IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DIANE TONGUETTE, 

Plaintiff,

Case No. 2:12-cv-00006

v. JUDGE GREGORY L. FROST

Magistrate Judge Elizabeth P. Deavers

SUN LIFE AND HEALTH INSURANCE

COMPANY (U.S.), et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court for consideration of the following filings:

(1) a motion for judgment on the administrative record (ECF No. 30) filed by Sun Life

and Health Insurance Company (U.S.) (“Sun Life”); 

(2) a motion for judgment on the administrative record (ECF No. 32) filed by LoBue

Associates, Inc. Health & Welfare Plan and LoBue Associates, Inc. (“the LoBue Defendants”); 

(3) a combined motion for judgment on the administrative record and motion for

summary judgment (ECF No. 33) filed by Plaintiff, Diane Tonguette (“Tonguette”); 

(4) a combined memorandum in opposition to the motions for judgment on the

administrative record field by Sun Life and the LoBue Defendants (ECF No. 40) filed by

Tonguette; 

(5) a memorandum in opposition to Tonguette’s motion for judgment on the

administrative record (ECF No. 37) and an amended memorandum in opposition to Tonguette’s

motion for judgment on the administrative record (ECF No. 39), both filed by Sun Health;

(6) a memorandum in opposition to Tonguette’s motion for judgment on the

administrative record (ECF No. 38) filed by the LoBue Defendants; 

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(7) a reply memorandum to Tonguette’s memorandum in opposition (ECF No. 41) filed

by Sun Health; 

(8) a reply memorandum to Sun Health’s memorandum in opposition (ECF No. 42) filed

by Tonguette; and 

(9) a reply memorandum to the LoBue Defendants’ memorandum in opposition (ECF

No. 43) filed by Tonguette. 

For the reasons that follow, the Court finds that part of Sun Life’s motion for judgment

on the administrative record that targets Count I to be well taken and finds the rest of the motion

targeting other claims to be moot. (ECF No. 30.) This Court also finds that part of the LoBue

Defendants’ motion for judgment on the administrative record that targets Count I to be well

taken and finds the rest of the motion not well taken on non-substantive grounds. (ECF No. 32.) 

The Court then finds Tonguette’s motion for judgment on the administrative record not well

taken and finds her motion for summary judgment not well taken on non-substantive grounds.

(ECF No. 33.) Additionally, the Court orders additional summary judgment briefing. 

I. Background

Del Tonguette began working for LoBue Associates, Inc. in August 2009. He was a

participant in the company’s life insurance benefits plan, which provided him with a life

insurance policy. Del Tonguette named Plaintiff, Diane Tonguette, the policy beneficiary. In

October 2009, Del Tonguette’s employment with LoBue Associates, Inc. ended. Under the plan,

Del Tonguette was able to convert his group life insurance coverage into an individual life

insurance policy within a 31-day conversion period. The policy provides that if Sun Life or

LoBue Associates, Inc. failed to provide a former employee such as Del Tonguette with notice of

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this right to convert, then the conversion period was extended for an additional 15 days after

notice was given up to 60 days after the expiration of the initial conversion period. Additionally,

the policy provides that if a participant were to die during the conversion period, a claim could

be made for the death benefit even if the participant had not applied for a conversion policy. 

Neither Sun Life nor the LoBue Defendants gave Del Tonguette notice of his right to convert his

life insurance coverage. (ECF No. 31-1, at Page ID # 303.) Del Tonguette then died during the

extended conversion period. Sun Life denied Tonguette’s subsequent claim for death benefits,

providing the following rationale:

In order to be eligible [for coverage under the plan], Mr. Tonguette would have had

to submit an application within 31 days of his benefit termination date. A review of

our records reveals that Mr. Tonguette did not submit an application for conversion;

thus no coverage was in force on his date of death. The Plan further states that claim

may be made if the employee died within the 31 day period during which insurance

may be converted to an individual policy. The Death Certificate issued by the State

of Ohio shows that Mr. Tonguette passed away on January 9, 2010 which is outside

of this 31 day period. Although the Certificate of Insurance extends the period of

time in which an employee may exercise his conversion privilege in the event that

notice of this privilege is not given within the initial 31 day period, it does not extend

the “Death within the Conversion Period”. [sic] This provision clearly states that

claim may be made “if you die during the 31 day period during which your insurance

may be converted to an individual policy”. [sic] As Mr. Tonguette’s date of death

was outside of the 31 day conversion period, no coverage was in force when he

passed away on January 9, 2010.

