Cothard et al v. J.D. Benefit Services, Inc. et al, No. 3:2012cv00270 - Document 43 (D. Nev. 2014)

Court Description: ORDER granting Defendants' 22 Motion for Summary Judgment as to the plaintiffs' first and third claims for relief, and those claims are dismissed with prejudice. The court declines to consider plaintiffs' second and fourth claims for relief and they are dismissed without prejudice. Signed by Judge Howard D. McKibben on 01/15/2014. (Copies have been distributed pursuant to the NEF - KR)
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Cothard et al v. J.D. Benefit Services, Inc. et al Doc. 43 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 12 13 14 15 16 MELISSA COTHARD and FRANK GREEN, ) ) Plaintiffs, ) ) vs. ) ) J.D. BENEFIT SERVICES, INC., et ) al., ) ) Defendants. ) _________________________________ ) 3:12-cv-00270-HDM-WGC ORDER 17 Plaintiffs Melissa Cothard and Frank Green have filed a 18 complaint against defendants J.D. Benefit Services, Inc. (“JDB”), 19 MFJ Benefits, LLC (“MFG”), and Steven Dalinas (collectively 20 “defendants”) asserting four causes of action: (1) “Restitution of 21 Plan Assets Pursuant to 29 U.S.C. § 1109(a)”; “Nevada State Law on 22 Insurance Fraud”; (3) “§510 ERISA RETALIATION, 29 U.S.C. §1140” and 23 (4) “State Law Violations.” 24 issued an order (#42) denying the plaintiffs’ motion for partial 25 summary judgment (#21). 26 defendants’ motion for summary judgment (#22). 27 opposed with “Plaintiffs’ Opposition to Defendants’ Motion for On September 17, 2013, the court Presently before the court is the The plaintiffs have 28 1 Dockets.Justia.com 1 Summary Judgment and Motion to Strike Surplusage,” (#27) and the 2 defendants have replied (#31). 3 Plaintiffs Cothard and Green were employees of defendant MFG. 4 Defendant JDB sold insurance benefits such as short term 5 disability. 6 BENEFITS LLC . . . was a successor to, and alter ego of, Defendant 7 BENEFIT SERVICES, INC. (Compl. at 2), defendants state that 8 defendants J.D. Benefit Services, Inc., and MFG Benefits, LLC, 9 merely “decided to work collaboratively.” 10 (Def. Mot. 3.) While the plaintiffs allege that “MFG (Def. Mot. 3.) Plaintiffs allege that, in January 2012, plaintiff Cothard 11 noticed that defendants began receiving “cancellation letters for 12 non-payment of premiums from Allstate Insurance Company, even 13 though the Circle of Life had paid its premiums to its third party 14 administrator, J.D. BENEFIT SERVICES, INC.” 15 Plaintiffs claim that when Plaintiff Cothard requested an 16 explanation, “she was . . . told by defendant STEVEN DALINAS . . . 17 to start rolling this group into a new product, which was 18 TransAmerica and to roll as many of the employees as we [sic] could 19 so Steve [sic] didn’t have to pay Allstate the balance due.” 20 (Compl. at 3.) 21 (Compl. at 2.) MFG terminated the employment of both plaintiffs effective May 22 15, 2012. (Def. Opp’n at 4; Ex. 8.) Plaintiffs contend their 23 employment was terminated following their discovery of the 24 cancellation letters for nonpayment, and shortly after defendant 25 Dalinas received information that plaintiffs were consulting a 26 labor attorney. 27 plaintiffs’s employment was terminated as a result of plaintiffs 28 being “unfit for their positions.” (See Compl. at 2-3.) 2 Defendants assert that (Def. Opp’n at 5.) The plaintiffs filed their complaint (#1) in federal court on 1 2 May 21, 2012, and a motion for partial summary judgment (#21) on 3 February 26, 2013. 4 September 17, 2013. 5 judgment, which is presently before the court, on March 1, 2013. 6 I. The court denied the plaintiffs’ motion on Defendants filed their motion for summary MOTION TO STRIKE SURPLUSAGE In their opposition to the defendants’ motion for summary 7 8 judgment, plaintiffs “move to strike all Defendants’ exhibits 9 submitted in support of the motion for summary judgment if the 10 exhibit or page and line number of testimony is not specifically 11 referenced in the Defendants’ moving papers.” 