Petition for Writ of Certiorari — Kathy R. Allen, et al., Petitioners v. L3Harris Technologies, Inc.

Supreme Court briefFeb 22, 2024

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INDEX TO APPENDICES

APPENDIX A

rAPPENDIX A - Decisions of the United States District Court of Appeals 4th

Circuit

#22-1528 USDC-COA4th July 27, 2023 - Order Affirming USDC case Doc. #23 and

Mandate Doc. #24 Saying vaguely that the (or some but not saying which)

notice of appeal was untimely, but with no supporting analysis for why it was

1-7

untimely and Granted Appellees’ MTD #Doc#15.

#22-1528USDC-COA4th August 8, 2023 -Order Denied Appellants’ Rule 52 findings

of fact Doc. #27................................................................................................................... 8

#22-1528 USDC-COA4th August 10, 2023 -Order - Temporary Stay of Mandate for

Appellants’ En banc rehearing motion Doc. #29.............................................................. 9

#22-1528 USDC-COA4th September 27, 2023 - Order - Denied Appellants’ Doc. #28 En

banc rehearing motion - No judge requested a poll on the petition for rehearing en banc.

Entered at the direction of the panel: Judge Wynn, Judge Heytens, and Senior Judge Floyd

Doc. #30.

#22-1528USDC-COA4th October 3, 2023 -Order Doc. #31 Mandate - Judgment entered

July 27, 2023, takes effect - no judge called for a

vote

#22-1528USDC-COA4th Docket filings

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Appendix A

UNPUBLISHED

• ==

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-1528

KATHY R. ALLEN; JAY K. ALLEN,

Plaintiffs - Appellants,

L3HARRIS TECHNOLOGIES, INC,

Defendant - Appellee,

and

METLIFE; MERCER HEALTH BENEFITS

LINCOLN HERITAGE LIFE INSURANCE CO,

ADMINISTRATION,

LLC;

Defendants.

Appeal from the United States District Court for the Eastern District of North Carolina, at

Raleigh. James C. Dever III, District Judge. (5:21-cv-00174-D)

Decided: July 27, 2023

Submitted: July 25, 2023

Before WYNN and HEYTENS, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Kathy R. Allen, Jay K. Allen, Appellants Pro Se. Michael Douglas McKnight, Savannah

Trimmer, OGLETREE DEAKINS NASH SMOAK & STEWART, PC, Raleigh, North

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Appendix A

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Carolina, for Appellee.

•«

Unpublished opinions are not binding precedent in this circuit.

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Appendix A

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PER CURIAM:

Kathy R. Allen and Jay K. Allen (collectively, Appellants) appeal the district court’s

orders dismissing their civil complaint and denying their motion for reconsideration.

Because the notice of appeal was filed more than 30 days after the court entered the order

dismissing the complaint, that order is not properly before this court. See Fed. R. App. P.

4(a)(1)(A). With respect to the court’s order denying Appellants’ postjudgment motion,

we have reviewed the record and find no reversible error. Accordingly, we affirm the

district court’s postjudgment order. We also deny all pending motions. We dispense with

oral argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

AFFIRMED

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Appendix A

FILED: July 27, 2023

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-1528,

Kathy Allen v. L3Harris Technologies, Inc.

5:21-cv-00174-D

NOTICE OF JUDGMENT

Judgment was entered on this date in accordance with Fed. R. App. P. 36. Please be

advised of the following time periods:

PETITION FOR WRIT OF CERTIORARI: The time to file a petition for writ of

certiorari runs from the date of entry of the judgment sought to be reviewed, and not

from the date of issuance of the mandate. If a petition for rehearing is timely filed in

the court of appeals, the time to file the petition for writ of certiorari for all parties runs

from the date of the denial of the petition for rehearing or, if the petition for rehearing

is granted, the subsequent entry of judgment. See Rule 13 of the Rules of the Supreme

Court of the United States; www.supremecourt.gov.

VOUCHERS FOR PAYMENT OF APPOINTED OR ASSIGNED COUNSEL:

Vouchers must be submitted within 60 days of entry of judgment or denial of

rehearing, whichever is later. If counsel files a petition for certiorari, the 60-day period

runs from filing the certiorari petition. (Loc. R. 46(d)). If payment is being made from

CJA funds, counsel should submit the CJA 20 or CJA 30 Voucher through the CJA

eVoucher system. In cases not covered by the Criminal Justice Act, counsel should

submit the Assigned Counsel Voucher to the clerk's office for payment from the

Attorney Admission Fund. An Assigned Counsel Voucher will be sent to counsel

shortly after entry of judgment. Forms and instructions are also available on the court's

web site, www.ca4.uscourts.gov, or from the clerk's office.

BILL OF COSTS: A party to whom costs are allowable, who desires taxation of

costs, shall file a Bill of Costs within 14 calendar days of entry of judgment. (FRAP

39, Loc. R. 39(b)).

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Appendix A

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PETITION FOR REHEARING AND PETITION FOR REHEARING EN

BANC: A petition for rehearing must be filed within 14 calendar days after entry of

judgment, except that in civil cases in which the United States or its officer or agency

is a party, the petition must be filed within 45 days after entry of judgment. A petition

for rehearing en banc must be filed within the same time limits and in the same

document as the petition for rehearing and must be clearly identified in the title. The

only grounds for an extension of time to file a petition for rehearing are the death or

serious illness of counsel or a family member (or of a party or family member in pro se

cases) or an extraordinary circumstance wholly beyond the control of counsel or a

party proceeding without counsel.

Each case number to which the petition applies must be listed on the petition and

included in the docket entry to identify the cases to which the petition applies. A

timely filed petition for rehearing or petition for rehearing en banc stays the mandate

and tolls the running of time for filing a petition for writ of certiorari. In consolidated

criminal appeals, the filing of a petition for rehearing does not stay the mandate as to

co-defendants not joining in the petition for rehearing. In consolidated civil appeals

arising from the same civil action, the court's mandate will issue at the same time in all

appeals.

A petition for rehearing must contain an introduction stating that, in counsel's

judgment, one or more of the following situations exist: (1) a material factual or legal

matter was overlooked; (2) a change in the law occurred after submission of the case

and was overlooked; (3) the opinion conflicts with a decision of the U.S. Supreme

Court, this court, or another court of appeals, and the conflict was not addressed; or (4)

the case involves one or more questions of exceptional importance. A petition for

rehearing, with or without a petition for rehearing en banc, may not exceed 3900 words

if prepared by computer and may not exceed 15 pages if handwritten or prepared on a

typewriter. Copies are not required unless requested by the court. (FRAP 35 & 40,

Loc. R. 40(c)).

MANDATE: In original proceedings before this court, there is no mandate. Unless the

court shortens or extends the time, in all other cases, the mandate issues 7 days after

the expiration of the time for filing a petition for rehearing. A timely petition for

rehearing, petition for rehearing en banc, or motion to stay the mandate will stay

issuance of the mandate. If the petition or motion is denied, the mandate will issue 7

days later. A motion to stay the mandate will ordinarily be denied, unless the motion

presents a substantial question or otherwise sets forth good or probable cause for a

stay. (FRAP 41, Loc. R. 41).

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Appendix A

U.S. COURT OF APPEAL FOR THE FOURTH CIRCUIT BILL OF COSTS FORM

(Civil Cases)

Directions: Under FRAP 39(a), the costs of appeal in a civil action are generally taxed against appellant if a

judgment is affirmed or the appeal is dismissed. Costs are generally taxed against appellee if a judgment is

reversed. If a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed as the court

orders. A party who wants costs taxed must, within 14 days after entry of judgment, file an itemized and

verified bill of costs, as follows:

• Itemize any fee paid for docketing the appeal. The fee for docketing a case in the court of appeals is $500

(effective 12/1/2013). The $5 fee for filing a notice of appeal is recoverable as a cost in the district court.