We have concluded that Mr. Tonguette ceased to be Actively at Work on October 16,

2009 at which time his insurance coverage ceased. At that time, he was eligible to

convert his group insurance to an individual policy. Our records reveal that no

conversion ever took place and since his date of death was outside of the 31 day

period in which insurance may be converted, Mr. Tonguette was not covered when

he passed away on January 9, 2010. Consequently, no life insurance benefits are

payable pursuant to the Actively at Work and Termination of Insurance provisions

as stated in the Plan.

(ECF No. 31-1, at Page ID # 312.) 

On January 4, 2012, Tonguette filed the instant action. Via an amended complaint, she

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originally asserted nine claims in an attempt to recover benefits and to obtain other relief under

the Employee Retirement Income Security Act (“ERISA”) and under Ohio, Nevada, and Rhode

Island state law. (ECF No. 23.) Both Sun Life and the LoBue Defendants filed motions to

dismiss some of these claims. (ECF Nos. 24, 26.) In an April 29, 2013 Opinion and Order, this

Court dismissed with prejudice Counts II, IV, V, VI, VII, VIII, and IX against Sun Life and

dismissed the failure to administer properly component of Count II against the LoBue

Defendants. The claims remaining in this litigation are Count I against the LoBue Defendants

and Sun Life, the failure to provide documentation component of Count II against the LoBue

Defendants, and Count III against the LoBue Defendants. All of the parties have filed

dispositive motions, which are ripe for disposition. (ECF Nos. 30, 32, 33.)

II. Discussion

A. Count I

Tonguette asserts a claim in Count I under 29 U.S.C. § 1132(a)(1)(B), which “gives a

participant the right to bring a civil action ‘to recover benefits due to him under the terms of his

plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits

under the terms of the plan.’ ” Creech v. Unum Life Ins. Co. of N. Am., No. 05-5074, 2006 WL

41186, at *2 (6th Cir. Jan. 9, 2006). It is well settled that “a denial of benefits challenged under

§ 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the

administrator or fiduciary discretionary authority to determine eligibility for benefits or to

construe the terms of the plan.” Kalish v. Liberty Mutual/Liberty Life Assur. Co. of Boston, 419

F.3d 501, 505-06 (6th Cir. 2005) (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101,

115 (1989)). See also Calvert v. Firstar Finance. Inc., 409 F.3d 286, 291-92 (6th Cir. 2005). If

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the plan provides the administrator with discretion, then “the highly deferential arbitrary and

capricious standard of review is appropriate.” Borda v. Hardy, Lewis, Pollard, & Page, P.C.,

138 F.3d 1062, 1066 (6th Cir. 1998). See also Calvert, 409 F.3d at 291-92. 

The parties agree that the arbitrary and capricious standard applies in the instant case. 

(ECF No. 30, at Page ID # 214-15; ECF No. 32, at Page ID # 314 (adopting Sun Life’s

arguments); ECF No. 33, at Page ID # 327.) The Sixth Circuit has explained that, in determining

whether this standard applies, a court should remain cognizant that a plan is not required to use

certain magic words to create discretionary authority for a plan administrator in administering

the plan. Johnson v. Eaton Corp., 970 F.2d 1569, 1572 at n.2 (6th Cir. 1992). What is required

is “a clear grant of discretion [to the administrator].” Wulf v. Quantum Chemical Corp., 26 F.3d

1368, 1373 (6th Cir. 1994), cert. denied, 513 U.S. 1058 (1994). The plan involved here provides

that Sun Life “is charged with the obligation, and possesses discretionary authority to make

claim, eligibility and other administrative determinations regarding these plans.” (ECF No. 31-1,

at Page ID # 248.) This Court therefore agrees with the parties that the arbitrary and capricious

standard applies. See Solnin v. GE Group Life Assurance Co., No. 03-CV-4857 (DRH) (ARL),

2007 WL 923083, at *8-9 (E.D.N.Y. Mar. 23, 2007) (construing identical language and

concluding that because the plan grants the discretion to determine eligibility for benefits, the

arbitrary and capricious standard applies). 

This standard “does not require [the Court] merely to rubber stamp the administrator’s

decision.” Jones v. Metropolitan Life Ins. Co., 385 F.3d 654, 661 (6th Cir. 2004) (citing

McDonald v. Western-Southern Life Ins. Co., 347 F.3d 161, 172 (6th Cir. 2003)). Rather, under

the arbitrary and capricious standard, a plan administrator’s decision will not be deemed

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arbitrary and capricious so long as “it is possible to offer a reasoned explanation, based on the

evidence, for a particular outcome.” Davis v. Ky. Fin. Cos. Ret. Plan, 887 F.2d 689, 693 (6th

Cir. 1989) (noting that “the arbitrary and capricious standard is the least demanding form of

judicial review”). In other words, the Court will uphold a benefit determination if it is “rational

in light of the plan’s provisions.” Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 381

(6th Cir. 1996). See also Calvert, 409 F.3d at 292. 

In evaluating the record, then, the Court is required to consider only the facts known to

the plan administrator at the time the final decision was made to deny benefits. Moon v. Unum

Provident Corp., 405 F.3d 373, 378 (6th Cir. 2005); see also Miller v. Metropolitan Life Ins. Co.,

925 F.2d 979, 986 (6th Cir. 1991). The Court is also required to remain cognizant of the

potential inherent conflict of interest that arises given that Sun Life acts as both the decision

maker on a claim and the potential payor of that claim. Calvert, 409 F.3d at 292. With these

concerns in mind, the Court shall turn to the merits of Count I.

Analysis of the merits necessarily begins with the relevant plan language. The plan

provides that coverage for an insured will automatically cease on the date when an insured is no

longer actively at work or ceases to be an active full-time employee. (ECF No. 31-1, at Page ID

# 245.) The plan also provides that, upon such termination, the insured can then convert his or

her life insurance policy to an individual policy if “[w]ithin 31 days after such termination . . .,

[the insured] appl[ies] in writing for a conversion policy and pay[s] the first premium.” (Id. at

Page ID # 236.)

Two other policy provisions inform the conversion issue. In a section titled “Notice of

Conversion Privilege,” the plan provides:

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Written notice of the Conversion Privilege and its duration will be given to you at

least 15 days before the end of the 31 day period following termination of coverage

under the Group Policy. In the event notice is not given within such time, the time

allowed for conversion will be extended to 15 days after the giving of such notice,

but will not be extended beyond 60 days after the end of such 31 day period.

(Id. at Page ID # 237.) The plan also provides in a section titled “Death within the Conversion

Period” that a “[c]laim may be made for a death benefit if you die during the 31 day period

during which your insurance may be converted to an individual policy.” (Id.)

Defendants argue that they are entitled to judgment on Count I because Del Tonguette

was without life insurance coverage when he passed away. They note that because his last day

of employment was October 16, 2009, Del Tonguette was no longer actively at work and ceased

to be an active full-time employee as of that date. This means that he was ineligible for life

insurance benefits after that date absent conversion. If Del Tonguette had received the notice of

the conversion privilege contemplated in the plan, Defendants reason, he would have had until

November 16, 2009, in which to convert. Absent the requisite notice, Defendants explain, he

had until January 15, 2010, to apply for conversion.1

 Del Tonguette never applied for

conversion and died on January 9, 2010.2

 The fact that Del Tonguette passed away prior to the

extended January 15, 2010 conversion deadline does not matter, according to Defendants. They

argue that the “Death within the Conversion Period” provision set forth above applies on its face

only to a decedent who passes way during the 31-day period in which conversion may occur and

1

 In its motion, Sun Life states that the end of the 60-day extended period is January 15,

2009, not January 15, 2010. (ECF No. 30, at Page ID # 218.) This is obviously a scrivener’s

error.

2

 In its motion, Sun Life states that Del Tonguette passed away on January 9, 2011, not

January 9, 2010. (ECF No. 30, at Page ID # 220.) This is obviously yet another scrivener’s

error.

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does not reach the distinct period consisting of the extended deadline created by a failure to give

notice of the conversion privilege.

To support their argument, Defendants direct this Court to Sundstrom v. Sun Life

Assurance Co. of Canada, 683 F. Supp. 2d 594 (W.D. Mich. 2010). In that case, another district

judge in the Sixth Circuit addressed facts in which a decedent who was covered under his life

insurance plan until March 16, 2006, died on May 4, 2006. Similar to the instant case, that

decedent’s plan contained a conversion provision, which read:

Application for the Individual Policy

1. written applications must be made to Sun Life along with payment of the

first premium, within the 31 day period (the 31 day conversion period) following the

date the insurance ceases or reduces. If the Employee is not given notice by the

Employer of this conversion privilege within 15 days following the date his

insurance ceases or reduces, the Employee shall have an additional 15 days to

exercise this conversion privilege. In no event will this conversion privilege be

extended beyond 60 days following the 31 day conversion period. 

Id. at 597-98. The Sundstrom policy also provided:

Death Within 31 Days

If the Employee dies during the 31 day conversion period, a benefit will be

paid upon receipt of Notice and Proof of Claim, whether or not application for the

individual policy or payment of the first premium has been made. The benefit is the

amount of Life Insurance the Employee would have been eligible to convert.

Id. at 598. The Sundstrom judge held that the denial of life insurance benefits was neither

arbitrary nor capricious in light of the fact that the decedent had failed to convert his policy.

That judge explained:

Plaintiff asserts her husband is entitled to benefits under the policy. Plaintiff

argues the phrase “the 31 day conversion period” is a phrase defined in the policy. 

Under the “Death Within 31 Days” provision of the policy, her husband passed away

within “the 31 day conversion period.” Plaintiff asserts there are 3 different

conversion periods provided for under the “Application for the Individual Policy”

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provision. The first 31 day conversion period is the 31 days after the date the

insurance policy ceases or reduces. The second 31 day conversion period is the first

31 days, plus an additional 15 days which is added when the employer does not give

the employee notice of the first period. The third 31 day conversion period is the

first 31 days, plus an additional 60 days. Plaintiff asserts the phrase “the 31 day

conversion period” refers to all three of these periods.

Defendant Sun Life’s decision to deny benefits under the “Death Within 31

Days” provision was not arbitrary or capricious. After Plaintiff appealed the initial

denial, Defendant reached a reasonable conclusion when it interpreted the phrase

“the 31 day conversion period” to mean the 31 day period following the date the

insurance ceases or reduces. Defendant also reached a reasonable conclusion when

it construed the “Death Within 31 Days” provision as authorizing payment of

benefits only when the beneficiary passes during the first 31 days following the date

on which the insurance ceases or reduces. Mr. Sundstrom passed away more than

31 days after March 14, 2006, therefore his estate was not eligible for benefits under

the “Death Within 31 Days” provision.

In order to prevail under the Conversion Privilege provision, Plaintiff must

have both the right to convert Mr. Sundstrom’s group policy to an individual policy

and there must be some circumstances, applicable in this case, which extends the

conversion period for 60 days after the initial 31 days following the date on which

the insurance policy ceased or reduced. It is beyond dispute that Mr. Sundstrom

never sought to convert his group life policy to an individual policy. In addition,

whether Mr. Sundstrom failed to receive notice of the conversion period from his

employer, and thus was afforded an additional 15 days beyond the initial 31, is

irrelevant. It is undisputed that he passed away 3 days after the addition[al] 15 day

period expired.

Id. at 598-99 (footnotes omitted). This analysis is instructive to Tonguette’s claim.

As noted, the plan at issue here provides:

Written notice of the Conversion Privilege and its duration will be given to you at

least 15 days before the end of the 31 day period following termination of coverage

under the Group Policy. In the event notice is not given within such time, the time

allowed for conversion will be extended to 15 days after the giving of such notice,

but will not be extended beyond 60 days after the end of such 31 day period.

(ECF No. 31-1, at Page ID # 237.) Similar to the Sundstrom plan, this plan provision sets forth

one 31-day period, which is specifically characterized in the plan as “the 31 day period” and not

a 31-day period. (Id. (emphasis added).) This specific period is defined by the subsequent

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restrictive clause “following termination of coverage under the Group Policy.” (Id.) That clause

defines a particular period of days and serves, in conjunction with the article preceding “31 day

period,” to narrow the plan’s use of that language to one concrete period, i.e., the 31 days

immediately following termination of coverage. 

