1

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

TROY L. STINSON : 

 : 

 Plaintiff, : Case No. 2:11-CV-651 

 : 

 v. : JUDGE ALGENON L. MARBLEY 

 : 

THE PRUDENTIAL INSURANCE : Magistrate Judge Norah McCann 

COMPANY OF AMERICA, : King 

 : 

 Defendant. : 

: 

OPINION & ORDER

I. INTRODUCTION 

 This matter is before the Court on Defendant The Prudential Insurance Company of 

America’s (“Defendant” or “Prudential”) Motion to Dismiss the Complaint filed by Plaintiff 

Troy L. Stinson (“Plaintiff” or “Stinson”). (Doc. 3, 7.) For the reasons stated herein, this Court 

GRANTS Defendant’s Motion to Dismiss. 

II. BACKGROUND 

A. Factual Background

 Plaintiff is a resident of Piketon, Ohio, and his deceased wife, Gretchen Y. Stinson 

(“Decedent”), was also a resident of Piketon. Prudential is a life insurance company authorized 

to transact business in the State of Ohio, with its principal place of business in Newark, New 

Jersey. Decedent was a teacher in the Scioto Valley Local School District and licensed by the 

Ohio Department of Education. Decedent was also a member of the National Education 

Association (“NEA”), which is a labor union for educators. 

Case: 2:11-cv-00651-ALM-NMK Doc #: 14 Filed: 03/08/12 Page: 1 of 15 PAGEID #: <pageID>
2

 Plaintiff alleges that “Prudential underwrote the Accidental Death and Dismemberment 

Plan held by the NEA Member Insurance Trust, policy GC 31490,” and that Decedent was a 

primary insured under that plan. (Compl. at ¶ 3.) Plaintiff explains in his Complaint, however, 

that he failed to attach a copy of the relevant plan because “Plaintiff has not been able to timely 

procure a verifiably accurate copy of it prior to the commencement of this action.” Id. 

Defendant attaches a copy of a document, entitled “Your NEA Insurance Booklet and 

Certificate,” (“Booklet”) to its Motion to Dismiss which Defendant states contains information 

about the plan at issue in this lawsuit; the “NEA Members Insurance Plan.” (Doc. 7, 7-1.) 

Plaintiff concedes in his Memorandum Contra to Defendant’s Motion to Dismiss 

(“Memorandum Contra”) that the NEA Members Insurance Plan (“Plan”) is the plan at issue in 

this lawsuit.1

 While as a general rule, courts are not to consider matters outside of the pleading 

when deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), Tackett v. 

M&G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009), an exception arises when a 

plaintiff fails to introduce pertinent documents as part of his or her pleading, and the defendant 

may then introduce those documents in exhibits as part of a Rule 12(b)(6) motion, Thomas v. 

Publishers Clearing House, Inc., 29 F. App’x 319, 322 (6th Cir. 2002).2

 As the Sixth Circuit has 

                                                           

1

 Plaintiff states as follows: “Prudential supported its motion with a purported copy of ‘the plan booklet.’ 

Although the exhibit is not verified or authenticated, Mr. Stinson does not have any reason to believe that 

those materials are inaccurate. The exhibit is incomplete because it lacks the schedule of benefits face 

page issued to the individual holding the certificate. As it is, however, the material in Exhibit [1] expands 

upon the underlying facts that can be reasonably inferred from Plaintiff’s allegations.” (Doc. 10.) 

Plaintiff then proceeds to cite a number of facts that can be gleaned from the Booklet. This Court takes 

this statement, along with Plaintiff’s references to the Booklet and Plan, to be a concession that Defendant 

has provided information about the plan at issue in this lawsuit. 