• Itemize the costs (not to exceed $.15 per page) for copying the necessary number of formal briefs and

appendices. (Effective 10/1/2015, the court requires 1 copy when filed; 3 more copies when tentatively

calendared; 0 copies for service unless brief/appendix is sealed.). The court bases the cost award on the page

count of the electronic brief/appendix. Costs for briefs filed under an informal briefing order are not

recoverable.

• Cite the statutoiy authority for an award of costs if costs are sought for or against the United States. See 28

U.S.C. § 2412 (limiting costs to civil actions); 28 U.S.C. § 1915(f)(1) (prohibiting award of costs against the

United States in cases proceeding without prepayment of fees).

Any objections to the bill of costs must be filed within 14 days of service of the bill of costs. Costs are paid

directly to the prevailing party or counsel, not to the clerk's office.

Case Number & Caption:

Prevailing Party Requesting Taxation of Costs:

Appellate Docketing Fee (prevailing

appellants):

Amount Allowed:

Amount Requested:

Page

Document

No. of Pages

No. of Copies

Allowed | Requested) Allowed I

Requested (court

(court use only) [

use only)

Cost

(<S.15)

Total Cost

Requested

Allowed

(court use only)

$0.00

TOTAL BILL OF COSTS:

SO-00

1. If copying was done commercially, I have attached itemized bills. If copying was done in-house, I certify that my

standard billing amount is not less than $.15 per copy or, if less, I have reduced the amount charged to the lesser rate.

2. If costs are sought for or against the United States, I further certify that 28 U.S.C. § 2412 permits an award of costs.

3. I declare under penalty of perjury that these costs are true and correct and were necessarily incurred in this action.

Date:

Signature:

Certificate of Service

I certify that on this date I served this document as follows:

Signature:

Date:

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Appendix A

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FILED: July 27, 2023

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-1528

(5:21 -cv-00174-D)

KATHY R. ALLEN; JAY K. ALLEN

Plaintiffs - Appellants

L3HARRIS TECHNOLOGIES, INC.

Defendant - Appellee

and

METLIFE; MERCER HEALTH BENEFITS ADMINISTRATION, LLC; LINCOLN

HERITAGE LIFE INSURANCE CO.

Defendants

JUDGMENT

In accordance with the decision of this court, the judgment of the district court is

affirmed.

This judgment shall take effect upon issuance of this court's mandate in

accordance with Fed. R. App. P. 41.

/s/ PATRICIA S. CONNOR. CLERK

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Appendix A

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FILED: August 8, 2023

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-1528

(5:21-cv-00174-D)

KATHY R. ALLEN; JAY K. ALLEN

Plaintiffs - Appellants

L3HARRIS TECHNOLOGIES, INC.

Defendant - Appellee

and

METLIFE; MERCER HEALTH BENEFITS ADMINISTRATION, LLC; LINCOLN

HERITAGE LIFE INSURANCE CO.

Defendants

ORDER

Upon consideration of appellant’s motion for Rule 52 findings of fact for the

July 27, 2023, order, the court denies the motion. The court speaks through its written orders

and opinions and no additional clarification will be provided.

The court extends the time for filing a petition for rehearing and rehearing en banc to

09/07/2023.

For the Court—By Direction

/s/ Patricia S. Connor, Clerk

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Appendix A

FILED: August 10, 2023

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-1528

(5:21-cv-00174-D)

KATHY R. ALLEN; JAY K. ALLEN

Plaintiffs - Appellants

L3HARRIS TECHNOLOGIES, INC.

Defendant - Appellee

and

METLIFE; MERCER HEALTH BENEFITS ADMINISTRATION, LLC; LINCOLN

HERITAGE LIFE INSURANCE CO.

Defendants

TEMPORARY STAY OF MANDATE

Under Fed. R. App. P. 41(b), the filing of a timely petition for rehearing or

rehearing en banc stays the mandate until the court has ruled on the petition. In

accordance with Rule 41(b), the mandate is stayed pending further order of this court.

/s/Patricia S. Connor. Clerk

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Appendix A

FILED: September 25, 2023

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-1528

(5:21-cv-00174-D)

KATHY R. ALLEN; JAY K. ALLEN

Plaintiffs - Appellants

L3HARRIS TECHNOLOGIES, INC.

Defendant - Appellee

and

METLIFE; MERCER HEALTH BENEFITS ADMINISTRATION, LLC; LINCOLN

HERITAGE LIFE INSURANCE CO.

Defendants

ORDER

The court denies the petition for rehearing and rehearing en banc. No judge

requested a poll under Fed. R. App. P. 35 on the petition for rehearing en banc.

Entered at the direction of the panel: Judge Wynn, Judge Heytens, and Senior

Judge Floyd.

For the Court

/s/ Nwamaka Anowi, Clerk

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Appendix A

FILED: October 3, 2023

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-1528

(5:21-cv-00174-D)

KATHY R. ALLEN; JAY K. ALLEN

Plaintiffs - Appellants

L3HARRIS TECHNOLOGIES, INC.

Defendant - Appellee

and

METLIFE; MERCER HEALTH BENEFITS ADMINISTRATION, LLC;

LINCOLN HERITAGE LIFE INSURANCE CO.

Defendants

MANDATE

The judgment of this court, entered July 27, 2023, takes effect today.

This constitutes the formal mandate of this court issued pursuant to Rule

41(a) of the Federal Rules of Appellate Procedure.

/s/Nwamaka Anowi. Clerk

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Appendix A

General Docket

United States Court of Appeals for the Fourth Circuit

Court of Appeals Docket #: 22-1528

Nature of Suit: 3791 Employee Retirement

Kathy Allen v. L3Harris Technologies, Inc.

Appeal From: United States District Court for the Eastern District of North Carolina at Raleigh

Fee Status: fee paid

Docketed: 05/10/2022

Termed: 07/27/2023

Case Type Information:

1) Civil Private

2) private

3) null

Originating Court Information:

District: 0417-5 : 5:21-cv-00174-D

Presiding Judge: James C. Dever, III, U. S. District Court Judge

Date Filed: 04/15/2021

Date Order/Judgment EOD:

Date Order/Judgment:

04/08/2022

01/10/2022

Date NOA Filed:

05/09/2022

Date Rec'd COA:

05/09/2022

Prior Cases:

None

Current Cases:

None

KATHY R. ALLEN

Plaintiff - Appellant

Kathy R. Allen

Direct: 202-399-6225

Email: allenk1101@comcast.net

[NTC Pro Se]

26 55th Street, NE

Washington, DC 20019-6760

JAY K. ALLEN

Plaintiff - Appellant

Jay K. Allen

Direct: 202-399-6225

Email: jaykallen1@comcast.net

[NTC Pro Se]

2526 Poole Road

Raleigh, NC 27610-2820

L3HARRIS TECHNOLOGIES, INC.

Defendant - Appellee

Michael Douglas McKnight

Direct: 919-789-3159

Email: michael.mcknight@ogletree.com

[COR NTC Retained]

OGLETREE DEAKINS NASH SMOAK & STEWART, PC

8529 Six Forks Road

Raleigh, NC 27615

Savannah Trimmer

Direct: 919-789-3142

Email: savannah.trimmer@ogletreedeakins.com

[COR NTC Retained]

OGLETREE DEAKINS NASH SMOAK & STEWART, PC

Suite 600

8529 Six Forks Road

Raleigh, NC 27615

METLIFE

Defendant

MERCER HEALTH BENEFITS ADMINISTRATION, LLC

Defendant

Page 12 of 17

Appendix A

LINCOLN HERITAGE LIFE INSURANCE CO.

