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Gilcrest v. Unum Life Insurance Co. of America

June 6, 2006


The opinion of the court was delivered by: Judge Gregory L. Frost

Magistrate Judge Abel


Currently before the Court is Plaintiff Robert Gilcrest's ("Gilcrest") motion to dismiss the counterclaims of Defendants UNUM Life Insurance Company of America ("Unum") and Government Liquidation.Com Long Term Disability Plan ("GLC") (collectively "Defendants"). (Doc. # 7). The Defendants filed a memorandum in opposition (Doc. # 11), but Gilcrest failed to file a reply. For the reasons that follow, the Court DENIES the motion. (Doc. # 7).


GLC formerly employed Gilcrest. During his employment with GLC, Gilcrest was eligible for, and a participant in, GLC's employee welfare benefit plan ("Plan"). (Doc. # 1 ¶ 2, 6). The Plan was established and maintained pursuant to the provisions of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. GLC was the Plan administrator; Unum provided benefits under the Plan. (Doc. # 4 Ex. A at 1, 15).

Gilcrest injured his back on September 12, 2003 while he was still a GLC employee. (Doc. # 1 ¶ 8). Gilcrest applied for and was granted short term disability benefits under the Plan.

Id. at ¶ 9. Gilcrest also applied for and was awarded Social Security disability benefits. Id. at ¶ 10. Subsequently, Gilcrest applied for and was awarded long term disability benefits under the Plan from October 2003 through October 12, 2004. Id. at ¶ 12. After that date, Unum suspended Gilcrest's long term disability benefits upon determining that he was no longer disabled under the Plan's terms. Id. at ¶ 13. Gilcrest appealed Unum's denial twice; each time, Unum affirmed its previous determination. Id. at ¶ ¶ 14-16.

Gilcrest filed the instant action on October 6, 2005 seeking an order requiring Unum to: (1) reinstate his long-term disability benefits; (2) pay all past due benefits; (3) pay pre-judgment and post-judgment interest; and (4) pay his attorney's fees and costs. Id. at ¶ ¶ A-E. (Doc. # 1 at ¶ ¶ 1-13). Defendants then filed an Answer and Counterclaims. (Doc. # 4). Specifically, the Defendants' counterclaims allege that the Plan required Unum to subtract the amount of any Social Security Award received by the insured from the insured's disability payment under the Plan. Id. at ¶ 4.*fn1 Although Gilcrest received approximately $3,564.00 in Social Security payments from October 2003 to March 2004, Unum failed to subtract that amount from his long term disability benefits and Gilcrest has not repaid that amount to the Defendants. Id. at ¶ ¶ 6-7. Thus, the Defendants assert two counterclaims against Gilcrest--the first for breach of contract, the second for unjust enrichment. Id. at ¶ ¶ 8-13.

Gilcrest now moves the Court for an order dismissing those counterclaims pursuant to Fed. R. Civ. P. 12(b)(1) & 12(b)(6). (Doc. # 7). Defendants oppose the motion. (Doc. # 11). Because the time for briefing the motion has passed, the Court may now proceed to an examination of the issues presented in Gilcrest's motion.


Gilcrest first contends that dismissal is warranted under Fed. R. Civ. P. 12(b)(1), which enables him to raise by motion the defense of "lack of jurisdiction over the subject matter." In considering such a motion the court may consider evidence outside the pleadings to resolve factual disputes concerning jurisdiction, and both parties are free to supplement the record by affidavits. However, where a defendant argues that the plaintiff has not alleged sufficient facts in her complaint to create subject matter jurisdiction, the trial court takes the allegations in the complaint as true.

Nichols v. Muskingum College, 318 F.3d 674, 677 (6th Cir. 2003) (citations omitted). A plaintiff bears the burden of proving jurisdiction. Id.; Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990).

Motions to dismiss for lack of subject matter jurisdiction generally take one of two forms.

Ohio Nat'l Life v. Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). A facial attack on the subject matter jurisdiction alleged by the complaint merely questions the sufficiency of the pleading. Id.In reviewing such a facial attack, a trial court takes the allegations in the complaint as true, which is a similar safeguard employed under 12(b)(6) motions to dismiss. Id. On the other hand, when a court reviews a complaint under a factual attack, no presumptive truthfulness applies to the factual allegations. Id. Such a factual attack on subject matter jurisdiction commonly has been referred to as a "speaking motion." See generally C. Wright & A. Miller, Federal Practice and Procedure ยง 1364, at 662-64 (West 1969). When facts presented to the district court give rise to a factual controversy, the district court must therefore weigh the conflicting evidence to arrive at the factual predicate that subject matter jurisdiction exists or does not exist. Madison-Hughes v. Shalala, 80 F.3d 1121, 1130 (6th Cir. 1996). In reviewing these speaking motions, a trial court has wide discretion to allow affidavits, documents and even a ...

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