2 See also Dirkes v. Cont’l Cas. Co., No. 1:05-cv-254, 2006 U.S. Dist. LEXIS 57448, at *6 n.1 (S.D. Ohio 

Aug. 16, 2006) (explaining that an exception to the general rule that matters outside of the pleading are 

not to be considered in deciding a motion to dismiss arises when “a defendant attaches documents to a 

Case: 2:11-cv-00651-ALM-NMK Doc #: 14 Filed: 03/08/12 Page: 2 of 15 PAGEID #: <pageID>
3

explained, “[o]therwise, a plaintiff with a legally deficient claim could survive a motion to 

dismiss simply by failing to attach a dispositive document upon which it relied.” Weiner v. Klais 

& Co., 108 F.3d 86, 89 (6th Cir. 1997). Therefore, when deciding Defendant’s Motion to 

Dismiss, this Court may properly consider the Booklet containing information about the Plan that 

was incorporated by reference in the Plaintiff’s Complaint. 

 Pages 24 through 28 of the Booklet contain a “Summary Plan Description.” (Doc. 7-1 at 

24–28.) NEA sponsors the Plan, which provides “NEA members with group insurance benefits 

in the event of death, accident, sickness, disability, or other occurrences affecting members and 

families.” Id. at 25. The benefits are funded by one or more group insurance policies acquired 

and maintained by the trustees of the NEA Members Insurance Trust. The Life and Accidental 

Death & Dismemberment Insurance3

 is open to NEA members on a voluntary basis. Participants 

select the type of coverage they want, pay the entire cost themselves, and NEA does not 

contribute to the cost of coverage, except during total disability waiver. The Booklet explicitly 

                                                                                                                                                                                               

motion to dismiss that are central to the Plaintiff’s complaint”; that “if a plaintiff raises issues that require 

consideration in terms of an ERISA plan, the court may properly consider exhibits setting forth the terms 

of the ERISA plan at issue in deciding the motion to dismiss”; and the court is not obligated to convert 

the defendant’s motion to one for summary judgment when considering these documents); Weiner v. 

Klais & Co., 108 F.3d 86, 89 (6th Cir. 1997) (“Plaintiff references the ‘plan’ numerous times in his 

complaint. Although plaintiff maintains that the complaint referred only to the ‘plan’ as an entity and not 

to the ‘plan documents,’ his claims are based on rights under the plans which are controlled by the plans’ 

provisions as described in the plan documents. Thus, we will consider the plan documents along with the 

complaint, because they were incorporated through reference to the plaintiff’s rights under the plans, and 

they are central to plaintiff's claims.”). 

3

 The Life and Accidental Death & Dismemberment Insurance is referred to by different names 

throughout the Booklet. For example, page 8 refers to the “Group Accidental Death and Dismemberment 

Insurance program,” and page 25 refers to the “Life and Accidental Death and Dismemberment 

Insurance” and the “Life and/or Accidental Death & Dismemberment programs.” (Doc. 7-1 at 8, 25.) To 

remain consistent, this Court will refer to the insurance as the Life and Accidental Death & 

Dismemberment Insurance. 

Case: 2:11-cv-00651-ALM-NMK Doc #: 14 Filed: 03/08/12 Page: 3 of 15 PAGEID #: <pageID>
4

states that the purpose of the Summary Plan Description is to “inform [the participant] about the 

Plan’s structure,” and “is being furnished to [the participant] in compliance with the Employee 

Retirement Income Security Act of 1974 (ERISA).” Id. 

 Participants in the Plan “are entitled to certain rights and protections under ERISA.” Id.

at 27. Those right are summarized in the Summary Plan Description and include: the right to 

examine documents and contracts associated with the Plan, the right to copy those documents, 

and the right to obtain a summary financial report. The Summary Plan Description also explains 

that ERISA imposes duties on NEA, the trustees who operate the Life and Accidental Death & 

Dismemberment Insurance, and Prudential. These entities are fiduciaries, and specifically, 

Prudential is the “appropriate named fiduciary for purposes of the enrollment process, claim 

settlement, and review of denied claims.” Id. Moreover, the processes by which a participant 

can contest a claim for a benefit that has been denied are described, and a participant is told that 

if his or her claim is denied or ignored, he or she “may file suit in a state or federal court.” Id.