Defendant

Page 13 of 17

Appendix A

KATHY R. ALLEN; JAY K. ALLEN

Plaintiffs - Appellants

L3HARRIS TECHNOLOGIES, INC.

Defendant - Appellee

and

METLIFE; MERCER HEALTH BENEFITS ADMINISTRATION, LLC; LINCOLN HERITAGE LIFE INSURANCE CO.

Defendants

Page 14 of 17

Appendix A

05/10/2022

p j_

1 pg, 56 47 KB

Case docketed. Originating case number: 5:21-cv-00174-D. Case manager: CHalupa. [1001159987]

[22-1528] CH [Entered: 05/10/2022 12:58 PM]

____

05/10/2022 Q

2 INFORMAL BRIEFING ORDER filed. Mailed to: Kathy Allen, Jay Allen. [1001159990] Informal Opening Brief

05/10/2022

05/18/2022

14 Pg, 269.8 kb

due 06/03/2022. Informal response brief, if any: 14 days after informal opening brief served. [22-1528] CH

[Entered: 05/10/2022 01:00 PM]

Q 3

ASSEMBLED ELECTRONIC RECORD docketed. Originating case number: 5:21-cv-00174-D. Record in

folder? Yes. Record reviewed? Yes. PSR & SOR included? N/A. [1001159994] [22-1528] CH [Entered:

05/10/2022 01:04 PM]

Q 4

APPEARANCE OF COUNSEL by Michael D. McKnightfor L3Harris Technologies, Inc.. [1001164594]

[22-1528] Savannah Trimmer [Entered: 05/18/2022 04:41 PM]

1 pg, 70.71 KB

05/18/2022

1 pg, 77.63 KB

APPEARANCE OF COUNSEL by Savannah M. Singletary for L3Harris Technologies, Inc.. [1001164604]

[22-1528] Savannah Trimmer [Entered: 05/18/2022 04:48 PM]

2 pg, 50.07 KB

DISCLOSURE STATEMENT by L3Harris Technologies, Inc.. Was any question on Disclosure Form

answered yes? Yes [1001164623] [22-1528] Savannah Trimmer [Entered: 05/18/2022 05:01 PM]

05/19/2022

Q j_

2Pg, 156.45 KB

REPRESENTATION STATEMENT (FRAP 12) by Jay K. Allen and Kathy R. Allen. [1001165075] [22-1528]

Jay Allen [Entered: 05/19/2022 01:15 PM]

05/19/2022

2 Pg, 115.83 kb

DISCLOSURE STATEMENT by Kathy R. Allen. Was any question on Disclosure Form answered yes? No

[1001165084] [22-1528] Jay Allen [Entered: 05/19/2022 01:21 PM]

05/1,9/2022

Q g

2 pg, 115.58 KB

DISCLOSURE STATEMENT by Jay K. Allen. Was any question on Disclosure Form answered yes? No

[1001165089] [22-1528] Jay Allen [Entered: 05/19/2022 01:24 PM]

05/19/2022

Q 10

3 pg, 16058 kb

MOTION by Jay K. Allen and Kathy R. Allen to place case in abeyance.. Date and method of service:

05/19/2022 ecf. [1001165318] [22-1528] Jay Allen [Entered: 05/19/2022 04:53 PM]

□ ji

ORDER filed extending briefing order deadlines. Informal Opening Brief due 09/06/2022; administratively

terminating Motion for abeyance [10]. Copies to all parties. Mailed to: Allen. [1001165653] [22-1528] TF

[Entered: 05/20/2022 12:23 PM]

05/18/2022

05/20/2022

Q _6_

1 pg, 56.02 KB

09/06/2022

Q j2_

INFORMAL OPENING BRIEF by Jay K. Allen and Kathy R. Allen. [1001224771] [22-1528] Jay Allen

28 pg, 611.77 kb [Entered: 09/06/2022 02:55 PM]

0 J3_

2 pg, 158.07 KB

09/07/2022 0 u_

1 pg, 54.18 KB

09/16/2022

09/27/2022

0 jq_

Q j7_

1 pg, 54.27 KB

10/19/2022

0 J8_

4 pg, 90.65 KB

10/19/2022

0 jg_

3 pg, 174.45 KB

10/20/2022

ORDER filed deferring action on Motion to appoint/assign counsel; Motion to mediate case filed by

Appellants Kathy R. Allen and Jay K. Allen [13] [13]. Copies to all parties. Mailed to: Kathy Allen.

[1001225374] [22-1528] CH [Entered: 09/07/2022 11:00 AM]

Q 15

INFORMAL RESPONSE BRIEF by L3Harris Technologies, Inc.. [1001231113] [22-1528] Michael McKnight

30 pg, 318.48 kb [Entered: 09/16/2022 10:12 AM]

2 pg, 181.38 KB

10/05/2022

MOTION by Jay K. Allen and Kathy R. Allen to Appellants continue to be pro se and request to have some

court-appointed representation for the appeal, to mediate case, to appoint/assign counsel. Date and method

of service: 09/06/2022 ecf. [1001224781] [22-1528]—[Edited 09/07/2022 by CH-to modify docket text] Jay

Allen [Entered: 09/06/2022 03:04 PM]

Q 20

1 pg, 55.4 KB

MOTION by Jay K. Allen and Kathy R. Allen to extend filing time for informal reply brief Time to view

Appellees informal brief and reply, until At least October 21, 2022 or NLT October 28, 2022... Date and

method of service: 09/27/2022 ecf. [T001237490] [22-1528] Jay Allen [Entered: 09/27/2022 04:59 PM]

ORDER filed granting Motion to extend filing time to file the informal reply brief [16]. Informal reply brief due

10/28/2022. No paper copies required unless case has been tentatively calendared or copies otherwise

ordered. Copies to all parties. [1001242852] [22-1528] CH [Entered: 10/05/2022 04:16 PM]

DOCKETING STATEMENT by Jay K. Allen and Kathy R. Allen.. [1001251167] [22-1528] Jay Allen [Entered:

10/19/2022 04:41 PM]

MOTION by Jay K. Allen and Kathy R. Allen Motion to file docketing sheet late, to extend filing time for

docketing statement, to mediate case. Date and method of service: 10/19/2022 ecf. [1001251179] [22-1528]

Jay Allen [Entered: 10/19/2022 04:49 PM]

ORDER filed granting Motion to extend filing time to file docketing statement [19]; deferring action on Motion

to mediate case filed by Appellants Kathy R. Allen and Jay K. Allen [19]. Copies to all parties. Mailed to:

Kathy Allen. [1001251439] [22-1528] CH [Entered: 10/20/2022 09:50 AM]

10/28/2022

Q _21_

INFORMAL REPLY BRIEF by Jay K. Allen and Kathy R. Allen. [1001256854] [22-1528] Jay Allen [Entered:

25 pg, 396.86 kb 10/28/2022 02:07 PM]

05/30/2023

0 22

4 pg, ?96~54 kb

MOTION by Jay K. Allen and Kathy R. Allen to mediate case. Date and method of service: 05/30/2023 ecf.

