Vidal v. Verizon Pension Plan for Associates

2 INKevEaNdNa ABa Or NDoU. N9Z88E5, ESQ. ODUNZE & SWANIGAN 3 ODUNZE PLLC 3651 Lindell Road Suite D #142 4 Las Vegas Nevada 89103 Telephone No. 702-943-0305 [5] Facsimile No. 702-943-0233 6 Email: ipo.odunzeswanigalaw@gmail.com Attorneys for Plaintiffs [7] UNITED STATES DISTRICT COURT [8] DISTRICT OF NEVADA [9] MICHAEL A. VIDAL, an individual; ) CASE NO.: 2:22-cv-00274-RFB-BNW [10] ESTATE OF EVA RAMOS (through its ) 11 Administrator JESSICA CLEMENTE). ) ) 12 Plaintiffs, ) MOTION FOR LEAVE TO AMEND vs. ) [13] ) 14 VERIZON PENSION PLAN FOR ) ASSOCIATES, ((Plan No. 16), an entity under ) 15 ERISA)); VERIZON EMPLOYEE BENEFITS ) COMMITTEE, a plan administrator; KEVIN ) [16] CAMMARATA, in his capacity as ) 17 CHAIRPERSON OF THE VERIZON ) EMPLOYEE BENEFITS COMMITTEE; ) 18 PATRICIA, an individual, VERIZON ) 19 CALIFORNIA INC., a corporation; ) VERIZON COMMUNICATIONS INC.; ) 20 CONDUENT INCORPORATED, a ) corporation; CONDUENT BUSINESS ) [21] SERVICES, LLC, a limited liability company; ) 22 XEROX CORPORATION, a corporation; ) XEROX HR SOLUTIONS, LLC, a limited ) 23 liability company; VERIZON SERVICES ) CORP., a corporation; VERIZON NORTH ) [24] LLC, a limited liability company; DOES I- ) 25 XX, inclusive, and ROE ENTITIES I-XX, ) inclusive, ) 26 ) Defendants. ) [27] ) [28] 2 (through its Administrator JESSICA CLEMENTE) by and through the law office of ODUNZE 3 PLLC d/b/a ODUNZE & SWANIGAN and its attorney IKENNA ODUNZE, ESQ. and pursuant [4] to FRCP 15(a)(2) hereby moves this Honorable Court for an order granting leave and permission [5] to file an amended complaint in this matter and seven (7) days from the Order granting this [6] Motion to revise the proposed amended complaint (as needed). [7] This Motion (referred to as the “Motion” or the “instant Motion”) is based upon the [8] papers and pleadings on file herein, the attached memorandum of points and authorities, and any [9] 10 oral argument which the Court may entertain at a hearing thereon. 11 DATED this 25th day of February, 2022 [12] 13 ODUNZE PLLC [14] __/s/Ikenna Odunze/_______________ [15] Ikenna Odunze, Esq. 16 ODUNZE & SWANIGAN ODUNZE PLLC 17 3651 Lindell Road Suite D #142 Las Vegas Nevada 89103 [18] Telephone No. 702-943-0305 19 Facsimile No. 702-943-0233 [2] 3 POINTS AND AUTHORITIES 4 I. 5 INTRODUCTION 6 A. 7 PROCEDURAL HISTORY 8 The instant action (hereinafter referred to as the “Action” or “the instant Action”) [9] concerns a multiparty ERISA litigation wherein ERISA 29 U.S.C. § 1132 (a)(3) make-whole and [10] equitable surcharge relief are requested by the Plaintiffs for breaches of fiduciary duty [11] amounting to statutory violations of ERISA that are actionable under 29 U.S.C. § 1132 (a)(3). [12] 13 The Action was initiated on February 14, 2022 less than two weeks from the filing of this 14 this Motion. The initial complaint was amended as of right on February 18, 2022. As it’s early [15] in matter the named Defendants have not yet been served, additionally none of the Defendants [16] have yet appeared in this matter as of the date of the filing of this instant Motion. After the push [17] to file the initial complaint and push to quickly file a first amended complaint the Plaintiffs seek [18] 19 leave from this Court to file a Second Amended Complaint prior to embarking upon service. 20 The Plaintiffs (and their counsel) would like to obtain leave to file an amended complaint [21] however kindly also like to have seven (7) days from the date the Court issues an Order granting [22] leave amend for further review of the proposed complaint to ensure there are a few days to make [23] 24 any needed typographical amendments and revisions. In accord with the Local Rules a proposed 25 amended complaint is furnished hereto. See Exhibit 1 (hereinafter referred to the “proposed draft [26] amended complaint” or “DCOMP”; it’s exhibits are also included). [2] co-fiduciary claims and respondeat superior doctrine, and to the causes of action, damages and [3] relief sections; and they have further revised typographicals. ERISA complaints are typically [4] extensive as is the case in the instant matter and the Plaintiffs’ counsel believes the amendments [5] 6 are key and essential; further amendment enables judicial economy and continuity of arguments7 and-process, further justice requires amendment in this instance, accordingly the instant Motion [8] is respectfully filed and submitted. Plaintiffs and Plaintiffs’ request leave to amend to make [9] corrections and edits, to refine respondeat superior allegations (and co-fiduciary allegations), [10] causes-of-action, to add two causes of action concerning respondeat superior (as seen in the [11] 12 proposed amended complaint seen in Exhibit 1) and to ensure continuity of arguments. 