 During all relevant times, Plaintiff alleges that he was a beneficiary of the Life and 

Accidental Death & Dismemberment Insurance under the Plan. On or about November 12, 

2008, Decedent died as a result of accidental bodily injuries that she sustained on October 28, 

2008. As a result, Plaintiff became eligible for benefits under the Life and Accidental Death & 

Dismemberment Insurance, making Prudential liable to Plaintiff in a total amount of $60,000. 

Plaintiff alleges that he has given Prudential notice and proof of his claim, performed all 

necessary conditions of the Plan, filled out all of the requested proof of losses, acted in good 

faith, and exhausted all administrative remedies under the Plan. Nevertheless, Prudential 

rejected his claim for benefits in its entirety. 

Case: 2:11-cv-00651-ALM-NMK Doc #: 14 Filed: 03/08/12 Page: 4 of 15 PAGEID #: <pageID>
5

 Prudential disputes the facts related to Plaintiff’s claim, and contends that Plaintiff’s 

claim was denied in a letter dated December 14, 20094

 on the basis that Decedent died “as the 

result of medical treatment of a sickness, which is expressly stated as a non-covered loss under 

the terms of the Plan.” (Doc. 7.) Prudential also contends that Plaintiff never appealed 

Prudential’s decision, despite the fact that the Plan provides Plaintiff with an opportunity to do 

so. 

B. Procedural Background 

 On or around June 15, 2011, Plaintiff filed his Complaint in the Court of Common Pleas 

for Pike County, Ohio. Prudential removed this case in late July, pursuant to 28 U.S.C. § 1332, 

on the grounds that there is complete diversity jurisdiction, and also pursuant to 28 U.S.C. 

§ 1331, on the grounds that there is federal question jurisdiction because this Court must 

determine whether Plaintiff’s claims are preempted in whole or part by ERISA. Stinson did not 

file a motion for remand. Shortly thereafter, Prudential filed this Motion to Dismiss, which is 

ripe for review. 

                                                           

4

 Prudential attaches the December 14, 2009 letter to its reply brief and urges this Court to consider the 

letter when deciding the Motion to Dismiss because, Prudential argues, the letter is referenced in the 

Complaint and is central to Plaintiff’s claims. (Doc. 13) (citing (Compl. at ¶ 10) (“Prudential has rejected 

Plaintiff’s claim for accidental death benefits in whole; and, although due demand for such benefits have 

been made by Plaintiff, Prudential has failed and refuses to provide such coverage benefits to Plaintiff.”)). 

This Court declines Prudential’s invitation to consider the letter at this stage in the litigation. First, 

Plaintiff’s Complaint does not specifically reference the letter. Next, because Prudential attached the 

letter to its reply brief rather than to its Motion to Dismiss, Plaintiff has not had the opportunity to voice 

its opinion on the accuracy or relevance of the letter. See Thomas, 29 F. App’x at 32223 (explaining that 

district court correctly took into consideration documents attached to defendant’s motion to dismiss where 

plaintiff failed to object to their inclusion in his response brief). Finally, it is unnecessary for this Court to 

consider this letter when deciding whether Plaintiff’s claims are preempted by ERISA. 

Case: 2:11-cv-00651-ALM-NMK Doc #: 14 Filed: 03/08/12 Page: 5 of 15 PAGEID #: <pageID>
6

III. STANDARD OF REVIEW 

 Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a complaint for “failure to 

state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A complaint must 

contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” 

Fed. R. Civ. P. 8(a). Although a plaintiff need not plead specific facts, the complaint must “give 

the defendant fair notice of what the claim is, and the grounds upon which it rests.” Nader v. 

