
    Joel THOMASON, Plaintiff, v. METROPOLITAN LIFE INSURANCE COMPANY and Verizon Employee Benefits Committee, Defendants.
    No. 3:14-CV-0086-P
    United States District Court, N.D. Texas, Dallas Division.
    Signed February 25, 2016
    
      James L. Johnson, The Johnson Law Firm, Dallas, TX, for Plaintiff.
    Linda G. Moore, Estes Okon Thorne & Carr PLLC, Dallas, TX, for Defendants.
   ORDER

JORGE A. SOLIS, UNITED STATES DISTRICT JUDGE

Now before the Court is Plaintiff Joel Thomason’s (“Thomason”) Motion for Summary Judgment, filed on March 5, 2015. Doc. 58. Defendants Metropolitan Life Insurance Company (“MetLife”) and Verizon Employee Benefits Committee (“VEBC”) filed a response on April 10, 2015. Doc. 81. Thomason filed a reply on April 24, 2015. Doc.87.

Also before the Court is Defendants’ Motion for Partial Summary Judgment, filed on April 2, 2015. Doc. 74. Thomason filed a response on April 7, 2015. Doc. 77. Defendants filed a reply on April 21, 2015. Doc. 84.

The Court also reviews Thomason’s Objections to Defendants’ Summary Judgment Evidence, filed April 8, 2015. Doc. 80. Defendants filed a response on April 22, 2015. Doc. 85. Thomason filed a reply on April 30, 2015. Doc. 92.

Also before the Court is Thomason’s Objections to Defendants’ Additional Summary Judgment Evidence, filed on April 24, 2015. Doc. 88. Defendants filed a response on May 8, 2015. Doc. 93. Tho-mason filed a reply on May 14, 2015. Doc. 96.

After reviewing the parties’ briefing, the evidence, and the applicable law, the Court partially GRANTS Thomason’s Motion for Summary Judgment (Doc. 58) and DENIES Defendants’ Motion for Partial Summary Judgment (Doc. 74). The Court also finds Thomason’s objections MOOT. Docs. 80, 88.

I. Background

This case involves a dispute as to whether an offset was properly taken against the monthly long-term disability (“LTD”) benefit payments to Thomason under YEBC’s Plan for Group Insurance (the “Plan”). The Plan is an employee welfare benefit plan governed by the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§ 1001 — 1461 (“ERISA”). Doe. 76 at 54. Here, Met-Life, as the LTD claim administrator, is vested with discretionary authority to adjudicate LTD claims and interpret the terms of the Plan. Id. at 48-49. The Plan is thoroughly explained through the Summary Plan Description (“SPD”). The SPD provides that certain benefits are offset from the LTD benefit amount, including “[pjension benefits from a Verizon pension plan, if you elect to receive them.” Doc. 76 at 39. Notably, however, the SPD is incorporated into the Plan by reference. Doc. 75 at 6 (citing Doc. 76 at 11).

Both parties now move for summary judgment.

II. Motion for Summary Judgment

Under Fed.R.Civ.P. 56(a), courts “grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “[T]he substantive law will identify which facts are material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The party seeking summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To determine whether summary judgment is proper, the courts view the record and all reasonable inferences drawn from the record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Once the moving party has carried its initial burden, the party opposing the motion must come forward with competent summary judgment evidence showing the existence of a genuine fact dispute. Id. at 586-87, 106 S.Ct. 1348. The party defending against a summary judgment motion cannot defeat the motion without providing specific facts demonstrating a genuine dispute of material fact. Anderson, 477 U.S. at 247-8, 106 S.Ct. 2505; accord Fed. R.Civ.P. 56(c). Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment. See Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505; accord Fed.R.Civ.P. 56(c). In other words, “conclusory statements, speculation, and unsubstantiated assertions cannot defeat a motion for summary judgment.” RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir.2010). Courts have no duty, furthermore, to search the record for a material disputed fact. See id.; Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir.2012).

III. ERISA Summary Plan Interpretation

This case requires the Court to interpret an ERISA summary plan description. Thomason and MetLife disagree over the relevant standards of interpretation. The Plan, which incorporates the SPD, states that certain benefits are offset from the LTD benefit amount, including “[pjension benefits from a Verizon pension plan, if you elect to receive them.” Doc. 76 at 39 (emphasis added).