13 A proposed amended complaint is attached nonetheless its respectfully requested that [14] within this leave request that the Plaintiffs and the Plaintiffs’ counsel be allowed seven (7) days [15] from the Court’s order granting this Motion to make any additional typographical corrections, [16] 17 revisions substantive edits and amendments the Plaintiffs and Plaintiffs’ counsel observe need to 18 be made (or believe need to be made) between date of the filing of this instant Moton through the [19] date that is seven (7) days from the date this Honorable Court grants this instant Motion. 20 B. 21 FACTUAL BACKGROUND [22] For 36 years Eva Ramos (“Ms. Ramos”; Plaintiff’s Mr. Vidal’s late mother) who was [23] born in 1952 worked for companies that participated in the Verizon Pension Plan for Associates [24] 25 (sometimes referred to as the “Plan”). See DCOMP at Exhibit 4. Upon information and belief, 26 the Plan was previously sponsored by Verizon California Inc., and then subsequently sponsored [27] by Verizon Communications Inc. Upon information and belief Ms. Ramos began working for [2] information Ms. Ramos was diagnosed with cancer in 2016. Upon information and belief Ms. [3] Ramos reached age 65 in November 2017. Id. Upon information and belief Ms. Ramos was [4] hospitalized in November 2017 where upon her only biological child plaintiff Mr. Vidal (who at [5] 6 all relevant times was a resident of the State of Nevada living in Las Vegas) flew from Las 7 Vegas Nevada to the Bronx New York to watch over his mother Ms. Ramos. Ms. Ramos while [8] hospitalized signed-and-executed a power of attorney for Mr. Vidal to use to take care of all Ms. [9] Ramos’ business affairs including her pension election package paperwork. However, as alleged [10] in the pleadings on the record in the instant matter the Defendants’ breaches of fiduciary caused [11] 12 and resulted in the pension election package Mr. Vidal had on hand (on December 8, 2017) not 13 being used by Ms. Ramos’ death. Ms. Ramos died sometime in December 2017. [14] The breaches of fiduciary duty at the center of the Action and dispute primarily arise out [15] of, inter alia, certain individualized advice, advising and consulting the Defendants provided to [16] 17 the Plaintiff Mr. Vidal (and by extension Ms. Ramos) and Ms. Clemente on December 8, 2017 18 concerning Mr. Vidal’s Ms. Ramos’ pension election package paperwork as well as the lack of [19] certain verbal notifications during the advising and consulting concerning the aforesaid pension [20] election package paperwork which the Plaintiffs allege constitute breaches of fiduciary duty [21] amounting to statutory violations of ERISA actionable under 29 U.S.C. § 1132 (a)(3). [22] 23 The Plaintiffs have asked for $484,469.17 in make whole and equitable surcharge relief 24 to be made whole pursuant to 29 U.S.C. § 1132 (a)(3) to be awarded to the Plaintiffs amongst [25] other requests for relief and causes of action. [26] Plaintiffs and Plaintiffs’ attorneys would like to be able to revise typographicals (and to [27] refine causes-of-action, relief, and general allegations) and to amend their complaint in pursuit of [2] arguments and respectfully believe justice and NRCP 15 requires granting leave to amend. [3] II. [4] LEGAL DISCUSSION 5 A. 6 THIS COURT SHOULD GRANT PLAINTIFF’S LEAVE TO FILE AN AMENDED COMPLAINT [7] 8 Fed. R. Civ. P. 15 permits parties to amend their pleadings upon leave of the Court. Rule 9 15(a) states that "'shall be freely given when justice so requires.' Fed. R. Civ. P. 15(a)(2). [10] Forman v. Davis, 317 U.S. 178 (1962); United States v. Hougham, 364 U.S 310 (1960); Bonin v. [11] Calderon, 59 F.3d 815 (9th Cir. 1995). “The Supreme Court has instructed