, 2011, defendants removed the case to this Court, alleging federal question jurisdiction under 28 U.S.C. § 1331 on the ground that plaintiff's claims are completely preempted under sections 502(a)(1)(B) and 514(a) of the Employee Retirement Income and Security Act ("ERISA"), 29 U.S.C. §§1132(a)(1)(B); 1144(a).*fn1
Plaintiff did not move for remand.
On July 1, 2011, United States Magistrate Judge David R. Homer extended the time for plaintiff to serve and file an amended complaint to August 8, 2011 (Dkt. No. 11). Plaintiff did not file an amended complaint.
On August 26, 2011, defendants filed the instant motion to dismiss (Dkt. No. 12). Plaintiff's opposition, due on October 7, 2011, was filed on October 19, 2011. It did not include a memorandum of law as required by Local Rule 7.1(a)(1). By Order dated October 26, 2011 (Dkt. No. 19), the Court denied defendants' letter motion (Dkt. No. 18) to strike plaintiff's opposition as untimely and deficient. The Court advised that it would accept a memorandum of law filed by plaintiff by November 3, 2011. Plaintiff never filed a memorandum of law. Rather, on November 7, 2011 plaintiff's attorney filed a letter stating: "Our Opposition papers are based solely on factual determinations and therefore do not required [sic] any Memorandum of Law."
Defendants filed their reply on November 14, 2011.
In his complaint, plaintiff claims that, while a full-time employee of defendant Golub Corp., he enrolled in its Group Long Term Disability Plan, policy number GLT-209007 (the "Plan"), administered by defendant Hartford Life Insurance Co. ("Hartford"). On an unspecified date, plaintiff was diagnosed with multiple sclerosis. Plaintiff's claim for benefits was approved, and Hartford paid him monthly benefits at 60% of his pre-disability income.
The complaint alleges that on a number of occasions plaintiff corresponded with defendants, including the individual defendants, who were Hartford employees; that on December 28, 2008 and prior thereto they told him that he qualified for Long Term Disability and was entitled to benefits up to 60% of his pre-disability income; that "subsequent thereto and up to and including December 28, 2008," Hartford employees told him that he was entitled to benefits up to 80% of his pre-disability income. The complaint contains causes of action for fraud, specific performance, breach of contract, negligence, and accounting, all under New York State common law. Plaintiff seeks to recover benefit payments in the amount of 20% of his pre-disability income, plus punitive damages.
On this motion, defendants contend that plaintiff's complaint must be dismissed on the ground that it comprises only New York State common law causes of action, all of which are preempted by ERISA. Plaintiff does not address this issue, but rather states ...