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Livingston v. UNUM Provident

United States District Court, District of Maine

July 22, 2014





John C. Nivison U.S. Magistrate Judge

In this action, Plaintiff Clyde Livingston challenges a set off exercised by Defendant Unum Provident in connection with income that he receives through a disability insurance program administered by Defendant.[1] The matter is before the Court on Defendants’ Motion to Dismiss (ECF No. 13), Plaintiff’s Motions to Extend Time to File an Amended Complaint (ECF Nos. 18/21), Plaintiff’s Motions for Entry of Default (ECF Nos. 24/28), and Plaintiff’s Motions to Amend and Motions to Overrule Objections to Subpoena (ECF Nos. 26/27).[2]

After consideration of the parties’ arguments, as explained below, the recommendation is that the Court dismiss the matter without prejudice as this Court lacks jurisdiction to consider Plaintiff’s claim. In addition, because Plaintiff has failed to identify a basis for federal court jurisdiction either in his original complaint or in any proposed amendment to the complaint, any amendment to the complaint would be futile. Plaintiff’s Motions to Amend, therefore, are denied.

Given that the Court has not established a deadline for the amendment of pleadings, Plaintiff’s Motion to Extend Time to File Amended Complaint (ECF No. 18) is unnecessary and thus is dismissed.[3] Finally, because Defendant filed a motion to dismiss, the entry of default requested by Plaintiff is not warranted. See Fed. R. Civ. P. 12(a)(4). Accordingly, Plaintiff’s Motions for Entry of Default (ECF Nos. 26/27) are denied.

Background Facts

The facts set forth herein are derived from Plaintiff’s Complaint, which facts are deemed true when evaluating the Motion to Dismiss.[4] Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 16 (1st Cir. 1998). In addition, the Court can also consider documents whose authenticity is not in dispute, public records, documents central to Plaintiff’s claim, and documents sufficiently referred to in the complaint. Mississippi Pub. Employees' Ret. Sys. v. Boston Scientific Corp., 523 F.3d 75, 86 (1st Cir. 2008).

Plaintiff is a former Juvenile Hall Counselor for the City and County of San Francisco, which position he held for 23 years. As the result of injuries sustained in the line of duty, Plaintiff could no longer work in the position as of November 30, 2009. Although the underlying facts are not entirely clear, Plaintiff apparently participated in a long term disability plan that was offered through his employer, which plan was insured and administered by Defendant. Plaintiff evidently has been in receipt of disability benefits for some time.

In this action, Plaintiff challenges Defendant’s administrative determination that based on Plaintiff’s receipt of CalPERS retirement income that should have offset his disability benefit, Plaintiff was overpaid by approximately $51, 000 in disability benefits. In his pleadings, Plaintiff requests, in multiple counts, what he describes as “appropriate equitable relief.” (Complaint, ECF No. 1.)[5] According to Plaintiff, his claim arises under Section 502 of the Employee Retirement Income Security Act (ERISA). (Complaint at 2; see also ECF No. 12.)


On March 25, 2014, Defendant filed its Motion to Dismiss for Lack of Jurisdiction (ECF No. 13). Defendant notes that the sole basis cited by Plaintiff in support of this Court’s jurisdiction is ERISA, and argues that ERISA does not apply to governmental plans like the plan at issue in this case.[6] (Id. at 1, 3-5.) Because the jurisdictional issue is necessarily relevant to the resolution of all of the pending motions, logic suggests that the jurisdictional issue be addressed before the other pending motions.[7]

The United States District Courts and other federal courts are not courts of general jurisdiction. Recupero v. New England Tel. & Tel. Co., 118 F.3d 820, 828 (1st Cir. 1997). A litigant, therefore, must identify a basis for federal court jurisdiction in order for a federal court to have the authority to adjudicate the dispute.

The federal court has jurisdiction when a federal question is presented. 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”). Another basis for jurisdiction is diversity of citizenship. Pursuant to 28 U.S.C. § 1332, the district courts have original jurisdiction of civil actions between citizens of different states, provided the amount in controversy exceeds $75, 000. While other bases for ...

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