Thomason contends that he did not “receive” the pension benefits because he rolled his lumpsum pension payment into a personal individual retirement account (“IRA”). Doc. 78 at 3. Defendants disagree, contending that the money was received when MetLife delivered the lump-sum payment. Doc. 75 at 8-10. In other words, the bulk of this dispute is over the definition of the word “receive” and what standard of interpretation the Court should use to interpret it.

How to interpret an ERISA plan by itself is not in dispute. Benefit determinations under an ERISA plan are governed in the first instance by the plan language. Gosselink v. AT & T, Inc., 272 F.3d 722, 726 (5th Cir.2001). Courts in the Fifth Circuit use a two-step review process in determining whether a benefit decision involving the interpretation of a plan is an abuse of discretion. Wildbur v. ARCO Chem. Co., 974 F.2d 631, 637-38 (5th Cir. 1992). Under the two-step process, a court must first determine the legally correct interpretation of the applicable plan provisions. Id. at 638. If the administrator’s interpretation of the plan is legally correct, the inquiry ends because no abuse of discretion could have occurred. See Ellis v. Liberty Life Assurance Co. of Boston, 394 F.3d 262, 270 (5th Cir.2004). In answering this question, a court must consider: “(1) whether the administrator has given the plan a uniform construction, (2) whether the interpretation is consistent with a fair reading of the plan, and (3) any unanticipated costs resulting from different interpretations of the plan.” Id. If a court applies these factors and concludes that an administrator’s interpretation of a plan was legally incorrect, “three additional factors become relevant” to determine whether the administrator abused his discretion. Wildbur, 974 F.2d at 638. These factors are “(1) the internal consistency of the plan under the administrator’s interpretation, (2) any relevant regulations formulated by the appropriate administrative agencies, and (3) the factual background of the determination and any inferences of lack of good faith.” Id.

Defendants’ apply this two-step review and factor analysis in their briefing and conclude that' MetLife’s conclusion was legally correct and not an abuse of discretion. See Doc. 82 at 2-3, 11-3; 75 at 13-20. Thomason argues that different factors apply and that, under the correct factors, the administrator’s conclusion was legally incorrect and an abuse of discretion.

A. Legally Incorrect Interpretation

In applying the first step, Defendants argue that the administrator’s conclusion was legally correct because Metlife gave the Plan a uniform construction, its interpretation was consistent with a fair reading of the plan, and Thomason’s interpretation of the Plan would impose unanticipated costs on VEBC. Doe. 75 at 13-20.

Thomason contends that the dispute is not simply over how to interpret an ERISA plan, but over how to interpret an ERISA summary plan description, for which the Fifth Circuit uses a different standard. Doc. 59 at 6-9. Citing Rhorer v. Raytheon Engineers and Constructors, Thomason asserts that “[t]he first step is ordinarily comprised of three factors, but they are not considered at all when the question involves the interpretation of a summary plan description, rather than of a plan document.” Id. at 11 (citing 181 F.3d 634, 640 n. 7 (5th Cir.1999)).

In Rhorer, the Fifth Circuit held that the three factors generally used to interpret whether a plan administrator’s interpretation is legally correct — the first step of the two-step review process — were not particularly helpful to its analysis. 181 F.3d 634 at 640 n. 7. It stated that in such instances the court “will use more particularized standards.” Id. In explaining the standard for summary plan descriptions, the court cited to past case law and the ERISA statute:

A summary plan description of any employee benefit plan shall be furnished to participants and beneficiaries ... The summary plan description shall ... be written in a manner calculated to be understood by the average plan participant, and shall be sufficiently accurate and comprehensive to reasonably apprise such participants and beneficiaries of their rights and obligations under the plan.

Id. (citing Hansen v. Continental Ins. Co., 940 F.2d 971, 980 (5th Cir.1991) (quoting 29 U.S.C. § 1022(a))). The court also concluded that a summary plan description interpretation includes “the rule of contra proferentem [ ]. that ambiguities in contracts are to be resolved against the drafter.” Id. at 640 — 41 (citing Hansen, 940 F.2d at 982).

