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Sliwinski v. Aetna Life Insurance Co.

United States District Court, D. Colorado

October 16, 2017



          Michael E. Hegarty, United States Magistrate Judge.

         This action arises under the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and asserts claims for benefits due under 29 U.S.C. § 1132(")(1)(B) and for breach of fiduciary duty under 29 U.S.C. § 1104(")(1). Defendant Aetna Life Insurance Company (“Aetna” or “Defendant”) has filed a Partial Motion to Dismiss the second claim for relief. The Court finds that Plaintiff's second claim is impermissibly duplicative of the first and, thus, respectfully recommends that the Partial Motion to Dismiss be granted.


         Plaintiff Shannon Sliwinski ("Sliwinski” or APlaintiff") initiated this action on June 23, 2017. Compl., ECF No. 1.

         I. Facts

         The following are factual allegations made by Sliwinski in the Complaint, which are taken as true for analysis under Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         Sliwinski began working for the company Zogenix as a Specialty Account Manager in 2014. Compl. & 9, ECF No. 1. As a part of her employment, Sliwinski was covered by a Long Term Disability Plan (the “Plan"), which is an “employee benefit plan” as defined by 29 U.S.C. § 1002(3). Id. && 8, 12. Aetna is the insurer and underwriter of the Plan and pays the benefits for all approved claims. Id. & 17.

         Sliwinski worked for Zogenix until April 2015, when physical disabilities rendered her unable to perform the duties of the job. Id. & 10. Sliwinski then applied for long term disability under the Plan. Id. & 30. On October 22, 2015, Aetna approved the claim and began paying long-term disability benefits. Id. && 30B32. In January 2016, Plaintiff attempted to return to work on a part-time basis. After only a few days, she found she was unable to perform her duties and ceased working entirely on January 20, 2016. Id. & 11.

         Aetna terminated Sliwinski's benefits on March 25, 2016 reasoning that she had returned to work. Id. & 32. Sliwinski informed Aetna that while she had attempted to return to work, her attempt lasted only a few days. Id. Sliwinski appealed the termination pursuant to the policy, but Aetna denied the appeal. Id. && 34B40. Sliwinski then asked Aetna to allow another appeal and submitted records as evidence of her disability, but Aetna informed her that it would not grant the request and considered the decision final. Id. && 43B49.

         II. Procedural History

         This suit followed. As set forth above, Sliwinski's second claim alleges breach of fiduciary duty under 29 U.S.C. § 1104(")(1) and seeks enforcement through 29 U.S.C. § 1132(")(3), which permits a civil action by a participant “to obtain other appropriate equitable relief.” Under this claim, Sliwinski seeks “equitable relief for the separate and distinct harms she suffered from Aetna's breaches of its fiduciary duty.” Compl. & 91, ECF No. 1. Sliwinski argues “it would be unjust for Aetna to retain the profits it received at Sliwinski's expense without commensurate compensation to her.” Id. & 90. Among the remedies Sliwinski seeks as equitable relief are surcharge, disgorgement, an accounting of profits generated as a result of the withheld benefits, unjust enrichment, injunctive relief, and restitution. Id. && 92B97.

         Defendant's motion asks the Court to dismiss the second claim as duplicative of the first claim. Defendant argues that when a plaintiff can recover under § 1132(")(1)(B), she cannot obtain additional relief under § 1132(")(3). Plaintiff counters that Supreme Court precedent, in fact, permits her to seek relief under both causes of action. Alternatively, she argues that the second claim should not be dismissed because the Federal Rules of Civil Procedure permit her to plead in the alternative.


         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Twombly requires a two-prong analysis. First, a court must identify “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 678B80. Second, the Court must consider the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 680.

         Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs 'have not nudged their claims across the line from conceivable to plausible.'” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). “The nature and specificity of the allegations required to state a plausible claim will vary based on context.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish ...

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