Blackwell, 545 F.3d 459, 470 (6th Cir. 2008) (quoting Erickson v. Pardus, 551 U.S. 89, 93 

(2007)). 

 The plaintiff’s ground for relief must entail more than “labels and conclusions, and a 

formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 555 (2007). The plaintiff has satisfied Rule 12(b)(6) if he or she pled 

enough facts “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 

1937, 1949 (2009). Additionally, the Court must accept as true allegations of fact contained in 

the complaint, and the complaint must be construed in the light most favorable to the party 

opposing the motion to dismiss. Davis H. Elliot Co. v. Caribbean Util. Co., Ltd., 513 F.2d 1176, 

1182 (6th Cir. 1975). 

 When a complaint is dismissed for failure to state a claim upon which relief can be 

granted, the statement of the claim itself is defective as a matter of the applicable substantive 

law. Wright & Miller, 5B Fed. Prac. & Proc. Civ. § 1357 (3d ed. 2004). However, in the 

situation where an affirmative defense bars a claim, the claim is stated adequately, but in 

addition to the claim, the contents of the complaint include “matters of avoidance that effectively 

vitiate the pleader’s ability to recover on the claim.” Id.; see Riverview also Health Inst. LLC v. 

Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010) (quoting Wright & Miller). 

Case: 2:11-cv-00651-ALM-NMK Doc #: 14 Filed: 03/08/12 Page: 6 of 15 PAGEID #: <pageID>
7

IV. LAW & ANALYSIS 

A. Subject Matter Jurisdiction 

 As a preliminary matter, this Court must address subject matter jurisdiction issues raised 

by Plaintiff in his Memorandum Contra. It is not clear to the Court whether Plaintiff is 

contesting this Court’s subject matter jurisdiction, but for ease of analysis, the Court will treat 

Plaintiff’s arguments as such a challenge. 

 Plaintiff argues that the amount-in-controversy in this case depends on whether this Court 

determines that the Plan is an ERISA-qualified plan as Defendant urges. Plaintiff alleges 

$60,000 is due under the Life and Accidental Death & Dismemberment Insurance, and an 

unspecified amount is due in punitive damages as a result of the bad faith claim. In Prudential’s 

Notice of Removal, it states that given damages alleged, the total damages exceeded the 

jurisdictional threshold of $75,000. But Plaintiff argues that a proceeding under ERISA does not 

allow for punitive damages, and that “[t]he claim that an action should be removed because of 

the amount in controversy exceeds the threshold criteria of $75,000 when the same act of 

removal will reduce the contested amount below that level is nonsensical.” (Doc. 10) (citing 29 

U.S.C. § 1132(a)(3); Allinder v. Inner-City Prod. Corp., 152 F.3d 544, 552 (6th Cir. 1998)). 

 Plaintiff’s reasoning is flawed. Prudential removed this case on two alternative 

jurisdictional grounds. Prudential asserted in its Notice for Removal that there is diversity 

jurisdiction in this case because the Plaintiff is a resident of Ohio, Prudential is a corporation 

with its principal place of business in New Jersey, and the amount-in-controversy exceeds of 

$75,000. Prudential then explains that this case is also removable because there is a federal 

question as to whether Plaintiff’s claims are preempted by ERISA. Plaintiff does not set forth 

Case: 2:11-cv-00651-ALM-NMK Doc #: 14 Filed: 03/08/12 Page: 7 of 15 PAGEID #: <pageID>
8

arguments contesting either of these grounds individually, and therefore, the Court finds that this 

case has been properly removed to this Court. 

B. ERISA Preemption

 Prudential asks this Court to dismiss Plaintiff’s claims because they are based entirely on 

state law and as a result, are preempted by ERISA. In its Motion to Dismiss, Prudential contends 

that ERISA preempts all state law claims that “relate to any employee benefit plan,” and that a 

claim “relates to” an ERISA plan where “it has a connection with or reference to such a plan.” 

