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Borovac v. National Railroad Passenger Corporation

United States District Court, D. Nebraska

February 19, 2016

PAUL BOROVAC, Plaintiff,


Cheryl R. Zwart United States Magistrate Judge

The plaintiff has filed a motion to amend, explaining that his proposed amended complaint would add Aon Hewitt, LLC as an additional party and add pertinent provisions, factual statements, and causes of action. (Filing No. 32).

Defendant National Railroad Passenger Corporation (“Amtrak”) objects to Plaintiff’s motion to amend, stating Aon Hewitt is not a proper party to this action, and any claims against him would be futile and frivolous. (Filing No. 33). For the reasons stated below, Plaintiff’s motion to amend his complaint will be granted.


Plaintiff filed a complaint against Aon Hewitt, LLC (“Aon Hewitt”) and Amtrak on November 19, 2014, alleging violations of ERISA and COBRA. (Case No. 814cv361LSCFG3). However, due to case progression issues, the case was dismissed without prejudice on May 6, 2015. On July 16, 2015, the plaintiff refiled the lawsuit. In his Complaint, the plaintiff named Amtrak and Conexis as defendants. (Filing No. 1). On November 16, 2015, the deadline for moving to amend, Plaintiff filed an amended complaint without seeking leave of court. (Filing No. 28). The Court struck the amended complaint, but extended the deadline for Plaintiff to move to amend the complaint and add parties. (Filing No. 31). On December 15, 2015, Plaintiff timely filed the current motion. (Filing No. 32).


Leave to amend “shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a). “[A]bsent a good reason for denial-such as undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the non-moving party, or futility of amendment-leave to amend should be granted.” Kozohorsky v. Harmon, 332 F.3d 1141, 1144 (8th Cir. 2003). But there is no absolute right to amend a pleading. Hammer v. City of Osage Beach, MO, 318 F.3d 832, 844 (8th Cir. 2003). The court will deny a motion for leave to amend as futile if the Plaintiff’s proposed complaint fails to state a claim under the pleading standard described in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), thereby rendering the complaint subject to dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Zutz v. Nelson, 601 F.3d 842, 850-51 (8th Cir. 2010).

A complaint must contain sufficient facts which, if accepted as true, state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). When assessing whether a plausible claim was alleged, the court considers only the materials that are “necessarily embraced by the pleadings and exhibits attached to the complaint.” Whitney v. Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012). The plaintiff need not submit documentary evidence to withstand a Rule 12(b)(6) analysis. The court should not “incorporate some general and formal level of evidentiary proof into the ‘plausibility’ requirement of Iqbal and Twombly.” Whitney, 700 F.3d at 1128-29. The question at this preliminary stage is not whether the plaintiff might be able to prove his claim, but whether the has “adequately asserted facts (as contrasted with naked legal conclusions) to support” those claims. Whitney, 700 F.3d at 1128-29. [1]

Plaintiff’s proposed amended complaint alleges each defendant violated the COBRA notice provisions outlined in 29 U.S.C. § 1166. These provisions require the employer to notify the plan administrator of a qualifying event within 30 days of the event’s occurrence. § 1166(a)(2). Thereafter, the plan administrator is required to notify any qualified beneficiary of his rights upon the occurrence of such event, including the possibility of continuing plan coverage. § 1166(a)(4).

In the proposed complaint, the plaintiff alleges he was not properly notified of his option to elect continued coverage under COBRA. (Filing No. 32-2 at CM/ECF p. 3). He alleges Amtrak, as his employer, failed to notify Aon Hewitt, the administrator, within the time required by § 1166 and that Aon Hewitt, in turn, failed to notify Conexis. (Id. at CM/ECF pp. 4, 5).

Amtrak’s argues adding Aon Hewitt as a party would be futile because Aon Hewitt was not an administrator within the meaning of ERISA and COBRA. For the purposes of interpreting COBRA’s notice provisions (29 U.S.C. § 1166), an administrator is defined as:

(i) the person specifically so designated by the terms of the instrument under which the plan is operated;
(ii) if an administrator is not so designated, the plan sponsor; or
(iii) in the case of a plan for which an administrator is not designated and a plan sponsor cannot be identified, such other person as the ...

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