McManus v. Gitano Group, Inc., 1453
| Citation | 59 F.3d 382 |
| Decision Date | 12 July 1995 |
| Docket Number | D,No. 1453,1453 |
| Parties | Thomas McMANUS, Plaintiff-Appellant, v. The GITANO GROUP, INC., Defendant, Comprehensive Benefits Service Co., Inc., Defendant-Appellee. ocket 94-9165. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Louis J. Castellano, Jr., Garden City, NY, for plaintiff-appellant.
Marshall T. Potashner, New York City (John F. Renzulli, Scott M. Lerman, Wilson, Elser, Moskowitz, Edelman & Dicker, of counsel), for defendant-appellee.
Before: WINTER, MAHONEY and CALABRESI, Circuit Judges.
Thomas McManus appeals from the denial of his motion for attorney's fees under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. Sec. 1001 et seq. We affirm.
McManus was a participant in The Employee Health Care Plan (the "Plan"), sponsored by his employer, The Gitano Group, Inc. ("Gitano"). Following a bone marrow transplant, McManus brought an ERISA action to recover benefits from Gitano and Comprehensive Benefits Service Co., Inc. ("Comprehensive"). Gitano was the Plan Sponsor, Plan Administrator, and Named Fiduciary under the Plan. Comprehensive is the Third Party Administrator of the Plan. Comprehensive's sole role is to process claims for medical benefits and to pay them with funds received from Gitano.
Subsequent to the commencement of this lawsuit, Gitano filed a bankruptcy petition, and McManus's claims against Gitano were automatically stayed. The district court then granted summary judgment for Comprehensive. The district court held that a claim for recovery of benefits under Section 502(a)(1)(B) of ERISA, 29 U.S.C. Sec. 1132(a)(1)(B), may be brought only against the Plan as an entity and that Comprehensive is not the Plan. The district court further held that Comprehensive cannot be liable for breach of fiduciary duty under Section 502(a)(3) of ERISA, 29 U.S.C. Sec. 1132(a)(3), because McManus did not offer sufficient evidence to support a finding that Comprehensive is a fiduciary. McManus appealed from the grant of summary judgment, but this court dismissed the appeal for failure to pay the filing fee and satisfy other procedural requirements for perfecting an appeal, and McManus made no effort to cure the defects or reinstate the appeal.
After commencement of the lawsuit but before the grant of summary judgment, Comprehensive paid approximately $135,000 in benefits to various health care providers for treating McManus. After summary judgment was granted, McManus moved for attorney's fees under Section 502(g)(1) of ERISA, 29 U.S.C. Sec. 1132(g)(1), on the ground that the payments by Comprehensive were made in response to the lawsuit. The district court denied an award of fees, and this appeal followed.
At oral argument, we sua sponte questioned the existence of appellate jurisdiction. Although the district court granted Comprehensive's motion for summary judgment and dismissed Comprehensive from the litigation, McManus's claims against Gitano were still pending before the district court when this appeal was argued. Moreover, the district court never entered a final judgment pursuant to Fed.R.Civ.P. 54(b), which allows "the entry of [an appealable] final judgment as to one or more but fewer than all ... parties ... upon an express determination that there is no just reason for delay". In response to our concerns about the existence of appellate jurisdiction, McManus dismissed Gitano from the action nunc pro tunc to the date of the grant of summary judgment with prejudice.
McManus's dismissal of Gitano nunc pro tunc vests us with appellate jurisdiction because it creates a final judgment, albeit retroactively. We addressed a nearly identical situation in Caspary v. Louisiana Land & Exploration Co., 725 F.2d 189 (2d Cir.1984) (per curiam). In Caspary, plaintiff's complaint asserted seven claims for relief. A trial was held on one of the claims. After plaintiff lost on the merits of the claim tried, the district court denied a motion for a final judgment pursuant to Rule 54(b). The plaintiff filed a notice of appeal, and the defendant moved to dismiss for want of appellate jurisdiction. At oral argument, plaintiff offered to discontinue his remaining claims with prejudice. We reasoned that plaintiff was in essence seeking...
To continue reading
Request your trial
-
McGinty v. State of New York
...under 42 U.S.C. § 1988); accord Bonner v. Guccione, 178 F.3d 581, 593-94 (2d Cir. 1999) (42 U.S.C. § 2000e-5(k)); McManus v. Gitano Group, Inc., 59 F.3d 382, 384 (2d Cir. 1995) (29 U.S.C. § 1132(g)(1)); Gerena- Valentin v. Koch, 739 F.2d 755, 758-59 (2d Cir. 1984) (42 U.S.C. § 1973l(e)). Th......
-
Becker v. Poling Transp. Corp.
...(somewhat inconsistently) declined expressly to abandon them so that jurisdictional doubts would be erased, see McManus v. Gitano Group, Inc., 59 F.3d 382, 383-84 (2d Cir.1995) (allowing party on appeal to create retroactively an appealable final The claim against Ultimate may not have been......
-
State Farm Mut. Auto. Ins. Co. v. Mallela
...to dismiss with prejudice any outstanding claims against those defendants who had not moved to dismiss. See McManus v. Gitano Group, Inc., 59 F.3d 382, 383-84 (2d Cir.1995). A. Statutory Scheme We begin by reviewing the New York statutory and regulatory framework that governs this diversity......