Kramer v. American Electric Power Executive Severance Plan

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DEREK KRAMER,

Plaintiff,

Civil Action 2:21-cv-5501

v. Judge Sarah D. Morrison

Magistrate Judge Jolson

AMERICAN ELECTRIC POWER

E XECUTIVE SEVERANCE PLAN, et al.

Defendants.

OPINION AND ORDER

This matter is before the Court on Plaintiff’s Motion to Compel (Doc. 35) and Motion for

Extension of Time (Doc. 36). For the following reasons, the Motions are DENIED.

I. BACKGROUND

Plaintiff is a former employee of Defendant American Electric Power Service Corporation

(“AEP”). (Doc. 1, ¶ 1). AEP hired Plaintiff in 2018 to serve as the Chief Digital Officer of AEP

Charge, which he claims was “a separate and independent business unit designed to promote

innovation . . . .” (Id., ¶ 7). In this role, he was offered an opportunity to participate in Defendant

American Electric Power Executive Severance Plan (“the Plan”), which he accepted. (Id., ¶ 15–

16; Doc. 4, ¶ 15–16). Plaintiff was later terminated (Doc. 1, ¶ 22; Doc. 4, ¶ 22), and was denied

severance benefits under the Plan (Doc. 1, ¶¶ 27–30; Doc. 4, ¶ 27–30).

The Employee Retirement Income Security Act of 1974 (ERISA) governs the Plan. (Doc.

1, ¶ 2; Doc. 4, ¶ 2). And, in particular, Plaintiff brings a claim for severance benefits under ERISA

Section 502, 29 U.S.C. § 1132. (Doc. 1, ¶¶ 31–35). He also brings a claim for interference with

protected rights under ERISA Section 510, 29 U.S.C. § 1140. (Id., ¶¶ 36–43).

Previously, the Court allowed limited discovery beyond the administrative record—

typically not permitted in ERISA actions—because Plaintiff had set forth facts suggesting the

possibility of AEP’s conflict of interest or bias in administering the Plan. (See Doc. 24).

Defendants responded to Plaintiff’s ensuing discovery requests and produced a privilege log for

340 documents withheld on the basis of attorney-client privilege and work product doctrine. (Doc.

35-1). Plaintiff challenged the claims of privilege for all documents created after October 19,

2020, the date on which Plaintiff’s legal counsel first contacted AEP about his severance claim.

(Doc. 35-2 at 2). Plaintiff argued that the fiduciary exception to attorney-client privilege under

ERISA—which provides that a plan administrator must make any communications with counsel

regarding administration of an ERISA plan available to a beneficiary upon request—prevented

Defendants from claiming privilege against Plaintiff. (Id. at 1–3). Defendants disagreed, stating

that the Plan belonged to the category of top-hat benefits plans exempted from several of ERISA’s

provisions, including the fiduciary exception to attorney-client privilege. (Id. at 4–5).

After further conferral (see id.), the parties were at an impasse regarding the claims of

privilege, and Plaintiff brought the Motion to Compel (Doc. 35). Shortly thereafter, Plaintiff also

brought a Motion for Extension of Time, asking the Court to extend the discovery deadline until

sixty days after its ruling on the Motion to Compel, so that discovery could proceed in accordance

with the Court’s ruling—and so Plaintiff could potentially “seek to conduct a limited number of

depositions based upon the documents available.” (Doc. 36). Defendants opposed both motions,

and they are fully briefed and ripe for review. (Docs. 37, 38, 39, 40).

II. STANDARD

Two federal rules govern the Motion to Compel. Rule 26(b) of the Federal Rules of Civil

Procedure provides that “[p]arties may obtain discovery regarding any nonprivileged matter that

is relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ.