(Doc. 7) (citing 29 U.S.C. § 1144(a); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97 (1983)). 

Prudential cites Sixth Circuit case law to support its position that state law claims to recover 

benefits under an ERISA-regulated plan “relate to” the Plan. 

 Plaintiff argues his claims are not preempted by ERISA because the Plan is not 

established or maintained by an employer or employee organization and qualifies as a 

“governmental plan” which is exempt under ERISA. Plaintiff relies entirely on a case from the 

Ninth Circuit, Daniels-Hall v. National Education Association, to support its arguments. 629 

F.3d 992, 995 (9th Cir. 2010). Prudential retorts that the Daniels-Hall case is distinguishable; 

NEA is an employee organization not a governmental entity, and therefore, the Plan cannot be 

categorized as a governmental plan; and the Plan informs its participants that it is governed by 

ERISA, and is, therefore, subject to ERISA. 

 ERISA does, in fact, preempt all state law claims which “relate to any employee benefit 

plan.” 29 U.S.C. § 1144(a). The Supreme Court has said that a state law claim relates to an 

ERISA plan “if it has a connection with or reference to such a plan.” Shaw, 463 U.S. at 97. 

“Congress was concerned that state laws might interfere with the administration and 

management of such plans.” Bloemker v. Laborers’ Local 265 Pension Fund, 605 F.3d 436, 440 

Case: 2:11-cv-00651-ALM-NMK Doc #: 14 Filed: 03/08/12 Page: 8 of 15 PAGEID #: <pageID>
9

n.2 (6th Cir. 2010) (internal citations omitted). A state common law suit “for alleged improper 

processing of [] claims for benefits under [an] ERISA-regulated benefit plan” is preempted under 

ERISA, Pilot Life Insurance Company v. Dedeaux, 481 U.S. 41, 41 (1987), as are bad faith 

breach of insurance contract claims, Tolton v. American Biodyne, 48 F.3d 937, 941 (6th Cir. 

1995).

 An “employee benefit plan” under ERISA is defined as “an employee welfare benefit 

plan or an employee pension benefit plan5 or a plan which is both an employee welfare benefit 

plan and an employee pension benefit plan.” 29 U.S.C. § 1002(3). An “employee welfare 

benefit plan” is defined as: 

any plan, fund, or program which was heretofore or is hereafter established or 

maintained by an employer or by an employee organization, or by both, to the 

extent that such plan, fund, or program was established or is maintained for the 

purpose of providing for its participants or their beneficiaries, through the 

purchase of insurance or otherwise, (A) medical, surgical, or hospital care or 

benefits, or benefits in the event of sickness, accident, disability, death or 

unemployment, or vacation benefits . . . . 

29 U.S.C. § 1002(1) (emphasis added). An “employee organization” is defined under ERISA as 

a “labor union or any organization of any kind, or any agency or employee representation 

committee, association, group, or plan, in which employees participate and which exists for the 

purpose, in whole or in part, of dealing with employers concerning an employee benefit plan, or 

other matters incidental to employment relationships.” 29 U.S.C. § 1002(4). 

                                                           

5

 An “employee pension benefit plan” is defined as “any plan, fund, or program which was heretofore or 

is hereafter established or maintained by an employer or by an employee organization, or by both, to the 

extent that by its express terms or as a result of surrounding circumstances such plan, fund, or program—

(i) provides retirement income to employees, or (ii) results in a deferral of income by employees for 

periods extending to the termination of covered employment or beyond, regardless of the method of 

calculating the contributions made to the plan, the method of calculating the benefits under the plan or the 

method of distributing benefits from the plan.” 29 U.S.C. § 1002(2)(A). The Plan at issue in this case is 

an employee welfare benefit plan, not an employee pension benefit plan. 

Case: 2:11-cv-00651-ALM-NMK Doc #: 14 Filed: 03/08/12 Page: 9 of 15 PAGEID #: <pageID>
10

 “[B]y its express terms, ERISA encompasses welfare plans provided through the 

purchase of insurance.” Fugarino v. Hartford Life & Accident Ins. Co., 969 F.2d 178, 184 (6th 

Cir. 1992), rev’d on other grounds Raymond B. Yates, M.D., P.C. Profit Sharing Plan v. Hendon, 

541 U.S. 1 (2004). Nevertheless, the United States Department of Labor (“DOL”) has 

promulgated regulations that provide certain insurance and benefit plans are excluded from 

ERISA’s coverage. Under the regulations, the term “employee welfare benefit plan” does not 

include: 

[A] group or group-type insurance program offered by an insurer to employees or 

members of an employee organization, under which: 

(1) No contributions are made by an employer or employee organization; 

(2) Participation the program is completely voluntary for employees or members; 

(3) The sole functions of the employer or employee organization with respect to 

the program are, without endorsing the program, to permit the insurer to publicize 

the program to employees or members, to collect premiums through payroll 

deductions or dues checkoffs and to remit them to the insurer; and 

(4) The employer or employee organization receives no consideration in the form 

of cash or otherwise in connection with the program, other than reasonable 

compensation, excluding any profit, for administrative services actually rendered 

in connection with payroll deductions or dues checkoffs. 

29 C.F.R. § 2510.3-1(j). A plan is exempt under ERISA only if all four of the “safe harbor” 

criteria are satisfied. Thompson v. Am. Home Assurance Co., 95 F.3d 429, 435 (6th Cir. 1996). 

Usually the factor that proves most difficult to analyze is the third, specifically determining what 

constitutes an “endorsement” of a Plan within the meaning of the regulation. This Circuit held 

that “finding an endorsement is appropriate if, upon examining all the relevant circumstances, 

there is some factual showing on the record of substantial employer involvement in the creation 

or administration of the plan.” Id. at 436. Moreover, 

Case: 2:11-cv-00651-ALM-NMK Doc #: 14 Filed: 03/08/12 Page: 10 of 15 PAGEID #: <pageID>
11

where the employer provides a summary plan description that specifically refers 

to ERISA in laying out the employee’s rights under the policy or that explicitly 

states that the plan is governed by ERISA, the employee is entitled to presume 

that the employer’s actions indicate involvement sufficient to bring the plan 

within the ERISA framework. 

Id. at 437 (internal citations omitted). The Thompson Court also held that to qualify as an 

ERISA-plan a court must inquire whether “from the surrounding circumstances a reasonable 

person [could] ascertain the intended benefits, the class of beneficiaries, the source of the 

financing, and the procedures for receiving benefits,” id. at 435 (citing International Resources, 

Inc. v. New York Life Insurance Company, 950 F.2d 294, 297 (6th Cir. 1991)), and if the 

employer established or maintained the plan with the intent of providing benefits to its 

employees, id. (citing McDonald v. Provident Indemnity Life Insurance Company, 60 F.3d 234, 

236 (5th Cir. 1995)). 

 The Plan at issue here falls under the definition of an “employee welfare benefit plan,” 

because it is a “plan . . . which was heretofore or is hereafter established or maintained . . . by an 

employee organization . . . for the purpose of providing its participants or their beneficiaries, 

through the purchase of insurance or otherwise, . . . death . . . benefits . . . .” See 29 U.S.C. 

1002(1). NEA is an “employee organization” because it is a labor union that exists in part to 

deal with employers concerning an employee benefit plan. Pettit v. The Prudential Ins. Co. of 

America, No. 5:98-cv-00690, slip op. at 11 (W.D. Tex. Aug. 17, 1999) (characterizing NEA as 

the “plan sponsor and ERISA ‘employee organization’”). Moreover, the benefits at issue in this 

case are death benefits. 