[1001375638] [22-1528] Jay Alli^getlricbMJO/2023 12:04 PM]

Appendix A

07/27/2023 Q 23,

3 pg, 102.72 KB

07/27/2023

Q _24_

4 pg, 154.61 KB

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion-denying motion to mediate

case [22], denying motion to mediate case [19], denying motion to mediate case [13]; denying motion to |

continue to be pro se and request to have some court-appointed representation for the appeal [13]; denying

motion to appoint/assign counsel [13]. Originating case number: 5:21-cv-00174-D. Copies to all parties and

the district court/agency. Mailed to: Kathy Allen. [1001410118] [22-1528] EB [Entered: 07/27/2023 10:13 AM]

JUDGMENT ORDER filed. Decision: Affirmed. Originating case number: 5:21-cv-00174-D. Entered on

Docket Date: 07/27/2023. Copies to all parties and the district court/agency. Mailed to: Kathy Allen.

[1001410124] [22-1528] EB [Entered: 07/27/2023 10:15 AM]

■7

08/07/2023

Q _25_

6 pg, 188.92 KB

08/08/2023

Q 26

14 pg, 1.34 MB

08/08/2023

Q 2Z_

,1 pg, 48.13 KB

08/10/2023

ORDER filed denying Motion to clarify with combined motion to’extend filing time for petition for rehearing

and rehearing en banc, titled as "Motion for Rule 52 findings of fact for the July 27, 2023 order" [25];

extending the time for filing petition for rehearing and rehearing en banc to 09/07/2023. Copies to all parties.

Mailed to: Kathy Allen. [1001416984] [22-1528] CH [Entered: 08/08/2023 01:10 PM]

PETITION for rehearing and rehearing en banc by Jay K. Allen and Kathy R. Allen. [1001418682] [22-1528]

Jay Allen [Entered: 08/10/2023 05:01 PM]

Q _2§_

Mandate temporarily stayed pending ruling on petition for rehearing or rehearing en banc. Mailed to: Kathy

Allen. [1001418692] [22-1528] CH [Entered: 08/10/2023 05:21 PM]

Q jg_

1 pg, 51.84 KB

10/03/2023

Amended petition/motion by Jay K. Allen and Kathy R. Allen amending [25]. Document:

FileAmendedAppellantsMotionForRule52FindingsOfFact.pdf. [1001416983] [22-1528] Jay Allen [Entered:

08/08/2023 01:09 PM]

Q 28,

29 Pg, 2.32 mb

1 pg, 75.15 KB

09/25/2023

MOTION to clarify with combined motion to extend filing time for petition for rehearing and rehearing en

banc, titled as "Motion for Rule 52 findings of fact for the July 27, 2023 order" by Kathy R. Allen and Jay K.

Allen. Date and method of service: 08/07/2023 ecf, [1001416391] [22-1528]—[Edited 08/08/2023 by CH-to

add/modify docket text/relief] Jay Allen [Entered: 08/07/2023 09:37 PM]

Q _3j_

1 pg, 75.85 KB

COURT ORDER filed denying Motion for rehearing and rehearing en banc [28]. Copies to all parties. Mailed

to: K Allen. [1001444461] [22-1528] AW [Entered: 09/25/2023 09:05 AM]

Mandate issued. Referencing: [24] Judgment Order, [23] unpublished per curiam Opinion. Originating case

number: 5:21-cv-00174-D. Mailed to: Kathy Allen. [1001449331] [22-1528] CH [Entered: 10/03/2023 09:24

AM]

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Appendix A

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APPENDIX A1

APPENDIX A1 - Decisions of the United States District Court North

Carolina-Eastern Division (USDC NC-ED)

#5:21-cv-00174-D NC-ED January 10, 2022 case - Judge Dever Ill’s Order granted

5-19

Defendants’ MTD NC-ED D.E. #51-52

#5:21-cv-00174-D NC-ED April 8, 2022 Judge Dever Ill’s Order D.E. #55 Denied

Appellants’ Rule 59 and Rule 52 D.E. 53 Motion for Reconsideration (MFR) requesting a

Rule 52 findings of fact of the January 10, 2022 Order D.E. #51-52

RECEIVED

MAY 09 2022 A

Appendix Al

v-aM?

PETER A. MOORE, JR., CLERK

US DISTRICT COURT, EDNC

•

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

Case No. 5:21-cv-00174-D

)

Kathy R. Allen (Pltl)

Jay K. Allen (Plt2)

)

Plaintiffs

Vs.

I APPELLANTS’ NOTICE OF APPEAL

Metropolitan Life Insurance Company,

)

ITT industries, Mercer Corp / Harris

)

EXELIS, and Lincoln Heritage Life

Insurance Company Defendants.

)

From: IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

Case No. 5:21-cv-00174-D

and was transferred 2021 from Wake County Superior Case: #21-CVS03637

By 4th Circuit Rule 3(a) or a more appropriate rule Appellants, Kathy R. Allen and Jay K. Allen,

hereby give notice of appeal to NC-ED for just Defendant L3/Harris/ ITT industries / Harris

EXELIS fas L3/Harris) for its judgment and final orders of January 10,2022 and April 8, 2022

to the United States Court of Appeals for the 4th Circuit entered in this action in the 10th District

Court NC-ED Wake County located at Post Office Box 25670 Raleigh, NC 27611. The other

defendants MetLife, Mercer, and Lincoln Heritage settled in and were dismissed in 2021. The

Rule 3(e) $505 filing and docketing fee is enclosed as a money order. The Appellants wish to

reserve the right to and for this court to transfer this notice of appeal as timely to the more

appropriate state or federal court for it later if required.

This 2nd day of May, 2022.

Respectfully submitted,

Plaintiff!

/s/ Kathy R. Allen (ProSe)

Certificate of Service address:

26 55th Street NE

Washington, DC 20019-6760

Alternate address: 2526 Poole Road

Raleigh, NC 27610-2820

E-mail address: allenkll01@comcast.net

Telephone No: (202) 399-6225

PlaintifK

/s/

■

?;!? .V /Mi-----

Jay K. Allen {ProSe)

2526 Poole Road Raleigh, NC 27610

Telephone No: (919) 395-1319

E-mail address: jaykallenl@comcast.net

Page 1 of 20

Case 5:21-cv-00174-D Document 56 Filed 05/09/22 Page 1 of 2

Appendix Al

CERTIFICATE OF SERVICE

I hereby certify that on 05-02-2022 a copy of APPELLANTS’ NOTICE OF APPEAL

to Defendant L3/Harris/ ITT industries / Harris/EXELIS (as L3/Harris) Case No. 5:21-cv00174-D and was transferred 2021 from Wake County Superior Case: #21-CVS03637

was sent as below. Defendants Lincoln Heritage Life, MetLife, and Mercers rightfully

should no longer be included in the filings, but the Orders included them. Being so they

should delete themselves from the filings and parties list.

Copy was served by mail, eFiled and/or by E-mail as below to:

Clerk of Court

United States District Court /NC-ED

Attn: Civil Filings/Notice of Appeal

Post Office Box 25670

Raleigh, NC 27611

By eFiling and/or E-mail a copy to:

Michael D. McKinght, Esq.

Ogletree, Deakins, Nash Smoak & Stewart, P.C.

8529 Six Forks Road Forum IV, Suite 600 Raleigh, NC 27615

(919) 789-3159 michael.mcknight@ogletree.com

Attorneys for Defendant L3Harris Technologies, Inc.

Additional copies:

Kathy R. Allen

26 55th Street NE Washington, DC 20019-6760 Pro Se Plaintiff allenkl 101@comcast.net

Jay K. Allen 2526 Poole Road Raleigh, NC 27610-2820 Pro Se Plaintiff

jaykallenl@comcast.net

Dated: 05-02-2022

Respectfully submitted,

Plaintiffl

/s/ Kathy R. Allen (ProSe)

Certificate of Service address:

26 55th Street NE Washington, DC 20019-6760

Alternate address:

2526 Poole Road Raleigh, NC 27610-2820

E-mail address: allenkll01@comcast.net

Telephone No: (202) 399-6225

Plaintiff2

/s/ Jay K. Allen (ProSe)

■Qp.

