United States District Court, E.D. Pennsylvania
February 24, 2004.
NANCY YOUNG, Plaintiff,
RECONSTRUCTIVE ORTHOPEDIC ASSOCIATES, II, P.C. and THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, Defendants
The opinion of the court was delivered by: JAMES KELLY, Senior District Judge
MEMORANDUM AND ORDER
Presently before the Court are Plaintiff Nancy Young's ("Plaintiff")
Motion for Leave to Amend Complaint Pursuant to Federal Rule of Civil
Procedure 15 ("Motion to Amend"), Defendant Reconstructive Orthopedic
Associates, II, P.C.'s ("ROA") response and Plaintiff's reply thereto;
and Defendant ROA's Motion to Dismiss Counts Two Through Five of
Plaintiff's Amended Complaint ("Motion to Dismiss"), Plaintiff's response
and ROA's reply thereto. Plaintiff seeks to amend her Complaint a second
time to add a claim against ROA under Pennsylvania's Wage Payment and
Collection Law ("WPCL"), 43 Pa. Stat. § 260.1, et seg. ROA
opposes this second amendment because it contends that the additional
state law claim is futile as WPCL claims are preempted by the Employee
Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001, et
seq. For the following reasons, Plaintiff's Motion to Amend is
GRANTED and Defendant ROA's Motion to Dismiss is DISMISSED AS MOOT.
Plaintiff was employed by ROA from January 1999 to November 2000. She
alleges that, when she was hired, ROA undertook the responsibility of
enrolling her in a long-term disability insurance policy (the "Policy")
with Defendant Northwestern Mutual Life Insurance Company ("NML").
Plaintiff claims that, although she completed all the necessary forms,
either ROA or NML failed to properly enroll her in the Policy. Unaware of
the alleged failure to enroll her, Plaintiff, after becoming totally
disabled from Parkinsonism, made a claim for long-term disability
benefits under the Policy. NML declined her claim because she was not,
and never was, an insured under its disability policy.
On March 28, 2003, Plaintiff filed a five-count Complaint against NML
and ROA. Count One of that Complaint, against NML, alleges a violation of
ERISA, and the remaining four counts, against ROA, allege state law
claims. On May 22, 2003, Plaintiff filed an Amended Complaint (the
"Amended Complaint") that added Count Six against ROA under Section 404
of ERISA for breach of fiduciary duty. Plaintiff now seeks to amend the
Amended Complaint by adding another state law claim under Pennsylvania's
WPCL based upon the same facts set forth in the Amended Complaint.
II. STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 15, "[a] party
may amend the party's pleading once as a matter of course at any
time before a responsive pleading is served. . . . Otherwise a party
may amend the party's pleading only by leave of the court or by written
consent if justice so requires." Fed.R.Civ.P. 15(a). Generally, leave
to amend should be freely granted absent a concern of: (1) undue delay;
(2) bad faith or dilatory motive; (3) continued failure to cure
deficiencies by prior amendments; (4) undue prejudice to the opposition;
or (5) futility of amendment. Forman v. Davis, 371 U.S. 178,
The alleged futility of Plaintiff's amendment to the Amended Complaint
is at issue in this matter. To determine whether a proposed amendment
would be futile for purposes of Rule 15(a), courts abide by the standard
of legal sufficiency applicable to a motion to dismiss under Federal Rule
of Civil Procedure 12(b)(6). See Oran v. Stafford,
226 F.3d 275, 291 (3d Cir. 2000); In re Burlington Coat Factory Securities
Litigation, 114 F.3d 1410, 1434 (3d Cir. 1997); Burstein v.
Retirement Account Plan for Employees of Allegheny Health, Education and
Research Foundation, 263 F. Supp.2d 949, 956 (E.D. Pa. 2002). When
reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must
accept the non-movant's well-pled averments of fact as true and view all
inferences in the light most favorable to the non-moving party.
Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939,
944 (3d Cir. 1985); Society Hill Civic Assoc. v. Harris,
632 F.2d 1045, 1054 (3d Cir. 1980); Abbdulaziz v. City of
No. Civ. A. 00-5672, 2001 U.S. Dist. LEXIS 16972, at *4 (E.D. Pa.
Oct. 18, 2001). A motion to dismiss is appropriate only when the movant
establishes that he is entitled to judgment as a matter of law and there
exists "no set of facts in support of his claims which would entitle him
to relief." Ford v. Schering-Plough Corp., 145 F.3d 601, 604
(3d Cir. 1998); Schrob v. Catterson, 948 F.2d 1402, 1405 (3d
Cir. 1991). Thus, if Plaintiff's proposed amendment to the Amended
Complaint would survive a motion to dismiss, then futility does not
As in ROA's Motion to Dismiss, ROA argues in its response to
Plaintiff's Motion to Amend that Plaintiff fails to state a claim upon
which relief can be granted because Plaintiff's WPCL claim is preempted
by Section 514 of ERISA, 29 U.S.C. § 1144, and thus, her amendment is
futile. We do not address the sufficiency of Plaintiff's factual
allegations under Pennsylvania's WPCL at this time, as ROA does not
dispute the sufficiency of those allegations in its Motion to Amend.
By arguing only preemption, it appears that ROA will pursue the
applicability of ERISA only to this matter. The parties do not, at this
time, set forth their contentions regarding facts that support or
challenge the applicability of ERISA, for example, Plaintiff's status as
a "participant" and each
Defendant's status as a "fiduciary" under ERISA. At this early
stage and considering the facts presented thus far, it is questionable
whether ERISA will ultimately apply in this matter. Specifically, we
question whether ERISA will be implicated at all by virtue of ROA's or
NML's alleged failure to enroll Plaintiff, since Plaintiff may not fall
within the definition of a "participant" and, therefore, not entitled to
sue under ERISA. See, e.g., Miller v. Rite Aid Corporation,
334 F.3d 335 (3d Cir. 2003).
Moreover, the Court is mindful of a potential trial strategy in which
Defendants may now move for dismissal of state law claims based upon
ERISA preemption and then later argue that ERISA does not even apply to
Plaintiff. If Defendants employ this strategy and are successful on both
fronts, then Plaintiff would be left without any means of recourse.
See Miller, 334 F.3d at 345 n.9. For that reason and under the
facts of this case, Plaintiff's alternative pleading is wise. If, for
example, ERISA does not apply, then ROA's ERISA preemption argument
fails, and the state law claim that Plaintiff seeks to add to the Amended
Complaint may be successful. Alternative pleading is permissible pursuant
to the Federal Rule of Civil Procedure 8, which provides, in pertinent
part, that "[a] party may also state as many separate claims or defenses
as the party has regardless of consistency and whether based on legal,
equitable, or maritime grounds." Fed.R.Civ.P. 8(e).
For the foregoing reasons, Plaintiff's Motion to Amend the Complaint is
GRANTED and ROA's Motion to Dismiss is DISMISSED AS MOOT.
AND NOW, this ___ day of February, 2004, in consideration of
Plaintiff Nancy Young's ("Plaintiff") Motion for Leave to Amend Complaint
Pursuant to Federal Rule of Civil Procedure 15, Defendant Reconstructive
Orthopedic Associates, II, P.C.'s ("ROA") response and Plaintiff's reply
thereto; and Defendant ROA's Motion to Dismiss Counts Two Through Five of
Plaintiff's Amended Complaint, Plaintiff's response and ROA's reply
thereto, IT IS ORDERED that Plaintiff's Motion to Amend the
Complaint (Doc. No. 13) is GRANTED and ROA's Motion to Dismiss
(Doc. No. 9) is DISMISSED AS MOOT.
© 1992-2004 VersusLaw Inc.