Halbach v. Great-West Life & Annuity Ins. Co.

Decision Date19 November 2007
Docket NumberNo. 4:05CV02399 ERW.,4:05CV02399 ERW.
Citation522 F.Supp.2d 1154
CourtU.S. District Court — Eastern District of Missouri
PartiesHeather HALBACH, et al., Plaintiff(s), v. GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY, et al., Defendant(s).

Mark A. Potashnick, S. Sheldon Weinhaus, Weinhaus and Potashnick, St. Louis, MO, for Plaintiffs.

Bradley J. Baumgart, Leslie A. Greathouse, Michael E. Brown, Kutak Rock, LLP, Kansas City, MO, Marcia A. Washkuhn, Kutak Rock, Omaha, NE, Robin M. Sanders, Jorden Burt, LLP, Stephen H. Goldberg, Waldemar Jacob Pflepsen, Jr., Washington, DC, for Defendants.


E. RICHARD WEBBER, District Judge.

This matter comes before the Court on Defendants' Motion for Summary Judgment [doc. # 176], Plaintiffs' Motion for Summary Judgment [doc. # 179], Defendants' Motion to Strike [doc. # 195], Plaintiffs' Combined Motion to Strike Defendants' Reply in Support of their Statement of Material Facts, or in the alternative, Motion for Leave to File Plaintiffs' Reply to Defendants' Response to Plaintiffs' Statement of Uncontroverted Material Facts [doc. # 207], Plaintiffs' Motion for Leave to File Short Surreply in Opposition to Defendants' Motion for Summary Judgment [doc. # 208], and Plaintiffs' Renewed Motion to Modify Case Management Order [doc. # 209].


Until December 31, 2004, Plaintiff Schield, and all disabled class members, received health, dental, vision, and prescription drug benefits (collectively "welfare benefits")2 pursuant to Great-West Life & Annuity Company Employee Health and Welfare Plan (the "Plan") on terms equivalent to active, non-disabled employees. On November 8, 2004,3 Defendants mailed a letter to all plan participants giving notice that medical benefits would no longer be continued for current or future long term disability claimants, effective December 31, 2004. Plaintiffs were no longer qualified as eligible participants under the Plan and were therefore informed that under the Federal Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), they had the option of continuing Plan coverage after their coverage ended, at higher COBRA rates, or losing their welfare benefits. The letter only specifically mentioned medical benefits, however, dental, vision, and prescription drug benefits were also terminated.


Plaintiff Halbach filed suit, under 29 U.S.C. § 1132(a)(1)(B), against Defendants alleging that the Defendants amended their welfare benefit plan in violation of ERISA, and in violation of the Plans' terms, by denying benefits under Defendants' health insurance plans (Count I). Plaintiff Halbach further alleged violations of ERISA for failure to provide information and documents in accordance with 29 U.S.C. §§ 1024(b)(4), 1133, and 1132(c)(1) (Count II). Defendants filed a motion to dismiss on February 22, 2006, which was granted in part and denied in part. This Court's June 6, 2006 order granted Defendants' Motion to dismiss Count I as it relates to Plaintiffs request for monetary relief, and as far as it alleged discrimination, but denied the motion as to Count I as it related to the vesting of benefits. The Court denied the motion to dismiss as to Count n. Following this Court's order, Plaintiff Halbach filed an Amended Complaint which was accepted for filing on June 28, 2006, and subsequently, Plaintiff Halbach filed a Second Amended Complaint on October 2, 2006, adding Plaintiff Barbara Schield as a named Plaintiff. On February 2, 2007 this Court held a Court hearing on Plaintiffs' Motion to certify the case as a class action. This Court granted the motion, and entered an order on April 2, 2007, certifying the class, and naming Plaintiff Schield as class representative. Defendants filed a Motion to Dismiss Plaintiffs' Second Amended Complaint on October 23, 2006. This Court granted in part and denied in part Defendants' Motion; the Court dismissed Plaintiff Heather Halbach's claims under Count I for lack for standing, and dismissed all claims under Count I for specific performance, equitable tracing of overpayments and equitable restitution of overpayments. This matter now comes before the Court on the Parties' cross motions for summary judgment.


As an initial matter, the Court must address Defendants' Motion to Strike certain declaration evidence which Plaintiffs rely upon in support of their Motion for Summary Judgment and in Opposition to Defendants' Motion for Summary Judgment, and Plaintiffs' Motion to Strike Defendants' Reply in Support of their, Statement of Material Facts.4 Defendants assert that certain declaration evidence relied upon by Plaintiffs in support of Plaintiffs' motion for summary judgment is improper under Rule 56(g) of the Federal Rules of Civil Procedure. These two motions are currently pending and will be addressed at this time.