12 plaintiffs assert that “it appears Defendants’ counsel simply 13 attached her entire file as exhibits to this motion,” and that the 14 plaintiffs’ counsel “cannot respond to such unfocused clutter.” 15 (Id.) 16 on the basis that many of the statements lack foundation, and are 17 simply generalized lay opinions rather than facts.” 18 (P. Opp’n 4.) The The plaintiffs also “object to the Defendants’ declarations (Id.) The Court first examines this “Motion to Strike Surplusage,” 19 as the court’s ruling on that motion affects the evidence available 20 to the court in ruling on the defendants’ motion for summary 21 judgment. 22 Standard 23 Under Rule 56(c)(1) of the Federal Rules of Civil Procedure, 24 [a] party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or 25 26 27 28 3 (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. 1 2 3 Fed. R. Civ. P. § 56(c)(1). However, under Rule 56(c)(3), [t]he 4 court need consider only the cited materials, but it may consider 5 other materials in the record.” Fed. R. Civ. P. § 56(c)(3). 6 Furthermore, under Rule 56(c)(4), 7 8 9 10 11 12 13 14 15 16 [a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated. Fed. R. Civ. P. § 56(c)(4). Motions to strike under the Federal Rules of Civil Procedure are governed by Rule 12(f), which states: The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading. 17 Fed. R. Civ. P. § 12(f). 18 which designates the following as the “only . . . pleadings 19 allowed.” 20 21 22 23 (1) (2) (3) (4) (5) (6) (7) “Pleadings” are defined by Rule 7(a), a complaint; an answer to a complaint; an answer to a counterclaim designated as a counterclaim; an answer to a crossclaim; a third-party complaint; an answer to a third-party complaint; and if the court orders one, a reply to an answer. 24 Fed. R. Civ. P. § 7(a). 25 Analysis 26 While it is true that not every page of the exhibits 27 defendants attached to their motion for summary judgment is cited 28 to in their motion, the defendants do still provide citations to 4 1 specific portions of the attached exhibits in many sections of 2 their motion in accordance with Rule 56(c)(1). 3 Mot. 3-5.; see Fed. R. Civ. P. § 56(c)(1). 4 discussed above, the court when evaluating a motion for summary 5 judgment is not required to, but may, at its discretion, consider 6 materials in the record that are not cited to in the motion. 7 Fed. R. Civ. P. § 56(c)(3). 8 reason why this court should “strike” the portions of the 9 defendants’ exhibits not specifically cited to in the motion for 10 11 See, e.g., Def. Additionally, as See Thus, as a matter of law there is no summary judgment. Moreover, while the plaintiffs “object” to the defendants’ 12 attached declarations, they do not suggest that these declarations 13 are made without personal knowledge, contain facts that would be 14 inadmissible evidence, or do not show that the declarant is 15 competent to testify on the matters stated. 16 therefore not do not allege that the defendants’ declarations 17 violate Rule 56(c)(4), which governs declarations used in support 18 of a motion for summary judgment. 19 Def. Opp’n 4. 20 “strike” or decline to consider these declarations. 21 The plaintiffs See Fed. R. Civ. P. § 56(c)(4); Accordingly, there is no reason for this court to Finally, Rule 12(f), which controls motions to strike, makes 22 clear that motions to strike may only be made to “strike from a 23 pleading an insufficient defense or any redundant, immaterial, 24 impertinent, or scandalous matter.” 25 discussed above, Rule 7(a) makes clear that motions are not 26 pleadings. 27 “strike surplusage” from the defendants’ motion for summary Fed. R. Civ. P. § 12(f). See Fed. R. Civ. P. § 7(a). 28 5 As The plaintiffs’ motion to 1 judgment is therefore improper under the Federal Rules of Civil 2 Procedure. For all of the foregoing reasons, the plaintiffs’ motion to 3 4 strike surplusage is denied. 5 II. 6 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT: The defendants have moved for summary judgment on all claims. 