Curtis Lee v. Ing Groep, N.V.

ORDER

Judges Farris and O’Scannlain vote to deny Appellant’s Petition for Panel Rehearing; Judge Christen votes to deny as to Part I of the Petition and would grant as to Part II of the Petition.

The memorandum disposition filed on July 25, 2016 is hereby, withdrawn; the memorandum disposition submitted simultaneously with this Order shall be filed in its place.

The Petition for Panel Rehearing is DENIED. No further petitions for rehearing will be entertained in this appeal.

MEMORANDUM *

Curtis Lee is a former employee of ING Investment Management, LLC. In 2008, Lee was diagnosed with a serious medical condition. Lee applied for and received long term disability benefits, beginning in January 2009. Those long term disability benefits were terminated as of December 2009. Lee did not return to work, and was fired in June 2010. Lee then filed this lawsuit against his former employer and various insurance companies, alleging, inter alia, that his long term disability benefits were wrongfully terminated, and that he was fired in retaliation for exercising his rights under the Employee Retirement Income Security Act of 1974. See 29 U.S.C. §§ 1132 , 1140. The district court granted…

dissenting in part:

I write separately for two reasons. First, in my view, ING Investment Management did not establish as a matter of law that Lee knew or reasonably should have known of a possible claim for retaliatory discharge when ING fired him. See Santa Maria v. Pac. Bell, 202 F.3d 1170, 1178 (9th Cir. 2000), overruled on other grounds by Socop-Gonzalez v. I.N.S., 272 F.3d 1176, 1194-96 (9th Cir. 2001) (en banc). Our case law is clear that “equitable tolling does not postpone the statute of limitations until the existence of a claim is a virtual certainty,” id. but neither does it exempt a party from complying with Rule 11. Because Rule 11 required Lee to have a reasonable belief that his claim had a “sound basis” in fact before bringing suit, and because the record supports Lee’s argument that he could not have reasonably held such a belief until nearly a year after he was discharged, I would reverse the district court’s order granting summary judgment. Golden Eagle Distrib. Corp. v. Burroughs Corp., 801 F.2d 1531, 1538 (9th Cir. 1986).

After Lee missed over a year of work due to a serious medical condition, and after months of strong disagreement between Lee and ING…

FILED

NOT FOR PUBLICATION

OCT 28 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CURTIS F. LEE, No. 14-15848

Plaintiff-Appellant, D.C. No. 2:12-cv-00042-ROS District of Arizona, v. Phoenix

ING GROEP, N.V., a Dutch entity;

RELIASTAR LIFE INSURANCE ORDER

COMPANY, a Minnesota corporation;

ING EMPLOYEE BENEFITS

DISABILITY MANAGEMENT

SERVICES, a Minnesota corporation; ING

NORTH AMERICA INSURANCE

CORPORATION, a Delaware corporation;

ING INVESTMENT MANAGEMENT,

LLC, a Delaware limited liability company; KIMBERLY SHATTUCK; GENERAL RE CORPORATION, a Delaware corporation,

Defendants-Appellees.

CURTIS F. LEE, No. 14-15936

Plaintiff-Appellee, D.C. No. 2:12-cv-00042-ROS District of Arizona, v. Phoenix

ING NORTH AMERICA INSURANCE

CORPORATION, a Delaware corporation, Defendant-Appellant,

and

GENERAL RE CORPORATION, a Delaware corporation; ING EMPLOYEE

BENEFITS DISABILITY

MANAGEMENT SERVICES, a Minnesota corporation; RELIASTAR LIFE INSURANCE…