P. 26(b)(1). Rule 37, for its part, allows for a motion to compel discovery when a party fails to

answer interrogatories submitted under Rule 33 or to provide proper responses to requests for

production of documents under Rule 34. See Fed. R. Civ. P. 37(a)(1), (3). “The proponent of a

motion to compel discovery bears the initial burden of proving that the information sought is

relevant.” Gruenbaum v. Werner Enters., Inc., 270 F.R.D. 298, 302 (S.D. Ohio 2010) (citation

omitted). “While relevancy is broad, ‘district courts have discretion to limit the scope of discovery

[when] the information sought is overly broad or would prove unduly burdensome to produce.’”

Plain Local Sch. Dist. Bd. of Educ. v. DeWine, 335 F.R.D. 115, 119 (N.D. Ohio 2020) (alteration

in original) (quoting Surles ex rel. Johnson v. Greyhound, Lines, Inc., 474 F.3d 288, 305 (6th Cir.

2007)). At base, “the scope of discovery is within the sound discretion of the trial court.” Stumph

v. Spring View Physician Practices, LLC, No. 3:19-CV-00053-LLK, 2020 WL 68587, at *2 (W.D.

Ky. Jan. 7, 2020) (quotation marks and citations omitted).

Regarding the Motion for Extension of Time, Federal Rule of Civil Procedure 16(b)(4)

provides that a court may modify a scheduling order for good cause. “[T]he touchstone of the

good cause inquiry under Rule 16(b) is whether the moving party acted diligently in attempting to

meet the deadline set forth in the pretrial order.” Permasteelisa CS Corp. v. Airolite Co., LLC,

No. 2:06-cv-0569, 2007 WL 1683668, at *2 (S.D. Ohio June 8, 2007).

III. DISCUSSION

The Court considers Plaintiffs’ Motions separately.

A. Motion to Compel (Doc. 35)

The Motion to Compel turns on one question: Whether the Plan is a top-hat plan. A top-

hat plan is “a plan which is unfunded and is maintained by an employer primarily for the purpose

of providing deferred compensation for a select group of management or highly compensated

employees[.]” 29 U.S.C. § 1051(2); see also Simpson v. Mead Corp., 187 F. App’x 481, 483 (6th

Cir. 2006); Bakri v. Venture Mfg. Co., 473 F.3d 677, 678 n.1 (6th Cir. 2007). Because top-hat

plans are for a select few, they “are almost completely exempt for ERISA’s substantive

requirements.” Simpson, 187 F. App’x at 483 (internal quotation marks omitted) (citing In re New

Valley Corp., 89 F.3d. 143, 148 (3d Cir. 1996)). For example, top-hat plans are exempt from:

ERISA’s minimum participation and vesting standards, 29 U.S.C. § 1051(2); its minimum funding

standards, 29 U.S.C. § 1081(a)(3); and its fiduciary duties, 29 U.S.C. § 1101(a)(1). That last

exception matters here because where there is a fiduciary duty, an exception to attorney-client

privilege is triggered. Specifically, ERISA’s fiduciary exception to the attorney-client privilege

requires that “a fiduciary of an ERISA plan must make available to the beneficiary, upon request,

any communications with an attorney that are intended to assist in the administration of the plan.”

Moss v. Unum Life Ins. Co., 495 F. App’x 583, 595 (6th Cir. 2012) (internal quotation marks

omitted) (citing Bland v. Fiatallis N. Am., Inc., 401 F.3d 779, 787 (7th Cir. 2005)). This is so

because “[w]hen an attorney advises a plan administrator or other fiduciary concerning plan

administration, the attorney’s clients are the plan beneficiaries from whom the fiduciary acts, not

the plan administrator.” Id. (quoting Wildbur v. ARCO Chem. Co., 974 F.2d 631, 645 (5th Cir.

1992)). But where there are no fiduciary duties, attorney-client privilege stays intact. See, e.g.,

Cohn v. W. & S. Fin. Grp. Long Term Incentive and Retention Plan I, No. 1:19-cv-943, 2021 WL

3662465, at *3 (noting that where plaintiff sought privileged documents but had conceded the plan

was a top-hat plan, “the fiduciary exception to attorney-client privilege is not before the Court”).