2526 Poole Road Raleigh, NC 27610-2820

Telephone No: (919) 395-1319

E-mail address: jaykallenl@comcast.net

Page 2 of 20

Case 5:21-cv-00174-D Document 56 Filed 05/09/22 Page 2 of 2

Appendix A1

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Appendix Al

IN THE UNTIED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5:21-CV-174-D

KATHYR, ALLEN, and JAYK, ALLEN,.

)

Plaintiffs,

)

METLlFE,etaL,

Defendants.

ORDER

)

On March 16,2021, Kathy R. Allen (“Kathy") and Jay K. Allen (“Jay") (collectively the

“Allens” or‘‘plaintiffs’’) filed this action pro se in Wake County Superior Court against Metropolitan

Life Insurance Company (“MetLtfe”), ITT Industries (“ITT”), Hams EXELIS,1 Mercer Health

Benefits Administration, LLC (“Mercer”), and Lincoln Heritage Life Insurance, Co. [D E. 1-1], On

March 26,2021, plaintiffs served the summons and complaint on counsel for the defendants. On

April IS, 2021, LSHams, with the consent of the other defendants, removed the case to this court

based on federal questionjurisdietion [D.E. 1]. The Allens allege claims concerning their mother’s

life insurance policy arising under the Employee Retirement Income Security Act of 1974

(“ERISA”), as amended, 29 U.S.C. §§ 1001, et seq.. federal common law, and state law. On April

22,2021, L3Harris moved to dismiss the Allens’ complaint and filed a memorandum in support

[D.E. &-9J. On July 12,2021, the Allens responded in opposition [DJE. 31]. On July 19,2021,

i In June 2019, Shuns Corporation merged with 13 Technologies, Me. See [D.E. 1] 1 ml.

As part of the merger, Harris Corporation changed its name to L3Harris Technologies, Inc.

(“L3Harris”). Id, In 2015, Harris Corporation acquired Exelis, Me. Id. Exelis was part of ITT

Exelis, a spin-offof ITT Corporation, which plaintiffs identify in the complaintas ‘TIT Industries.”

ML As a result, L3Hanis is appearing in tins action on behalf of the defendants identified M the

Coraplamt as ‘TIT Mdustoies” and “Hams EXELIS.” It

Page 5 of 20

Case 5:21-cv-00174-D Document 51 Filed 01/10/22 Page 1 of 13

Appendix A1

L3Harris replied [D,E. 34]. As explained below, the court grants LSHarris’s motion to dismiss.

Plaintiffs are tire adult children ofRribecca Johnson (“Johnson”), gee Compl. [D.E. 1-1] 2,

ft 4-5. Johnson worked for ITT or one of its affiliates until her retirement in 1987. See 1417;

[D.E. 9] 3. ITT sponsored a life insurance benefits plan for active employees and certain retirees,

the ITT Salaried Retiree life Insurance Plan (the “Plan’*). When Johnson retired, she was eligible

to participate in the Plan. See Compl. at 2,17; [D.E. 9] 3. As of January 1,2010, the Plan’s life

insurance bettefits were insured by a Mdlifegroup policy. See Plan [D.E. 9-1] at2,5. In October

2011, Exelis, Inc. (“Exelis”), a part of ITT, became the Plan’s sponsor and administrator. Se§ id.

at 75. hi May 2015, Harris Corporation acquired Exelis, and Hams assumed responsibility for the

Plan. See id. at 74. In June 2019, Harris Corporation merged with another company and became

L3Hams. See supra n.2.

QnNovember 9,2015, Exelis, then a part ofHarris Corporation, amended the Plan. See Plan

at 18-21. A January 1, 2016 Summary of Material Modifications (“SMM”) memorialized and

explainedthe amendment See id. at74-77. Among other changes, the amendments added a forumselection provision, a contractual limitations period, and a termination date to the Plan. fieeM* As

for tire termination date, tiie amendments specified tire Flan would terminate on January 1,2016.

See idL Specifically, the termination provision stated:

(Epretive as of January 1, 2016, the Plans hereby are terminated, such that no

benefit (whether a basic life, supplemental life, optional life, dependent life or

survivor income benefit or otherwise) shall be payable under the PIans upon the death

of a retiree or disabled forma: employee (whether a retiree or disabled former

employee as of tire date hereof or an active employee as of tire date hereof who

subsequently terminates employment from tire Corporation and its subsidiaries)

occurring after December 31, 2015; provided, however, that for the avoidance of

doubt, this provision in no event shall be interpreted to limit any conversion rights

whrehmay inure to a retiree or disabled former employee under any insurance policy

PageUp of 20

Case 5:21-cv-00174-D Document 51 Filed 01/10/22 Page 2 of 13

Appendix A1

maintained In connection with a Plan.. « «

See id at 20 (emphasis omitted).

The Allens allege that Johnson received letters dated in June 2015 and November 10and27,

2015 regarding her employer-provided life insurance policy, CompL f 14. In the November 10,

2015 letter, L3Hanis notified Johnsonoftheiq)comingtennmationofherretireelife insurance under

the Plan. See pJE. 9-2]. L3Hams advised Johnson that her retiree life insurance would be

discontinued after December 31,2015, and that Johnson would no longer be eligible for companysponsored retiree life insurance. See id. The letter explained that Johnson could convert her group

life insurance to an individual personal policy ftom MetLife, who would provide additional

information regarding Johnson’s conversion options. See jd. The letter fold Johnson that any

election to convert was due by January 31,2016. See Id. MetLife’s November 27,2015 letter

similarly informed Johnson ofher eligibility to convert her employer-provided group lift: insurance

coverage to an individual MetLife policy. See [P.E. 9-31. The letter specified a 45-day deadline for

conversion—from the December 31,2015 termination date until February 14,2016—and provided

instructions and a conversion application. See id.

QnDecember 31,2015, the Plan terminated. See Plan at 20. InMbch2016, Johnson died.

See CompL f 26, The Allens claim they asked MetLife about apolicy several times from June 2017

and into 2018. See id, f 28. The Mens also allegeJay submitted a claim form to MetLife around

February 2018. See id. f 50. On March 22,2018, MetLife responded that Johnson’s coverage had

ended at the time ofher death, no payment would be made, Jay could file an appeal within 60 days,

and Jay could contact L3Hams for more information about the policy. See id. The Allens do not

allege that they appealed MetLife’s (tetemination.

The Allens also allege that on February 21,2018, Kathy sent a letter to Mercer, a benefits

Page^7 of 20

Case 5:21-cv-00174-D Document 51 Filed 01/10/22 Page 3 of 13

Appendix A1

administrator, about the policy. See id. f 34. On June 11, 2018, Mercer responded that it had

received the letter but did not have a policy for Johnson and asked Kathy to send more information.

See id, f 37. The Allens also allege that in response to their correspondence and supplemental

information to Mercer, “Mercer/Harris” again told the Allens they did not have any policies for

Johnson. See id.

45-46.

On November 19,2019, the Allens sued defendants, seeking benefits under Johnson’s life

insurance policy and seeking damages. SeeCompl.at2. OnMarch 17,2021, the Allens voluntarily

dismissed those claims after defendants removed the case to this court from North Carolina Superior

Court See [D.E. 9] 1-2. On March 16,2021, the Allens filed this suit in North Carolina Superior

Court and defendants timely removed to this court See Compl. at 1: [D.E. 1]. The Allens thereafter

dismissed MetLife, Mercer, and Lincoln as defendants. See [D.E. 17,39,43,44,49, SO]. LSHarris,

the last remaining defendant, moves to dismiss the Allens’ claims. See [D.E. 14], The Allens

oppose the motion. See [D.E. 31].

