Gutierrez v. Johnson & Johnson Int'l, Inc.

• Decision Date: 05 May 2022
• Docket Number: Civ. No. 21-984 KK/GJF
• Parties: Nicole GUTIERREZ, Plaintiff, v. JOHNSON & JOHNSON INTERNATIONAL, INC., Defendant.
• Court: U.S. District Court — District of New Mexico

601 F.Supp.3d 1007

Nicole GUTIERREZ, Plaintiff,

v.JOHNSON & JOHNSON INTERNATIONAL, INC., Defendant.

Civ. No. 21-984 KK/GJF

United States District Court, D. New Mexico.

Filed May 5, 2022

Vanessa L. DeNiro, Bianca Duran, Law Office of Vanessa L. DeNiro, Albuquerque, NM, for Plaintiff.

Pamela Reynolds, Pro Hac Vice, Littler Mendelson, Fairport, NY, Robert Shawn Oller, Littler Mendelson, Phoenix, AZ, for Defendant.

MEMORANDUM OPINION AND ORDER

KIRTAN KHALSA, UNITED STATES MAGISTRATE JUDGE

THIS MATTER is before the Court on: (1) Defendant[’s] Motion to Dismiss (Doc. 10) ("First Motion to Dismiss"), filed November 12, 2021; (2) Defendant's Motion to Dismiss Plaintiff's First Amended Complaint for Declaratory, Injunctive, and Monetary Relief (Doc. 24) ("Second Motion to Dismiss"), filed January 21, 2022; (3) Plaintiff's Motion for Leave to File Plaintiff's First Amended Complaint (Doc. 30) ("Motion to Amend"), filed February 28, 2022; and, (4) Plaintiff's Motion to Set a Hearing Date (Doc. 38) ("Motion for Hearing"), filed April 29, 2022. Having reviewed the parties’ submissions, the record, and the relevant law and being otherwise sufficiently advised, the Court ORDERS that: (1) Defendant's First Motion to Dismiss is DENIED AS MOOT; (2) Defendant's Second Motion to Dismiss is GRANTED IN PART and DENIED AS MOOT IN PART; (3) Plaintiff's Motion to Amend is GRANTED IN PART and DENIED IN PART; (4) Plaintiff's First Amended Complaint for Declaratory, Injunctive, and Monetary Relief (Doc. 18) ("FAC") is stricken; (5) Plaintiff is granted leave to refile the FAC with the modifications described below; and, (6) Plaintiff's Motion for Hearing is DENIED.

I. Factual Background and Procedural History

In her original complaint, Plaintiff Nicole Gutierrez alleged the following. Plaintiff is the court-appointed guardian and conservator for her brother, Juan D. Baca. (Doc. 1-1 at 7, 9, 12.) Mr. Baca's wife, Lisa Baca, was an employee of Defendant Johnson & Johnson International, Inc. ("J&J International") and former Defendant Johnson & Johnson, Incorporated ("J&J Inc.") (collectively, "J&J Defendants"), from 1988 until her death in 1994. (Id. at 8-9.) Ms. Baca designated Mr. Baca as the survivor beneficiary of the retirement plan ("Plan") in which she participated as a benefit of her employment with the J&J Defendants. (Id. ) Mr. Baca has a long history of cognitive disabilities, which worsened after Ms. Baca's death. (Id. )

On September 29, 1995, the J&J Defendants sent Mr. Baca a letter informing him that he was entitled to receive monthly payments of $107.91 under the Plan beginning in December 2015. (Id. at 9, 23.) The letter stated that "[p]ayments will begin as of December 1, 2015 and will continue for the remainder of your lifetime," and informed Mr. Baca that he or his "authorized representative" could request a review of "the benefit awarded to [him]" within 60 days by calling the Johnson & Johnson Benefit Service Center ("J&J BSC"). (Id. at 23.) The letter was printed on letterhead indicating that it came from the J&J BSC in Philadelphia, Pennsylvania. (Id. )

The state district court appointed Plaintiff and Mr. Baca's daughter as Mr. Baca's co-guardians on or about January 30, 2013. (Id. at 9, 24-26.) The order of appointment included references to Mr. Baca's finances; for example, the court found that there were "no available and adequate alternatives suitable ... for the [e]ffective management" of Mr. Baca's "property and financial affairs," and ordered that the co-guardians’ decisions "shall take precedence over decisions of any ... financial agent, attorney in fact, or other surrogate or agent appointed by [Mr. Baca]." (Id. ) The order further provided that "Letters of Guardianship shall issue upon acceptance of the appointment."¹ (Id. at 25.)

Plaintiff "contact[ed]" the J&J Defendants "for the first time on or about December 21, 2015[,] to obtain more information" about Mr. Baca's benefits "and determine what was needed for distribution to start." (Id. at 10.) She advised the J&J Defendants of Mr. Baca's disability and her status as his guardian and requested accommodations. (Id. ) At the J&J Defendants’ request, Plaintiff faxed "supporting documentation" to the J&J BSC on January 5, 2016. (Id. ) On January 28, 2016, the J&J Defendants sent Mr. Baca a "Pension Plan Federal Tax Withholding/Direct Deposit Form," requesting that he complete and return it to the J&J BSC. (Id. at 10, 30.) In response, Plaintiff made "multiple attempts" to explain to the J&J Defendants that Mr. Baca was "unable to complete the proper forms on his own"; however, they were "unwilling to accommodate [Mr. Baca's] disability." (Id. at 10-11.)

