BRIAN TED STEWART, District Judge
This matter is before the court on Defendant Telos' Motion to Dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), on the grounds that the claim against it added by the Amended Complaint is barred by the statute of limitations.
The standard for considering a Fed.R.Civ.P. 12(b)(6) motion is as follows:
A Rule 12(b)(6) motion to dismiss may be granted only if it appears beyond a doubt that the plaintiff is unable to prove any set of facts entitling [plaintiff] to relief under her theory of recovery.
Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true."
Swanson v. Bixler, 750 F.2d 810, 813 (10th
Cir. 1984). The court must view all reasonable inferences in favor of the plaintiff, and the pleadings must be liberally construed.
Id. The issue in reviewing the sufficiency of a complaint is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support her claims.
Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002) (citations partially omitted).
Plaintiff was employed by Defendant Telos and, as such, was a beneficiary of its employee benefit plans, including long term disability insurance. Plaintiff applied for long term disability benefits. On January 3, 2001, he sought copies of the plan, the plan summary, and plan description from the insurer, Defendant Reliance. On February 21, 2001, he sought the same documents from Telos. For the purposes of this Motion, Telos does not dispute that it did not provide the requested information.
Plaintiff brought this action against Defendant Reliance in September 2001, challenging its denial of his request for long-term disability benefits. On April 15, 2004, Plaintiff filed his First Amended Complaint, adding a new count III against Telos, a new defendant, contending that Telos violated ERISA, 29 U.S.C. § 1024(b)(4), by failing to timely provide certain plan documents to Plaintiff upon his request. A related section, 29 U.S.C. § 1132(c), provides a penalty, of up to $110 a day, if the plan administrator fails to provide requested plan information within 30 days of the request.
Telos contends that the claim against it is barred by the statute of limitations. The parties agree that because § 1132 of ERISA does not contain a statue of limitations, the court must apply the most analogous state statute of limitations. Telos contends that the most analogous statute of limitations is Utah's one-year limitations period for actions "upon a statute for a penalty or forfeiture." Utah Code Ann. § 78-12-29(2). Plaintiff contends that the most analogous statute of limitations is Utah's six-year period for bringing actions upon a contract.
The court finds that the most analogous limitations period is Utah's one-year period for actions to recover penalties under a statute, § 78-12-29(2). Compare Lopez v. Premium Auto Acceptance Corp., ___ F.3d ___, 2004 WL 2445468 (5th Cir. November 2, 2004) (rejecting argument that Texas' statute of limitations for contract actions was the most analogous period for action under ERISA sections 1132(c) and 1166, and instead applying Texas' limitations period governing unfair insurance related practices) and Brightway Adolescent Hospital v. Strachan, Green and Miller, 2000 WL 3363258 (D. Utah 2000) (unpublished order reserving ruling on issue of applicable statute of limitations for § 1132(c)).
Plaintiff contends that if the one-year period were applicable, that it is tolled by the discovery rule, or in the alternative, that the Amended Complaint should relate back to the filing date of the original complaint or that it is a continuing violation.
On the issue of the relation back, there is insufficient identity of interest between Telos and Reliance to have the Amended Complaint relate back. Plaintiff argues that there is a relation back because it served "the Choices Benefit plan." However, in support, Plaintiff attaches a letter from Telos in response to the attempt to serve "the Choices Benefit Plan," stating that it is not a corporation or other legal entity and is not separate from Telos Corporation." Plaintiff's Ex. A. Because it was not an entity, Telos informed Plaintiff that it would not be filing an answer. Id.
On the issue of the discovery rule, the Amended Complaint does not allege facts sufficient to invoke the discovery rule. As noted above, Telos informed Plaintiff that its Benefit plan was not a separate entity. That information was sent on November 21, 2001, early in the limitations period, yet Plaintiff did not bring a claim against Telos for the failure to provide the information within the limitations period.
On the issue of an alleged continuing violation, Plaintiff does not cite a case applying the doctrine under the relevant sections of ERISA. On the facts alleged, the court does not find the doctrine applicable. It is therefore
ORDERED that Defendant Telos' Motion to Dismiss is GRANTED and Plaintiff's claim against defendant Telos is DISMISSED.