IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DIANE G. MELECH, )

)

Plaintiff, )

) 

vs. ) Civil Action No. 10-00573-KD-M

) 

LIFE INSURANCE COMPANY OF )

NORTH AMERICA, et al., )

)

Defendants. )

ORDER

This action is before the Court on the Defendants’ Motion to Dismiss Count IV of 

Plaintiff’s First Amended Complaint and plaintiff Diane Melech’s response (docs. 189,

200).1 Upon consideration and for the reasons set forth herein, the motion is GRANTED. 

Defendants move the Court to dismiss Count IV of the first amended complaint 

wherein plaintiff asserts a claim for failure to provide documents – the claim file for the 

post-remand decision to deny plaintiff’s claim for long-term disability (doc. 189). 

Defendants argue that the claim in Count IV exceeds the scope of this Court’s review

under the limited remand from the Eleventh Circuit Court of Appeals; and therefore, 

plaintiff cannot assert a new penalty claim under 29 U.S.C. § 1132(c) or revive the 

																																																							 1		Plaintiff also filed three letters: a letter dated October 1, 2014 wherein plaintiff 

requested documents from the defendants, a letter dated October 15, 2014 wherein 

defendants acknowledge the request, and a letter dated January 5, 2015, wherein plaintiff 

acknowledges receipt of a copy of the claim file. (Doc. 193) The Court has not relied 

upon these letters to reach its decision. Therefore, the Court has not considered evidence 

beyond the pleadings, and thus, need not convert the motion to dismiss into a motion for 

summary judgment. See Harper v. Lawrence County., Ala., 592 F.3d 1227, 1232 (11th 

Cir. 2010) (“A judge need not convert a motion to dismiss into a motion for summary 

judgment as long as he or she does not consider matters outside the pleadings. According 

to case law, ‘not considering’ such matters is the functional equivalent of ‘excluding’ 

them-there is no more formal step required.”).

Case 1:10-cv-00573-KD-M Document 203 Filed 01/15/15 Page 1 of 2
2

penalty claim raised in her original complaint.2 Defendants also argue that plaintiff 

cannot state a viable cause of action for the statutory penalties against LINA and that the 

statute, referenced in §1132(c),3 does not provide penalties for failing to produce the type 

of documents that plaintiff requested. Defendants also assert that for failing to produce 

the documents requested – an update of defendants’ initial disclosures and prior 

productions – the remedy would be a motion to compel and not a penalty claim. 

Plaintiff now agrees to dismissal of Count IV. After reviewing the documents 

produced December 29, 2014, plaintiff “determined that in light of Defendants’ 

production of at least most of the claim file,” Count IV is “no longer necessary” and 

“agrees to the dismissal[.]” (Doc. 200, p. 3) (italics in original). 

In view of plaintiff’s agreement to dismiss Count IV and because the documents 

requested by the plaintiff have been produced, the defendants’ motion to dismiss Count 

IV is GRANTED. See	McCroan	v.	United	Parcel	Service,	Inc.,	2014	WL	4854184,	*3	

(N.D.	Fla.	Sept.	29,	2014)	(finding	that	it	was	within	the	court’s	discretion	to	dismiss	

without	discussion	Counts	I	and	II	of	the	first	amended	complaint	based	on	

McCroan’s	response	that	he	“is	not	pursuing	claims	of	age	discrimination	or	

worker’s	compensation	retaliation”	but	construing	his	response	to	mean	that	he	was	

still	pursuing	Count	III	for	retaliation	under	the	ADEA);	

DONE and ORDERED this the 15th day of January 2015. 

s/ Kristi K. DuBose 

KRISTI K. DuBOSE

STATES DISTRICT JUDGE

																																																							 2

 Relevant to this motion, § 1132(c)(1) provides for a monetary civil penalty against an 

administrator who refuses to comply with requests for information, which the 

administrator is required by statute or regulation to furnish to a participant or beneficiary. 

3

 Defendants argue that none of the documents requested by plaintiff are identified in the 

statute, and therefore defendant LINA cannot be subject to the penalties. 

Case 1:10-cv-00573-KD-M Document 203 Filed 01/15/15 Page 2 of 2