that "this mandate is [12] to be heeded" and the Ninth Circuit has repeatedly held that a court "should grant leave to amend [13] 14 even if no request to amend the pleading was made, unless it determines that the pleading could 15 not possibly be cured by the allegation of other facts." Willard v. Lockhart-Johnson (In re [16] Lockhart-Johnson), 631 B.R. 38 (B.A.P. 9th Cir. 2021). [17] Granting leave to amend is a matter of discretion in the trial court. Id. However, the [18] 19 Federal Courts have held that leave to amend should be freely given in the absence "undue delay, 20 prejudice to the opposing party, futility of the amendment..." Bonin v. Calderon, 59 F.3d 815 21 (9th Cir. 1995). In the instant matter, the amendment and leave being requested is relatively [22] near to the initiation date of the lawsuit and to the last amendment hence there is no “undue [23] delay” (as it is near), further there is no “prejudice” to the opposing parties as they have not [24] 25 entered appearances in this matter yet and discovery has not started in this matter (nor has there 26 been any hearings; and it’s too early for there to be any prejudice to have occurred to the [27] Defendants concerning pleadings), there is not any bad faith as the purpose of the amendment [2] ensure continuity of arguments) and finally there is nothing that the Plaintiff is inserting into the [3] amended complaint that is futile. [4] The purpose of pleadings is to “facilitate a proper decision on the merits,” Conley v. [5] 6 Gibson, 355 U.S. 41 (1957), and not to erect formal and burdensome impediments in the 7 litigation process. See Howey v. U.S., 481 F.2d 1187, 1190 (9th Cir. 1973). Unless undue [8] prejudice to the opposing party will result, a trial judge should permit a party to amend its [9] complaint. See Hougham, 364 U.S. at 310; Breier v. Northern California Bowing Proprietors’ [10] Ass’n., 316 F.2d 787 (9th Cir. 1963); Middle Atlantic Utilities Co. v. S.M.W. Development Corp., [12] 392 F.2d 380 (2d Cir. 1968); and 3 Moore’s Federal Practice § 15.08. It’s evident that the 13 precedent in federal courts is to liberally and freely utilize their discretion to grant leave to [14] amend in instances such as this. [15] The federal Courts’ liberal policy favoring amendment strongly supports granting the [16] 17 Plaintiffs’ instant Motion for leave to amend to file an amended complaint and granting the 18 Plaintiff seven (7) days from the Court’s Order to revised the DCOMP as needed before filing it. [19] III. [20] CONCLUSION [21] Respectfully, based upon the foregoing, the Plaintiffs’ request for relief that the Court [22] 23 grant the Plaintiffs’ Motion for leave to amend should be granted and the Plaintiffs should be 24 allowed to file an amended complaint. The Plaintiffs’ request for permission and leave to file a [25] Court ordered amended complaint within (7) days from the Court’s order that will serve as the [26] operative complaint in this matter should be granted. The Plaintiffs’ requests that the Plaintiffs [27] be allowed to revise and amend the proposed draft amended complaint (also referred to as the [28] 1 |DCOMP) should be granted. Based on the foregoing all relief in the instant Motion should be granted. The Court should grant any other favorable relief to the Plaintiff the Court feels is [3] necessary, proper or just (arising in the hearing, pleadings, record or evidence) adduced in or by [4] 5 the hearing for the instant Motion). 6 DATED this 25" day of February, 2022 ODUNZE PLLC [8] 9 __/sMIkenna Odunze/_ Ikenna Odunze, Esq. 0 ODUNZE & SWANIGAN ODUNZE PLLC 1 3651 Lindell Road Suite D #142 5 Las Vegas Nevada 89103 Telephone No. 702-943-0305 3 Facsimile No. 702-943-0233 [4] CERTIFICATE OF SERVICE 6 Pursuant to Fed. R. Civ. P. 5(b) and Section IV of District of Nevada Electronic Filing 7 | Procedures, I certify that Iam an employee of ODUNZE PLLC, and that the following g documents were served of the above MOTION FOR LEAVE TO AMEND to: g |All parties registered for electronic service in CASE NO.: 2:22-cv-00274-RFB-BNW. [0] /s/ Ikenna Odunze, Esq. 1 An employee of ODUNZE PLLC [2] ORDER 3 IT IS SO ORDERED 4 DATED: 2:41 pm, February 28, 2022 [5] 6 Gua Les WORD, 7 BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE