T he Hon ora ble Jo hn Gle eso n, Uni tedSt ate s D ist ric t C our t f or the Ea ste rn * Dis tri ct of NewYo rk, si tti ng by des ign ati on. The Cl erkof th e C our t i s r esp ect ful ly dir ect ed to ame nd the of fic ial ** cap tio n o f t his ac tio n t o c onf ormto th e c apt ion of th is summar y o rde r. 08- 094 8-c v Fir st Unu m L ife In s. Co. v. Wu lah



### UNITED STATES COURT OF APPEALS F OR 

### T HE 

### S ECO ND 

### C IRC UIT 

### SUMMARY ORDER

R ULI NGS BYSU

MMA RY ORD ER DO NOT HA VE PRE CED ENT IALEF FEC T . C ITATION T O A SU MMA RY ORD ER FIL ED ON OR AFT ER J ANU ARY 1, 200 7, IS PE RMI TTE D A ND IS GOV

ERNED BY F EDE RAL R ULE OF A PPE LLATE P ROC EDURE 32. 1 AND T HIS COURT ’ S L OCA L R ULE 32. 1.1 . WHEN CIT ING A SUM MAR Y ORDE R I N A

DO CUM ENT FI LED WI TH THI S C OURT , A PARTY MUST CITE EIT HER THE F EDE RAL A PPE NDI X OR A N ELE CTR ONI C DATA

BAS E ( WIT H T HE NOTATI ON “ SUM MAR Y ORDE R ”). A

PA RTYCI TING A

SU MMA RY ORD ER MUS T S ERV E A CO PY OF IT ON ANYPA RTYNO T R

EPR ESE NTE D B Y C OUN SEL . 

### At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 2 day of February, two thousand and ten. nd 

### Present: PIERRE N. LEVAL,

RICHARD C. WESLEY,

Circuit Judges , JOHN GLEESON, District Judge . *



### __________________________________________________ FIRST UNUM LIFE INSURANCE COMPANY, Plaintiff-Appellee ,

- v. - (08-0948-cv) TEAH WULAH, Defendant-Appellant . **



### __________________________________________________

### 2

For Appellant: TEAH WULAH, pro se , Bronx, New York. For Appellee: LOUIS P. DIGIAIMO (Randi F. Knepper, of couns el; Mee Sun Choi, on the brief ), McElroy, Deutsch, Mulvaney & Carpenter, LLP, Morristown, New Jersey. Appeal from the United States District Court for the Southern District of New York (Francis, J.). 1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 2 AND DECREED that the October 8, 2007 order of the United 3 States District Court for the Southern District of New York 4 is REVERSED and REMANDED . 5 Appellee First Unum Life Insurance Company (“First 6 Unum”) commenced this action under the Employee Retirement 7 Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et 8 seq. and state law, seeking to recover long-term disability 9 benefits that it paid to appellant Teah Wulah. The parties 10 consented to have the matter resolved before a magistrate 11 judge of the Southern District of New York (Francis, J.), 12 see 28 U.S.C. § 636(c), who granted summary judgment in 13 favor of First Unum. Wulah — who has proceeded as a pro se 14 litigant since the inception of the action — appeals. We 15 presume the parties’ familiarity with the underlying facts, 16 the procedural history of the case, and the issues on 17 appeal. 18S.D .N. Y. Loc al Rul e 5 6.2 st ate s: 1 Anyre pre sen tedpa rtymo vin g f or summar y j udg men t a gai nst a par ty pro cee din g prose sha ll ser ve andfi le as a s epa rat e d ocu men t, tog eth er wit h t he pap ers in su ppo rt of the mo tio n, a “ Not ice To Pr o S e L iti gan t Who Op pos es a M oti on For Su mma ry Jud gme nt” in th e f ormin dic ate d [ by the Loc al Rul es] . Whe re the prosepa rtyis no t t he pla int iff , t he mov ant sha ll ame nd the fo rm not ice as ne ces sar y t o r efl ect th at fac t. S.D .N. Y. R. 56. 2, ava ila bleat ht tp: //w ww1 .ny sd. usc our ts. gov /co urt rul es. php . 

### 3 1 On June 1, 2007, the magistrate judge entered a 2 scheduling order that directed: First Unum to file a motion 3 for summary judgment by June 29, 2007, appellant to “answer” 4 any such motion by July 31, 2007, and First Unum to submit a 5 reply by August 15, 2007. First Unum filed its motion for 6 summary judgment as directed, along with a “Statement of 7 Material Uncontested Facts” pursuant to S.D.N.Y. Local Rule 8 56.1. However, there is no indication in the appellate 9 record that First Unum submitted a “Notice To Pro Se 10 Litigant Who Opposes a Motion For Summary Judgment” pursuant 11 to S.D.N.Y. Local Rule 56.2. Appellant responded to First 1 

### 12 Unum’s motion for summary judgment with an August 6, 2007 13 submission that was, according to the magistrate judge, 14 “styled as an Answer.” 15 The magistrate judge granted the motion for summary 16 judgment on October 8, 2007. With respect to First Unum’s 17 claim for repayment of benefits pursuant to § 502(a)(3) of 18 ERISA, 29 U.S.C. § 1132(a)(3), the magistrate judge rejected

### 4 1 appellant’s argument that he was unaware of the provisions 2 of First Unum’s ERISA Plan. In doing so, he assumed that 3 First Unum had not provided a Summary Plan Description 4 document, but reasoned that appellant had “offer[ed] no 5 evidence” that he was prejudiced by that omission. Because 6 of the procedural posture of the case, this was error. 7 “[I]t is not ‘obvious to a layman that when his opponent 8 files a motion for summary judgment supported by affidavits 9 he must file his own affidavits contradicting his opponent’s 10 if he wants to preserve factual issues for trial.’” Vital 11 v. Interfaith Med. Ctr. , 168 F.3d 615, 620 (2d Cir. 1999) 12 (quoting Graham v. Lewinski , 848 F.2d 342, 344 (2d Cir. 13 1988)). Based on that practical reality, we have reversed a 14 decision granting summary judgment where neither the 15 district court nor the movant provided a pro se litigant 16 with advance, “explicit notice” regarding “the nature and 17 consequences of a summary judgment motion,” and where the 18 pro se litigant did not appear to understand the potentially 19 adverse result of the motion. Id. at 621. 20 The principles articulated in Vital require reversal 21 here as well. First, there is no indication in the record 22 that either First Unum or the magistrate judge provided any 23 notice to appellant of the nature of summary judgment or the

### 5 1 standards by which the motion would be resolved. Second, 2 the record suggests that appellant was hewing carefully to 3 the terms of the magistrate judge’s instructions: the June 4 1, 2007 scheduling order called for an “answer” to First 5 Unum’s motion, and appellant’s submission (although late) 6 was titled as such. Appellant did not, however, submit any 7 affidavits or sworn materials, which might have indicated 8 that he understood more fully the legal requirements that 9 applied to the motion that he was opposing. See id. 10 Finally, the failure to comply with Vital and S.D.N.Y. Local 11 Rule 56.2 was exacerbated when the magistrate judge faulted 12 appellant for failing to adduce evidence in support of his 13 contentions. Collectively, these circumstances require 14 reversal. 15 Accordingly, the magistrate judge’s October 8, 2007 16 order is hereby REVERSED and the case is REMANDED for 17 proceedings consistent with this order. We of course 18 express no view as to the merits of either party’s claims, 19 which remain to be resolved in the district court. 20 For the Court 21 Catherine O’Hagan Wolfe, Clerk 22 23 24