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August 4, 2003


The opinion of the court was delivered by: Joan H. Lefkow, District Judge


This is an action to recover long-term disability benefits under an employer-sponsored benefits plan. Plaintiff Sandra E. Penrose ("Penrose") filed her case in the Circuit Court of Illinois, DuPage County, against "The Hartford Life Insurance Company" for breach of contract for insurance and other state law claims. The Certificate of Insurance attached to her complaint reflects that the insurance was provided to plaintiff through her employer, IMI Systems, Inc., and that it was issued by The Hartford Life Insurance Company to "Trustee of the Hartford Multiple Employer Trust ("the policyholder"). (Def. Resp. Ex. 1.)*fn1 A "Plan of Insurance" accompanies the certificate. Hartford Life and Accident Insurance Company (indicating that such is the proper corporate name for defendant, and the two will be referred to as "Hartford" herein) appropriately removed the case to this court as an action to recover disability benefits under a group benefits plan governed by the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., [ Page 2]

specifically § 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B) ("A civil action may be brought by a participant or beneficiary to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan."). Hartford then moved to dismiss the state law claims on the grounds of preemption, see, e.g., Jass v. Prudential Health Care Plan, Inc., 88 F.3d 1482, 1490 (7th Cir. 1996) ("[T]he preemptive force of ERISA is so powerful that it converts a state law claim into an action arising under federal law, even if the plaintiff does not want relief under ERISA") (internal citations and quotations omitted), and to dismiss Hartford on the basis that it was not the proper defendant because it is not the "Plan." In seeking dismissal, Hartford relied again on Jass, which courts regularly cite for the principle that "ERISA permits suits to recover benefits only against the plan as an entity. . . ." Id.; see cases cited infra pages 5-7. This court accepted Hartford's argument and on June 27, 2002 dismissed the complaint on the condition that Hartford reveal the identity of the Plan. The court further gave plaintiff leave to file an amended complaint against the Plan. In dismissing Hartford, this court presumed that an entity known as a plan existed and could be named. Plaintiff, through avenues of discovery and subpoenas has been unable to identify a Plan. Hartford asserts that the only information it has is contained in the Plan of Insurance and appears to have been drafted by Hartford.*fn2 Hartford [ Page 3]

administered the plan and, having denied plaintiff's administrative appeal, appears also to have been the final decision maker with respect to claims for benefits under the plan. (Def. Resp. Ex. 1.) On October 7, 2002, after hearing that plaintiff still had been unable to identify the plan, the court dismissed the complaint without prejudice.

Within ten business days thereafter, on October 22, 2002, plaintiff filed a motion under Rule 59(e), Fed.R. Civ. P., to alter or amend the judgment, seeking to have the court vacate its June 27, 2002 and October 7, 2002 orders in this case and reinstate the complaint against Hartford. Hartford opposes the motion principally on the grounds that the motion is untimely because it was not filed within ten days after entry of judgment, as required by Rule 59(e), and, in the alternative, that plaintiff has not demonstrated meritorious grounds for the motion. [ Page 4]


A motion under Rule 59(e) is a vehicle to direct the court's attention to newly discovered evidence or a manifest error of law or fact. Russell v. Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995). The rule enables a district court to correct its own errors, sparing the parties and the appellate court the burden of unnecessary appellate proceedings. Charles v. Daley, 799 F.2d 343, 348 (7th Cir. 1986). A Rule 59(e) motion may be appropriate when "the court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the court by the parities, or has made an error not of reasoning but of apprehension." Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990). A Rule 59(e) motion is not a mechanism to re-argue issues that have already been decided or to present new issues that could have been presented but were not. See Bordelon v. Chicago Sch. Reform Bd. of Tr., 233 F.3d 524, 529 (7th Cir. 2000).

A. Timeliness of plaintiff's motion

Hartford asserts, incorrectly, that the complaint was dismissed with prejudice on June 27, 2002. To the contrary, the court granted plaintiff leave to file an amended complaint on that date.*fn3 As such, plaintiff could not have appealed from that order and it was, therefore, not a final judgment. See Alejo v. Heller, 328 F.3d 930, 935 (7th Cir. 2003) ("the dismissal of a complaint [ Page 5]

without prejudice is generally not considered a final, appealable decision."); Muzikowski v. Paramount Pictures Corp., 322 F.3d 918, 923 (7th Cir. 2003) (appeal from dismissal without prejudice is allowable if "there is no amendment [the plaintiff] could reasonably be expected to offer to save the complaint, or if a new suit would be barred by the statute of limitations."). The Rule 59(b) motion was timely.