Here, Plaintiff argues that the Plan is not a top-hat plan so the fiduciary exception to

attorney-client privilege applies. (Id. at 3–10). In support, he says the Plan is missing two elements

of a top-hat plan. It serves more than a “select group” of employees, and it does not provide

deferred compensation. (Id. at 5–9). Defendants, on the other hand, maintain that the Plan

provides deferred compensation to a highly selective group of employees and is thus properly

categorized as a top-hat plan. (Doc. 37 at 5–12).

The Court considers each of Plaintiff’s arguments against a finding that the Plan is a top-

hat plan, regarding selectivity and deferred compensation, in turn.

i. Selectivity

In order to analyze the selectivity element of a plan, the Sixth Circuit has developed a four-

factor test:

In determining whether a plan qualifies as a top hat plan, we consider both

qualitative and quantitative factors, including (1) the percentage of the total

workforce invited to join the plan (quantitative), (2) the nature of their employment

duties (qualitative), (3) the compensation disparity between top hat plan members

and non-members (qualitative), and (4) the actual language of the plan agreement

(qualitative).

Bakri, 473 F.3d at 678.

At the outset, the Court notes Plaintiff has made various arguments about how the Court’s

review of evidence related to this factor should be limited. Plaintiff says: (1) the administrative

record does not contain sufficient evidence to establish that the Plan serves a select group; (2) the

Court should not consider evidence outside the administrative record; and (3) it was necessary for

Defendants to raise the top-hat issue at the administrative claim level. (Doc. 35 at 8–9). In

particular, he says that the declaration from AEP’s Director of Compensation and Executive

Benefits (Doc. 37-4), submitted in conjunction with Defendants’ response in opposition to this

Motion, is “improper” (Doc. 39 at 6). In support of this proposition, Plaintiff relies upon Daft v.

Advest, Inc., 658 F.3d 583 (6th Cir. 2011).

Notably, Daft involved a district court’s review of a plan administrator’s conclusion that

the disputed plan was a top-hat plan. Id. at 586. The plan administrator had erred in its legal

analysis by applying only the final of the four Bakri factors. Id. at 595. The Sixth Circuit held

that the district court—having identified this misapplication of the law by the plan administrator—

should have remanded to the plan administrator with legal instruction, rather than working through

the complete Bakri analysis itself. Id. (“[W]here the ‘problem is with the integrity of [the plan’s]

decision-making process,’ rather than ‘that [a claimant] was denied benefits to which he was

clearly entitled,’ the appropriate remedy generally is remand to the plan administrator.” (quoting

Elliot v. Metro. Life Ins. Co., 473 F.3d 613, 621 (6th Cir. 2009))).

Here, no one is challenging the integrity of a plan administrator’s decision—this issue was

not raised at the administrative level. And Plaintiff cites no authority supporting his position that

Defendants were required to have the plan administrator render a decision about the Plan’s top-hat

status at the administrative level. Nor has the Court found any such authority upon its own review.

Indeed, there was no apparent reason to establish that the plan was a top-hat plan at the

administrative level because that fact has only now become important in the context of the limited

additional discovery Plaintiff has been permitted to take.

Tellingly, Plaintiff’s plea for remand to the plan administrator is not full-throated. (Doc.

35 at 9 n.9) (“In this case, a remand to the plan administrator for further development of the record

would be futile in light of the plain language of the plan discussed in [the portion of Plaintiff’s

brief discussing deferred compensation.”). The Court agrees that remand on this issue is

unnecessary. Unlike in Daft, this Court does not “lack[ ] crucial information relevant to the top-

hat issue.” 658 F.3d at 595–96. Admittedly, Defendants’ declaration was not contained in the

original administrative record, but having already expanded the scope of discovery beyond the

administrative record for Plaintiff, the Court will not ignore Defendants’ helpful supplementation

now. To find otherwise would allow Plaintiff to wield the Court’s prior ruling on discovery as

both a sword and shield. And it would be inconsistent with the prior practices of this Court,

including those Plaintiff cites favorably. See Deal v. Kegler Brown Hill & Ritter Co. L.P.A., 551

F. Supp. 2d 694, 700 (relying upon an affidavit from employer’s director in consideration of Bakri

factors).

