Boyadjian v. Cigna Companies (973 F. Supp. 500, 1997)

OPINION

PARELL, District Judge.

This matter is before the Court on cross-motions for summary judgment by defendants CIGNA Companies (“CIGNA”), AFIA Worldwide Insurance (“AFIA”), and CIG-NA’s AFIA Retirement Plan Administrator (the “Administrator”); and by plaintiff pro se Robert Boyadjian (“Boyadjian”). For the reasons stated in Opinion, defendants’ motion for summary judgment is granted in part and denied, in part, and plaintiffs motion for summary judgment is granted in part and denied in part.

BACKGROUND

Plaintiff commenced this action on August 21, 1995, seeking relief under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001-1461. Boyadjian alleges that he was employed by AFIA from June, 1971 through March, 1982 and is therefore eligible for benefits under the company’s retirement plan (the “Plan”). (Compl. at 2.) Prior to filing suit, Boyadjian repeatedly contacted CIGNA in an effort to obtain information on his eligibility for retirement benefits. (See Mem. & Order dated July 17, 1996, at 2-6; Defs.’ Ex. 1: Letter from Boyadjian to CIGNA (July 29, 1993); Defs.’ Ex. 5: Letter from Boyadjian to Hildy Pepper, CIGNA Benefits Analyst (Oct. 26, 1993).) Although it sent Boyadjian a booklet summarizing Plan after his second request, CIG-NA repeatedly asserted that it had insufficient information to support Boyadjian’s claim for benefits. (See Mem. & Order dated July 17,1996, at 2; Defs.’ Ex. 6: Letter from Marian Walter, CIGNA Senior Retirement Plans Specialist, to Boyadjian (Aúg. 31, 1994) (“[TJhere is no information to indicate that you have a benefit due you. Since we have no records indicating that you are eligible for a CIGNA pension, we must assume that you did not meet the requirements necessary to obtain a vested pension benefit.”).)

By Memorandum and Order dated July 17, 1996, the Court denied without prejudice defendants’ prior motion for summary judgment. (Mem. & Order dated July 17, 1996, at 12.) The determined that two genuine issues of material fact precluded the entry of summary judgment in favor of defendants: (1) .whether Boyadjian was employed by AFIA; and (2) whether Boyadjian was employed by AFIA for the ten years required to become eligible for retirement benefits. {Id. at 8.) The Court also found that plaintiffs attempts to obtain retirement benefits satisfied ERISA’s requirement that a plaintiff exhaust the remedies available under the benefit plan before filing suit. {Id. at 11.)

After the Court denied defendants’ initial motion for summary judgment, defendants determined that plaintiff was in fact a former AFIA employee and entitled to retirement benefits. By letter dated October 23, 1996, CIGNA provided Boyadjian with the details concerning his pension benefits, and informed him that he could elect to receive benefits beginning on February 1, 1998 at age 65, or retroactively to February 1, 1995 at age 62. (Defs.’ Ex. 10: Letter from Cheryl Santos-Flynn, CIGNA Senior Retirement Plans Specialist, to Boyadjian (Oct. 23, 1996).)

DISCUSSION

A court shall enter summary judgment when the moving party demonstrates that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of Law.” Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Once the moving party has satisfied this initial burden, the opposing party must establish that a genuine issue of material fact exists. Jersey Cent. Power & Light Co. v. Township of Lacey, 772 F.2d 1103, 1109 (3d Cir.1985), cert. denied, 475 U.S. 1013, 106 S.Ct. 1190, 89 L.Ed.2d 305 (1986). The opposing party cannot rest on mere allegations; rather, it must present actual evidence that creates a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (quotation omitted); Schoch v. First Fidelity Bancorporation, 912 F.2d 654 657 (3d Cir.1990). Issues of fact are genuine only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.

I. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

In support of their motion for summary judgment, defendants argue that they have: (1) determined that plaintiff is eligible for benefits under the Plan; (2) calculated plaintiffs benefits under the Plan; (3) instructed plaintiff on the elections he must make eoncerning his benefits; and (4) provided plaintiff with a copy of the Plan. (Defs.’ Br. in Supp. of Mot. for Summ. J. at 4.) Thus, defendants assert, all of Boyadjian’s claims have been rendered moot, and this Court must dismiss the action for lack of jurisdiction. (Id. at 4, 9.)

The federal judicial power extends only to “cases” or “controversies.” U.S. Const, art. Ill, § 2. The “case or controversy” requirement demands that “a cause of action before a federal court present a ‘justiciable’ controversy, and ‘no justiciable controversy is presented ... when the question sought to be adjudicated has been mooted by subsequent developments.’ ” Lusardi v. Xerox Corp., 975 F.2d 964, 974 (3d Cir.1992) (quoting Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 1949-50, 20 L.Ed.2d 947 (1968)). Article III requires that a plaintiffs claim “be live not just when he first brings the suit but throughout the entire litigation, and once the controversy ceases to exist the court must dismiss the case for lack of jurisdiction.” Id. (citations omitted).