Defendants argue that the rule of contra proferentum does not apply. Doc. 82 at 5-6. They assert that because the summary plan is expressly incorporated into the plan by reference “the distinction that [Thomason] attempts to create between interpreting the terms of the Plan and interpreting the [summary plan] is unsound.” Id. at 5. Thomason responds that incorporating the terms of the summary plan description into the plan does not change how the summary plan description is interpreted. See Doc. 87 at 5.

This Court agrees with Thomason. The Fifth Circuit in Koehler v. Aetna Health specifically held that using identical language in both plan and plan summary description does not cloak the terms of a summary plan description within an administrator’s interpretive discretion. 683 F.3d 182, 188-89 (5th Cir.2012) (citing Hansen, 940 F.2d at 981; Rhorer, 181 F.3d at 641). “Aetna’s discretion to resolve ambiguities in the plan does not extend to the plan summary, notwithstanding that in this instance the summary is a verbatim copy of text in the plan.” Id. at 188.

Defendants next attempt to escape the summary plan interpretation standard by criticizing Thomason’s reliance on the Ninth Circuit decision in Blankenship v. Liberty Life Assurance Company of Boston, 486 F.3d 620, 625-27 (9th Cir.2007). Doc. 75 at 16. Defendants cite Day v. AT & T Disability Income Plan, 698 F.3d 1091, 1098 (9th Cir.2012) in which the Ninth Circuit later limited application of the rule of contra proferentem to cases in which the administrator does not have discretion to interpret the plan. Doc. 75 at 17. The Fifth Circuit has not. See Rhorer, 181 F.3d at 642. The Court thus holds that it is bound by Koehler and its line of cases to apply the more exacting summary plan interpretation standard.

Finally, Defendants argue that contra proferentum does not apply because no ambiguity exists. Doc. 82 at 5-6. In support, they cite a Dallas Court of Appeals case which, under somewhat similar facts, held that there was no ambiguity to construe against the drafters. Id. (citing Phillips v. Metro. Life Ins. Co., 405 S.W.3d 880, 901 (Tex.App.-Dallas 2013)). Thomason disagrees and argues that the document language includes “conflicting inferences.” Doc. 59 at 14. Furthermore, Thomason argues that Phillips was wrongly decided. Doc. 59 at 27.

The Court understands that for contra proferentem to apply, even under the summary plan description standard required by the above case law, there must be some ambiguity. A plaintiff challenging a plan summary description does not merit the doctrine of contra proferentem simply by asserting that the definition of “is” is ambiguous. In Rhorer, the Fifth Circuit held that when “a reasonable plan participant could not read the summary plan description and know with any degree of certainty[,]” the summary plan description was ambiguous. 181 F.3d at 642.

The facts of Rhorer are the most analogous to the current case. A plan administrator denied a widow’s claim “on the ground that her deceased husband had not satisfied a requirement in the policy that required [him] to be actively at work on a full time basis.” 181 F.3d at 637. The widow contended that the summary plan description failed to adequately disclose this requirement. Id. at 638. The court agreed, holding that a conflicting inference arose because the general information section of the summary plan suggested that an active work requirement may apply to all benefits under the plan but that selective uses of the active work requirement in individual sections strongly implied the opposite. Id. at 642. The Court thus applied contra proferentem. Id. at 642.

In this case, the summary plan states that certain benefits are offset from the LTD benefit amount, including “[p]ension benefits from a Verizon pension plan, if you elect to receive them.” Doc. 76 at 39. Thomason asserts that this means actually receive, rather than a trustee-to-trustee transfer into an IRA. Doc. 59 at 17. Defendants argue that a plan participant “receives” the pension benefit whether it is taken as cash or rolled over to an IRA. Doc. 75 at 15.

According to dictionaries, “ ‘receive’ means to ‘be given, presented with or paid (something).’ Similarly, the word means ‘to take possession or delivery of; it implies that ‘something comes or is allowed to come’ into one’s possession. Phillips v. Metro. Life Ins. Co., 405 S.W.3d 880, 901 (Tex.App.-Dallas 2013) (quoting The New Oxford American Dictionary 1421 (2001); Webster’s Third New International Dictionary of the English Language Unabridged 1894 (1981)).

