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United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

GORDON ERSPAMER,

Plaintiff,

 v.

MORRISON & FOERSTER LLP LONG

TERM DISABILITY PLAN,

Defendant

 /

No. C-08-4692 MMC

ORDER AFFORDING PARTIES LEAVE

TO FILE SUPPLEMENTAL BRIEFING;

CONTINUING HEARING

Before the Court are two motions: (1) plaintiff Gordon Erspamer’s Motion for

Judgment Pursuant to Federal Rule of Civil Procedure 52, filed November 6, 2009, and

(2) defendant Morrison & Foerster LLP Long Term Disability Plan’s Cross-Motion for

Judgment Pursuant to Federal Rule of Civil Procedure 52, filed November 25, 2009; both

motions are currently noticed for hearing on January 22, 2010. Upon further consideration

of the papers filed in support of and in opposition to the motions, the Court finds a hearing

would be more productive after the parties have had the opportunity to address in advance

two issues not fully addressed in the parties’ respective papers.

A. Loss of Monthly Earnings

The subject plan provides, inter alia, that a claimant seeking long-term disability

benefits must establish he has a “20% or more loss in [his] indexed monthly earnings due

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The Court notes that the plan also provides that a claimant is not considered

“disabled” unless he is “under the regular care of a doctor.” (See AR 46.) Although the

parties, in their respective filings, acknowledge such requirement, neither party addresses

the question of whether the administrative record includes sufficient evidence to support a

finding that plaintiff is “under the regular care of a doctor.” Consequently, the Court

assumes there is no dispute that plaintiff has satisfied the “regular care of a doctor”

requirement.

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to [the claimed] sickness or injury” (see Administrative Record (“AR”) 46), and provides a

definition for the terms “monthly earnings” and “indexed monthly earnings” (see AR 47-48,

64). The plan further provides that the claimant must provide “appropriate documentation

of [his] monthly earnings.” (See AR 58.)1

Where, as here, a court reviews a denial of benefits de novo, “the court simply

proceeds to evaluate whether the plan administrator correctly or incorrectly denied

benefits,” and, specifically, determines “whether [the claimant] was entitled to benefits

based on the evidence in the administrative record and other evidence as might be

admissible.” See Opeta v. Northwest Pension Plan for Contract Employees, 484 F.3d

1211, 1217 (9th Cir. 2007) (internal quotations, citations, and alteration omitted).

In his motion, plaintiff does not identify evidence in the administrative record that

documents his monthly earnings, much less evidence to support a finding that he has

incurred a 20% or more loss in such monthly earnings. Rather, plaintiff cites to evidence

outside the administrative record. Further, such evidence is cited to show plaintiff’s annual

income over the course of several years, and plaintiff has not endeavored to explain how

such evidence demonstrates his “monthly earnings” under the plan’s definition thereof

and/or reflects a “20% or more loss in [plaintiff’s] indexed monthly earnings.”

Accordingly, the Court finds it appropriate to afford plaintiff leave to identify any

evidence in the administrative record supporting a finding that, under the plan’s definition of

“monthly earnings,” there has been a “20% or more loss in [plaintiff’s] indexed monthly

earnings,” and, additionally or alternatively, to explain how the cited evidence outside the

record, if admissible, supports such a finding.

//

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In its initial decision denying plaintiff’s claim for long-term disability benefits,

defendant did not set forth the date on which plaintiff alleged he was entitled to begin to

receive long-term disability benefits, but noted that it had approved plaintiff’s claim for

short-term disability benefits through the date of May 27, 2007. (See AR 404.) In its

decision denying plaintiff’s appeal of the initial denial, defendant stated the alleged “date of

disability” was March 15, 2007 (see AR 1184), but did not indicate whether the benefits

sought as of that date were long-term or short-term.

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B. Date of Alleged Disability

As noted above, the court, in reviewing a denial of benefits de novo, looks, in the

first instance, to the administrative record. Here, neither party has identified where in the

administrative record the claim can be located; as a result, the specific claim made and

denied, and, in particular, the date on which plaintiff asserted entitlement to payment of

long-term disability benefits, is unclear.2

 As discussed below, the parties, in their

respective motions, do not resolve the ambiguity.

In his complaint, as well as in his motion for judgment, plaintiff seeks a finding that

he is entitled to long-term disability benefits “from September 12, 2007.” (See Compl. at

5:2-3; Pl.s Mot. at 2:6-7.) Although these filings may suggest plaintiff sought, from

defendant, long-term benefits beginning on September 12, 2007, plaintiff neither asserts he

submitted such a claim to defendant, nor points to any evidence in the administrative

record reflecting such date.

Moreover, defendant, in its cross-motion, seeks a finding that “[p]laintiff did not prove

that as of March 15, 2007, he was [disabled].” (See Def.’s Cross-Mot. at 20:2-3.) As noted

above, plaintiff does not seek by the instant action a finding of entitlement to long-term

disability benefits beginning March 15, 2007. Further the record appears to support a

finding that defendant did find plaintiff was disabled, at least for purposes of short-term

disability benefits, as of March 15, 2007. (See AR 881.) To the extent defendant may be

arguing, for reasons of eligibility or otherwise, that an inability to establish entitlement to

benefits as of March 15, 2007 constitutes a bar to plaintiff’s claim for long-term disability

benefits as of September 12, 2007, defendant has failed to explain the basis for any such

argument.

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Accordingly, the Court finds it appropriate to afford plaintiff an opportunity to identify

where, in the administrative record, the Court can locate the claim made and denied, as

well as an opportunity to clarify the significance of the date of September 12, 2007. 

Further, the Court finds it appropriate to afford defendant an opportunity to clarify the

significance of the date of March 15, 2007 with respect to plaintiff’s claimed entitlement to

long-term disability benefits.

C. Schedule

The Court sets the following schedule for the parties’ supplemental briefing on the

issues identified above:

1. Plaintiff’s supplemental brief shall be filed no later than February 26, 2010, and

shall not exceed ten pages in length.

2. Defendant’s responsive supplemental brief shall be filed no later than March 19,

2010, and shall not exceed ten pages in length.

3. Plaintiff’s supplemental reply brief shall be filed no later than April 2, 2010, and

shall not exceed five pages in length.

4. The hearing on the motions is hereby CONTINUED to April 23, 2010, at 9:00

a.m.

IT IS SO ORDERED.

Dated: January 21, 2010 

MAXINE M. CHESNEY

United States District Judge

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