Plaintiffs' request to strike Defendants' Reply to Plaintiffs' Response to Defendants' Statement of Uncontroverted Material Facts filed in support of Defendants' Motion for Summary Judgment is denied. While the Court recognizes that Local Rule 7-4.01(E)5 does not explicitly permit the filing of a reply to a statement of uncontroverted material facts, such filings are routinely permitted. Therefore Defendants Reply statement will not be stricken. Furthermore, it is not necessary for any additional documentation to be filed in support of, or in opposition to, the two pending motions for summary judgment. Therefore, Plaintiffs' alternate request to file a reply in support of their own statement of uncontroverted material facts is also denied. Both Parties have thoroughly argued the legal and factual issues raised in this case, such that the Court has all information necessary to reach an informed decision.


The Court next addresses Defendants' Motion to strike portions of the evidentiary record submitted by Plaintiffs' in support of Plaintiffs' Motion for Summary Judgment.


Rule 56(e) states, in pertinent part:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

Fed.R.Civ.P. 56(e).


This Court has repeatedly recognized that a motion to strike under Federal Rule of evidence which is admissible under the rules of evidence, and which is relevant in accordance of Civil Procedure 12(f) cannot be used to strike portions of a party's motion for summary judgment or evidence in support thereof. Burlington Northern Santa Fe Railway Corp. v. Dakota Missouri Valley and Western, Railroad, Inc., 347 F.Supp.2d 708, 727 (D.S.D.2004) ("Courts have consistently held that the various papers submitted in support of or in opposition to summary judgment motions are not pleadings as contemplated by Rule 12(f)."); see also Brannon v. Luco Mop Company, 2007 WL 172374, *1-2 (E.D.Mo.2007). However, Defendants do not seek to strike the Plaintiffs' affidavits under Rule 12(f), but rather Defendants motion is premised on Plaintiffs alleged failure to comply with Rule 56(e) quoted above.

Although Rule 56 does not explicitly provide the Court authority to strike portions of affidavit testimony, as requested by Defendants, the rule does require all affidavits to contain "such facts as would be admissible as evidence." Fed.R.Civ.P. 56(e). Therefore, the Court will consider Defendant's arguments as they relate to the submitted evidence, and will only rely upon that evidence which would be admissible at trial. See Anderson v. Dillard's Inc., 109 F.Supp.2d 1116, 1121 (E.D.Mo. 2000) ("Where an affidavit does not meet this standards [sic], it is subject to a motion to strike.") (citing McSpadden v. Mullins, 456 F.2d 428, 430 (8th Cir.1972)).7

a. Unsigned Affidavits

Defendants' first argument is that three of the affidavits that were submitted are unsigned and therefore are inadmissible. Rule 56(e) permits affidavits to be submitted in support of a motion for summary judgment. Fed.R.Civ.P. 56(e). An affidavit, is by definition, "a statement reduced to writing and the truth of which is sworn to before someone who is authorized to administer an oath." Elder-Keep v. Aksamit, 460 F.3d 979, 984 (8th Cir.2006) (internal citation omitted). Specifically, an affidavit must state "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)". 28 U.S.C. § 1746(2), see also Elder-Keep, 460 F.3d at 984. In order to be admissible as evidence an affidavit must be signed. Elder-Keep, 460 F.3d at 984 (The affidavits in question lacked signatures and attestation before a notary public, and therefore "the affiants foiled to execute their affidavits under penalty of perjury as mandated by § 1746."). The three affidavits challenged by Defendant do not contain a signature, and therefore do not comply with 28 U.S.C. § 1746, and will not be considered by the Court.

b. Hearsay Statements

Defendants next seek to exclude portions of affidavits submitted by class members on the basis that they contain hearsay. Specifically, Defendants argue that statements regarding the declarants' understanding of plan terms, and statements regarding what declarants were told by Defendant personnel are hearsay.

The Eighth Circuit has held that "without a showing of admissibility, a party may not rely on hearsay evidence to support or oppose [a summary judgment] motion." Walker v. Wayne County, Iowa, 850 F.2d 433, 435 (8th Cir.1988); see also Pink Supply Corp. v. Hiebert, Inc., 788 F.2d 1313, 1319 (8th Cir.1986) ("[A] party may not rely on inadmissible...

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    ...and quoted case omitted). The length of the delay is another, lesser factor to be considered. Halbach v. Great-West Life & Annuity Ins. Co., 522 F.Supp.2d 1154, 1172 (E.D. Mo. 2007), affd in part, rev'd in part on other grounds, 516 F.3d 872 (8th Cir. 2009). The Court finds that defendant M......

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