Thus, when the plan elsewhere provides that a “[c]laim may be made for a death benefit

if you die during the 31 day period during which your insurance may be converted to an

individual policy,” the use of the restrictive article (“the”) and restrictive clause (“during which

your insurance may be converted to an individual policy”) limit the automatic payment upon

death period to the same initial period for conversion. (Id.) The death provision says the 31-day

period; it does not say the 91-day period for possible conversion that results absent notice or

(even more specific) the 31-day period and/or the extended period. There is only one 31-day

period for conversion, with any other 31 days following that period simply falling within what

the plan describes as an extended period of no more than 60 days from the end of the 31-day

period.

Tonguette of course disagrees with the foregoing reading of the plan. She posits that the

plan is inherently ambiguous in the relevant provisions and that, as a result, this Court must

construe the plan against Sun Life, the plan’s drafter. The flaw in this reasoning is that the plan

language is not ambiguous. 

Rather than being ambiguous, the policy is actually quite precise in defining and adhering

to the 31-day period. There is an express distinction between a period for extended conversion

and a period in which benefits are payable upon death even in the absence of conversion. To

conclude otherwise would be to ignore the particular language employed in the plan provisions. 

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Although the plan sets forth a contingent maximum conversion period of 91 days, the plan never

conflates the 31-day period with the extended period in regard to the death within 31 days

provision. Tonguette’s subjective perception of ambiguity thus has no foundation within the

plan language itself. 

Consequently, Sun Life’s interpretation does not “render the Notice provision

superfluous and without any relevance whatsoever” as Tonguette suggests. (ECF No. 33, at

Page ID # 332.) Instead, the interpretation recognizes that under the terms of the plan, the notice

provision informs only the right to convert and not payment upon death without conversion. The

Court recognizes that the plan thus essentially provides an inherent incentive to Sun Life to

withhold notice and then benefit from that action if an individual with a right to convert expires

prior to converting. But it is not within the purview of this Court to hold Sun Life to anything

more in this context than providing a rational, reasoned explanation, based on the plan language

and the facts, for the coverage decision Sun Life reached.

Tonguette also argues that Sundstrom is distinguishable because the policy language

involved in that case limited the payment of benefits to the first 31 days of the conversion period,

whereas here the policy language contains no such limitation. This is simply incorrect. 

Tonguette attempts to make much of the fact that the Sundstrom policy contained the heading

“Death Within 31 Days” while the policy here contains the heading “Death within the

Conversion Period.” Any superficial traction this argument might muster fails when the actual

content of those sections is compared. The Sundstrom policy language defined the 31 day

conversion period and limited it to the period immediately following the date the insurance

ceased. The policy here permits a claim for a death benefit if the covered individual dies “during

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the 31 day period during which your insurance may be converted to an individual policy.” (ECF

No. 31-1, at Page ID # 237.) The substance of the section thus defines the term “Conversion

Period” in the heading in such a way as to align this case with Sundstrom. Applying this

definition, the policy section heading here essentially reads “Death within the 31 day period

during which your insurance may be converted to an individual policy.” Tonguette’s gloss on

the policy sub judice reads out the specific substance of the policy in order to create ambiguity

based on a heading. This illogical approach fails to persuade.

Also unpersuasive is Tonguette’s reliance on Canada Life Assurance Co. v. Estate of

Lebowitz, 185 F.3d 231 (4th Cir. 1999). The policy involved in that case may have indeed

defined the conversion period as the 31 days following the termination of an insured individual’s

employment, and the court of appeals may have indeed construed the death during conversion

period to mean the extended period, but this Court disagrees with this non-binding case and

instead credits the language of the policy. 

Similarly unpersuasive is Tonguette’s reliance on Hauth v. Prudential Insurance Co. of

America, No. C08-3025-MWB, 2010 WL 3168279 (N.D. Iowa Aug. 10, 2010), as well as similar

state court cases. The policy language in Hauth provided that a death benefit would be paid if an

individual died within 31 days after coverage had ceased and while he or she was entitled to

convert. To the extent that the former requirement can be regarded as analogous to the instant

policy’s “31 day period during which your insurance may be converted to an individual policy,”

this Court disagrees with Hauth. That case, like Lebowitz, reads out of the policy a condition

that limits a death benefit without conversion. The benefit without conversion provision is more

narrow than the extended conversion provision; the latter does not inform the former. Again, the

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Court recognizes that crediting the death within 31 days provision language could be construed

as at odds with the intent of the notice provision. But the provisions do not have to align. 