Looking at the word’s context, the summary plan makes an express reference to the Verizon pension plan. Doc. 76 at 39. And the Verizon pension summary plan description, in turn, references Thomason’s right to “request a direct rollover of [his] distribution to a traditional IRA” subject to certain “tax rules.” Doc. 61 at 36. In addition, according to IRS Publication 575, a party receives the amount rolled over for tax purposes only if it is distributed from an IRA without rolling over that distribution. IRS, Dep’t of the Treasury, Publication 575, Pension and Annuity Income 27 (2014).

In Blankenship the Ninth Circuit, under similar facts, held that “receive” was ambiguous. 486 F.3d at 624-25. As here, the dispute arose from a direct rollover of retirement benefits into an IRA and the offset of the retirement benefits from LTD benefits. Id. at 622-23. The governing language of the LTD plan required that “other income benefits” be deducted from the LTD benefit if the insured “ ‘receives under the employer’s retirement plan as follows: (a) any disability benefits; (b) any retirement benefits.’ ” Id. at 623. The plaintiff argued for a definition of receipt based on possession. Id. at 624-25. The insurer argued for a definition based on control. Id. at 625. The court concluded that “receives” was therefore ambiguous. Id. In doing so, the court also pointed to the Internal Revenue Code, basing its determination on the IRA’s status as a trustee and that the funds were transferred through a trustee-to-trustee transfer. Id. (citing 26 U.S.C. §§ 401(a)(31)(A), 402(e)(6), 408(a)). Even though the Ninth Circuit has limited the rule of contra prof-erentem to cases in which the administrator does not have discretion to interpret the plan, the Court in Blankenship applied the relevant standard of interpretation under Fifth Circuit case law.

The Court recognizes that this holding conflicts with Phillips, 405 S.W.3d at 901. It is not clear to the Court whether the Phillips Court used the more particularized standard required by law. See id. at 898-99. But whether it did or not, the Court disagrees with the Phillips Court’s conclusion that the word “receive,” as used in this summary plan, is unambiguous. The Phillips Court came to its conclusion by pointing to the Verizon pension plan: “[T]he pension SPD and special tax rules repeatedly refer to the lump-sum distribution from the Verizon pension plan as ‘payment’ received by the participant.” Id. at 902. As support, Phillips cites to two sections of the SPD for the Verizon Management pension plan. Id. That SPD states that “[y]ou can receive your benefit as a single lump-sum.” Doc. 76 at 408. It later states that “[w]ith a lump-sum payment, you receive payment of your entire accrued benefit in a single payment.” Id. at 433. Although this language shows, albeit in a separate SPD document, that Thomason could have received the benefit as a lump sum, it sheds little light on the issue at hand — whether rolling over the benefits into an IRA is considered receiving them.

The Phillips Court next points to language from IRS Publication 575, the same document pointed to by Thomason as proof that “receives” means to actually receive. The Phillips Court, however, cited to different language, stating that “[y]ou generally must complete the rollover of an eligible rollover distribution paid to you by the 60th day following the day on which you receive the distribution from your employer’s plan.” Id. at 112. This shows that rolling over benefits into an IRA can follow the reception of distributions. But just because one can receive a distribution and then also later complete a rollover does not mean that all rollovers include the reception of a distribution. Id. (compare the “No tax withheld” paragraph with the “Payment to you option” paragraph). A party electing a direct rollover apparently need not actually receive anything. Id. at 112. Therefore, the Court remains convinced that a reasonable plan participant could not read the summary plan description and know with any degree of certainty what “receive” means.

For these reasons, the Court finds that both of the requested interpretations are reasonable so that a conflicting inference exists, justifying the application of contra proferentem. Applying contra proferen-tem, the Court construes the term “receives” to mean possession through actual receipt of funds, rather than through a trustee-to-trustee transfer under the tax code. The Court therefore concludes that the administrator’s interpretation is incorrect and grants Thomason’s motion for summary judgment as to this issue.

B. Abuse of Discretion

Thomason and Defendants also ask for summary judgment over the second step in the two-step analysis. Docs. 59 at 12; 75 at 20. Now that the Court has concluded that the administrator’s interpretation was legally incorrect, it must apply the three additional factors to determine whether the administrator abused his discretion. Wildbur, 974 F.2d at 638. As mentioned above, these factors are “(1) the internal consistency of the plan under the administrator’s interpretation, (2) any relevant regulations formulated by the appropriate administrative agencies, and (3) the factual background of the determination and any inferences of lack of good faith.” Id.