Turning to the facts contained in the declaration, the selectivity of the plan is clear. Plaintiff

seemingly acknowledges this, as he contests only the procedural propriety of the declaration, not

its underlying facts supporting the selectivity of the plan. (Doc. 39 at 6–7). Based on the facts

before the Court, the Plan meets each of the four elements of the Bakri test.

First, the Plan serves a very small percentage of the total workforce. In a company of over

17,000 employees, fifty-one were invited to join the Executive Severance Plan, and forty-six

accepted this invitation. (Doc. 37-4, ¶ 2). This percentage, about 0.26% of the total workforce,

easily meets the threshold for selectivity. See Straney v. Gen. Motors Corp., No. CIV.A. 06-CV-

12152, 2007 WL 3346149, at *8 (E.D. Mich. Nov. 8, 2007), opinion vacated in part on other

grounds, No. CIV.A. 06-CV-12152, 2008 WL 162554 (E.D. Mich. Jan. 16, 2008) (4–5% of the

workforce satisfied selectivity), Demery v. Extebank Deferred Comp. Plan (B), 216 F.3d 283, 287

(2d Cir. 2000) (15% of the workforce was selective), Belka v. Rowe Furniture Corp., 571 F. Supp.

1249, 1252 (D. Md. 1983) (membership, which fluctuated between 1.6 and 4.6% of the workforce,

was selective).

Second, the nature of Plaintiff’s duties reflects those of an elite group. The Sixth Circuit

has offered “supervisory, policy making, or executive responsibility” as relevant indicators. Bakri,

473 F.3d at 680. By his own telling, Plaintiff had significant executive responsibility as he was

hired as the chief officer for a new AEP business unit. (Doc. 1, ¶ 9).

Third, there is a significant compensation disparity between plan members and other

employees. The average annual base compensation of a plan participant is over four times that of

a non-participant. (Doc. 37-4, ¶ 4). See Cramer v. Appalachian Reg’l Healthcare, Inc., No.

CIV.A. 5:11-49-KKC, 2012 WL 5332471, at *5 (E.D. Ky. Oct. 29, 2012) (plan members made an

average of 4.5 times that of non-members), Callan v. Merrill Lynch & Co., No. 09 CV 0566 BEN

(BGS), 2010 WL 3452371, at *11 (S.D. Cal. Aug. 30, 2010) (plan members made, on average,

twice that of non-members), Vest v. The Nissan Supplemental Exec. Ret. Plan II, No. 3:19-CV-

1021, 2020 WL 7695261, at *6 (M.D. Tenn. Dec. 28, 2020) (court finding that even without exact

figures, it was “readily inferable” that executive or management positions satisfied this element).

And fourth, the language of the Plan reflects its exclusive nature. Titled the “Executive

Severance Plan,” membership in the Plan is highly limited, and membership requires approval

from the Human Resources Committee of the Board of Directors or the company’s Chief

Executive Officer. (Doc. 21-1 at 21, 24). In sum, the Plan is highly selective.

ii. Deferred Compensation

The parties dispute whether the Plan provides for deferred compensation. (Doc. 35 at 5–

7; Doc. 37 at 5–6). This matters because a top-hat plan is “a plan which is unfunded and is

maintained by an employer primarily for the purpose of providing deferred compensation for a

select group of management or highly compensated employees[.]” 29 U.S.C. § 1051(2) (emphasis

added). Plaintiff argues for a narrow interpretation of deferred compensation—one that would

require participants to make affirmative deferral elections throughout their time of employment.

