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BENVENUTO v. CONNECTICUT GEN. LIFE INS. CO.

January 26, 1988

Cheryl Benvenuto, Plaintiff,
v.
Connecticut General Life Insurance Company, Defendant



The opinion of the court was delivered by: WOLIN

 This matter is before the Court on defendant's motion for judgment on the pleadings to dismiss the amended complaint with prejudice for failure to state a claim in accordance with Fed.R. Civ.P. 12(c).

 I. JURISDICTION - This Court has federal question jurisdiction under 28 U.S.C. § 1331(a) in light of Judge Ackerman's Opinion and Order dated as of September 25, 1987 which states that plaintiff's cause of action arises under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. ("ERISA").

 II. RELIEF - First, defendant moves for dismissal alleging that plaintiff has failed to properly plead jurisdiction under ERISA in the amended complaint. Second, defendant moves for a judgment on the pleadings and a dismissal of Count One of the amended complaint for failure to state a claim in accordance with Fed.R.Civ.P. 12(c). Third, defendant argues that plaintiff's claim for extra-contractual and punitive damages must be dismissed, as a matter of law, because ERISA does not recognize a remedy for this type of damage action.

 Plaintiff, in response, argues that defendant has violated Local Rule 12(I) with respect to reargument on the issue of punitive damages under ERISA. Plaintiff then argues that the amended complaint comports with Judge Ackerman's order dated September 25, 1987, and also that said complaint does in fact allege jurisdiction under ERISA. Finally, plaintiff maintains that its claim for extra-contractual and punitive damages is in fact, and in law, supported by ERISA.

 III. FACTS - The facts of this case are well known to this Court and are not disputed by the parties. Briefly summarized, plaintiff was employed as a flight attendant with Braniff Airways in January of 1982. She was at that time an eligible employee under a group medical insurance policy issued by defendant Connecticut General to Braniff Airways, Inc. Braniff was based in Dallas, Texas. Although plaintiff was then domiciled in New Jersey, she spent two and a half to three weeks per month in Dallas.

 On January 11, 1982, plaintiff began allergy treatments with Dr. William Rea as an outpatient at Carrollton Community Hospital ("Carrollton") in Dallas. Plaintiff commenced treatment as an inpatient at Carrollton in February 1982 and was discharged in March 1982 after thirty-nine days of treatment. Plaintiff submitted insurance claims resulting from this treatment totaling $ 18,235.10. On July 13, 1983, Connecticut General paid plaintiff $ 15,567.17 under the policy.

 In Benvenuto v. Connecticut General Life Insurance Co., 643 F. Supp. 87, 89 (D.N.J. 1986), plaintiff's state law claims were held to be preempted by ERISA. In a subsequent Opinion and Order dated as of September 25, 1987, plaintiff was granted leave to amend her complaint under ERISA. *fn1" In Count One of her Amended Complaint, plaintiff seeks $ 2,667.93, the balance of the medical costs. Moreover, in Count Two of her Amended Complaint, plaintiff seeks compensatory and punitive damages in excess of $ 3 million for alleged negligent and intentional mishandling of her claim.

 IV. LEGAL ANALYSIS - A. Local Rule 12(I). Plaintiff first argues that defendant's motion to dismiss violates Local Rule 12(I) which provides that a motion to reargue shall be served and filed within ten days after the filing of the court's order or judgment on the original motion. Plaintiff here refers to Judge Ackerman's Opinion and Order dated September 25, 1987 *fn2" which permitted plaintiff to amend her complaint because of the Court's finding that under Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 107 S. Ct. 1549, 95 L. Ed. 2d 39 (1987), ERISA preempts plaintiff's state law claims. Despite the fact that plaintiff briefed the issue of recovery of punitive damages under ERISA for that argument, the only issue then before the Court was whether plaintiff's state law claims had been preempted, and not whether punitive damages are available under ERISA. Accordingly, defendant may properly proceed with its present motion to dismiss.

 B. Plaintiff's Failure to Allege Jurisdiction. Originally, plaintiff's complaint alleged jurisdiction on the basis of diversity of citizenship. However, pursuant to Judge Ackerman's Opinion and Order dated as of September 25, 1987, *fn3" plaintiff filed an amended complaint on October 9, 1987. As defendant aptly notes, plaintiff's amended complaint fails to allege any jurisdictional basis for an ERISA cause of action. As such, this amended complaint has failed to comply with the requirement of Fed.R.Civ.P. 8(a)(1) which states, in pertinent part, that plaintiff's complaint "shall contain [] a short, plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it[.]" *fn4"

 This Court notes that the failure to comply with Rule 8(a)(1) can lead to dismissal because "it is hornbook law that the jurisdiction of the federal court must appear in the plaintiff's statement of his claim." Schultz v. Cally, 528 F.2d 470 (3rd Cir. 1975) (citation omitted). See also Tavoulareas v. Comnas, 232 U.S. App. D.C. 17, 720 F.2d 192 (D.C. Cir. 1983) (jurisdiction must appear on face of complaint); Bowman v. White, 388 F.2d 756, (4th Cir.) (same), cert. denied, 393 U.S. 891, 89 S. Ct. 214, 21 L. Ed. 2d 172 (1968). But see Rohler v. TRW, Inc., 576 F.2d 1260 (7th Cir. 1978) (complaint need not set forth statutory basis for court's jurisdiction if facts alleged provide same). *fn5"

 Despite plaintiff's defective pleading, Judge Ackerman's opinion is clearly the law of the case. Therefore, in light of the liberal amendment policy of Rule 15(a) of the Federal Rules of Civil Procedure, see Foman v. Davis, 371 U.S. 178, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962) (amendment of pleading appropriate where no undue prejudice will result) and 28 U.S.C. § 1653, *fn6" this Court considers plaintiff's Amended Complaint to include a proper allegation of ERISA jurisdiction.

 A motion to dismiss cannot be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] own claim which would entitle [her] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-102, 2 L. Ed. 2d 80 (1957). Moreover, "it is well established that, in passing on a motion to dismiss, . . . the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974). Even in light of this stringent standard, this Court, as a matter of law, must grant defendant's motion to dismiss plaintiff's amended ...


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