-SKO Strawn v. Federal Express Corporation Long Term Disability Plan, No. 1:2010cv02254 - Document 25 (E.D. Cal. 2011)

Court Description: MEMORANDUM DECISION and ORDER re Plaintiff's Motion to Strike and Motion regarding the Standard of Review, signed by Senior Judge Oliver W. Wanger on 8/31/2011. (Kusamura, W)

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1 UNITED STATES DISTRICT COURT 2 FOR THE EASTERN DISTRICT OF CALIFORNIA 3 4 BARRY STRAWN, 5 6 7 8 9 1:10-cv-02254 OWW SKO Plaintiff, v. MEMORANDUM DECISION AND ORDER RE PLAINTIFF S MOTION TO STRIKE AND MOTION REGARDING THE STANDARD OF REVIEW FEDERAL EXPRESS CORPORATION LONG TERM DISABILITY PLAN, (DOCS. 16, 15) Defendant. 10 11 I. 12 13 INTRODUCTION Plaintiff Barry Strawn ( Plaintiff ) proceeds with this 14 action for long term disability benefits under the Federal 15 Express Corporation Long Term Disability Plan ( Defendant or 16 LTD Plan ) pursuant to the Employee Retirement Income Security 17 Act of 1974 ( ERISA ). Before the court is Plaintiff s motion to 18 19 strike. Doc. 16. Defendant filed an opposition (Doc. 20), to which Plaintiff replied (Doc. 22). Also before the court is 20 21 Plaintiff s motion regarding the standard of review (Doc. 15). 22 Defendants filed an opposition (Doc. 19), to which Plaintiff 23 replied (Doc. 23). Both motions were heard August 29, 2011. 24 25 26 27 II. FACTUAL BACKGROUND Plaintiff was an employee of Federal Express Corporation ( Federal Express ) and a participant in the LTD Plan. Doc. 1, ¶ 3. Plaintiff contends that he became totally disabled within 28 1 1 the meaning of the LTD plan. Plaintiff made a claim for long-term 2 disability benefits under the LTD Plan to Aetna Life Insurance 3 Company ( Aetna ), the LTD Plan s claims paying administrator. 4 Id. at ¶¶ 6, 8. Aetna initially accepted and paid Plaintiff s 5 6 7 claim for long-term disability benefits. Id. at ¶ 8. On May 17, 2010, Aetna denied Plaintiff s claim for continued benefits. Id. 8 at ¶ 9. Plaintiff filed an appeal, which Aetna denied on November 9 10, 2010. Id. Plaintiff filed this lawsuit on December 6, 2010. 10 Doc. 1. 11 12 13 14 15 The parties participated in a scheduling conference on June 2, 2011. Doc. 12. A scheduling conference order mandated: (1) Defendant to provide Plaintiff with the administrative record on or before June 15, 2011; (2) the parties to make initial 16 disclosures on or before July 7, 2011; (3) the administrative 17 record to be filed on or before July 7, 2011; and (4) either (i) 18 the parties to agree on the appropriate standard of review by 19 July 18, 2011, or (ii) Plaintiff to file a motion to determine 20 the appropriate standard of review by July 18, 2011. Doc. 12, 6. 21 III. MOTION TO STRIKE 22 23 24 Plaintiff moves to strike: (1) the complete administrative record filed July 7, 2011; (2) Amendment to Service Agreement 25 between Federal Express and Aetna dated September 1, 2008; and 26 (3) excerpts of the Summary Plan Description of the LTD Plan, 27 attached as Exhibit A to the declaration of Robin Marsh, a Senior 28 2 1 Paralegal in Federal Express legal department declaration. 2 A. 3 Federal Rule of Civil Procedure 26(a)(1)(A)(ii) provides 4 LEGAL STANDARD that a party must, without awaiting a discovery request, provide 5 6 7 to the other parties . . . a copy--or a description by category and location--of all documents, electrically stored information, 8 and tangible things that the disclosing party has in its 9 possession, custody, or control and may use to support its claims 10 or defenses, unless the use would be solely for impeachment. 11 Fed. R. Civ. P. 26(a)(1)(A)(ii). 12 13 14 15 Federal Rule of Civil Procedure 37 gives teeth to Rule 26 s disclosure requirements, and is a self-executing, automatic sanction. Goodman v. Staples the Office Superstore, 16 LLC, 644 F.3d 817, *24 (9th Cir. 2011). If a party fails to 17 provide information in compliance with Rule 26(a), the party is 18 not allowed to use that information or witness to supply evidence 19 on a motion, at a hearing, or at a trial, unless the failure was 20 substantially justified or is harmless. Fed. R. Civ. P. 37(c). 21 The party facing sanctions for belated disclosure has the burden 22 23 24 25 26 27 28 to show that its failure to comply with Rule 26 was justified or harmless. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir. 2001). B. ANALYSIS 1. Local Rule 251(b) Defendant points out that Plaintiff has not satisfied the 3 1 Eastern District of California Local Rule 251(b) s threshold 2 requirement of conferring before filing a motion pursuant to 3 Federal Rule of Civil Procedure 26. Local Rule 251(b) requires: 4 5 6 7 8 9 10 11 12 Except as hereinafter set forth, a motion made pursuant to Fed. R. Civ. P. 26 through 37, including any motion to exceed discovery limitations or motion for protective order, shall not be heard unless (1) the parties have conferred and attempted to resolve their differences, and (2) the parties have set forth their differences and the bases therefor in a Joint Statement re Discovery Disagreement. Counsel for all interested parties shall confer in advance of the filing of the motion or in advance of the hearing of the motion in a good faith effort to resolve the differences that are the subject of the motion. Counsel for the moving party or prospective moving party shall be responsible for arranging the conference, which shall be held at a time and place and in a manner mutually convenient to counsel. 13 E.D. Cal. R. 251(b). Plaintiff does not respond to Defendant s 14 argument or address his failure to comply with Local Rule 251(b). 15 Plaintiff s motion to strike is DENIED for failure to comply 16 17 with Local Rule 251(b). Even if Plaintiff had satisfied Local Rule 251(b), his motion to strike would be DENIED for the 18 19 20 following reasons. 2. July 7, 2011 Administrative Record 21 Plaintiff moves to strike the 2,682-page administrative 22 record filed July 7, 2011, almost two months after Defendant gave 23 Plaintiff a 1,710-page administrative record. Plaintiff s counsel 24 asserts that he spent a substantial amount of time scanning, 25 organizing, and bookmarking the original administrative record, 26 27 28 and that production of an entirely new record would unfairly result in substantial extra work. Plaintiff asks that the 4 1 administrative record be reorganized with the original 2 administrative record in front, followed by the new material. 3 4 The June 2, 2011 scheduling conference order required Defendant to give Plaintiff the administrative record on or 5 6 7 before June 15, 2011. Doc. 12, 6. Federal Express received a 1,710-page administrative record from Aetna, and gave Plaintiff 8 that version of the administrative record on May 11, 2011. On May 9 15, 2011, Plaintiff s counsel sent Federal Express a letter 10 questioning the completeness of the administrative record. 11 12 13 14 15 Ms. Marsh declares that she then conducted a page-by-page review of the administrative record and confirmed that it was incomplete. Doc. 19-1, ¶ 17. Ms. Marsh declares that on Monday, May 16, 2011, she requested a complete copy of Plaintiff s appeal 16 brief from Aetna, and was in contact with Aetna over the next 17 several weeks to obtain a correct copy of the administrative 18 record. Id. at ¶¶ 17-18. Ms. Marsh declares that Aetna compiled a 19 correct copy of Plaintiff s appeal brief on or about June 27, 20 2011. Id. at ¶ 19. Ms. Marsh declares that she: (1) manually 21 bates-labeled the administrative record on June 27 and 28, 2011; 22 23 24 (2) sent a paper copy to Aetna for final review on June 29, 2011, Id. at ¶ 22; (3) redacted the administrative record on July 5, 25 2011; (4) and made two copies of it on July 6, 2011, Id. at ¶ 25. 26 Defendant filed a paper copy of the administrative record on July 27 7, 2011. Doc. 13. Ms. Marsh declares and provides documentation 28 5 1 that the administrative record was sent via overnight delivery to 2 Plaintiff s counsel on July 7, 2011 and was received July 8, 3 2011. Id. at ¶ 27-28. Plaintiff s counsel declares that he did 4 not see the administrative record until Sunday, July 10, 2011. 5 6 7 Doc. 16-1, ¶ 25. Defendant provided Plaintiff with what it believed was the 8 administrative record thirteen days before the June 15, 2011 9 deadline, and took steps to obtain the complete record when it 10 learned that it did not possess the complete record. The Federal 11 Rules of Civil Procedure recognize that parties must often 12 13 14 15 supplement or correct their initial disclosures in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect. Fed. R. Civ. 16 P. 26(e)(1)(A). Defendant timely filed a complete copy of the 17 administrative record on July 7, 2011, and provided Plaintiff 18 with the complete administrative record July 8, 2011, ten days 19 before the deadline to determine, or file a motion to determine, 20 the proper standard of review. There is no evidence that 21 Defendant was at fault for the delay in providing Plaintiff the 22 23 24 complete administrative record. Defendant has provided evidence that the incomplete record resulted from a malfunction at Aetna s 25 facility. Plaintiff does not point to any provision in ERISA or 26 federal law that authorizes an order instructing Defendant to 27 reorganize the evidentiary record for Plaintiff s convenience. 28 6 1 There is no evidence that the delay in providing the complete 2 administrative record was prejudicial. If necessary, the parties 3 could have requested an extension of time to file a motion to 4 determine the standard of review. 5 6 7 8 9 Plaintiff s motion to strike the administrative record filed July 7, 2011 is DENIED. 3. Amendment to the Service Agreement Plaintiff also moves to strike the Amendment to the Service 10 Agreement. The scheduling conference order mandated initial 11 disclosures on or before July 7, 2011. Doc. 12. Plaintiff asserts 12 that he did not receive the Amendment to Service Agreement until 13 14 15 16 July 11, 2012, four days late. Rule 26(a)(1)(A)(ii) requires a party to provide a copy or a description by category and location. Fed. R. Civ. P. 17 26(a)(1)(A)(ii) (emphasis added). Defense counsel emailed 18 Plaintiff s counsel on July 5, 2011 disclosing the Amendment to 19 the Service Agreement and stating that a redacted copy would be 20 sent. Contrary to Plaintiff s argument, Rule 26(a)(1)(A)(ii) does 21 not require actual production of documents. Forbes v. 21st Century 22 Ins. Co., 258 F.R.D. 335, 338 (C.D. Ariz. 2009); Fed. R. Civ. P. 23 24 25 26 advisory committee s note on 1993 amend. The other party is expected to obtain the documents desired by proceeding under 26 Rule 34 or through informal requests. Id. Defendant provided 27 Plaintiff with a copy of the Amendment to Service Agreement on 28 7 1 July 11, 2011. 2 Rule 26(a)(4) provides that [u]nless the court orders 3 otherwise, all disclosures under Rule 26(a) must be in writing, 4 signed and served. Fed. R. Civ. P. 26(a)(4). There is no 5 6 7 indication that Defendant s email was served as required by Rule 26(e). Defendant contends, however, that Plaintiff also did not 8 serve signed, written disclosures to Defendant before July 7, 9 2011. 10 11 Plaintiff s motion to strike the Amendment to Service Agreement is DENIED. 12 13 14 15 16 4. Summary Plan Description In his reply to Defendant s opposition, Plaintiff includes a motion to strike Exhibit A to Ms. Marsh s declaration. Exhibit A contains excerpts of the LTD Plan s Summary Plan Description. 17 Plaintiff contends that the excerpts of the Summary Plan 18 Description were not included in Defendant s Rule 26(a) 19 disclosures, was not filed in the administrative record, and was 20 not seen by either the court or Plaintiff s counsel until 21 Defendant filed its opposition to Plaintiff s motions on August 22 15, 2011. 23 24 25 Because Plaintiff s motion to strike is raised for the first time in a reply brief, it will not be considered. The district 26 court need not consider arguments raised for the first time in a 27 reply brief. Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). 28 8 1 2 Plaintiff s motion to strike the Summary Plan Description is DENIED. 3 4 IV. MOTION REGARDING THE STANDARD OF REVIEW Plaintiff moves for a determination that the standard of 5 6 7 review of the denial of Plaintiff s benefit claim is de novo. Defendant counters that the standard of review should be 8 arbitrary and capricious, which the Ninth Circuit equates with 9 the abuse of discretion standard. See Canseco v. Constr. 10 Laborers Pension Trust, 93 F.3d 600, 609 (9th Cir. 1996). 11 Plaintiff s motion will be treated as a motion for partial 12 13 14 15 summary judgment as to the standard of review. A. LEGAL STANDARD Summary judgment is proper if the pleadings, the discovery 16 and disclosure materials on file, and any affidavits show that 17 there is no genuine issue as to any material fact and that the 18 movant is entitled to judgment as a matter of law. Fed. R. Civ. 19 P. 56. 20 21 The moving party bears the initial burden of informing the district court of the basis for its motion, and identifying those 22 23 24 portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 25 affidavits, if any, which it believes demonstrate the absence of 26 a genuine issue of material fact. Celotex Corp. v. Catrett, 477 27 U.S. 317, 323, 106 S.Ct. 2548 (1986) (internal quotation marks 28 9 1 omitted). A fact is material if it could affect the outcome of 2 the suit under the governing substantive law; irrelevant or 3 unnecessary factual disputes will not be counted. Anderson v. 4 Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986). 5 6 7 If the moving party would bear the burden of proof on an issue at trial, it must affirmatively demonstrate that no 8 reasonable trier of fact could find other than for the moving 9 party. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th 10 Cir. 2007). In contrast, if the non-moving party bears the burden 11 of proof on an issue, the moving party can prevail by merely 12 13 pointing out that there is an absence of evidence to support the non-moving party s case. Id. 14 15 When the moving party meets its burden, the adverse party 16 may not rest upon the mere allegations or denials of the adverse 17 party's pleadings, but the adverse party's response, by 18 affidavits or as otherwise provided in this rule, must set forth 19 specific facts showing that there is a genuine issue for trial. 20 Fed. R. Civ. P. 56(e). 21 In ruling on a motion for summary judgment, a court does not 22 23 24 make credibility determinations or weigh evidence. See Anderson, 477 U.S. at 255. Rather, [t]he evidence of the non-movant is to 25 be believed, and all justifiable inferences are to be drawn in 26 his favor. Id. Only admissible evidence may be considered in 27 deciding a motion for summary judgment. Fed. R. Civ. P. 56(e). 28 10 1 Conclusory, speculative testimony in affidavits and moving 2 papers is insufficient to raise genuine issues of fact and defeat 3 summary judgment. Soremekun, 509 F.3d at 984. 4 5 B. ANALYSIS An ERISA plan administrator s decision is reviewed de novo, 6 7 8 unless the plan document grants the administrator discretion to interpret the plan terms and determine eligibility for benefits. 9 Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). 10 If the plan confers discretionary authority to the administrator, 11 then the administrator s decision will be reviewed for an abuse 12 of discretion. Id. [F]or a plan to alter the standard of review 13 14 15 16 17 from the default de novo to the more lenient abuse of discretion, the plan must unambiguously provide discretion to the administrator. Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 963 (9th Cir. 2006). 18 The Aetna Review Committee denied Plaintiff s appeal of his 19 long term disability benefits under the LTD Plan. The applicable 20 standard of review therefore hinges on whether the LTD Plan 21 grants the Aetna Review Committee discretion to interpret the 22 plan terms and determine eligibility for benefits. 23 24 25 26 27 28 The parties agree that the LTD Plan unambiguously grants discretion to Federal Express, the LTD Plan administrator. Section 6.1 of the LTD Plan provides: [T]he Administrator s authority shall include, but shall not be limited to, the following powers: 11 1 2 3 4 5 6 7 (a) to construe any ambiguity and interpret any provision of the Plan or supply any omission or reconcile any inconsistencies in such manner as it deems proper; (b) to determine eligibility for coverage under the Plan in accordance with its terms; and (c) to decide all questions of eligibility for, and determine the amount, manner and time of payment of, benefits under the Plan in accordance with its interpretation of its terms. Doc. 13, AR 02665. The Administrator is defined as the Company 8 (Id. at AR 2609), which in turn is defined as Federal Express 9 Corporation (Id. at AR 2611). 10 11 12 13 14 15 The main issue is whether the Aetna Review Committee properly received and was vested with Federal Express s discretionary authority to review Plaintiff s long-term disability claim. [D]eference applies only when the decision is made by the body vested with discretion. When an unauthorized 16 body that does not have fiduciary discretion to determine 17 benefits eligibility renders such a decision . . . deferential 18 review is not warranted. Jebian v. Hewlett-Packard Co. Employee 19 Benefits Org. Income Protection Plan, 349 F.3d 1098, 1105 (9th 20 Cir. 2001) (quoting Sanford v. Harvard Indus., 262 F.3d 590, 597 21 (6th Cir. 2001)). 22 23 24 25 26 27 28 Under ERISA, a named fiduciary may delegate its fiduciary responsibilities. The instrument under which a plan is maintained may expressly provide for procedures (A) for allocating fiduciary responsibilities (other than trustee responsibilities) among named fiduciaries, (B) for named fiduciaries to designate persons other than named fiduciaries to carry out fiduciary responsibilities (other 12 1 than trustee responsibilities) under the plan. 2 29 U.S.C. § 1105(c)(1); Madden v. ITT Long Term Disability Plan 3 for Salaried Employees, 914 F.2d 1279, 1283 (9th Cir. 1990). Where 4 an ERISA plan expressly gives the administrator or fiduciary 5 6 7 discretionary authority to determine eligibility for benefits or to construe the terms of the plan, and the named fiduciary 8 properly delegates its discretionary authority, then 9 discretionary review applies to the designated ERISA fiduciary as 10 well as its delegate. Id. at 1284. The focus is not on whether 11 there is documentation of a transfer of discretionary authority 12 13 14 15 from the named fiduciary to the delegate, but whether the ERISA plan contemplates the possibility of a transfer of discretionary authority to a third-party and whether there is evidence 16 establishing delegation. Shane v. Albertson s Inc. Employees 17 Disability Plan, 504 F.3d 1166, 1171 (9th Cir. 2007) (citing 18 Hensley v. Northwest Permanente P.C. Retirement Plan, 258 F.3d 19 986, 998 (9th Cir.2001), overruled on other grounds by Abatie, 458 20 F.3d at 966 (holding that delegation of discretionary authority 21 to third-party from identified plan fiduciary was sufficient 22 23 24 because plan contemplated delegation; the plan did not require delegation to be in writing; and affidavits were submitted 25 stating that delegation of discretionary authority took place)). 26 The parties agree that the LTD Plan permits Federal Express 27 28 to appoint an appeal committee, and that appeal committee has 13 1 discretionary authority to review and decide appeals. Section 2 5.3(c) of the LTD Plan provides: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 (c) Decision on Review. The Administrator shall appoint an appeal committee for the purpose of conducting reviews of denial of benefits and providing the claimant with written notice of the decision reached by such committee. Id. at AR 2656. Section 5.3(d) of the Plan provides: (d) Authority of Appeal Committee. The appeal committee, appointed pursuant to Subsection (c), shall, subject to the requirements of the Code and ERISA, be empowered to interpret the Plan s provisions in its sole and exclusive discretion in accordance with its terms with respect to all matters properly brought before it pursuant to this Section 5.3, including, but not limited to, matters relating to the eligibility of a claimant for benefits under the Plan. The determination of the appeal committee shall be made in a fair and consistent manner in accordance with the Plan s terms and its decision shall be final, subject only to a determination by a court of competent jurisdiction that the committee s decision was arbitrary and capricious. Id. at AR 2659-2660 (emphasis added). Although Plaintiff argues that the LTD Plan does not permit delegation of its discretionary authority, Section 5.3(c) explicitly gives Federal Express the 18 19 power to appoint an appeal committee to review denial of benefit 20 claims. Plaintiff, however, contends that Federal Express 21 ability to delegate its fiduciary functions is limited by Section 22 6.1 of the LTD Plan: 23 24 25 26 27 28 Nothing contained in this section shall prevent the Administrator from delegating non-fiduciary administrative duties to the Claims Paying Administrator or others as described in this Plan, the Plan s summary plan description or other document. Doc. 13, AR 2666. Defendant contends that Federal Express named the Aetna 14 1 Review Committee as the appeal committee under Section 5.3(c) 2 of the LTD Plan, and that appointment was made possible by 3 Federal Express delegation to Aetna Life Insurance Company the 4 task of appointing the appeal committee. Section 6.1 of the LTD 5 6 7 8 Plan permits Federal Express to delegate non-fiduciary administrative duties to Aetna, the Claims Paying Administrator. As evidence that the Aetna Review Committee is the appeals 9 committee, Defendant presents the Summary Plan Description, which 10 names the Aetna Appeals Committee as the group responsible for 11 final review of long-term disability claims: 12 13 Appeal a Claim Denial Your Rights 18 You or your authorized representative can request a full and fair review of a denied claim at what is referred to as the appeal level. There are two levels of appeal of all claims except disability, Group Legal Services and Group Long-Term Care, which has one level of appeal. All appeals will be reviewed by the appropriate claims paying administrator. From the date that you receive the written denial of the claim, you must submit your appeal request as outlined in writing in the denial letter. 19 Appeal filing and processing timeframes are as follows: 14 15 16 17 20 21 Appeal Type Deadline for Filing Appeal Disability Claims 180 days after receiving the claim denial notice 22 23 24 25 26 27 28 Deadline for Extension of Filing an Appeal . . . One 30-day extension is allowed if the extension request is received before the 45-day determination period runs out 15 Deadline for Final Determination Group Responsible for Final Review 45 days after receipt of the appeal and all supporting documentation Aetna Appeals Committee 1 2 3 Doc. 19-1, Ex. A, 365, 366. Defendant contends that because the Summary Plan Description 4 is an LTD Plan document, it is clear evidence that Federal 5 Express as the LTD Plan administrator recognizes and has given 6 authority to the Aetna Review Committee as the appeal committee. 7 Summary plan documents provide communication with beneficiaries 8 9 10 11 about the plan, but do not themselves constitute the terms of the plan . . .. CIGNA Corp. v. Amara, 131 S.Ct. 1866, 1878 (2011) (emphasis in original). Although the Summary Plan 12 Description is not a plan document, however, it is evidence that 13 the Aetna Review Committee was appointed as the appeals 14 committee. 15 16 17 Plaintiff points out that the Summary Plan Description lists the Aetna Appeals Committee, not the Aetna Review Committee, as the group responsible for final review. Defendant asserts that 18 19 the Aetna Appeals Committee specified in the Summary Plan 20 Description is the same as the Aetna Review Committee. Defendant 21 contends that while Aetna uses the term Aetna Review Committee, 22 Federal Express uses the term Aetna Appeals Committee, but they 23 are the same committee with interchangeable names. Defendant does 24 not offer any declarations or other evidence to support this 25 26 27 28 argument. Defendant further contends that the appointment of the Aetna Reviews Committee is evidenced by the Amendment to the Service 16 1 Agreement, which Defendant argues is the contractual document 2 evidencing the delegation between Federal Express and Aetna. The 3 Amendment to the Service Agreement reads in pertinent part: 4 5 6 7 8 9 10 11 12 13 14 15 Be fully responsible for final appeal benefit determinations for the Short Term Disability Plans, and effective 9/1/08 for Long Term Disability Plans, and for ensuring such determinations are in accordance with Employee Retirement Income Securities Act ( ERISA ), the Department of Labor regulations and the Standard Operating Processes. FedEx Express hereby delegates to Aetna discretionary authority to render eligibility and benefit determinations and otherwise interpret the terms of the Short Term and Long Term Disability Plans on appeal. FedEx Express acknowledges that it will not have the responsibility or final authority for making any final appeal benefit determinations on appeals received for claims filed under the Short Term Disability Plan on appeals received on or after 9/1/08 for claims filed under the Long Term Disability Plans. Doc. 16-1, Ex. G, 1. The issue here is whether the ERISA plan contemplates a 16 transfer of discretionary authority to a third-party and whether 17 there is evidence establishing delegation. Shane, 504 F.3d at 18 1171. The LTD Plan permits Federal Express to delegate non- 19 fiduciary duties to Aetna, and permits Federal Express to appoint 20 an appeal committee. The LTD Plan grants discretionary authority 21 to the appeal committee. Federal Express has provided the Summary 22 23 24 Plan Description and Amendment to Services Agreement as evidence that Federal Express delegated authority to Aetna and the Aetna 25 Review Committee was appointed the appeal committee. Based on the 26 evidence presented, it cannot be concluded whether the proper 27 delegations were made and whether the Aetna Appeal Committee is 28 17 1 interchangeable with the Aetna Review Committee. The standard of 2 review cannot be decided as a matter of law and is reserved for 3 trial. Plaintiff s motion that the standard of review is de novo 4 is DENIED without prejudice. 5 6 7 Defendant did not file a cross-motion although it was authorized to do so. V. 8 9 CONCLUSION For the reasons stated: 10 1. Plaintiff s motion to strike is DENIED. 11 2. Plaintiff s motion that the standard of review is de novo is 12 13 14 15 16 DENIED without prejudice. 3. Defendant shall submit a proposed form of order consistent with this memorandum decision within five (5) days following electronic service of this memorandum decision. 17 SO ORDERED. 18 DATED: August 31, 2011 /s/ Oliver W. Wanger Oliver W. Wanger United States District Judge 19 20 21 22 23 24 25 26 27 28 18

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