Here, plaintiff has obtained the primary relief sought in the Complaint: namely, pension benefits under the Plan. As Boyadjian concedes, no justiciable controversy remains as to this claim. (See Pl.’s Letter Br. dated June 9, 1997 (“Reinstatement of benefits under the AFIA Plan has been rendered moot since October, 1.96.”).) Accordingly, because the controversy over Boyadjian’s entitlement to retirement benefits has ceased to exist, the Court shall grant defendants’ motion for summary judgment with respect to this claim.

II. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

In support of his motion for summary judgment, plaintiff argues that he is entitled to: (1) attorneys’ fees and the costs of suit; (2) $100 per day from July 29, 1993 to September 3, 1996, pursuant to 29 U.S.C. § 1132(c), for defendants’ failure to provide requested information; and (3) damages for emotional distress and punitive damages. (Pl.’s Br. in Supp. of Mot. for Summ. J. at 2.) Boyadjian maintains that these claims have not been rendered moot by defendants’ determination that he entitled to pension benefits. (Pl.’s Letter Br. dated June 1997.) Defendants respond that “the relief requested by plaintiff is not warranted.” (Defs.’ Letter Br. dated May 12, 1997.) The Court will address each of plaintiff’s three claims in turn.

A. Attorneys’Fees and Costs

Plaintiff seeks to recover attorneys’ fees and costs pursuant to 29 U.S.C. § 1132(g). (See Pl.’s Letter Br. dated May 24, 1997.) Boyadjian claims that he has spent 450 hours litigating this action. (Id.) Defendants “object to plaintiffs request for attorneys’ fees and costs of suit as plaintiff instituted this action pro se,” but do not cite any authority for the proposition that a prevailing pro se litigant cannot recover attorneys’ fees in an ERISA action. (See Defs.’ Letter Br. dated May 12,1997, at 1.)

29 U.S.C. § 1132(g) provides that in “any action under this subehapter ... by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party.” 29 U.S.C. § 1132(g)(1). The Court’s research has not revealed any case law on a pro se litigant’s entitlement to attorneys’ fees in an ERISA action.

The Court of Appeals for the Third Circuit has held, however, that pro se litigants may not recover attorneys’ fees under 42 U.S.C. § 1988. Pitts v. Vaughn, 679 F.2d 311, 313 (3d Cir.1982). The court found that Congress

did not intend to award non-lawyer, pro se litigants equivalent of attorney’s fees. Instead, Congress was concerned with reimbursing prevailing parties for the actual expenses of representation by an attorney because it recognized that attorney’s fee awards are often essential to enable private citizens to protect their civil rights in the courts.

Id. at 312. The Third Circuit has also held that pro se litigants may not be awarded attorneys’ fees under the Freedom of Information Act (“FOIA”). Cunningham v. F.B.I., 664 F.2d 383 (3d Cir.1981); see also Carter v. Veterans Admin., 780 F.2d 1479, 1481 (9th Cir.1986) (“We hold that a pro se litigant may not recover attorney’s fees under the FOIA.... We have held that a pro se litigant is not entitled to attorney’s fees under analogous provisions of the Truth in Lending Act, 15 U.S.C. § 1640(a), on the ground that no financial expenditure had been made for an attorney’s services.”); Bollitier v. International Bhd. of Teamsters, Chauffeurs, Warehousemen and Helpers, 735 F.Supp. 623, 627 (D.N.J.1989) (concluding that a pro se plaintiff can never recover attorneys’ fees under the Labor-Management Reporting and Disclosure Act).

ERISA provides that either party may recover a reasonable “attorney’s fee.” 29 U.S.C. § 1132(g)(1). The statute thus contemplates that fees may be awarded when a litigant retained attorney and incurs legal fees. See Merrell v. Block, 809 F.2d 639, 642 (9th Cir.1987) (“‘Fees’ are specifically defined in that statute as ‘reasonable attorney fees.’ This choice of terminology, standing alone, leads to the conclusion that Congress intended that an attorney have been retained for a prevailing pro se litigant to recover attorneys fees under [Equal Access to Justice Act].”). As the Court of Appeals the Seventh Circuit reasoned in the context of the FOIA:

The term “attorney fees” contemplates that the services of an attorney be utilized. The simple language of the statute controls. Attorney means attorney. We have no doubt that Blue Cross/Blue Shield would balk at a request for doctor fees from a person who removed his own appendix, or more realistically, a request for dental fees from someone who extracted his own tooth. No one would be entitled to reimbursement for therapist fees for attempts at self — improvement or for finding solutions to one’s own problems. Rebuilding and repairing one’s own car after an accident might be spiritually rewarding, however, we doubt very much if one’s insurance company would honor a demand for mechanic fees. Myriad examples leap to mind that need not be repeated here. Suffice it to say that, although a pro se litigant often times • performs exactly the same functions as a lawyer might in representing a client, without a degree and admission to the bar a pro litigant is not entitled to collect attorney fees. We do not mean to imply that pro se litigants do not further the purposes of FOIA, we merely conclude that, had Congress intended for pro se litigants to be entitled to some type of attorney fee award, they would have made that clear in the statute.

DeBold v. Stimson, 735 F.2d 1037, 1042-43 (7th Cir.1984). Accordingly, because plaintiff is a pro se litigant, the Court finds that he may not recover attorneys’ fees under ERISA, 29 U.S.C. § 1132(g)(1).

Although plaintiff may not ’ recover attorneys’ fees, he may recover litigation costs reasonably incurred. See Cunningham, 664 F.2d at 387 n. 4; Carter, 780 F.2d at 1482; DeBold, 735 at 1043 (citing Crooker v. United States Dep’t of Justice, 632 F.2d 916, 921 (1st Cir.1980)) (“ [A] pro se litigant who substantially prevailed certainly is entitled to ‘litigation costs reasonably incurred.’ A pro se litigant is made whole thereby, serving as a small incentive to pursue litigation if no attorney may be found to represent the litigant.”). Accordingly, the Court shall direct plaintiff to submit a Bill of Costs accordance with Local Civil Rule 54.1 within 30 days of the entry of the Order accompanying this Opinion.

B. Statutory Penalty

ERISA imposes stringent disclosure obligations on administrators of employee benefit plans. See 29 U.S.C. §§ 1024 and 1025. Section 1024 mandates that the administrator “shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary plan description, plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated.” 29 U.S.C. § 1024(b)(4). Any administrator

who fails or refuses to comply with a request for any information which such administrator is required by this subehapter to furnish to a participant or beneficiary (unless such failure or refusal results from matters reasonably beyond the control of the administrator) by mailing the material requested to last known address of the requesting participant or beneficiary within 30 days after such request may in the court’s discretion be personally liable to such participant or beneficiary in the amount of up to $100 a day from the date of such failure or refusal, and the eourt may in its discretion order such other relief as it deems proper.

29 U.S.C. § 1132(c)(1)

Whether a district court awards a plaintiff monetary damages under 29 U.S.C. § 1132(c)(1) is a matter of discretion Hennessy v. Federal Deposit Ins. Corp., 58 F.3d 908, 924 (3d Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1318, 134 L.Ed.2d 471 (1996). In deciding whether to assess a penalty under § 1132(c)(1), courts have considered factors as “bad faith or intentional conduct on the part of the administrator, the length of the delay, the number of requests made and documents withheld, and the existence of any prejudice to the participant or beneficiary.” Pagovich v. Moskowitz, 865 F.Supp. 130, 137 (S.D.N.Y.1994) (citations omitted).

Here, plaintiff first contacted CIGNA on July 29, 1993, indicating that he was seeking information about “AFIA Pension/Retirement Plans 1975-1981.” (Defs.’ Ex. 1: Letter Boyadjian to CIGNA (July 29, 1993).) Boyadjian sought to “obtain benefit plans pertaining to AFIA, effective during the years 1976 to 1981 for Head Office Employees as well as expatriates assigned to Europe.” (Id.) By letter dated August 13,1993, CIGNA responded to plaintiffs inquiry by copying the vesting schedule from the Summary Plan Description. (Defs.’ Ex. 2: Letter from Hildy R. Pepper, CIGNA Benefits Analyst, to Boyadjian (Aug. 13, 1993).) It appears that plaintiff then asked Ms. Pepper for a copy of the AFIA Retirement Plan; she responded by sending a booklet summarizing the Plan. (See Defs.’ Ex. 3: Summary of Retirement Plan.)

According to its terms, the booklet describes

only the highlights of your Retirement Plan. The official Plan Text and Trust Agreement are always the governing documents. The Plan Text and Trust Agreement, as well as the annual report of Plan operations and Plan description as filed with the U.S. Department of Labor, are available for review by Plan participants or their beneficiaries during normal working hours in the Personnel Department. Requests to review these documents should be directed to your supervisor. Upon written request to the Personnel Officer, AFIA, 1700 Valley Road, Wayne, New Jersey 07470, you or your beneficiary can receive a copy of these documents within 30 days. The law provides that AFIA can charge up to 25