United States District Court, S.D. Alabama, Southern Division
January 15, 2015
DIANE G. MELECH, Plaintiff,
LIFE INSURANCE COMPANY OF NORTH AMERICA, et al., Defendants.
KRISTI K. DuBOSE, District Judge.
This action is before the Court on the Defendants' Motion to Dismiss Count IV of Plaintiff's First Amended Complaint and plaintiff Diane Melech's response (docs. 189, 200). Upon consideration and for the reasons set forth herein, the motion is GRANTED.
Defendants move the Court to dismiss Count IV of the first amended complaint wherein plaintiff asserts a claim for failure to provide documents - the claim file for the post-remand decision to deny plaintiff's claim for long-term disability (doc. 189). Defendants argue that the claim in Count IV exceeds the scope of this Court's review under the limited remand from the Eleventh Circuit Court of Appeals; and therefore, plaintiff cannot assert a new penalty claim under 29 U.S.C. § 1132(c) or revive the penalty claim raised in her original complaint. Defendants also argue that plaintiff cannot state a viable cause of action for the statutory penalties against LINA and that the statute, referenced in §1132(c),  does not provide penalties for failing to produce the type of documents that plaintiff requested. Defendants also assert that for failing to produce the documents requested - an update of defendants' initial disclosures and prior productions - the remedy would be a motion to compel and not a penalty claim.
Plaintiff now agrees to dismissal of Count IV. After reviewing the documents produced December 29, 2014, plaintiff "determined that in light of Defendants' production of at least most of the claim file, " Count IV is "no longer necessary" and "agrees to the dismissal[.]" (Doc. 200, p. 3) (italics in original).
In view of plaintiff's agreement to dismiss Count IV and because the documents requested by the plaintiff have been produced, the defendants' motion to dismiss Count IV is GRANTED. See McCroan v. United Parcel Service, Inc., 2014 WL 4854184, *3 (N.D. Fla. Sept. 29, 2014) (finding that it was within the court's discretion to dismiss without discussion Counts I and II of the first amended complaint based on McCroan's response that he "is not pursuing claims of age discrimination or worker's compensation retaliation" but construing his response to mean that he was still pursuing Count III for retaliation under the ADEA);
DONE and ORDERED.