Yet again, the parties disagree over which factors are required when the question involves the interpretation of a summary plan description. Docs. 59 at 12; 75 at 20, 82 at 11-12. Thomason asserts that the second step ordinarily involves the above three factors but that the “first factor of the second step is not utilized when the question involves the interpretation of the summary plan description.” Doc. 59 at 12 (citing Rhorer, 181 F.3d at 643). Defendants disagree, pointing to different case law. Docs. 75 at 11, 82 at 7 (citing Dudley v. Sedgwick Claims Mgmt. Sews., 495 Fed.Appx. 470, 474 n. 10 (5th Cir. 2012)).

The answer to this disagreement is unclear. In Rhorer, the Fifth Circuit held that, when the “abuse of discretion inquiry ... is directed at [the plan administrator’s] interpretation of the summary plan description, not its interpretation of the plan itself,” the “first factor does not aid in our analysis.” 181 F.3d at 643. But since Rhorer was decided, the Supreme Court held that “the text of § 1132(a)(1)(B) does not authorize courts to enforce the terms of á plan summary, because that provision only authorizes enforcement of the 'terms of the plan.’ ” Koehler, 683 F.3d 182 at 189 (citing CIGNA Corp. v. Amara, 563 U.S. 421, 131 S.Ct. 1866, 1877, 179 L.Ed.2d 843 (2011)). In an unpublished opinion, the Fifth Circuit concluded that sipce Amara, the first factor is again relevant because plaintiffs in these circumstances are arguing over enforcement of the actual plans, not the summary plan descriptions. See Dudley, 495 Fed.Appx. at 470 n. 10. The Court recognizes that this opinion is not precedent. See 5th Cir. R. 47.5. But out of an abundance of caution, it will look to all of the above factors.

First, Defendants argue that MetLife’s interpretation is consistent with the Plan language because “[t]he pension offset provision is in the section of the [summary plan description] entitled ‘How your long-term disability (LTD) benefit is determined’ and ‘Other sources of disability income.’ ” Doc. 82 at 11. They also contend that “there is no internal inconsistency within the Plan under Metlife’s interpretation because this is the sole provision in the Plan referring to the pension offset.” Id. at 12. Thomason asserts that the first factor does not apply; therefore, he makes no arguments about it. See Doc. 59 at 12. Because the Court finds no overt inconsistency, and because it has already concluded that Defendants’ interpretation was reasonable, the Court concludes that this factor favors Defendants.

Second, Defendants assert that there is no violation of the applicable regulations. Doc. 82 at 12. In support of this position, the Defendants again cite to Phillips. Doc. 59 at 12 (citing Phillips, 405 S.W.3d at 902-03). But the part of Phillips they cite to involves application of the first-step analysis. Id. In response, Thomason also points the Court to its arguments about the first-step analysis — specifically—to the regulations cited in Rhorer that a summary plan description must “include ‘a statement clearly identifying circumstances which may result in ... loss, forfeiture or suspension of any benefits that a participant or beneficiary might otherwise reasonably expect the plan to provide on the basis of the description of benefits.’ ” Doc. 59 at 7 (citing 29 C.F.R. § 2520.102-3(1)). In addition, he states that “[t]he summary plan description ‘must not have the effect to misleading, misinforming or failing to inform participants and beneficiaries.’ ” Id. (citing C.F.R. § 2520.102-2(b)). The Court finds that MetLife’s interpretation does not satisfy these regulations— the summary plan description does not clearly identify such circumstances and it has the effect of misleading. This factor, therefore, is in favor of Thomason.

Third, Defendants argue that there is no evidence of bad faith because “VEBC’s failure to provide pension plan documents was an unintentional mistake on the part of a new vendor.” Doc. 82 at 12. They further argue that the administrative record shows that MetLife provided Thoma-son with “a full and fair review of his objections.” Id. Thomason disagrees. He argues that there are sufficient facts to infer a lack of good faith because VEBC “feigned ignorance of the internal revenue code,” failed to provide the pension plan document and trust agreement (especially in light of the fact that there was no delay in providing documents that did not support Thomason’s tax code argument), violated the regulations, and relied on an affidavit of a witness with no personal knowledge. Doc. 59 at 20-24. The Court recognizes that Defendants respond to Thomason’s allegations with factual assertions that the delay in providing the pension plan document was unintentional, that they never feigned ignorance of the tax code, and that the witness’s affidavit is proper. Doc. 82 at 12-20.