(Id.). Conversely, Defendants argue for a broader reading of deferred compensation, defining it

simply as compensation in the future for past work. (Doc. 37 at 5–6). Unsurprisingly, under the

narrower definition, the Plan does not provide for deferred compensation; under the broader one,

it does.

The Court turns to statutory language first. The various ERISA top-hat provisions do not

define deferred compensation, nor is it defined in Title 29 of the U.S. Code, which contains statutes

related to “Labor” generally. See, e.g., 29 U.S.C. § 1051; 29 U.S.C. § 1081; 29 U.S.C. § 1101.

Given this silence, Plaintiff argues that the Court should rely on Title 26 of the U.S. Code, which

contains statutes related to the “Internal Revenue Code,” for a definition. (Doc. 35 at 5–7). While

true that courts have at times relied on ERISA-enacted provisions of Title 26 to shed light on

provisions in Title 29, see, e.g., Raymond B. Yates, M.D., P.C. Profit Sharing Plan v. Hendon, 541

U.S. 1 (2004), here the application of those provisions is not quite so clear. Plaintiff points to 26

U.S.C. § 409A, which describes nonqualified deferred compensation plans. (Doc. 35 at 5).

Broadly, that regulation holds that deferral elections made under a nonqualified deferred

compensation plan must be made in accordance with certain timing provisions. 26 U.S.C. §

409A(4)(B). Plaintiff extrapolates this to mean that all deferred compensation must necessarily

involve deferral elections. (Doc. 35 at 6). Yet, in light of relevant caselaw and directives from the

Department of Labor, this gloss on deferred compensation is not compelling in the context of top-

hat plans.

Deferred compensation is a rarely litigated component of the top-hat plan analysis.

Straney, 2007 WL 3346149, at *6–7 (noting that “[v]ery few courts of appeal have had the

occasion to address the meaning of deferred compensation in the context of a top-hat plan under

ERISA.”); see also Demery, 216 F.3d at 287 (determination centered on whether plan was

unfunded and selective); Deal, 551 F. Supp. 2d at 700 (parties agreed that the plan was unfunded

and for the purpose of providing deferred compensation, but disputed selectivity), Cramer, 2012

WL 5332471, at *2 (parties disputed the Bakri selectivity factors). And, significantly, the Sixth

Circuit has not addressed the meaning of deferred compensation in the context of top-hat plans.

Other Circuits have not said much either. The Third Circuit defined deferred compensation

with broad brushstrokes in In re IT Group, Inc., 448 F.3d 661 (3d Cir. 2006):

A deferred compensation plan “is an agreement by the employer to pay

compensation to employees at a future date. The main purpose of the plan is to

defer the payment of taxes.” David J. Cartano, Taxation of Compensation &

Benefits § 20.01, at 709 (2004). The idea is to defer the receipt of compensation

until retirement or termination of employment, when the employee is in a lower tax

bracket, thus reducing the overall amount of taxes paid. Id. at § 20.02[A], at 710.

Id. at 664. But in that case, the parties had not disputed whether the plan was maintained for

providing deferred compensation. Id. at 667 (“[T]he only remaining question is whether the Plan

was, in fact, ‘unfunded.’”). Because the meaning of deferred compensation was not actually

litigated, the utility of the Third Circuit’s definition is limited.

The Ninth Circuit’s decision in Duggan v. Hobbs, 99 F.3d 307, 309 (9th Cir. 1996), is more

helpful. Duggan, a salesman who had an unresolvable disagreement about his commission

structure with a director of his company, entered into a severance agreement in which he retired

immediately in exchange for lifetime monthly retirement benefits. Id. When the company became

insolvent nine years later and stopped paying benefits, Duggan brought suit under ERISA. Id. at

308–09. Though he prevailed on several claims, the district court found that the company’s

director, as plan administrator, was not personally liable to Duggan for breach of fiduciary

obligations because the severance agreement was a top-hat plan. Id.