A motion to dismiss under Rule 12(b)(6) tests the complaint’s legal and factual sufficiency.

See Ashcroft v. Iqbal. 556 U.S. 662,677-80 (2009); Bell Atl. Corn, v. Twomblv. 550 U.S. 544,55463 (2007); Coleman v. Md. Court ofAppeals. 626 F.3d 187,190 (4th Cir. 2010), affd. 566 U.S. 30

(2012); Giarratano v. Johnson. 521 F.3d 298,302 (4th Cir. 2008). To withstand a Rule 12(b)(6)

motion, a pleading “must contain sufficient factual matter, accepted as true, to state a claim to relief

that is plausible on its face.” Iqbal. 556 U.S. at 678 (quotation omitted); see Twombly. 550 U.S. at

570; Giarratano. 521 F.3d at 302. In considering the motion, the court must construe the facts and

reasonable inferences “in the light most favorable to [the nonmoving party].” Massey v. Ojaniit 759

F.3d 343,352 (4th Cir. 2014) (quotation omitted); see Clatterbuck v. City of Charlottesville. 708

Page^iS of 20

Case 5:21-cv-00174-D Document 51 Filed 01/10/22 Page 4 of 13

Appendix Al

F.3d549,557 (4th Cir. 2013),i

lonojfcs irtiiiinis bv Reedy. Town ofGilbert. S76U.S. 155

(2015). A court need not accept as true a complaint’s legal conclusions, “unwarranted inferences,

unreasonable conclusions, or arguments.” Giarratano, 521 F3d at302(quotation omitted); see Iqbal,

556 U.S. at678-79. Rather, a party’s factual allegations must “nudgef ] fits] claims.” Trombly. 550

U.S. at 570, beyond the realm of “mete possibility” into “plausibility.” Rubai 556 U.S. at 678-79.

When evaluating a motion to dismiss, a court considers the pleadings and any materials

“attached or incorporated into the complaint” Ei. duPontdeMemours & Co. v. Kolon Indus., Inc,.

637F.3d435,448 (4th Cir, 2011); see Fed. R. Civ. P. 10(c); Gomes v. Valley Cmty. Servs._BtL 822

F.3d 159,166 (Mh Cir. 20161; Thompson v. Greene. 427 F3d263.268 (4th Cir. 20051. Acourtmay

also consider a document submitted by a moving party if it is “integral to the complaint and there

is no dispute about the document’s authenticity1’without converting the motioninto one for summary

judgment Goines. 822 F,3d at 166.

hr support of its motion to dismiss, L3Hams argues that ERISA preempts the Allens’ state

law claims. See [D.E. 9] 12-13. L3Harris also argues the Allens’ ERISA claims fail because the

Allens are not beneficiaries under ERISA and lack standing re sue, the Plan was validly terminated,

the Allens failed to exhaust the administrative remedies as the Plan required, and the claims are time

barred. See id. at 16-22.

The Allens allege several state tort and contract law claims. See Compl. at 6. Defendants

jK^nd that ERISA peempts the Allens* state law claims. See [DJB. 9] 12-14. Initially, the court

considers whether the Plan was an employee welfare benefit plan under ERISA. ERISA governs all

employee benefit plans established or maintained by any employer engaged in interstate commerce.

See 29 U.S.C. § 1003(a)(1). An employee benefit plan includes an employee welfare benefit plan.

Page^ of 20

Case 5:21-cv-00174-D Document 51 Filed 01/10/22 Page 5 of 13

Appendix Al

See id. § 1002(3). An employee welfare benefit plan is a plan, fund, or program that provides,

among other things, death benefits to participants and beneficiaries through the purchase ofinsurance

or otherwise. See id. § 1002(1). The Allens admit that the Plan was an employee welfare benefit

plan under ERISA. See Compl. at 2,

31,33-43,48-50; [D.E. 31]

7-8.

ERISA contains an express preemption provision, which states, “the provisions of this

subchapter and subchapter m shall supersede any and all State laws insofar as they may now or

hereafter relate to any employee benefitplan.” 29U.S.C. § 1144(a). ERISA’s preemption provision

is “deliberately expansive, and designed to establish [benefit] plan regulation as exclusively a federal

concern.” Pilot Life Ins. Co. v. Dedeaux. 481 U.S. 41,45-46 (1987) (quotation omitted). ERISA

also contains a savings clause which excepts from preemption state laws that “regulate[] insurance.”

29 U.S.C. § 1144(b)(2)(A). However, state common law and tort law claims do not regulate

insurance just because the specific claims involve insurance coverage. See Pilot Life. 481 U.S. at

47-48 (state law claims for breach of contract, tort, and bad faith arising out of a denial of ERISA

plan benefits relate to an ERISA plan and are preempted by ERISA). After all, Congress intended

ERISA’s civil enforcement scheme to “be the exclusive vehicle for actions by ERISA-plan

participants and beneficiaries asserting improper processing of a claim for benefits, and that varying

state causes of action for claims within the scope of § 502(a) would pose an obstacle to the purposes

and objectives of Congress.” Id. at 52.

“|T]n light of die objectives of ERISA and its preemption clause, Congress intended ERISA

to preempt at least three categories of state laws that can be said to have a connection with an ERISA

plan.” Covne & Delanv Co. v- Selman. 98 F.3d 1457,1468 (4th Cir.1996). These three categories

are: (1) “state laws that mandate employee benefit structures or their administration”; (2) “state laws

Page ^0 of 20

Case 5:21-cv-00174-D Document 51 Filed 01/10/22 Page 6 of 13

Appendix A1

that bind employers or plan administrators to particular choices or preclude uniform administrative

practice”; and (3) state lavra that “provid[e] alternate enforcement mechanisms for employees to

obtain ERISA plan benefits.” M. (quotations and alteration omitted); see Pilot Life. 481 U.S. at 48;

Wilmington Shipping Co. v. New F.npland Life Ins. Co.. 496 F.3d 326, 342 (4th Or. 2007). A

state-law claim is an alternate enforcement mechanism for obtaining ERISA plan benefits, enforcing

fiduciary duties, or forcing disclosure of information when it rests on the same allegations that

support an ERISA claim and an employee brings it against a defendant owing a plan-created

)■

fiduciary duty to the employee. See Wilmington Shipping Co.. 496 F.3d at 341-44; Darcangelo v.

Verizon Commons. Inc.. 292 F.3d 181,191-92 (4th Cir. 2002); Elmore v. Cone Mills Com, 23

F.3d 855, 863 (4th Cir. 1994) (en banc). When the claim “is premised on the existence of an

employee benefit plan so that in order to prevail, a plaintiffmust plead, and the court must find, that

an ERISA plan exists, ERISA preemption will apply.” Griggs v. E.L DuPont de Nemours & Co.,

237 F.3d 371, 378 (4th Cir. 2001) (citation and quotations omitted); seg Ineersoll-Rand Co. v.

McClendon. 498 U.S. 133,139-40 (1990); Pilot Life, 481 U.S. at 52-55.

The Allens allege state law claims including breach of contract, negligence, breach of duty

ofcare, breach offiduciary duty, fraud, tortious interference with an inheritance, wrongful death, bad

faith, arid unfair and deceptive trade practices. SeeCompl. These claims relate to the Allens’efforts

to obtain life insurance benefits under the Plan following Johnson’s death. Thus, ERISA preempts

the Allens* state law claims, and the court dismisses those claims. See, e.g.. Pilot Life. 481 U.S. at

44-48; Griggs. 237 F.3d at 378; Elmore. 23 F.3d at 863.2

2 The Allens also mention “NC 58” in their complaint Chapter 58 of the North Carolina

General Statutes regulates insurance. §ee N.C. Gen Stat § 58; see, e,g., Compl. 20,43,48,53.

However, the Allens do not specify any particular provision of Chapter 58 that would entitle them

Page^.1 of 20

Case 5:21-cv-00174-D Document 51 Filed 01/10/22 Page 7 of 13

Appendix Al

As for the Allens’ breach of fiduciary duty claims, ERISA provides relief for breaches of

fiduciary duties arising from violations ofERISA or the terms of an ERISA plan. See 29 U.S.C. §

1132(a)(3); Griggs. 237 F.3d at 384. Accordingly, the court analyzes these claims under ERISA.

The Allens’ remaining claims under ERISArelate to the termination ofthe Plan, the resulting

lack of a benefit payout under the Plan, and communication between defendants, Johnson, and the

Allens about the Plan. The Allens have not alleged that Johnson converted her policy to an

individual personal policy. Therefore, die Allens’ claims depend on the existence of a policy

covering Johnson at the time ofher death or that the Plan’s termination violated ERISA.

“ERISA does not create any substantive entitlement to employer-provided .. . welfare

benefits.” Curtiss-Wrieht Corp. v. Schoonejongen. 514 U.S. 73,78 (1995). And “[e]mployers or

other plan sponsors are generally free under ERISA, for any reason at any time, to adopt, modify,

or terminate welfare plans. . . . When employers undertake those actions, they do not act as

fiduciaries.” Lockheed Cnrp. v. Spink. 517 U.S. 882, 890 (1996) (citations omitted); see

Schooneioneen. 514 U.S. at 78. ERISA requires employers to manage welfare benefits plans as

fiduciaries but allows employers to make business decisions about providing those plans. See

Sejman v. Wamer-I^mbert Co.. 889 F.2d 1346,1348-49 (4th Cir.1989); In re White Farm Equip.

Co, 788 F.2d 1186,1193(6thCir. 1986). Thus, ERISA treats benefits under a welfare benefits plan

differently than vested pension benefits. See Sejman. 889 F.2d at 1348; In re White Farm Equip.

Co.. 788 F.2d at 1193.

to relief or state any such claim with enough particularity. Thus, any such claim fails.

Page J2 of 20

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Appendix A1

The Allens allege L3Harris Violated its fiduciary duties by failing to continue the Plan and

claim they are entitled to benefits under the Plan. L3Hams, however, validly terminated the Plan

and was not acting as a fiduciary when it did so. See Lockheed Corp.. 517 U.S. at 890. The Plan

expressly provided authority to modify or temunate the Plan at any time. See Plan at 15. The Plan

stated: "The Company expects to continue the ITT Salaried Retime Life Insurance Plan” hut

cautioned that “it reserves fee right to amend, modify, suspend or terminate the Plan, in whole or in

pal Plan amendment, modification, suspension or termination may be made for any reason and at

anytime” Mi The Plan also stated that “while ITT expects to continue fee Plan, it reserves fee right

to change or discontinue fee Plan at any time wife respect to some or all participants.” ML at 17.

After Exelis became apart ofL3Hams in May 201S, Exelis amended fee Plan. See Plan at

18-21. One of those amendments added a January 1,2016 termination date. See id, (“[EJffective

as of January 1, 2016, the Plans hereby are terminated

.”). The SMM summarized fee

amandhraiRnta and explained that “the Retiree Life Plans were terminated, effective as of January 1,

2016.” Id. at 77. L3Hams notified Johnson about the changes to the Plan. L3Harris and MetLife

sent letters to Johnson explaining that her retiree life insurance under the Plan would terminate and

that she had a right to purchase coverage from MetLife under an individual policy. See [D.E. 9-2,

9-3]; Compl. If 14-17,19-22,25,39-40,48.

IJHarris could amend and terminate fee Plan and was not acting as a fiduciary when it did

so. See. e.g.. Lockheed Coro.. 517 U.S. at 890. The Allens do not allege whether Johnson opted to

purchase die individual conversion policy from MetLife, but her right to life insurance under the Plan

ceased on January 1, 2016. Effective January 1, 2016, “no benefit (whether a basic life,

supplemental life, optional life, dependentlife or survivor income benefit or otherwise)[was] payable

under fee Plans upon fee death of a retiree... occurring after December 31,2015.” Pten at 20.

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Appendix A1

When Johnson died in March 2016, Johnson no longer had coverage under the Plan. Therefore, the

Allens foils to state a claim for benefits under the Plan or the Plan’s termination. See, e.g..

Blackshear v. Reliance Standard Life Ins. Co.. 509F.3d 634,640 (4th Cir. 2007), abrogated on other

grounds by Metro. Life Ins. Co. v. Glenn. 554 U.S. 105 (2008); Hughes v. 3M Retiree Med. Plan.

281 F.3d 786,790-93 (8th Cir. 2002); Gable v. Sweetheart Cup Co.. 35 F.3d 851,855-59 (4th Cir.

1994).

Alternatively, the Allens’ claims are untimely. ERISA requires a plaintiffto file a breach of

fiduciary duty claim within “three years after the earliest date on which the plaintiff had actual

knowledge of the breach or violation.” 29 U.S.C. §1113(2). ERISA does not contain a statute of

limitations that applies to section 1132(a)(1)(B) benefits actions, but the Plan contains a contract

term that imposes a deadline on filing legal actions. See Heimeshoff v, Hartford Life & Acc. Ins.

Co.. 571 U.S. 99,105-08 (2013). “The principal that contractual limitations provisions ordinarily

should be enforced as written is especially appropriate when enforcing an ERISA plan.” Id. at 108.

The Plan’s contractual limitation provision provides that “no legal or equitable action (including a

legal or equitable action under section 502 of ERISA) involving this plan may be commenced later

than two years after the date the person bringing an action knew, had or was provided notice, or

otherwise had reason to know, of the circumstances giving rise to the action (or if later, November

1,2017).” Plan at 19.3

The Allens admit that by November 1,2017, they were told that there was no policy covering

their mother. See Compl. f 40. The Allens originally sued defendants on November 19,2019 in

3 The Plan also provides for a limitations period after the end of an internal review appeal

process. See Plan at 19. The Allens do not allege that they pursued an internal review appeal after

they were informed that their mother was not covered by a policy and there would be no payout

under the Plan.

Page^4 of 20

Case 5:21-cv-00174-D Document 51 Filed 01/10/22 Page 10 of 13

Appendix A1

North Carolina Superior Court. See Compl.. Allen v. MetLife. No. 5:19-CV-572-H (E.D.N.C. Dec.

19,2019), [D.E. 1-1], Defendants removed the case to this court On March 17,2020, the Allens

voluntarily dismissed their complaint under Federal Rule of Civil Procedure 41(a)(l)(A)(ii). See

Stipulation of Dismissal, Allen v. MetLife. No. 5:19-CV-572-H (E.D.N.C. Mar. 17,2020), [D.E.

36]. The Allens then refiled their suit in North Carolina Superior Court on March 16,2021, just shy

of one year after they dismissed their suit in this court See [D.E. 1-1].