7 The court now considers this motion. 8 Standard 9 Summary judgment shall be granted “if the movant shows that 10 there is no genuine issue as to any material fact and the movant is 11 entitled to judgment as a matter of law.” 12 The burden of demonstrating the absence of a genuine issue of 13 material fact lies with the moving party, and for this purpose, the 14 material lodged by the moving party must be viewed in the light 15 most favorable to the nonmoving party. 16 Co., 398 U.S. 144, 157 (1970); Martinez v. City of Los Angeles, 141 17 F.3d 1373, 1378 (9th Cir. 1998). 18 that affects the outcome of the litigation and requires a trial to 19 resolve the differing versions of the truth. 20 Workers Int’l Ass’n, 804 F.2d 1472, 1483 (9th Cir. 1986); S.E.C. v. 21 Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982). Fed. R. Civ. P. 56(a). Adickes v. S.H. Kress & A material issue of fact is one Lynn v. Sheet Metal 22 Once the moving party presents evidence that would call for 23 judgment as a matter of law at trial if left uncontroverted, the 24 respondent must show by specific facts the existence of a genuine 25 issue for trial. 26 250 (1986). 27 sufficient evidence favoring the nonmoving party for a jury to 28 return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, “[T]here is no issue for trial unless there is If the evidence is merely 6 1 colorable, or is not significantly probative, summary judgment may 2 be granted.” 3 of evidence will not do, for a jury is permitted to draw only those 4 inferences of which the evidence is reasonably susceptible; it may 5 not resort to speculation.” 6 585 F.2d 946, 952 (9th Cir. 1978); see also Daubert v. Merrell Dow 7 Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993) (“[I]n the event 8 the trial court concludes that the scintilla of evidence presented 9 supporting a position is insufficient to allow a reasonable juror Id. at 249-50 (citations omitted). “A mere scintilla British Airways Board v. Boeing Co., 10 to conclude that the position more likely than not is true, the 11 court remains free . . . to grant summary judgment.”). Moreover, 12 “[i]f the factual context makes the non-moving party’s claim of a 13 disputed fact implausible, then that party must come forward with 14 more persuasive evidence than otherwise would be necessary to show 15 there is a genuine issue for trial.” 16 Stanewich, 142 F.3d 1145, 1149 (9th Cir. 1998) (citing Cal. 17 Architectural Bldg. Products, Inc. v. Franciscan Ceramics, Inc., 18 818 F.2d 1466, 1468 (9th Cir. 1987)). 19 are unsupported by factual data cannot defeat a motion for summary 20 judgment. 21 Blue Ridge Insurance Co. v. Conclusory allegations that Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Finally, if the nonmoving party fails to present an adequate 22 opposition to a summary judgment motion, the court need not search 23 the entire record for evidence that demonstrates the existence of a 24 genuine issue of fact. 25 Dist., 237 F.3d 1026, 1029-31 (9th Cir. 2001) (holding that “the 26 district court may determine whether there is a genuine issue of 27 fact, on summary judgment, based on the papers submitted on the 28 motion and such other papers as may be on file and specifically See Carmen v. San Francisco Unified Sch. 7 1 referred to and facts therein set forth in the motion papers”). 2 The district court need not “scour the record in search of a 3 genuine issue of triable fact,” but rather must “rely on the 4 nonmoving party to identify with reasonable particularity the 5 evidence that precludes summary judgment.” Keenan v. Allan, 91 F.3d 6 1275, 1279 (9th Cir. 1996) (quoting Richards v. Combined Ins. Co., 7 55 F.3d 247, 251 (7th Cir.1995)). 8 to respond is really an opportunity to assist the court in 9 understanding the facts. “[The nonmoving party’s] burden But if the nonmoving party fails to 10 discharge that burden–for example by remaining silent–its 11 opportunity is waived and its case wagered.” 12 Township Trustees, 980 F.2d 399, 405 (6th Cir. 1992). 13 Analysis 14 Plaintiffs’ First Claim: 15 29 U.S.C. § 1109(a)” 16 Guarino v. Brookfield “Restitution of Plan Assets Pursuant to The plaintiffs’ first claim for relief hinges on the argument 17 that: (1) the insurance plans at issue were ERISA plans; (2) the 18 defendants breached their fiduciary duties with regard to these 19 plans; (3) defendants are “liable to make good . . . any such 20 losses to the plan[s] resulting from . . . such breach” under 29 21 U.S.C. § 1109(a); (4) plaintiffs were co-fiduciaries of the plans 22 pursuant to 29 U.S.C. § 1002(21)(A); (5) as co-fiduciaries the 23 plaintiffs may now be held liable for the defendants’ breach under 24 29 U.S.C. § 1105; and (6) because they may be held liable, 25 plaintiffs are entitled to “a full forensic accounting of all 26 Defendants, by a reputable third party Certified Public Account 27 [sic] appointed by the Court, and restitution based upon the 28 findings of such audit, together with interests, costs, and 8 1 attorneys [sic] fees.” 2 court must first examine whether or not the plans at issue were 3 actually ERISA plans. 4 5 6 7 8 9 10 11 12 (Compl. 5-6.) As a threshold inquiry, the ERISA governs “employee welfare benefit plans,” and defines these plans expansively to include: any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services, or (B) any benefit described in section 186(c) of this title (other than pensions on retirement or death, and insurance to provide such pensions). 13 29 U.S.C.A. § 1002. 14 regulation creating what has become known as the ERISA “safe 15 harbor.” 16 the safe harbor regulation and is exempt from ERISA coverage when: 17 (1) No contributions are made by an employer or employee organization; (2) Participation the program is completely voluntary for employees or members; (3) The sole functions of the employer or employee organization with respect to the program are, without endorsing the program, to permit the insurer to publicize the program to employees or members, to collect premiums through payroll deductions or dues checkoffs and to remit them to the insurer; and (4) The employer or employee organization receives no consideration in the form of cash or otherwise in connection with the program, other than reasonable compensation, excluding any profit, for administrative services actually rendered in connection with payroll deductions or dues checkoffs. 18 19 20 21 22 23 24 However, the Secretary of Labor has issued a A group insurance plan offered to employees falls within 25 29 C.F.R. § 2510.3–1. The Ninth Circuit has made clear that a 26 group insurance plan cannot be excluded from ERISA coverage unless 27 all four elements of the safe harbor provision are satisfied; 28 9 1 failure to satisfy any one of the elements qualifies a group 2 insurance plan as an ERISA employee welfare benefit plan. 3 Stuart v. UNUM Life Ins. Co. of America, 217 F.3d 1145, 1153 (9th 4 Cir. 2000). See Defendants in their motion for summary judgment argue that the 5 6 insurance plans at issue, for which JDB did third party billing, 7 fall within the safe harbor regulation and are therefore exempt 8 from ERISA coverage. 9 that 10 11 12 13 14 (See Def. Mot. 8-9.) The defendants allege all of the insurance plans at issue involved 1) no contributions made by an employer or employee organization; instead they were all 100% individual employee paid; 2) participation was completely voluntary; 3) the sole function of the employer was to permit JDB to publicize its services and meet with the employees and to collect premiums; and 4) The employer received no consideration in the form of case otherwise for administrative services rendered in connection with payroll deductions. 15 (D. Mot. 9.) 16 the insurance plans at issue within the ERISA safe harbor 17 regulation. 18 defendants have attached a declaration from defendant Dalinas and 19 testimony from defendant Dalinas’ deposition testimony, among other 20 materials. 21 These factual assertions, if true, would clearly put See 29 C.F.R. § 2510.3–1. To support this claims, the (See Def. Mot. 22 (“Exhibit List”).) In their opposition to the defendants’ motion, the plaintiffs 22 argue that at least some of the money they claim the defendants 23 embezzled came from ERISA funds. 24 insurance plans at issue do not fall within the ERISA safe harbor 25 regulation because some of the plans “fail the first criteria 26 [sic]” and “at least three clients . . . if not all, fail the third 27 criteria [sic].” 28 and information, discussed below, related to the alleged failure of The plaintiffs allege that the (P. Opp’n 11-12.) 10 Plaintiffs provide arguments 1 the insurance plans at issue to meet the first and third elements 2 of the safe harbor regulation. 3 plaintiffs are silent in their opposition as to whether or not the 4 insurance plans satisfy the second and fourth elements of the safe 5 harbor regulation, and do not dispute in any way that, as set forth 6 by the defendants, “participation [in the plans] was completely 7 voluntary” and “[t]he employer[s, JDB’s clients,] received no 8 consideration in the form of case otherwise for administrative 9 services rendered in connection with payroll deductions.” 10 (See P. Opp’n 6-11.) However, the (D. Mot. 9; see generally P. Opp’n.) 11 Rule 56(e)(2) of the Federal Rules of Civil Procedure states 12 that “[i]f a party fails to properly support an assertion of fact 13 or fails to properly address another party's assertion of fact as 14 required by Rule 56(c), the court may . . . consider the fact 15 undisputed for purposes of the motion.” 16 56(e)(2); see also Heinemann v. Satterberg, 731 F.3d 914, 916-17 17 (9th Cir. 2013). 18 do not contest in their opposition the facts set forth by the 19 defendants demonstrating that the plans satisfy the second and 20 fourth elements of the safe harbor regulation, the court will 21 consider those facts undisputed. 22 that the plans do satisfy the second and fourth elements of the 23 safe harbor provision. 24 Fed. R. Civ. P. § Pursuant to Rule 56(e)(2), because the plaintiffs Accordingly, the court determines With regard to the first element of the safe harbor 25 regulation, that “[n]o contributions are made by an employer or 26 employee organization,” the defendants claim in their motion for 27 summary judgment that the plans at issue “were all 100% individual 28 employee paid.” 29 C.F.R. § 2510.3–1; D. Mot. 9. 11 In their 1 opposition, to support their argument that “some of the plans fail 2 the first criteria [sic],” plaintiffs claim that 3 4 5 6 Employers like Art Wilson paid for the group medical premiums with employee contributions in one combined check. Other employers, like the Nevada Museum of Art, paid for employees even though these were supposedly voluntary supplemental plans. Thus, the single check that Defendants deposited into a single, commingled account contained ERISA plan contributions. 7 (P. Opp’n 11.) Plaintiffs allege that certain JDB clients 8 regularly sent the defendants combined checks containing funds for 9 both employee-paid insurance coverage and insurance coverage that 10 included employer contributions, and that defendants deposited 11 those combined checks into a single account, which was the account 12 from which defendant Dalinas allegedly embezzled money. 13 Opp’n 8, 11.) 14 compromised. 15 (See P. Thus, the plaintiffs argue, ERISA funds were (Id.) In support of their arguments, plaintiffs provide a 16 declaration from plaintiff Cothard and four exhibits. 