On appeal, the parties disputed whether the plan was deferred compensation and whether

it was selective. Id. at 310. Duggan argued that the severance agreement was not deferred

compensation because he had not made deferral elections prior to earning compensation and the

agreement’s benefits were not therefore the payment of “earnings” at a later date. Id. The director,

on the other hand, “advocate[d] a more expansive view of deferred compensation[,]” to include

“retirement payments where . . . the right to income derives from a severance agreement rather

than from past earnings that have been retained by the employer by prior arrangement for payment

at a later date.” Id. Faced with a choice between a narrow or expansive reading, the Ninth Circuit

turned to the policy supporting the top-hat exception. Specifically, it noted that the Department of

Labor has explained:

[I]n providing relief for “top hat” plans from the broad remedial provisions of

ERISA, Congress recognized that certain individuals, by virtue of their positions or

compensation level, have the ability to affect or substantially influence, through

negotiation or otherwise, the design and operation of their deferred compensation

plan, taking into consideration any risks attendant thereto, and therefore, would not

need the substantive rights and protection of Title I.

Id. (citing U.S. Dep’t of Labor, Office of Pension and Welfare Benefit Programs (E.R.I.S.A.),

Opinion Letter No. 90-14A, 1990 WL 123933 (May 8, 1990)); see also Bakri, 473 F.3d at 678

(citing same opinion letter).

Said differently, it is the characteristics of the plan’s beneficiaries—and not the precise

contours of the deferred compensation scheme—that inform the choice to waive certain rights and

protections otherwise guaranteed under ERISA. Top-hat plans were “excluded from ERISA’s

vesting, funding, and fiduciary responsibility requirements because Congress deemed top-level

management, unlike most employees, to be capable of protecting their own pension expectations.”

Bakri, 473 F.3d at 678 (quoting Gallione v. Flaherty, 70 F.3d 724, 727 (2d Cir. 1995)). For this

reason, the Ninth Circuit concluded that “the policy behind the top-hat exception supports the

broader view that ‘deferred compensation’ includes the retirement payments deriving from

Duggan’s severance Agreement.” 99 F.3d at 311.

Here, the Court is similarly faced with two definitions of deferred compensation:

Plaintiff’s narrow one which would require beneficiaries of the Plan to have made deferral

elections during the course of their employment, and Defendants’ broader one which generally

would encompass benefits conferred in the future for an employee’s past work. The Court asks,

as did the Ninth Circuit in Duggan, which definition better aligns with the purpose of the top-hat

exception. Simply put, whether the Plan requires participants to make deferral elections does not

help distinguish the Plan as one covering employees “capable of protecting their own pension

expectations[,]” from one covering those employees who cannot. Consider that the Department

of Labor has taken the following position:

the term “primarily”, as used in the phrase “primarily for the purpose of providing

deferred compensation for a select group of management or highly compensated

employees” [in the coverage provisions] refers to the purpose of the plan (i.e., the

benefits provided) and not the participant composition of the plan. Therefore, a plan

which extends coverage beyond “a select group of management or highly

compensated employees” would not constitute a “top hat” plan . . . .

U.S. Dep’t of Labor, Office of Pension and Welfare Benefit Programs (E.R.I.S.A.), Opinion Letter

No. 90-14A, 1990 WL 123933, at *1 n.1. In other words, a top-hat plan could primarily—that is,

for the most part—provide deferred compensation, but it must exclusively serve a select group of

management or highly compensated employees. See Peter J. Wiedenbeck, ERISA’s Curious

Coverage, 76 WASH. U. L. Q. 311, 343–44 (1998) (“[T]he Labor Department announced its view

that ‘primarily’ refers to the benefits provided under the plan and not to the participant

composition, so that the exemption may be lost if any participant is not a member of the ‘select

group.’”). As others have observed, this makes “[t]he key issue in determining whether a given

arrangement qualifies as a ‘top-hat’ plan [ ] whether the covered individuals constitute ‘a select

group of management or highly compensated employees.’” Roger C. Siske, Nonqualified

Deferred Compensation, 50 TUL. L. SCH. ANNUAL INST. ON FED. TAX’N § 18.2.3.1(A).

