So Why Does the Plaintiff Even Have a Lawyer?
Before I get to my post, I want to note a change to the Supreme Court of Appeals of West Virginia's schedule this week. The Court has canceled its motion and argument dockets for tomorrow, March 25, so that the justices and staff can attend the funeral of Justice Joseph P. Albright, who died last Friday.
The Court has rescheduled those cases, as reflected on its updated motion and argument dockets.
My post deals with a West Virginia federal district decision that Rob Hoskins wrote about yesterday at ERISABoard. Rob's analysis focused on the substantive issues, but I think the procedural aspect of the case is more compelling.
When I read Dunlap v. Ormet Corp., Civil Action No. 5:08-CV-00065 (N. D. W. Va., March 19, 2008) (no Westlaw cite available), I was amazed, and not in a good way. In fact, I don't know why Dunlap even had a lawyer. Perhaps you'll have a better answer to the question than I do.
Dunlap's lawyer filed her suit for death benefits payable by an employer-sponsored benefit plan in state court. The defendants removed the case to federal court based on ERISA preemption. The plaintiff did not object to the removal, which was reasonable in view of the subject matter.
The parties were unable to agree on the scope of discovery, so the Court ordered the parties to brief the issue. The corporate defendants submitted memoranda in support of their positions, but the plaintiff did not file any brief in support of her position that, presumably, she was entitled to engage in discovery. The Court determined that its review was limited to the administrative record and that discovery beyond the record was unnecessary.
Ormet filed a motion to dismiss accompanied by documents beyond the pleadings, which converted the motion to one for summary judgment, and the Unum defendants moved for summary judgment. The plaintiff did not file a response to either motion, nor did she request an extension of time to do so.
Then, Ormet filed a supplemental memorandum in support of its position that it was entitled to dismissal "by default," and the Unum defendants filed a supplemental memorandum discussing a recent Supreme Court case that supported their position. The plaintiff did not respond to either supplemental memorandum.
The Court rejected Ormet's position and rendered a decision on the merits, which granted Ormet's motion. The Court also granted the Unum defendants' motion for summary judgment. Finally, the Court denied the defendants' motion for attorney's fees, and concluded that the dismissal of the claims against the corporate defendants deprived the Court of supplemental jurisdiction over the individual defendants, and dismissed without prejudice the plaintiff's claims against them.
Unfortunately, this sort of result happens more often than you would think in ERISA cases. The outcome may not be this extreme, but often, a lawyer who doesn't handle ERISA cases regularly -- or, sometimes, at all -- gets involved and quickly realizes that he or she misunderstood the scope of preemption, the substantive law, the remedies, etc. But the way to deal with that situation, if you're that lawyer, is not what Dunlap's lawyer did. You can talk to the defendant's lawyer and try to reach a resolution. Or you can bring in more experienced counsel and try to salvage the case. Or you can try to seek relief from the court, as the plaintiff did in Henry v. UBC Product Support Center, Inc., which I wrote about in January. But you can at least respond to the defendants' pleadings.
I'm not trying to brand ERISA as the most complicated area of law imaginable. It's intricate, as are a lot of areas of law. But it always surprises me when a lawyer who would never consider representing a client in a trademark infringement case because he or she doesn't practice intellectual property law will represent a plaintiff in an ERISA case because the lawyer thinks it's like a bad faith case or a personal injury case, then realizes too late that it's impossible to dabble in ERISA.
So I'm still not sure what benefit the plaintiff gained from having a lawyer and from filing suit. She shouldn't have represented herself, because that's almost always a certain path to defeat, but I'm at a loss to know how Dunlap's interests were represented.