 This Court must next determine whether the Plan is excluded from ERISA’s coverage 

under the DOL regulations. The first factor appears to be satisfied, but NEA does contribute 

“during total disability waiver.” (Doc. 7-1 at 25) (“NEA does not contribute to the cost of these 

Case: 2:11-cv-00651-ALM-NMK Doc #: 14 Filed: 03/08/12 Page: 11 of 15 PAGEID #: <pageID>
12

overages except for contributions during total disability waiver.”). The second factor is easily 

satisfied because the Summary Plan Description states that “[p]articipation for Life and 

Accidental Death & Dismemberment Insurance is open to NEA members on a voluntary basis.” 

Id. The third factor, however, is problematic. Under the Thompson Court’s precedent, NEA is 

endorsing the Plan. The Summary Plan Description “specifically refers to ERISA in laying out 

the employee’s rights under the policy.” Id. at 25, 27 (“This plan is being furnished to you in 

compliance with the Employee Retirement Income Security Act of 1974 (ERISA)”; “Your rights 

under ERISA”; “As a participant in the NEA Members Insurance Plan, you are entitled to certain 

rights and protections under the Employee Retirement Income Security Act of 1974 (ERISA)”; 

“Under ERISA, there are steps you can take to enforce your rights.”); see also Thompson, 95 

F.3d at 437. The Plan, therefore, is not exempt under the DOL regulation’s safe harbor. See 29 

C.F.R. § 2510.3-1(j). Because the third factor is not satisfied, this Court does not need to 

examine the fourth. Thompson, 95 F.3d at 435 (explaining all four factors must be satisfied to be 

exempt under the safe harbor). 

 Moreover, this Court thinks that “a reasonable person [could] ascertain the intended 

benefits, the class of beneficiaries, the source of the financing, and the procedures for receiving 

benefits,” and that NEA established or maintained the plan with the intent of providing benefits 

to its employees. Id. The Plan makes clear that its purpose is to provide members of NEA with 

“group insurance benefits in the event of death, accident, sickness, disability, or other 

occurrences affecting members and their families”; that the Plan is financed through the NEA 

Members Insurance Trust; and that there is a claims procedure for receiving benefits. (Doc. 7-1 

at 2528.) Moreover, NEA established and maintains the program with the intent of providing 

benefits to NEA members. See, e.g., id. at 2 (“We are pleased to present you with this Booklet. 

Case: 2:11-cv-00651-ALM-NMK Doc #: 14 Filed: 03/08/12 Page: 12 of 15 PAGEID #: <pageID>
13

It describes the Program of benefits you have selected through the NEA Members Insurance 

Trust and what you must do to be covered for these benefits. We believe this Program provides 

you worthwhile protection for you and your family.”). 

 The arguments made by Plaintiff in his Memorandum Contra are unconvincing. First, it 

is clear that the Plan is not a “governmental plan.” A “governmental plan” as defined under 

ERISA is a plan that is “established or maintained for its employees by the Government of the 

United States, by the government of any State or political subdivision thereof, or by any agency 

or instrumentality of any of the foregoing.” 29 U.S.C. § 1002(32). The Plan is not established or 

maintained by the Scioto Valley Local School District but by the NEA, which this Court has 

already explained is an employee organization under ERISA. It is because the Decedent was a 

teacher in the Scioto Valley Local School District that she could become a member of the NEA, 

but that does not mean that the Plan was established and maintained by the District. 

 Next, the Daniels-Hall case is distinguishable and not controlling. It is factually and 

legally distinguishable because it dealt with tax-shelter annuities that the NEA was endorsing 

and marketing. 629 F.3d at 995. NEA worked with Nationwide Life Insurance and Security 

Benefit Life Insurance Company to offer NEA members annuities called Valuebuilder annuities. 

Id. at 99596. The Ninth Circuit’s analysis dealt with the definition of an employee pension 

benefit plan rather than a employee welfare benefit plan. Id. at 999. Moreover, a different DOL 

regulation and safe harbor was at issue—one that exempted certain section 403(b) retirement 

plans from ERISA’s requirements. Id. at 1000. 

C. Leave to Amend

 Prudential argues that Plaintiff should be denied leave to amend his Complaint to assert 

claims arising under ERISA because Plaintiff failed to exhaust his administrative remedies under 

Case: 2:11-cv-00651-ALM-NMK Doc #: 14 Filed: 03/08/12 Page: 13 of 15 PAGEID #: <pageID>
14

the Plan. (Doc. 7) (citing Hill v. Blue Cross & Blue Shield, 409 F.3d 710, 717 (6th Cir. 2005) 

(“[I]t is well settled that ERISA plan beneficiaries must exhaust administrative remedies prior to 

bringing suit for recovery on an individual claim.”); Miller v. Metro. Life Ins. Co., 925 F.2d 979, 

986 (6th Cir. 1991) (“The administrative scheme of ERISA requires a participant to exhaust his 

or her administrative remedies prior to commencing suit in federal court.”)). Prudential cites a 

number of cases in which this Circuit has dismissed a complaint without prejudice for failure to 

exhaust administrative remedies prior to filing the lawsuit. See, e.g., Falandays v. Penn Treaty 

Am. Corp., 114 F. App’x 738, 738 (6h Cir. 2004) (“[T]he ERISA claim nonetheless must be 

dismissed without prejudice for failure to exhaust administrative remedies.” (citing Miller v. 

Metro. Life Ins. Co., 925 F.3d 979, 986 (6th Cir. 1991)). 

 Plaintiff does not move for leave to amend or contest Plaintiff’s arguments. Rather, 

Plaintiff argues that if his “state law claims are preempted by ERISA, then his claim for bad faith 

goes away because ERISA does not recognize that cause of action” but his “central claim for 

benefits owed under an ERISA-qualified plan fall squarely within the scope of the civil 

enforcement provision of ERISA.” (Doc. 10.) 

 This Court cannot, however, sua sponte morph Plaintiff’s state law claims for wrongful 

denial of benefits under the Life and Accidental Death & Dismemberment Insurance into 

properly-pled ERISA claims. Plaintiff must move for leave to amend his Complaint and then 

properly plead ERISA claims, but Plaintiff has failed to do so. This Court, therefore, does not 

have to address Prudential’s argument related to leave to amend.6 

                                                           

6

 This Court will note, though, that there is a factual dispute as to whether Plaintiff has indeed exhausted 

his administrative remedies. Compare (Doc. 3) (“Plaintiff . . . has acted in good faith to fully exhaust any 

administrative remedies under the policy.”) with (Doc. 7) (“Moreover, any attempt by Plaintiff to amend 

his Complaint would be futile at this time because Plaintiff failed to exhaust his administrative 

Case: 2:11-cv-00651-ALM-NMK Doc #: 14 Filed: 03/08/12 Page: 14 of 15 PAGEID #: <pageID>
15

V. CONCLUSION 

 For the foregoing reasons, Defendant’s Motion to Dismiss is GRANTED. 

IT IS SO ORDERED. 

 s/ Algenon L. Marbley 

 Algenon L. Marbley 

 United States District Judge 

Dated: March 8, 2012 

                                                                                                                                                                                               

remedies.”). Moreover, courts in this Circuit have granted leave to amend in circumstances similar to this 

one where state law claims have been preempted by ERISA. See Shepherd v. Dana Corp., No. 98–1770, 

2000 WL 191822, at *1 (6th Cir. 2000) (explaining that the district court adopted the magistrate judge’s 

report and recommendation that plaintiff’s state law claims were preempted by ERISA, but that plaintiff 

should be granted leave to amend her complaint to include ERISA claims). 

Case: 2:11-cv-00651-ALM-NMK Doc #: 14 Filed: 03/08/12 Page: 15 of 15 PAGEID #: <pageID>