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Thompson v. Ameriflex

United States District Court, Second Circuit

August 16, 2013

AMERIFLEX, et al., Defendants.



Pro se Plaintiff Dionne K. Thompson ("Plaintiff") brought this action against AmeriFlex, Inc. ("AmeriFlex"), Union Security Life Insurance Company of New York, incorrectly referred to in the Amended Complaint as "Assurant" ("USLICNY"), and Long Island Employee Benefits, Group, Ltd. ("LIEBG") (collectively, "Defendants"), pursuant to the Employee Retirement Income Security Act as amended, 29 U.S.C. § 1001 et seq. ("ERISA"), alleging that Defendants violated ERISA in connection with the payment and determination of her benefits, and the provision of information, under long-term disability and pension plans maintained by Plaintiff's former employer, Morris Heights Health Center ("Morris Heights"). The Court has jurisdiction of this action pursuant to 29 U.S.C. § 1132(e) and (f).

AmeriFlex is the only defendant remaining in this suit.[1] Plaintiff's Amended Complaint and her briefing in opposition to this motion, liberally construed, assert claims against AmeriFlex, as her COBRA[2] plan administrator, based on AmeriFlex's alleged failure to notify her as to her eligibility for COBRA benefits upon the termination of her employment, in violation of 29 U.S.C. § 1166(a)(4). AmeriFlex now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56, arguing that it was not the proper entity to be sued in this case. The Court has considered carefully the parties' submissions and arguments. For the following reasons, AmeriFlex's motion is granted.


The facts of this case have been discussed extensively in prior Memorandum Opinions and Orders by the Court and most recently, in the Count's March 19, 2013, Order granting USLICNY's and LIEBG's motions for summary judgment. (Docket Entry No. 110.) Only the facts most relevant to the current motion are discussed below. AmeriFlex previously moved to dismiss Plaintiff's Amended Complaint, asserting that the current AmeriFlex entity is a successor company to a prior AmeriFlex entity and that, because the current AmeriFlex entity did not assume liability for the prior entity's actions during the period in question, the Plaintiff's claims against it should be dismissed. The Court held that AmeriFlex's Asset Purchase Agreement, which specified the division of responsibility between the two companies, was not properly considered by the Court on a motion to dismiss, especially in light of Plaintiff's pro se status. (See March 19, 2013, Order, Docket entry No. 111.)

AmeriFlex's motion to dismiss was, therefore, denied, without prejudice to renewal as a properly-noticed summary judgment motion. (Id. at 4.) Because Plaintiff's Amended Complaint only broadly alleges claims against AmeriFlex, the Court also held that, if the Plaintiff filed any opposition to AmeriFlex's anticipated summary judgment motion, she had to proffer facts explaining her claim(s) against Ameriflex and why the current AmeriFlex company was liable for those claim(s). (Id.)

In her Amended Complaint, Plaintiff alleges that the factual bases for her claims began "in or about January of 2008, " shortly after her employment with Morris Heights ended on December 21, 2007. (Am. Compl. at 3, Pl. Opp. to AmeriFlex's Mot. for Summary Judgment at 17-18.) In her opposition to AmeriFlex's motion for summary judgment, Plaintiff alleges that AmeriFlex was the "designated plan administrator" for her COBRA benefits and failed to comply with its statutory duty to provide notice to the Plaintiff of her benefit options, even after she made multiple requests to AmeriFlex, and that she "was victimized by Defendant, ("Ameriflex") and their inequitable and/or poorly funded plan(s)." (Pl. Opp. to AmeriFlex's Mot. for Summary Judgment at 14, 17-20.) Ultimately, AmeriFlex sent Plaintiff her COBRA forms on March 25, 2008, approximately three months after her employment was "effectively terminated, " and gave Plaintiff the opportunity to enroll in COBRA retroactive to the date that her employment ended. (Id. at 21, 27); see also Thompson v. Morris Heights Health Center, No. 09 Civ. 7239(PAE)(THK), 2012 WL 1145964, at *2 (Apr. 6, 2012).