However, Defendants’ failure to provide the pension and trust documents after providing other generic documents, selective interpretation of the pension plan documents, and violation of the applicable regulations, including its decision to collapse the SPD into the Plan by reference, taken together, raise an inference of bad faith. Defendants never deny that they delayed sending the most relevant documents; they merely give explanations for their claimed mistake. Without making further determinations of fact, the Court cannot know for certain whether Defendants acted in bad faith. But Defendants’ above-listed failures do provide the Court with sufficient evidence to make a reasonable inference of bad faith. The Court thus finds that this factor also favors Thoma-son.

Because two of the three abuse-of-discretion factors fall in favor of Thomason, the Court concludes that Defendants abused their discretion and grants Thoma-son’s motion for summary judgment as to the abuse-of-discretion prong. The Court thus determines that Defendants violated 29 U.S.C. § 1132(a)(1)(B).

IV. Penalties under 29 U.S.C. § 1132(c)

Thomason also asserts a claim under 29 U.S.C. § 1132(c), arguing that VEBC’s failure to provide the pension-plan document and the trust agreement in response to his requests was a violation of 29 U.S.C. § 1024(b)(4). Doc. 59 at 3. He asks that the Court grant summary judgment in his favor. Id. In support of his motion, Thomason states that VEBC did not provide certain documents for more than 170 days after the legally required deadline. Id. at 31. Thomason also contends that VEBC acted in bad faith because it failed to provide the documents that most directly pertained to Thomason’s argument about the tax rules but provided the generic Administrative Services Agreement to Thomason without difficulty. Id. This argument mimics Thomason’s arguments in support of the final abuse of discretion factor. See supra Part III.B.

Defendants respond by pointing to evidence that any delay “was the result of an unintentional administrative mistake — not any intentional disregard of counsel’s letters or bad faith on behalf of the VEBC.” Doc. 82 at 14. Defendants also assert that Thomason “does not allege, argue or submit any evidence that he was prejudiced by the delay.” Id. at 16.

Pursuant to the express terms of § 1132(c), the imposition of any statutory penalty for an administrator’s alleged failure to timely furnish plan documents requested by a participant is within the discretion of the district court. Paris v. Profit Sharing Plan for Emp. of Howard B. Wolf Inc., 637 F.2d 357, 362 (5th Cir. 1981). In making this determination, courts consider (1) bad faith by the administrator, (2) the length of delay, (3) the number of requests, (4) the documents withheld, and (5) the existence of any prejudice to the plan participant. See Romero v. SmithKline Beecham, 309 F.3d 113, 120 (3d Cir.2002); Friz v. ADS Power Res., Inc., No. 3:00-CV-1116-D, 2001 WL 732197, at *4 (N.D.Tex. June 27, 2001) (citing Hamilton v. Mecca, Inc., 930 F.Supp. 1540,1556 (S.D.Ga.1996)).

Although the Court granted summary judgment as to Thomason’s 1132(a)(1)(B) claim, the Court here agrees with Defendants that Thomason does not allege, argue or submit any evidence that he was prejudiced by the delay. Because the Fifth Circuit seems to require some prejudice, the Court denies Thomason’s motion for summary judgment as to its claim under 29 U.S.C. § 1132(c). Bannistor v. Ull-man, 287 F.3d 394, 407 (5th Cir.2002) (citing Godwin v. Sun Life Assurance Co. of Canada, 980 F.2d 323, 327 (5th Cir.1992)).

V.Equitable Relief Under 29 U.S.C. § 1132(a)(3)

Thomason also brings a claim under 29 U.S.C. § 1132(a)(3). Doc. 1 at 3. This claim is based on Thomason’s assertion that the pension offset provision in the summary plan description is in violation of 29 U.S.C. § 1022(a) because it is not written in a manner calculated to be understood by the average plan participant and sufficiently accurate and comprehensive to reasonably apprise such participants and beneficiaries of their rights and obligations under the Plan. Id. at 19.