All this counsels in favor of giving a wider latitude to the meaning of deferred

compensation. Because the Plan provides future compensation for past work, the Court finds that

it primarily provides deferred compensation. Having already found that the Plan serves a select

group of management or highly compensated employees, the Court further concludes that the Plan

is a top-hat plan. Accordingly, the fiduciary exception to attorney-client privilege does not apply,

and Plaintiff’s Motion to Compel (Doc. 35) is DENIED.

B. Motion for Extension of Time (Doc. 36)

Discovery closed in this matter on February 14, 2023 (Doc. 33), shortly after Plaintiff

brought his Motion to Compel (Doc. 35). Accordingly, Plaintiff also filed a Motion for Extension

of Time (Doc. 36) to extend the discovery deadline. He says that the extension is necessary for

two reasons: (1) if his Motion to Compel were granted, “a failure to extend the discovery deadlines

in this case will have the effect of denying Plaintiff the benefit of the documents he seeks,” and

(2) “Plaintiff has not yet deposed any of Defendants’ witnesses[,] [and] [a]s a matter of both

strategy and economy, it makes little sense to conduct depositions until the universe of available

documents is settled.” (Id. at 5). The first of these reasons is moot, because the Court has denied

Plaintiff’s Motion to Compel.

Regarding the request to extend the deadline for depositions, Defendants say Plaintiff has

not demonstrated good cause for the extension. (Doc. 38 at 2 n.1). The Court agrees. As the

Court observed in its prior Order allowing limited discovery (Doc. 24 at 2), in ERISA actions,

discovery beyond the administrative record typically is not permitted, Wilkins v. Baptist

Healthcare Sys., Inc., 150 F.3d 609, 618 (6th Cir. 1998) (Gilman, J., concurring). This rule serves

“[a] primary goal of ERISA . . . to provide a method for workers and beneficiaries to resolve

disputes over benefits inexpensively and expeditiously.” Perry v. Simplicity Eng’g. Div. of Lukens

Gen. Indus., 900 F.2d 963, 967 (6th Cir. 1990) (citation omitted). Plaintiff was narrowly permitted

to take discovery regarding AEP’s conflict of interest or bias. (Doc. 24 at 6).

By the parties’ mutual agreement, discovery was to be completed by December 16, 2022.

(Docs. 25, 31). When Plaintiff brought an unopposed motion to extend that deadline by sixty days,

the reasons cited as supporting the extension were the volume of documents responsive to

Plaintiff’s requests for production and conferral over the privilege issues discussed above. (Doc.

32 at 2). Nowhere in that request did Plaintiff indicate his intention to take depositions. (See Doc.

32). The Court extended the discovery deadline until February 14, 2023, noting that “No further

extensions will be granted.” (Doc. 33). Defendants further represent that Plaintiff never

requested discovery beyond the privileged documents, including depositions, in the time since the

Court granted that final extension. (Doc. 38 at 2).

All told, the intention to take depositions was not presented to the Court—and does not

appear to have been presented to Defendants—until the Motion for Extension of Time was

brought, less than two weeks before the final extension of the discovery deadline. This does not

demonstrate diligence, and reopening discovery at this time would thwart the “primary goal” that

ERISA actions be resolved “inexpensively and expeditiously.” Perry, 900 F.2d at 967. More still,

reopening discovery would substantially prejudice Defendants, who have already filed a Motion

for Summary Judgment (Doc. 41) under the existing case schedule. Accordingly, Plaintiff has not

shown good cause, and the Motion for Extension of Time (Doc. 36) is DENIED.

IV. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion to Compel (Doc. 35) and Motion for

Extension of Time (Doc. 36) are DENIED.

IT IS SO ORDERED.

Date: April 13, 2023 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE