-BJM Asociacion de Enfermeria Visitante Gregoria Auffant, Inc. et al vs Great-West Life and Annuity Insurance Company, et al, No. 3:2009cv01514 - Document 91 (D.P.R. 2011)

Court Description: OPINION AND ORDER adopting 80 Report and Recommendation; granting in part and denying in part 45 Motion to Dismiss; granting 66 Motion to Dismiss. Signed by Judge Gustavo A. Gelpi on 1/27/11. (SAA)

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-BJM Asociacion de Enfermeria Visitante Gregoria Auffant, Inc. et a...uity Insurance Company, et al 1 Doc. 91 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 4 ASOCIACION DE ENFERMERIA VISITANTE AUFFANT, INC., et al. 5 Plaintiffs, 6 v. 7 8 9 10 CIVIL NO. 09-1514 (GAG) GREAT-WEST LIFE AND ANNUITY INSURANCE COMPANY, et al. Defendants. OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION OF 11 MAGISTRATE JUDGE BRUCE J. MCGIVERIN 12 13 On December 6, 2010, Magistrate Judge Bruce J. McGiverin filed a report and 14 recommendation (Docket No. 80) regarding two motions to dismiss (Docket Nos. 45 & 66) filed in 15 the instant case. The motion to dismiss at Docket No. 45 was filed by defendant Caribbean Pension 16 Consultants, Inc. ( CPC ). The motion to dismiss at Docket No. 66 was filed by various 17 defendants, referred to collectively as the Metropolitan defendants. 1 In his report, Magistrate 18 Judge McGiverin recommends that the court grant CPC s motion and grant in part and deny in part 19 the Metropolitan defendants motion. After reviewing Judge McGiverin s report and considering 20 the plaintiff s objections (Docket No. 83) as well as the Metropolitan defendants response to these 21 objections (Docket No. 89) the court ADOPTS Judge McGiverin s recommendation in whole and 22 accordingly GRANTS CPC s motion to dismiss and GRANTS in part and DENIES in part 23 Metropolitan defendants motion to dismiss. 24 In his report, Judge McGiverin recommends that plaintiffs breach of contract claims must 25 26 27 28 1 The term Metropolitan defendants refers collectively to Great-West Life and Annuity Insurance Company, Metropolitan Life Insurance, Metlife Securities, Inc., and General American Life Insurance Company ( General American ). Dockets.Justia.com Civil No. 09-1514 (GAG) 1 be dismissed as they are preempted by ERISA. (See Docket No. 80 at 6-8.) As to plaintiff s claims 2 under the Puerto Rico Uniform Securities Act ( PRUSA ), Judge McGiverin recommends these 3 claims be dismissed as to co-defendants Great-West Life and Annuity Insurance Company, 4 Metropolitan Life Insurance, and Metlife Securities, for plaintiff s failure to sufficiently plead a 5 cause of action against these defendants under PRUSA. (See id. at 10-15.) 6 Plaintiffs oppose Judge McGiverin s findings on three grounds: (1) that the Metropolitan 7 defendants improper administration of the contracts does not incorporate fiduciary duties, and 8 therefore these claims are not preempted by ERISA; (2) that they successfully alleged that CPC 9 breached the contract entered into in connection with the administration of the plans; and (3) that 10 in finding plaintiffs had sufficiently pled a violation of PRUSA § 871, Judge McGiverin failed to 11 consider General American s actions with respect to the United States Securities Act of 1933. The 12 court will respond to each objection in turn. 13 With respect to plaintiffs first grounds for objection, Judge McGiverin addressed these 14 contentions in his report. The report points to specific allegations in plaintiff s complaint that allege 15 breaches of fiduciary duties on behalf of entities acting as fiduciaries for ERISA purposes. (See id. 16 at 7-8.) Judge McGiverin states that because [p]laintiffs breach of contract claim is premised upon 17 defendants conduct in administering the Plans. . . ERISA s full preemptive force must apply. (See 18 Docket No. 80 at 8.) Judge McGiverin supports his reading of the complaint with applicable First 19 Circuit precedent. See Dudley Supermarket, Inc. v. Transamerica Life Ins. and Annuity Co., 302 20 F.3d 1,3 (1st Cir. 2002). The court therefore agrees with Judge McGiverin s analysis of plaintiffs 21 complaint and adopts the same. 22 As to plaintiffs second objection, the support cited does not sufficiently oppose Judge 23 McGiverin s recommended grounds for dismissal. As grounds for his recommendation of dismissal 24 of the PRUSA claims against CPC, Judge McGiverin highlights plaintiffs failure to allege any facts 25 pertaining to CPC s violations of PRUSA. (See id. at 17, n.7.) Plaintiffs attempt to oppose this 26 recommendation by citing to CPC s answer to the complaint as well as to uncontested facts 27 28 2 Civil No. 09-1514 (GAG) 1 supporting plaintiffs motion for partial summary judgment. (See Docket No. 83 at 5.) This cited 2 support clearly does not cure plaintiffs failure to satisfy pleading requirements in their complaint. 3 As the complaint was never amended to include these allegations, this court agrees with Judge 4 McGiverin s recommendation. 5 Finally, plaintiffs object to Judge McGiverin s report by insisting that he did not consider 6 how General American s failure to register the contracts violated the United States Securities Act 7 of 1933. However, as identified in Judge McGiverin s report, plaintiffs have never amended their 8 original complaint to include a Securities Act cause of action. (See Docket No. 80 at 11, n.8.) This 9 claim is mentioned for the first time in plaintiffs opposition to the Metropolitan defendants motion 10 to dismiss. Therefore, the court agrees with Judge McGiverin s recommendation not to consider 11 plaintiffs complaint as alleging a cause of action under the Securities Act of 1933. 12 For the foregoing reasons, the court ADOPTS Judge McGiverin s recommendation in whole 13 and accordingly GRANTS CPC s motion to dismiss and GRANTS in part and DENIES in part 14 Metropolitan defendants motion to dismiss. 15 16 SO ORDERED. 17 In San Juan, Puerto Rico this 27th day of January, 2011. 18 19 s/ Gustavo A. Gelpí 20 GUSTAVO A. GELPI United States District Judge 21 22 23 24 25 26 27 28 3

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