17 portion of plaintiff Cothard’s declaration relevant to the first 18 provision of the ERISA safe harbor regulation is the statement that 19 20 21 The only Art Wilson Company sent its check for both its basic medical plan and its supplemental or so-called voluntary insurance plans in one check made payable to JD Benefits, which JD Benefits deposited into its general account and use [sic] to pay personal expenses of Steve Dalinas.”1 22 1 23 24 25 26 27 28 While group medical insurance plans often include employer contributions, they do not always contain employer contributions. The plaintiffs argue in part that the combination of client payments from both group health or medical insurance and other voluntary insurance programs into one account that was breached by defendant Dalinas is in and of itself evidence of wrongdoing under the ERISA statutes, because all group medical insurance plans are ERISA plans. The plaintiffs’ opposition, after quoting the exact section of plaintiff Cothard’s deposition quoted preceding this footnote, states that “[g]roup medical insurance is not exempted from ERISA as a voluntary plan under 29 C.F.R. § 2510.3-1(j).” (internal quotation marks ommitted. (P. Opp’n 8.) This argument is without merit. The plaintiffs cite to no authority 12 1 (Cothard Dec. 3.) 2 testimony from the plaintiffs, Melissa Cothard and Frank Green, as 3 well as from defendant Dalinas. 4 However, none of the attached testimony corroborates the 5 plaintiffs’ arguments regarding the first element of the ERISA safe 6 harbor provision. 7 As exhibits, the plaintiffs provide deposition (See P Opp’n Ex. A, B, C.) (See generally id.) As their fourth and final exhibit, plaintiffs attach a 8 document from “freeERISA.com” titled “Annual Return/Report of 9 Employee Benefit Plan.” 10 11 12 13 (See id. Ex. D.) In their opposition, plaintiffs reference the form, stating [f]or some reason, Mr. Dalinas refused to acknowledge that he or JD Benefits ever submitted a government IRS form 5500, even though he signed one for JD Benefits in 2009 and 20011, a copy of which is attached to the declaration of Mark R Thierman as Exibit D. 14 (P. Opp’n 6 n.5.) 15 “plan administrator,” “employer/plan sponsor,” and “plan 16 administrator.” 17 “J.D. Benefit Services, Inc. 401(k) Profit Sharing Plan.” 18 The form lists defendant Dalinas’ name as the (P. Opp’n Ex. D.) The “Name of plan” is listed as (Id.) However, the plaintiffs have offered no information whatsoever 19 about the significance of this form or how it reinforces their 20 claims. 21 plaintiffs have discussed in their opposition and in their 22 complaint are listed nowhere on the form. (See generally P. Opp’n.) The names of the clients the (See P. Opp’n Ex. D.) 23 24 25 26 27 28 demonstrating that all group health insurance plans are ERISA plans by definition, and Ninth Circuit case law actually indicates to the contrary. See, e.g., Qualls ex rel. Qualls v. Blue Cross of California, Inc., 22 F.3d 839, 842-45. (9th Cir. 1994) (undertaking an analysis of whether or not a group health insurance plan is exempt from ERISA; the court does not assume the plan is not exempt simply because it is a health insurance plan, but instead applies the safe harbor provisions individually, reaching the eventual conclusion that the plan is not exempt). 13 1 The plaintiffs have failed to show how this form supports their 2 arguments. With regard to the third element of the safe harbor provision, 3 4 that 7 [t]he sole functions of the employer or employee organization with respect to the program are, without endorsing the program, to permit the insurer to publicize the program to employees or members, to collect premiums through payroll deductions or dues checkoffs and to remit them to the insurer, 8 the defendants posit that “the sole function of the employer[s with 9 regard to the insurance plans at issue] was to permit JDB to 5 6 10 publicize its services and meet with the employees and to collect 11 premiums.” 12 29 C.F.R. § 2510.3–1; D. Mot. 9. The plaintiffs argue in their opposition that the insurance 13 plans of “at least three clients . . . if not all, fail the third 14 criteria [sic] because the employer designed the plans, and, in 15 many cases, the employer administered the plan.” 16 The plaintiffs claim that after defendant Dalinas embezzled funds, 17 “Plaintiff Cothard was told to tell the employers that they should 18 switch to a new carrier to avoid cancellation.” 19 plaintiffs’ opposition quotes extensively from plaintiff Cothard’s 20 declaration, in which she alleges that she at times during her 21 employment at JDB helped work with client employers to redesign 22 some of the insurance plans at issue, answered various questions 23 from employee plan participants, and assisted employee plan 24 participants with insurance claims. 25 Dec. 2-3.) 26 these claims plaintiffs have offered appears to be a few (P. Opp’n 11.) (Id.) The (See P. Opp’n 8-11; Cothard The only additional piece of evidentiary support for 27 28 14 1 additional, similar statements made by plaintiff Cothard in her 2 deposition. (See P. Opp’n Ex. B 54.2) 3 In their reply, defendants deny entirely the plaintiffs’ 4 allegations regarding the lack of ERISA exemption for the plans at 5 issue. 6 7 8 9 10 The defendants assert that [t]he self-serving Affidavit of Melissa Cothard truthfully evidences how little she ever knew or understood about the business of JDB or MFG . . . What decisions employers were involved in or made was not something Cothard was ever privy to. How accounts were paid and where those funds were deposited was not something Cothard was ever involved in at MFG.” (Def. Reply 8.) 11 In a motion for summary judgment, once the moving party 12 presents evidence that would call for judgment as a matter of law 13 at trial if left uncontroverted, the respondent must show by 14 specific facts the existence of a genuine issue for trial. 15 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). 16 case, the defendants have presented declarations and deposition 17 testimony indicating that the insurance plans at issue fall within 18 the ERISA safe harbor provision. 19 In this Since the defendants have discharged their initial burden with 20 their motion and supporting evidence, the burden shifts to the 21 plaintiffs, the nonmoving party, to demonstrate the existence of a 22 genuine issue for trial be showing “specific facts.” 23 plaintiffs must do more than present opposing allegations; 24 conclusory allegations that are unsupported by factual data cannot 25 defeat a motion for summary judgment. 26 1040, 1045 (9th Cir. 1989). Id. The Taylor v. List, 880 F.2d Additionally, “‘conclusory, self- 27 28 2 The cited page number is the page number of the deposition, not the exhibit. 15 1 serving affidavit[s], lacking in detailed facts and any supporting 2 evidence, [are] insufficient to create a genuine issue of material 3 fact’” (Nilsson v. City of Mesa, 503 F.3d 947, 952 n.2 (9 th Cir. 4 2007) (quoting Fed. Trade Comm’n v. Publ’g Clearing House, Inc., 5 104 F.3d 1158, 1171 (9th Cir. 1997))), and "[u]ncorroborated and 6 self-serving testimony," without more, will not create a genuine 7 issue of material fact precluding summary judgment (Villiarimo v. 8 Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cr. 2002)). 9 The declaration and testimony presented by the plaintiffs are 10 indeed “unsupported by factual data,” “uncorroborated and self- 11 serving,” and “lacking in any supporting evidence.” 12 assertions in deposition testimony and sworn declarations can under 13 some circumstances be enough to defeat a summary judgment motion. 14 See Robins v. Centinela State Prison, 19 Fed. Appx. 549, 550 (9th 15 Cir. 2001). 16 unremarkable that [plaintiffs] could not otherwise corroborate” the 17 contents of their declarations and deposition testimony. 18 Phan, 500 F.3d 895, 910 (9th Cir. 2007) (holding that the district 19 court could not disregard uncorroborated declarations based on the 20 declarants’ own actions, noting the difficulty of ever 21 corroborating the “personal conversations” discussed in the 22 declarations). 23 conversations, but on organizational practices that involved 24 multiple players and a significant amount of paperwork. 25 generally Cothard Dec.) 26 plaintiffs have not been produced a single piece of documentary 27 evidence or even a single statement from anyone other than 28 plaintiff Cothard that the defendants’ practices with regard to the One party’s However, the case at hand is not one in which “it is S.E.C. v The instant action turns not on personal (See Yet, despite months of discovery, 16 1 insurance plans in question rendered the plans covered by ERISA. 2 (See generally P. Opp’n.) Accordingly, even when viewing the evidence as required “‘in 3 4 the light most favorable to the party opposing the motion,’” the 5 court finds that plaintiffs have failed to show that there is a 6 genuine issue of material fact as to whether the insurance plans at 7 issue are covered by ERISA. 8 Radio Corp., 475 U.S. 574, 587 (quoting United States v. Diebold, 9 369 U.S. 654, 655 (1962)). Matsushita Elec. Indus Co. v. Zenith The plaintiffs have not carried their 10 burden of rebutting the defendants’ evidence that the plans are 11 exempt from ERISA coverage with specific facts and significantly 12 probative evidence showing the existence of a genuine issue for 13 trial as to whether the plans are in fact covered. 14 477 U.S. at 249-250; see also Fed. R. Civ. P. § 56(e). See Anderson, As discussed above, the court considers it undisputed that the 15 16 insurance plans at issue meet elements two and four of the ERISA 17 safe harbor regulation. 18 at 10-11. 19 is a genuine issue of material fact with regard to whether the 20 plans satisfy elements one and three of the regulation, the court 21 finds as a matter of law that the plans at issue do satisfy those 22 elements, and therefore do fall within the safe harbor provision. 23 See id. 24 id. 25 See 29 C.F.R. § 2510.3–1; supra discussion Because the plaintiffs have failed to show that there The plans are therefore exempt from ERISA coverage. See Given that the insurance plans at issue are exempt from 26 ERISA coverage, plaintiffs cannot as a matter of law prevail on 27 their first claim for relief. 28 granted to the defendants with regard to the plaintiffs’ first Summary judgment is therefore 17 1 claim for relief, and the first claim of relief is dismissed with 2 prejudice. 3 Plaintiffs’ Third Claim: 4 “§510 ERISA RETALIATION, 29 U.S.C. §1140” The plaintiffs’ third claim, “§510 ERISA RETALIATION,” is 5 contingent on the benefit plans at issue actually being ERISA 6 plans. 7 genuine issue of material fact that the insurance plans at issue 8 were actually exempt from ERISA coverage by the ERISA safe harbor 9 regulation, 29 C.F.R. § 2510.3–1. However, the court has already found that there is no (See supra discussion at 16-17.) 10 The defendants are therefore granted summary judgment as a matter 11 of law on the plaintiffs’ third claim, and the plaintiffs’ third 12 claim is dismissed with prejudice. 13 Plaintiffs’ Second and Fourth Claims: 14 Insurance Fraud” and “State Law Violations” 15 “Nevada State Law on Having granted summary judgment and dismissed the plaintiffs’ 16 first and third claims, which are the plaintiffs’ only federal 17 claims, this court declines to exercise supplemental jurisdiction 18 over the plaintiffs’ second and fourth claims for relief, which are 19 both state law claims. 20 supplemental jurisdiction if it has dismissed all claims over which 21 it has original jurisdiction. 22 Kayport Package Express, Inc., 885 F.2d 531, 537 (9th Cir. 1989). 23 Thus, the state supplemental claims shall be dismissed without 24 prejudice. 25 CONCLUSION A district court need not actuate 28 U.S.C. § 1367(c)(3); see Moore v. 26 In accordance with the foregoing, the defendants’ motion for 27 summary judgment (#22) is GRANTED as to the plaintiffs’ first and 28 third claims for relief, and those claims are dismissed with 18 1 2 prejudice. The court declines to consider the plaintiffs’ second and 3 fourth claims for relief for the reasons set forth above, and 4 dismisses those claims without prejudice. 5 IT IS SO ORDERED. 6 DATED: This 15th day of January, 2014. 7 8 ____________________________ UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19