ERISA imposes a right to convert, 29 U.S.C. §§ 1161 & 1162, but it does not impose a duty to

pay benefits if an individual dies outside a limited period. This Court will not discredit the

policy language to place into the statutory scheme what Congress did not.

Although Sun Life did not expressly detail in its initial denial its analysis in regard to the

extended period for conversion that results from a failure to give notice, this fact does not render

its denial decision arbitrary and capricious. There is no requirement that Sun Life address this

plan provision, or others that Tonguette cites, that are irrelevant to the applicable coverage

period. Moreover, Sun Life’s ultimate denial of coverage addressed the inapplicable extension

provision. Sun Life ultimately reached a reasonable conclusion when it interpreted the 31-day

period to mean the 31-day period following the date the insurance ceased. It also reached a

reasonable conclusion when it construed the “Death within the Conversion Period” provision as

authorizing payment of benefits only when a beneficiary passes during the first 31 days

following the date on which the insurance ceased. Because the record does not present arbitrary

and capricious conduct by Defendants, they are entitled to judgment on Count I. 

B. Counts II and III

Both Tonguette and the LoBue Defendants seek summary judgment on Counts II and III.

In Count II, Tonguette asserts a breach of fiduciary duty claim against the LoBue Defendants for

failure to provide plan documentation under 29 U.S.C. § 1024(b)(4). That statute provides that

“[t]he administrator shall, upon written request of any participant or beneficiary, furnish a copy

of the latest updated summary, [sic] plan description, and the latest annual report, any terminal

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report, the bargaining agreement, trust agreement, contract, or other instruments under which the

plan is established or operated.” 29 U.S.C. § 1024(b)(4). Under 29 U.S.C. § 1132(a)(3), a plan

participant, beneficiary, or fiduciary may bring a civil action to obtain appropriate equitable

relief to redress the violation of such a duty or to enforce ERISA provisions or the terms of the

plan. 

Tonguette again targets the LoBue Defendants’ alleged failure to maintain and provide

plan documents in Count III. She avers that she never received a summary plan description,

which she states apparently does not exist, as well as other documents. Tonguette also asserts

that the documents provided are deficient in meeting ERISA requirements. She seeks statutory

damages and any other relief deemed appropriate under 29 U.S.C. § 1132(c)(1).

 The unusual circumstances in which the briefing occurred and the nature of the briefing

present threshold complications that necessitate consideration before this Court can reach the

merits of these claims.

Shortly after the filing of this litigation, the Magistrate Judge set a dispositive motions

deadline of January 28, 2013. (ECF No. 14, at Page ID # 38.) This Court recognized that

deadline in its subsequent Scheduling Order. (ECF No. 15.) After Tonguette filed an amended

complaint (ECF No. 23) on December 20, 2012, however, Defendants responded by filing

motions to dismiss (ECF Nos. 24, 26) in January 2013. The parties were in the process of

briefing the motions to dismiss when the dispositive motions deadline arrived. The parties then

filed their motion for judgment on the administrative record/summary judgment motions. (ECF

Nos. 30, 32, 33.) After the parties filed their dispositive motions did they conclude briefing the

motions to dismiss. Briefing on the dispositive motions then continued, and it was only after all

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of the motions had been briefed that this Court was able to file its Opinion and Order on the

motions to dismiss. (ECF No. 44.)

This atypical, overlapping motions practice complicates addressing the summary

judgment motions cleanly. For example, the LoBue Defendants’ one-and-one-half page

dispositive motion simply adopts Sun Life’s briefing and the LoBue Defendants’ own motion to

dismiss memorandum in support. (ECF No. 32, at Page ID # 314.) This is troubling for two

basic reasons. 

First, Sun Life’s dispositive motion only incorporates the arguments raised in its motion

to dismiss (and not elsewhere) “to the extent necessary.” (ECF No. 30, at Page ID # 216 n.3.) 

Such incorporation proved unnecessary for Sun Life because via concession it obtained dismissal

of Count II in the April 29, 2013 Opinion and Order (ECF No. 44, at 499) and because Tonguette

did not assert Count III against Sun Life (ECF No. 23 ¶¶ 95-104). Thus, there has been no

incorporation of Sun Life’s motion to dismiss arguments into Sun’s Life’s dispositive motion,

which means that if the LoBue Defendants intended to reach those arguments via incorporation,

they have not. 

Second, in the non-incorporated motions to dismiss reply memorandum filed by the

LoBue Defendants, they raised for the first time a new argument, which this Court rejected

consideration of in its April 29, 2013 Opinion and Order. (ECF No. 44, at Page ID # 502-03.) 

The LoBue Defendants’ dispositive motion does not incorporate this argument. If this Court

starts to go down the motion to dismiss rabbit hole and consider the incorporated motion to

dismiss, fairness would likely dictate that the Court also consider the corresponding nonincorporated memorandum in opposition and the non-incorporated reply memorandum. 

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Consideration of this last document would lead to Tonguette’s proffered motion to dismiss surreply, which this Court declined to consider in the motions to dismiss analysis because the Court

declined to let the LoBue Defendants raise an argument for the first time in the motion to dismiss

reply memorandum. 

Also troubling is that Tonguette’s memorandum in opposition to the LoBue Defendants’

dispositive motion is a memorandum in opposition to Sun Life’s dispositive motion that

Tonguette states in a footnote “shall be construed as also responding to the LoBue Defendants’

Motion for Judgment.” (ECF No. 40, at Page ID # 448.) Presumably, that “Motion for

Judgment” reference is meant to encompass what is essentially the summary judgment portion of

the LoBue Defendants’ dispositive motion because it is only a summary judgment component

that could pertain to Counts II and III. But on the LoBue Defendants’ end, all the summary

judgment component does is incorporate some but not all of the motion to dismiss briefing. And

on Tonguette’s end, her “combined” memorandum in opposition does not even address Counts II

and III, which would suggest abandonment of these claims, but for the fact that Tonguette

pursues summary judgment on these claims in her own motion for summary judgment. 

This is a morass. Part of the fault lies with the undersigned; this Court failed to see this

coming and halt dispositive motions briefing when Defendants filed the motions to dismiss. Part

of the fault lies with the frustrating practice of arguing for or against summary judgment by

incorporating only select motion to dismiss briefing. Together these actions have complicated

what should be the easiest part of addressing Counts II and III: ascertaining precisely which

arguments (and possibly evidence) the Court can consider in regard to these claims.

It therefore makes little sense to this Court to attempt to parse out what parts of the

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motion to dismiss briefing may or may not be relevant to the remaining claims when any error on

this Court’s part might overlook a potentially dispositive argument. It is also not this Court’s

duty to cobble together fragments of the parties’ briefing into an argument that the Court can

then proceed to address. Accordingly, in an effort to bring clarity to the consideration of Counts

II and III on summary judgment–and frankly, to force the remaining parties to present their

arguments in the summary judgment context, keeping in mind the posture of the evidence and

the case as they have developed since the motions to dismiss briefing–this Court DENIES

WITHOUT PREJUDICE the motions in regard to Counts II and III. (ECF Nos. 32, 33.) The

Court also ORDERS that, on or before August 26, 2013, Tonguette and the LoBue Defendants

shall file new summary judgment motions on Counts II and III. Summary judgment briefing

shall then proceed in accordance with the default schedule set forth in the Local Civil Rules, see

S. D. Ohio Civ. R. 7.2(a)(2), and the new motions shall come on for a non-oral hearing on

October 11, 2013.3

III. Conclusion

The Court GRANTS Sun Life’s motion for judgment on the administrative record in

regard to Count I (ECF No. 30), GRANTS the LoBue Defendants’ motion for judgment on the

administrative record in regard to Count I (ECF No. 32), and DENIES Tonguette’s motion for

judgment on the administrative record in regard to Count I (ECF No. 33). The Court also

DENIES Sun Life’s motion as moot in regard to Count II (ECF No. 30) and DENIES

WITHOUT PREJUDICE the LoBue Defendant’s motion for summary judgment (ECF No. 32)

3

 Obvious notice to the parties: No argument by incorporation. If you want this Court to

consider it, put it into your summary judgment briefing. 

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and Tonguette’s motion for summary judgment (ECF No. 33) in regards to Counts II and III. 

The Court ORDERS that the LoBue Defendants and Tonguette shall file new summary

judgment motions on Counts II and III on or before August 26, 2013, and these motions shall

come on for a non-oral hearing on October 11, 2013.

IT IS SO ORDERED.

 /s/ Gregory L. Frost 

GREGORY L. FROST

UNITED STATES DISTRICT JUDGE

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