Defendants ask the Court to grant summary judgment in their favor against this claim. Doc. 75 at 22. They first argue that the summary plan description does not violate 29 U.S.C. § 1022(a). This argument boils down to Defendants assertion that the pension offset provision was not ambiguous. See Docs. 75 at 22, 84 at 16. Based on arguments and conclusions made above, the Court disagrees. See supra Part III.A.

Defendants next argue that Thomason did not suffer harm. Doc. 75 at 22. Tho-mason responds by asserting that “if the summary plan descriptions had clearly revealed that a direct rollover to an IRA would count as an offset from his LTD benefits, Thomason would have deferred payment of his pension benefits until he reached the age of 65 years, thereby avoiding the offset.” Doc. 78 at 21. In support of their contention of no harm, Defendants assert that Thomason cannot prove harm because he was represented by the same counsel who represented the plaintiff in Phillips. Doc.75 at 23. The Court sees no legal support for this argument.

For these reasons, the Court denies this portion of Defendants’ motion for summary judgment. Furthermore, although Thomason did not specifically move for summary judgment on this claim, the Court grants summary judgment in Tho-mason’s favor as to 29 U.S.C. § 1132(a)(3). The Court comes to this conclusion because Thomason has already shown as a matter of law that he is entitled to summary judgment under § 1132(a)(1)(B), which requires a more extensive burden of production. In addition, “a district court may grant summary judgment against a movant even if the nonmovant has not filed a cross-motion.” U.S. Cellular Corp. v. City of Wichita Falls, Tex., 364 F.3d 250, 255 n. 6 (5th Cir.2004); see also, General Universal Sys. v. Lee, 379 F.3d 131, 145 (5th Cir.2004). Because the above issues overlap, the Court concludes that the relevant circumstances have been sufficiently presented for its grant of summary to the nonmovant to be proper.

VI. Objections

Because the Court did not rely on the evidence that Thomason asserts should be excludable, the Court finds his motions moot as they relate to this order. Docs. 80, 88.

VII. Conclusion

For the foregoing reasons, the Court partially GRANTS and partially DENIES Thomason’s Motion for Summary Judgment. Doc. 58. The Court DENIES Defendants’ Motion for Partial Summary Judgment. Doc. 74.

The Court finds Thomason’s Objections to Defendants’ Summary Judgment Evidence (Doe. 80) and Objections to Defendants’ Additional Summary Judgment Evidence (Doc. 88) MOOT.

IT IS SO ORDERED. 
      
      . This subdivision "carries forward the summary judgment standard expressed in former subdivision (c),” with only one non-substantive change — replacing "issue” with "dispute.” Fed.R.Civ.P. 56 advisory committee notes (2010 amend.). Despite the 2010 amendments, the summary judgment standard "remains unchanged." Id.
      
     
      
      
        . The Court also recognizes that some might conclude that Amara eliminated the “more particularized” review of whether a claim administrator’s interpretation of a summary plan description is legally correct. However, Koehler was decided after Amara and specifically rejected such a conclusion. 683 F.3d at 189-90.
     
      
      . The Supreme Court in Amara held that, depending on the remedy sought, a plaintiff cannot pursue a claim to “litigate the interpretation of an SPD under § 1132(a)(1)(B).” Dudley., 495 Fed.Appx. at 474 n. 10. But the relief that Thomason seeks is for Defendants to pay him “wrongfully withheld” benefits. Doc. 1 at ¶ 61. And the Fifth Circuit in Koeh-ler makes clear that Amara does not bar a suit to enforce a plan. See Koehler v. Aetna Health Inc., 683 F.3d 182, 188-89 Order (5th Cir. 2012). In this case, the SPD is incorporated into the plan by reference; thus Thomason’s arguments regarding the proper interpretation of the SPD are merely part of his action to enforce the plan. Doc. 76 at 11. Unlike in Amara, Thomason does not ask the Court to rewrite the terms of his plan. Furthermore, even if § 1132(a)(1)(B) does not provide the remedy Thomason seeks, the Court comes to the same conclusion under § 1132(a)(3), which unequivocally does provide such a remedy. See infra Part V; Amara, 131 S.Ct. at 1878-82.
     