In support of its motion for summary judgment, AmeriFlex offers evidence demonstrating that, on April 19, 2010, InterFlex Payments, LLC ("InterFlex") purchased certain assets of AmeriFlex, LLC, a New Jersey limited liability company, through an agreement (the "Agreement") with AmeriFlex, LLC as the Seller and William E. Good as a member of the Seller Group. (Def. 56.1 Stmt. ¶ 8, Roger Abramson Affidavit (hereinafter "Abramson Aff.") InterFlex agreed to pay to AmeriFlex, LLC $200, 000 each month for a period of 96 months, for a total payment equal to $19, 200, 000, to acquire AmeriFlex, LLC's assets. (Def. 56.1 Stmt. ¶ 9, Abramson Aff., Ex. 1 at 3-4.)

Upon the close of the sale of AmeriFlex, LLC to InterFlex, the Agreement established that InterFlex would assume only "Ordinary Course Obligations" as liabilities from the Seller. (Def. 56.1 Stmt. ¶ 10, Abramson Aff, Ex. 1 at 3).) "Ordinary Course Obligations" are defined in Section 8.14 of the Agreement as: "recurring Liabilities incurred in the normal course of operation of the Business, consistent with past practice, but do not include any Liabilities resulting from a violation of Law or any Liabilities under an agreement that result from any breach or default..." (Def. 56.1 Stmt. ¶ 11, Abramson Aff, Ex. 1 at 3, 26.) The Agreement provides further that AmeriFlex, LLC, as the Seller (not InterFlex, which became AmeriFlex, Inc.), would retain and that Mr. Good would cause Ameriflex, LLC, to retain and discharge, certain "Excluded Liabilities, " including "Liabilities relating to Litigation" or "any violations of Law prior to the Closing." (Abramson Aff, Ex. 1 at 3.)

Article 1.4 of the Agreement explains specifically that AmeriFlex, LLC, with Mr. Good, will retain and discharge: "(a) Liabilities in respect of any of the Excluded Assets; (b) Liabilities relating to Litigation... or any violations of Law prior to the Closing... (g) any undisclosed Liability; (h) Liabilities incurred other than in the Ordinary Course of Business prior to the Closing; and (i) any other Liability that is not an Assumed Liability." (Id.) Accordingly, by the plain terms of the Agreement, the current AmeriFlex entity has not assumed any liabilities relating to litigation or alleged violations of the law that occurred before May 10, 2010, which was the closing date of the Agreement. (Def. 56.1 Stmt. ¶ 13, Abramson Aff. at ¶ 8.)


In ruling on a motion for summary judgment, the court must determine whether, "construing the evidence in the light most favorable to the non-movant, there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Doninger v. Niehoff , 642 F.3d 334, 344 (2d Cir. 2011) (quoting Federal Rule of Civil Procedure 56(a)). A fact is "material" if its existence or nonexistence "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). A dispute about a material fact is considered genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party, " with the court drawing "all justifiable inferences" in favor of the nonmoving party. Id. at 248, 255. However, a party cannot survive a motion for summary judgment based on "conclusory allegations or unsubstantiated speculation." Jeffreys v. City of New York , 426 F.3d 549, 554 (2d Cir. 2005) (citation omitted).

Because Plaintiff is proceeding pro se, her submissions "must be construed liberally and interpreted to raise the strongest arguments that they suggest." Triestman v. Fed Bureau of Prisons , 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted). "However, this forgiving standard does not relieve plaintiff of his [or her] duty to meet the requirements necessary to defeat a motion for summary judgment.'" Gantt v. Horn, No. 09 Civ. 7310(PAE), 2013 WL 865844, at *4 (S.D.N.Y. Mar. 8, 2013) (citing Jorgensen v. Epic/Sony Records , 351 F.3d 46, 50 (2d Cir. 2003)). "Bald assertions by a pro se ...

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