B. Merits of plaintiff's motion

Jass, on which the statement that only a plan may be sued under § 1132(d)(2) rests, dealt with the question whether a § 1132(d)(2) claim could lie against an individual employee of the defendant plan administrator, not whether the administrator could be sued Jass, 88 F.3d at 1490. Thus, those cases, which rely on Jass, overstate it as "holding" that only a plan may be sued. See cases cited infra pages 5-7. Rather, Jass held, as pertinent here, that an employee of an ERISA plan could not be held individually liable for what was "really a federal denial of benefits claim under § 502(a) and not a state law claim." Id. For its statement that "ERISA permits suits to recover benefits only against the Plan as an entity . . .," the court relied on Gelardi v. Pertec Computer Corp., 761 F.2d 1323, 1324 (9th Cir. 1985), and subsection (2) of § 1132(d) ("Any money judgment under this subchapter against an employee benefit plan shall be enforceable only against the plan as an entity and shall not be enforceable against any other person unless liability against such person is established in his individual capacity under this subchapter."). Jass, 88 F.3d at 1490. In Gelardi, a one-page per curiam decision, the Ninth Circuit affirmed a district court ruling that neither the employer nor the plan administrator qualified as a plan and, therefore, the plaintiff could not recover benefits from them under § 1132(a)(1)(B). This "doctrine" has become embedded in ERISA cases involving claims for benefits, many of which [ Page 6]

Hartford cites in its briefs. For example, in Riordan v. Commonwealth Edison Co., 128 F.3d 549 (7th Cir. 1997), the court cited Jass in dictum for the proposition that "ERISA permits suits to recover benefits only against the plan as an entity," while rejecting the defendant employer-plan administrator's argument that such was sufficient to deny the plaintiff's claim for benefits where the defendant had not asserted the argument in the district court and where the relationship between the plan and the defendant was not clearly set out. Id. at 551.*fn4 With one exception, the cases Hartford cites as authority that "[c]ourts in the Northern District of Illinois have consistently followed the Seventh Circuit's holdings in Jass to hold that the only proper defendant to a plan beneficiary's claim for ERISA plan benefits is the plan itself" are cases in which the language is used but the plan was, in fact, a defendant or leave was given to join the plan, thus rendering superfluous claims against other defendants. (Def. Mem. of Law in Support of its Mot. to Dismiss PL Compl. at 6-7); see Bahnaman v. Lucent Technologies, Inc., 219 F. Supp.2d 921, 923 (N.D. Ill. 2002) (employer dismissed from lawsuit on the basis that the plan was the proper defendant, noting that "even if a claim for denial of benefits could also be brought against [the employer], the [plan's] presence in the case is sufficient for plaintiffs to obtain all [ Page 7]

possible relief"); McAlister v. Golden Books Short Term Disability Plan, No. IP-00-0504-C-B/S, 2001 WL 283147, at *3 (S.D. Ind. Mar. 21, 2001) (same); Blickenstaff v. R.R. Donnelly & Sons Co. Short-Term Disability Plan, No. IP-00-C-983-B/S, 2001 WL 87480, at *4 (Jan. 29, 2001) (same); Fortmann v. Avon Prod., Inc., No, 97 C 5286, 1999 WL 160258, at *4 (N.D. Ill. Mar. 9, 1999) (employer dismissed where the plan was already a defendant even though the plaintiff argued "there is no difference between [the employer] and the Plan"); Anderson v. Illinois Bell Telephone Co., 961 F. Supp. 1208, 1212 (N.D. Ill. 1997) ("[The plaintiff] does not suggest-and we cannot conclude-that [the employer] and the [plan] are one and the same"); Sisto v. SBC Ameritech, No, 01 C 8262, 2002 WL 448993, at *2 (N.D. Ill. Mar, 22, 2002) (dismissal of the plan ...

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