At the J&J Defendants’ direction, Plaintiff "submit[ted] a Power of Attorney form" on April 7, 2016. (Id. at 11.) She also submitted a copy of the order appointing her as Mr. Baca's guardian. (Id. ) On April 8, 2016, the J&J Defendants sent Mr. Baca a Power of Attorney Denial Notice ("Denial Notice") denying Plaintiff "access to [Mr. Baca's] Health and Welfare Plan(s) and/or Retirement Plan(s) at this time." (Id. at 11, 31.) In the notice, the J&J Defendants explained that Plaintiff and Mr. Baca's daughter

were appointed co-guardians, which only authorizes the co-guardians to make decisions to ensure that the Principal's basic needs are met and make life decisions. Based upon the documentation we were provided, neither [Plaintiff] nor [Mr. Baca's daughter] were appointed conservator of the Principal, which would have enabled them to access the Principal's J&J benefit accounts.

(Id. at 31.) The notice informed Mr. Baca that if he "need[ed] additional information," he should "access the Your Benefits Resources™ Web site" or call the J&J BSC. (Id. ) The notice was printed on letterhead indicating that it came from "Johnson & Johnson" in Lincolnshire, Illinois. (Id. )

On November 14, 2016, the state district court issued Letters of Guardianship evidencing Plaintiff's guardianship of Mr. Baca.² (Id. at 11-12, 32-33.) The Letters stated that Plaintiff

shall have plenary power pursuant to New Mexico law to independently act on behalf of [Mr. Baca], for all purposes related to [Mr. Baca's] custody, care, health, safety, finances, including medical decisions, medical treatment and admission into facilities if found appropriate by facility, to include but not limited to her, financial decisions and care as outlined by NMSA, Section 45-5-312(B)(4).³

(Id. at 11-12, 33.) Nevertheless, the J&J Defendants "forced" Plaintiff to reopen the guardianship case to seek appointment as Mr. Baca's conservator. (Id. at 12.) The court appointed Plaintiff as Mr. Baca's conservator on January 31, 2017, and issued Letters of Plenary Conservatorship on February 9, 2017. (Id. )

Plaintiff was also "forced to retain legal representation to prepare a [d]emand [l]etter" to the J&J Defendants. (Id. ) On August 2, 2017, counsel mailed the demand letter to three addresses, including the Lincolnshire, Illinois address on the Denial Notice, the J&J BSC in Orlando, Florida, and the Johnson & Johnson "Main Office" in Neenah, Wisconsin. (Id. at 12, 34.) The letter "formally demand[ed] the expedited release of all funds" to which Mr. Baca was entitled⁴ and indicated that "[i]f any outstanding documentation is still required," counsel would "help facilitate that process." (Id. at 34.) The letter also requested attorney's fees and costs in the amount of $5,870. (Id. at 36.) It reiterated that Mr. Baca is disabled, requested accommodations, and referenced attached exhibits. (Id. at 12, 34-36.) The J&J Defendants never responded to counsel's August 2017 demand letter. (Id. at 12.)

For the next several years, Plaintiff worked on other matters related to Mr. Baca's care and maintenance. (Id. at 12-13.) Then, on June 8, 2021, Plaintiff's counsel's office contacted the J&J BSC to "determine the best course of action" for having Mr. Baca's benefits "addressed expeditiously." (Id. at 13.) Following the J&J BSC's instructions, counsel's office faxed another demand letter to the J&J Defendants on June 22, 2021, and on June 23, 2021, called to request that a "Ticket" be opened with "the Escalation Team." (Id. ) The J&J Defendants’ representative "advised that everything appeared to be in order and that J&J would reach out to discuss next steps once the faxed documentation had been fully processed." (Id. at 13-14.)

On July 8, 2021, Plaintiff's counsel's office called the Escalation Team to follow up and was told the Ticket had been closed that day. (Id. at 14.) The Escalation Team representative stated that, per policy, a letter regarding the J&J Defendants’ decision would be mailed to Plaintiff within 15 days. (Id. ) However, Plaintiff never received such a letter, and neither she nor Mr. Baca has ever received any Plan benefits from the J&J Defendants. (Id. )

Plaintiff filed her original complaint in state court on September 3, 2021. (Id. at 7.) In the complaint, Plaintiff asserted claims for breach of contract, negligence, negligent and fraudulent misrepresentation, and violations of the New Mexico Unfair Trade Practices Act and the Americans with Disabilities Act ("ADA"). (Id. at 16-20.) Based on these claims, she sought compensatory, treble, and punitive damages, attorney's fees and costs, and pre- and post-judgment interest. (Id. at 20-21.) On September 15, 2021, Plaintiff voluntarily dismissed J&J Inc. from the case, leaving J&J International as the only remaining Defendant. (Doc. 1-5 at 2.)

On October 8, 2021, Defendant J&J International removed the matter to this Court pursuant to 28 U.S.C. § 1331. (Doc. 1 at 1-8.) Defendant filed its First Motion to Dismiss in lieu of an answer on November 12, 2021, and Plaintiff responded in opposition to the motion on December 15, 2021. (Docs. 10, 17.)

On December 21, 2021, Plaintiff filed her FAC "to remedy defects in the [c]omplaint originally filed in state court." (Doc. 18; Doc. 30 at 2.) The FAC includes the same factual...