As for the Allens’ claims for benefits under section 1132(a)(1)(B), the Plan’s contractual

limitations period oftwo years applies. See Plan at 19. Any claim the Allens had for benefits under

the Plan arose when Johnson died in March 2016. See Blackshear. 509 F.3d at 641. Accordingly,

the two-year contractual limitations period expired in March 2018. The Allens filed their original

complaint on November 19,2019,andtheirsecondcomplaintonMardhl6,2021. Under either date,

the Allens’ claims for breach of fiduciary duties and for benefits are untimely.

As for the breach offiduciary duty claims, ERISA required Johnson or the plan beneficiaries

to file suit no later than three years after the earliest date that they had actual knowledge ofthe breach

or violation. See 29 U.S.C. § 1113(2); Intel Corp. Tnv. Comm, v. Sulvma. 140 S. CL 768,776-77

(2020) (holding “the plaintiff must in fact have become aware” of the breach or violation). On

November 10, 2015, L3Harris notified Johnson about the termination of retiree life insurance

coverage under the Plan. See [D.E. 9-2]. Johnson had notice of claims related to the termination

of the policy at that time. However, it is unclear when the Allens, plaintiffs in this action, knew

about the Plan termination. Taking the allegations in complaint and all reasonable inferences drawn

therefrom as true, the Allens discovered the alleged breach or violation in June 2017. See Comp.

6,12,28. Thus, the limitations period for the Allens’ breach of fiduciary claims expired in June

2020.

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Appendix Al

“v i

Tbs Allens filed their original suit on November 19,2019, within the relevant limitations

period However, they did not file this action until March 16,2021, after the limitations period for

die breach of fiduciary claims expired That fib Allens’ refiled their complaint in North Carolina

Superior Court does notchange this conclusion. North CarolinaRule ofCivil Procedure 41 includes

a one-year savings provision applicable to voluntary dismissals without prejudice, and the Allens

filed this suit on March 16,2021, which is within one year of their earlier voluntary dismissal.

However, “a voluntary dismissal under the Federal Rules in a nondiversity case in federal eourt does

not... invoke a savings provision.” Bockweg v. Anderson. 328N.C. 436,439,402 S.R2d627,629

(1991). Accordingly, because defendants removed the Allens’ original suit to federal court under

the court’s federal questionjurisdiction, and the Allens’ filed their voluntary dismissal under Federal

Rule of Civil Procedure 41, the North Carolina Rides’ savings provision did not apply. This result

comports with fib general principle in federal court that “a dismissal without prejudice operates to

leave the parties as ifno aciionhad been brought at all.”

2005) (quotation omitted). Accordingly, the Allens’ breach of fiduciary claims are untimely.

The Aliens also allege various ERISA violations under section 501 (a)(1)(B) related to failure

to provide information to them or Johnson regarding the policy. See Compl. al2,ff25-30,45; 29

U.S.C. § 1132. Under ERISA, plan administrators must maintain certain documents and provide

diywinKHUs and information to beneficiaries within 30 days upon demand. See 29 U.S.C. § 1132(c).

Assuming without deciding that the Allens are beneficiaries, L3Harris and Mercer fulfilled

their obligations to provide information. The Allens acknowledge that L3Hatris informed Johnson

of fiie policy termination and her eligibility for conversion in November 2015 and that Meroer sent

the SMM, memorializing the Plan amendments, In January 2016. See Compl. f|9-10,25-26,36,

43. The Allens also acknowledge that L3Harris and Mercer responded to their inquiries about their

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Case 5:21-cv-00174-D Document 51 Filed 01/10/22 Page 12 of 13

Appendix A1

mntKer’s policy by confirming there was not a current policy. See id. ff 27-28,36-37. Thus, the

Allens do not state a claim under ERISA’s information request provisions.

ID.

In sum, die court GRANTS LSHams’s modem to dismiss [D.E. 9], DISMISSES WITH

PREJUDICE plaintiffs* eomplaint (D.E. 1-1], and DENIES as moot Mercer’s motion to dismiss

[DJB. 14]. Any proposed amendment would be futile. The clerk shall close the case.

SO ORDERED. This to day of January. 2022.

JAMES C DEVER HI

United States District Judge

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Case 5:21-cv-00174-D Document 51 Filed 01/10/22 Page 13 of 13

Appendix A1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

KATHY R. ALLEN, and JAY K. ALLEN,

Plaintiffs,

METLIFE, L3HARRIS TECHNOLOGIES,

INC., MERCER HEALTH BENEFITS

ADMINISTRATION, LLC, and LINCOLN

HERITAGE LIFE INSURANCE CO.,

Defendants.

)

JUDGMENT IN A

CIVIL CASE

CASE NO. 5:21-CV-174-D

Decision by Court. This action came before this Court for ruling as follows.

IT IS ORDERED, ADJUDGED, AND DECREED that the court GRANTS L3Harris's motion

to dismiss [D.E. 9], DISMISSES WITH PREJUDICE plaintiffs' complaint [D.E. 1-1], and

DENIES as moot Mercer's motion to dismiss [D.E. 14]. Any proposed amendment would be

futile.

This Judgment Filed and Entered on January 10.2022, and Copies To:

(via CM/ECF electronic notification)

Kathy R. Allen

(via CM/ECF electronic notification)

Jay K. Allen

(via CM/ECF electronic notification)

Elizabeth J. Bondurant

(via CM/ECF electronic notification)

Michael Douglas McKnight

(via CM/ECF electronic notification)

Shana L. Fulton

(via CM/ECF electronic notification)

Amanda S. Hawkins

DATE:

January 10, 2022

PETER A. MOORE, JR., CLERK

(By) /s/ Nicole Sellers____

Deputy Clerk

Page 18 of 20

Case 5:21-cv-00174-D Document 52 Filed 01/10/22 Page 1 of 1

Appendix Al

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5:21-CV-174-D

KATHY R ALLEN, and JAY K. ALLEN,

)

Plaintiffs,

)

METLIFE, et al.,

Defendants.

ORDER

)

On January 10, 2022, this court dismissed Kathy R. Allen and Jay K. Allen’s complaint

(collectively the “Allens” or “plaintiffs”) and closed the case. See [D.E. SI, 52]. On February 9,

2022, the Allens filed a motion for reconsideration. See [D.E. S3]. On March 2,2022, defendant

L3Harris responded in opposition [D.E. 54].

The court has considered the Allens’ motion for reconsideration\ under the governing

standard, gee Fed. R Civ. P. 59(e); Zinkand v. Brown. 478 F.3d 634,637 (4th Cir. 2007); Bogart

v. ChapelL 396 F.3d 548,555 (4th Cir. 2005); Pac. Ins. Co, v. Am. Nat’l Fire Ins. Co,. 148 F.3d 396,

403 (4th Cir. 1998); Hughes v. Bedsole. 48 F.3d 1376,1382 (4th Cir. 1995). The Allens have not

presented any arguments warranting reconsideration

The Allens’ motion also fails to meet Rule 60(b)’s threshold requirements and is denied as

baseless. See Fed. R. Civ. P. 60(b); Aikensv Tnpram. 652 F.3d 496,500-01 & n.3 (4th Cir. 2011)

(en banc); Robinson v. Wix Filtration Corp. LLC. 599 F.3d 403,412 n.12 (4th Cir. 2010); Nat’l

Credit Union Admin. Bd. v. Gray. 1 F.3d 262,264 (4th Cir. 1993).

The motion for reconsideration lacks [D.E. 53] merit and is DENIED. The case remains

closed.

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Case 5:21-cv-00174-D Document 55 Filed 04/08/22 Page 1 of 2

Appendix Al

SO ORDERED. This _g_ day of April, 2022.

____ M. v/ st_____ A

JAhtES C. DEVERm

United States District Judge

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Case 5:21-cv-00174-D Document 55 Filed 04/08/22 Page 2 of 2

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