Plaintiff’s Motion for Order Finding That Certain Factual Allegations In Plaintiff’s Original Complaint Are Admitted and Brief In Support Thereof

Doe v. Life Insurance Company of North America, et al.

Description: This brief involves an ERISA lawsuit filed by the Plaintiff over the wrongful denial of insurance death benefits by the Defendants in the accidental drowning of the Plaintiff’s husband. The Defendants each filed separate answers to the Plaintiff’s Complaint. These responses failed to directly admit or deny factual allegations made by the Plaintiff in her Complaint, which the Defendants are required to do under the Federal Rules of Civil Procedure. The Plaintiff’s response asks the Court to enter a finding that these unaddressed factual allegations have been admitted by the Defendants and can be treated as stipulated facts throughout the lawsuit.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JANE DOE

Plaintiff,

v.

LIFE INSURANCE COMPANY OF NORTH AMERICA, CIGNA, CIGNA GROUP INSURANCE, THE GROUP LIFE AND HEALTH BENEFITS PLAN FOR EMPLOYEES OF PARTICIPATING AMR CORPORATION SUBSIDIARIES, and AMERICAN AIRLINES, INC.

Defendants.

 

 

 

 

CIVIL ACTION NO. 4:15-cv-00875-O

PLAINTIFF’S MOTION FOR ORDER FINDING THAT CERTAIN FACTUAL ALLEGATIONS IN PLAINTIFF’S ORIGINAL COMPLAINT ARE ADMITTED AND BRIEF IN SUPPORT THEREOF

Plaintiff Jane Doe files this Motion For Order Finding That Certain Factual Allegations In Plaintiff’s Original Complaint Are Admitted and Brief In Support Thereof and would show as follows:

I.

Introduction

On November 17, 2015, Plaintiff filed her Complaint in this lawsuit (Dkt 1): an ERISA lawsuit seeking death benefits as a result of the accidental drowning of Plaintiff’s husband – a claim which was denied by Defendants.

On January 1, 2016, Defendant Life Insurance Company of North America (“LINA”), Defendant The Group Life and Health Benefits Plan for Employees of Participating AMR Corporation Subsidiaries (“The Plan”) and Defendant American Airlines, Inc. (“AA”) each filed separate answers to Plaintiff’s Complaint (Dkts 14, 16 & 18).[1]   In doing so, for numerous factual allegations made by Plaintiff in the Complaint, in their answers, Defendants wholly failed to either admit or deny such factual allegation as required by Fed. R. Civ. P. 8(b)(2).  As a result, for each such factual allegation made by Plaintiff which Defendants failed to either admit or deny, such allegations have been deemed admitted true by Defendants and Plaintiff brings this motion asking this Court for an order finding such.

II.

Specific Factual Allegations Which Have Been Admitted by Defendant by

Virtue of Their Refusal to Admit or Deny Them

In Plaintiff’s Complaint, there are thirty-six (36) separate factual allegations that Defendant failed and refused to either admit or deny as they were required to do pursuant to Fed. R. Civ. P. (8)(b)(2).  As a result, these facts have been admitted by Defendants as an operation of law and Plaintiff hereby requests this Court to enter a finding that the following thirty-six (36) facts have been admitted by Defendant and can be treated as admitted stipulated facts throughout this lawsuit:

  1. According to The Plan’s Summary Plan Description, “The Plan’s AD&D and VPAI are provided under group insurance policies issued by the Life Insurance Company of North America (LINA)”. (See Plaintiff’s Complaint, Paragraph 23).
  2. According to The Plan’s Summary Plan Description, “CIGNA processes all claims for LINA.” (Id., Paragraph 24).
  3. Dr. Salzberger concluded that John Doe’s death was caused by drowning. (Id., Paragraph 32).
  4. Dr. Salzberger concluded that John Doe’s death was an accident. (Id., Paragraph 33).
  5. “Drowning” is the only cause of death listed on John Doe’s death certificate. (Id., Paragraph 34).
  6. Plaintiff’s second appeal was denied by a letter dated September 24, 2015 stating that “all administrative levels of appeal have been exhausted and we cannot honor any further appeals on this claim.” (Id., Paragraph 49).
  7. In the Supplemental Autopsy Report, Dr. Salzberger found no evidence or proof that John Doe sustained a heart related event prior to or contemporaneous to his death. (Id., Paragraph 56).
  8. In the Supplemental Autopsy Report, Dr. Salzberger stated that “to conclude that a natural event actually did precipitate the drowning would be pure speculation”. (Id., Paragraph 58).
  9. In the Supplemental Autopsy Report, Dr. Salzberger stated that she “found no evidence of an acute cardiac event at autopsy”. (Id., Paragraph 60).
  10. In the Supplemental Autopsy Report, Dr. Salzberger stated that Mr. Doe’s cause of death was drowning. (Id., Paragraph 63).
  11. Dr. Denton acknowledged and wrote in his report that “[t]he current consensus in forensic pathology is that deaths such as Mr. Doe’s are best certified as accident [.]”(Id., Paragraph 68).
  12. Dr. Salzberger stated in the autopsy of John Doe that she found “no evidence of an acute cardiac event at autopsy”; explained that “to conclude that a natural event [i.e., Richard’s heart] actually did precipitate the drowning would be pure speculation”; stated that “[]it is not uncommon for adults who know how to swim to drown, especially when alcohol use is involved” and “[o]f note, Mr. Doe was intoxicated at the time of his drowning”; and ultimately concluded “[b]ased on the scene, circumstances and autopsy findings, Mr. Doe’s cause of death is drowning” and “[t]he manner is accident.” (Id., Paragraph 72).
  13. The Willey Report found that “Mr. Doe drowned.” (Id., Paragraph 76).
  14. The Willey Report found that “Mr. Doe’s death was an accident.” (Id., Paragraph 78).
  15. The Willey Report found that “There is no evidence to support Mr. Doe died because of his heart disease.” (Id., Paragraph 80).
  16. The Willey Report found that Mr. Doe “had consumed potable alcohol”. (Id., Paragraph 82).
  17. The Willey Report found that Mr. Doe’s “blood alcohol was 0.118%, sufficiently intoxicating to be disabling to drive a vehicle.” (Id., Paragraph 84).
  18. The Willey Report found that “alcoholic intoxication and drowning are a frequently observed combination.” (Id., Paragraph 86).
  19. The Willey Report found that “Mr. Doe had elected to swim in the dark in a pool which had underwater lights and a waterfall.” (Id., Paragraph 88).
  20. The Willey Report found that “[e]ntering water creates weightlessness with sensory deprivation confounded by darkness, underwater lighting, and sounds of waterfall.” (Id., Paragraph 90).
  21. The Willey Report found that Mr. Doe was in “a hazardous environment.” (Id., Paragraph 92).
  22. The Willey Report found that up to the time of his death, “Mr. Doe was functional, living independently.” (Id., Paragraph 94).
  23. The Willey Report found that “There is no evidence [Mr. Doe] was disabled by his heart disease.” (Id., Paragraph 96).
  24. The Willey Report found that “There is no indication [Mr. Doe] suffered heart failure, nor adverse cardiac signs or symptoms.” (Id., Paragraph 98).
  25. The Willey Report found that “[i]nterrogation of Mr. Doe’s pacemaker showed no abnormalities from April to the time his demise was assumed.” (Id., Paragraph 100).
  26. The Willey Report found that “Mr. Doe survived with his coronary artery disease.” (Id., Paragraph 102).
  27. The Willey Report found that “[i]t is common to find extensive coronary artery disease in autopsied subjects who die from other established causes.” (Id., Paragraph 104).
  28. The Willey Report found “[t]here was no acute change such as coronary artery thrombosis to suggest a cause of death.”  (Id., Paragraph 106).
  29. The Willey Report found that “[c]ollateral circulation was sufficient to sustain adequate perfusion to heart muscle.” (Id., Paragraph 108).
  30. The Willey Report found that “[s]pontaneous development of cardiac arrhythmia causing drowning is not scientifically distinguishable from drowning causing the same electrocardiographic abnormalities.” (Id., Paragraph 111).
  31. The Willey Report found that“[w]ere Mr. Doe to have suffered sudden death while immersed, he would not have had vital activity necessary to inhale water, cause extensive pulmonary edema, foam in his airways, and water in his sphenoid sinus.” (Id., Paragraph 113).
  32. The Willey Report found that “[i]t is guessing to say Mr. Doe died at 10:23 p.m.” (Id., Paragraph 115).
  33. The Willey Report found that “[t]o state [that] Mr. Doe actually did become incapacitated by cardiac disease is speculative.” (Id., Paragraph 117).
  34. The Willey Report found that Mr. Doe’s “death was an accident.” (Id., Paragraph 119).
  35. The Willey Report found that “There is no evidence to support [Mr. Doe] died because of his heart disease.” (Id., Paragraph 121).
  36. The Policy excludes losses caused by a disease but does not exclude losses caused by accidents that were caused by a disease. (Id., Paragraph 162).

III.

RULE 8

A.    The Rule

Rule 8(b)(1)(B) of the Fed. R. Civ. P. sets forth as follows:

(b)        Defenses: Admissions and Denials

(1)               In General.  In responding to a pleading, a party must:

(b)        admit or deny the allegations asserted against it by an opposing party.

Rule 8(b)(6) of the Fed. R. Civ. P. sets forth as follows:

(6)        Effect of Failing to Deny.   An allegation – other than one relating to the amount of damages – is admitted if a responsive pleading is required and the allegation is not denied.  If a responsive pleading is not required, an allegation is considered denied or avoided.

Fed. R. Civ. P.  8.

B.     The Law Interpreting Rule 8

1.      There are only 3 permissible ways to respond to an allegation in a complaint.

Federal Rule of Civil Procedure 8 requires a defendant responding to a complaint to “admit or deny the allegations asserted against it by an opposing party.” Fed.R.Civ.P. 8(b)(1)(B). An allegation of the complaint is admitted if “a responsive pleading is required and the allegation is not denied.” Fed.R.Civ.P. 8(b)(6). However, in addition to denial or admission, the rule permits a third type of response. A party may respond that it “lacks knowledge or information sufficient to form a belief about the truth of an allegation,” which has the effect of a denial. Fed.R.Civ.P. 8(b)(5). Therefore, the rule permits only three possible responses to a complaint:

(1)               outright admission;

(2)               outright denial; or

(3)               a disclaimer statement in compliance with Rule 8(b)’s provision for lack of knowledge or information as the basis for a deemed denial.

See Hotel Emples. & Restaurant Emples. Int’l Union Welfare Fund v. Aramark Servs., Inc., No. 99 C 5726, 1999 U.S. Dist. LEXIS 17375, 1999 WL 1016260 (N.D.Ill., Nov.4, 1999), at *2; Duff v. Reiser, No. 94 C 4693, 1995 U.S. Dist. LEXIS 3946, at *2, 1995 WL 144519 (N.D.Ill. Mar.27, 1995); Mid-Continent Resource Recovery v. Shred Pax Corp., No. 94 C 6689, 1995 U.S. Dist. LEXIS 179, at *1, 1995 WL 12229 (N.D.Ill., Jan. 4, 1995); Cagan v. Intervest Midwest Real Estate Corp., No. 90 C 4941, 1990 U.S. Dist. LEXIS 14994, at *1, 1990 WL 179710 (N.D.Ill. Oct. 12, 1990); Thompson v. Ret. Plan for Employees of S.C. Johnson & Sons, Inc., No. 07-CV-1047, 2008 WL 5377712, at *1-2 (E.D. Wis. Dec. 22, 2008).

2.      Refusing to answer an allegation because it calls for a “legal conclusion” is improper

Rule 8 does not permit a defendant to respond only by stating that the plaintiff’s allegations “constitute conclusions of law.” State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D.Ill.2001) (“Another regular offender is the lawyer who takes it on himself or herself to decline to respond to an allegation because it ‘states a legal conclusion.’ That of course violates the express Rule 8(b) requirement that all allegations must be responded to.”); See also Hotel Emples. & Restaurant Emples., 1999 U.S. Dist. LEXIS 17375, at *2, 1999 WL 1016260. Indeed, legal conclusions are an “integral part of the federal notice pleading regime.” Id; See also Jackson v. Marion County, 66 F.3d 151, 153 (7th Cir.1995) (“… a plaintiff in a suit in federal court need not plead facts, he can plead conclusions.”). Therefore, legal conclusions must be addressed in one of the three ways contemplated by Rule 8. *2

3.      Refusing to answer an allegation by referring to a document that “speaks for itself” is improper

Rule 8 does not permit a defendant to respond that the document “speaks for itself.” State Farm Mut. Auto. Ins. Co., 199 F.R.D. at 279. This prohibition applies even if the “document speaks for itself” response is suggested instead of stated explicitly. Rudzinski v. Metropolitan Life Ins. Co., Case No. 05 C 0474, 2007 U.S. Dist. LEXIS 75668, at *10-11, 2007 WL 2973830 (N.D.Ill., Oct. 4, 2007) (stating that a defendant may not simply employ “summarizing language” and then state, “essentially, that the terms of the referenced documents speak for themselves.”). In any event, such a response is inadequate and the allegations are admitted. Thompson v. Ret. Plan for Employees of S.C. Johnson & Sons, Inc., No. 07-CV-1047, 2008 WL 5377712, at *1-2 (E.D. Wis. Dec. 22, 2008); Lane, 272 F.R.D. at 602-603 (“Responses that documents speak for themselves and that allegations are legal conclusions do not comply with Rule 8(b)’s requirements.”); McSweeney v. Janes, 14-CV-00456-REB-MEH, 2014 WL 3707788, at *2 (D. Colo. July 24, 2014) (“Responses that documents speak for themselves do not comply with Rule 8(b)’s requirement.”).

4.      The law requires direct, non-evasive responses to every allegation

In short, defendants cannot play games with their pleadings and try avoid admitting certain facts by an elaborate game of “look over there” and “see what this document says”, etc.  Defendants are required to, in a very straight-forward non-evasive manner, advise the Court and opposing counsel if an allegation that has been made is admitted and agreed to or it is not.  It is through this process that litigants, and the Court, can narrow the issues in dispute and insure that a case is properly prepared for trial.

The only permissible responses to a complaint under Fed.R.Civ.P. 8(b) are admission, denial, or a statement of the absence of both knowledge and information sufficient to form a belief. The rules simply do not approve or permit other types of responses. See Gilbert v. Johnston, 127 F.R.D. 145, 146 (N.D.Ill.1989).

Under Rule 8(b)(6), an allegation is admitted “if a responsive pleading is required and the allegation is not denied.” Milton v. Gen. Dynamics Ordnance & Tactical Sys., Inc., 3:11-CV-555-JPG-DGW, 2011 WL 4708637, at *1 (S.D. Ill. Oct. 4, 2011).

IV.

This is a lawsuit concerning the denial of insurance benefits.  This necessarily means a review of the documentation submitted to Defendants in support of such insurance claim and what such documentation says is of high relevance in this case.   In short, unlike in some lawsuits where only first party accounts of substantive underlying facts are of relevance (such as in a wrongful death case perhaps), in this ERISA insurance claim lawsuit, what the documents that the Defendants had in their possession when they denied Plaintiff’s claim say about the underlying facts may be even more crucial than the underlying facts themselves.  As a result, in addition to pleading various underlying facts regarding the circumstances surrounding the death of Plaintiff’s husband, Plaintiff has, in her Complaint, made numerous allegations about what particular specific documents said.  However, Defendants failed to admit or deny such allegations and, in most instances, simply made a “counter-allegation” about such fact – which is neither allowed by the Federal Rules of Civil Procedure nor appropriate in any regard.

V.

DEFENDANTS’ RESPONSES

A.    Defendants allege documents speak for themselves and are the “best evidence”

In response to thirty-six (36) separate allegations in Plaintiff’s Complaint, the Defendant did not admit such allegation; did not deny such allegation and did not aver that they could do neither.   Instead, they made a counter allegation as follows:

Defendant alleges [the document at issue] is the best evidence of its contents and Defendant denies any attempts to expand, modify, qualify or characterize same.

As set forth above, this is a wholly inappropriate response.  This doesn’t tell the Plaintiff or the Court if this fact is in dispute in this lawsuit or not.   This doesn’t give the Plaintiff or the Court any information regarding direction on what facts need to be litigated and what facts are in agreement.

Defendants’ counsel has suggested to Plaintiff’s counsel that such response is appropriate because “Plaintiff only seeks admission of some facts and not all facts which allow for the facts which Plaintiff wants Defendants to admit to be taken out of context”.  Such defense borders on the ridiculous.  In essence, it is Defendants’ position that a party cannot get a fact “admitted” unless they seek to get “all the facts admitted”.  Such suggestion is so out of line incorrect so as to leave Plaintiff without words to respond.  In short, such defense of Defendants’ pleading practices is incorrect in every way!

By failing to properly respond to these thirty-six (36) allegations, Defendants have admitted such facts, pursuant to Rule 8 of the Fed. R. Civ. P.  As a result, Plaintiff respectfully asks this Court to enter an order that the allegations set forth in paragraphs 23, 24, 32, 33, 34, 49, 56, 58, 60, 63, 68, 72, 76, 78, 80, 82, 84, 86, 88, 90, 92, 94, 96, 98, 100, 102, 104, 106, 108, 111, 113, 115, 117, 119, 121 and 162 have been admitted by Defendant and can be treated as admitted stipulated facts throughout this lawsuit.

B.     The Documents themselves establish the allegations

Defendants’ inappropriate responses, while failing to admit or deny the allegation, refer to the notion that the documents speak for themselves and constitute the “best evidence” of what the document says.  While such response is not allowed under the rules, a review of the documents at issue clearly demonstrate that each of the thirty-six (36) allegations made by Plaintiff are true and should have been admitted by Defendants.   Given such, accepting these facts as true and stipulated to for all purposes in this lawsuit, will not cause any hardship or prejudice to the Defendants.

Specifically, the documents at issue prove as follows:

  1. According to The Plan’s Summary Plan Description, “The Plan’s AD&D and VPAI are provided under group insurance policies issued by the Life Insurance Company of North America (LINA)”. (See Exhibit “1”, page 167).
  2. According to The Plan’s Summary Plan Description, “CIGNA processes all claims for LINA.” (See Exhibit “2”, page 167).
  3. Dr. Salzberger concluded that John Doe’s death was caused by drowning. (See Exhibit “3”, last page CONCLUSION).
  4. Dr. Salzberger concluded that John Doe’s death was an accident. (See Exhibit “4”, last page MANNER).
  5. “Drowning” is the only cause of death listed on John Doe’s death certificate. (See Exhibit “5”, “Cause of Death” section).
  6. Plaintiff’s second appeal was denied by a letter dated September 24, 2015 stating that “all administrative levels of appeal have been exhausted and we cannot honor any further appeals on this claim.” (See Exhibit “6”, page 6).
  7. In the Supplemental Autopsy Report, Dr. Salzberger found no evidence or proof that John Doe sustained a heart related event prior to or contemporaneous to his death. (See Exhibit “7”).
  8. In the Supplemental Autopsy Report, Dr. Salzberger stated that “to conclude that a natural event actually did precipitate the drowning would be pure speculation”. (See Exhibit “8”).
  9. In the Supplemental Autopsy Report, Dr. Salzberger stated that she “found no evidence of an acute cardiac event at autopsy”. (See Exhibit “9”).
  10. In the Supplemental Autopsy Report, Dr. Salzberger stated that Mr. Doe’s cause of death was drowning. (See Exhibit “10”).
  11. Dr. Denton acknowledged and wrote in his report that “[t]he current consensus in forensic pathology is that deaths such as Mr. Doe’s are best certified as accident (See Exhibit “11”, page 3).
  12. Dr. Salzberger stated in the autopsy of John Doe that she found “no evidence of an acute cardiac event at autopsy”; explained that “to conclude that a natural event [i.e., Richard’s heart] actually did precipitate the drowning would be pure speculation”; stated that “[]it is not uncommon for adults who know how to swim to drown, especially when alcohol use is involved” and “[o]f note, Mr. Doe was intoxicated at the time of his drowning”; and ultimately concluded “[b]ased on the scene, circumstances and autopsy findings, Mr. Doe’s cause of death is drowning” and “[t]he manner is accident.” (See Exhibit “12”).
  13. The Willey Report found that “Mr. Doe drowned.” (See Exhibit “13”, last paragraph).
  14. The Willey Report found that “Mr. Doe’s death was an accident.” (See Exhibit “14”, last paragraph).
  15. The Willey Report found that “There is no evidence to support Mr. Doe died because of his heart disease.” (See Exhibit “15”, last paragraph).
  16. The Willey Report found that Mr. Doe “had consumed potable alcohol”. (See Exhibit “16”, page 3).
  17. The Willey Report found that Mr. Doe’s “blood alcohol was 0.118%, sufficiently intoxicating to be disabling to drive a vehicle.” (See Exhibit “17”, page 3).
  18. The Willey Report found that “alcoholic intoxication and drowning are a frequently observed combination.” (See Exhibit “18”, page 3).
  19. The Willey Report found that “Mr. Doe had elected to swim in the dark in a pool which had underwater lights and a waterfall.” (See Exhibit “19”, page 3).
  20. The Willey Report found that “[e]ntering water creates weightlessness with sensory deprivation confounded by darkness, underwater lighting, and sounds of waterfall.” (See Exhibit “20”, page 3).
  21. The Willey Report found that Mr. Doe was in “a hazardous environment.” (See Exhibit “21”, page 3).
  22. The Willey Report found that up to the time of his death, “Mr. Doe was functional, living independently.” (See Exhibit “22”, page 3).
  23. The Willey Report found that “There is no evidence [Mr. Doe] was disabled by his heart disease.” (See Exhibit “23”, page 3”).
  24. The Willey Report found that “There is no indication [Mr. Doe] suffered heart failure, nor adverse cardiac signs or symptoms.” (See Exhibit “24”, page 3).
  25. The Willey Report found that “[i]nterrogation of Mr. Doe’s pacemaker showed no abnormalities from April to the time his demise was assumed.” (See Exhibit “25”, page 3).
  26. The Willey Report found that “Mr. Doe survived with his coronary artery disease.” (See Exhibit “26”, page 3).
  27. The Willey Report found that “[i]t is common to find extensive coronary artery disease in autopsied subjects who die from other established causes.” (See Exhibit “27”, page 3).
  28. The Willey Report found “[t]here was no acute change such as coronary artery thrombosis to suggest a cause of death.”  (See Exhibit “28”, page 3).
  29. The Willey Report found that “[c]ollateral circulation was sufficient to sustain adequate perfusion to heart muscle.” (See Exhibit “29”, page 3).
  30. The Willey Report found that “[s]pontaneous development of cardiac arrhythmia causing drowning is not scientifically distinguishable from drowning causing the same electrocardiographic abnormalities.” (See Exhibit “30”, page 3).
  31. The Willey Report found that“[w]ere Mr. Doe to have suffered sudden death while immersed, he would not have had vital activity necessary to inhale water, cause extensive pulmonary edema, foam in his airways, and water in his sphenoid sinus.” (See Exhibit “31”, page 3).
  32. The Willey Report found that “[i]t is guessing to say Mr. Doe died at 10:23 p.m.” (See Exhibit “32”, page 4).
  33. The Willey Report found that “[t]o state [that] Mr. Doe actually did become incapacitated by cardiac disease is speculative.” (See Exhibit “33”, page 3).
  34. The Willey Report found that Mr. Doe’s “death was an accident.” (See Exhibit “34”, page 4).
  35. The Willey Report found that “There is no evidence to support [Mr. Doe] died because of his heart disease.” (See Exhibit “35”, last paragraph).
  36. The Policy excludes losses caused by a disease but does not exclude losses caused by accidents that were caused by a disease. (See Exhibit “36”, page 1).

VI.

PRAYER

Plaintiff respectfully requests this Court to enter a finding that the allegations set forth in paragraphs 23, 24, 32, 33, 34, 49, 56, 58, 60, 63, 68, 72, 76, 78, 80, 82, 84, 86, 88, 90, 92, 94, 96, 98, 100, 102, 104, 106, 108, 111, 113, 115, 117, 119, 121 and 162 have been admitted by Defendant and can be treated as admitted stipulated facts throughout this lawsuit.

DATE:              January 27, 2016.

Respectfully submitted,

MICHAEL E. HEYGOOD
State Bar No. 00784267
michael@hop-law.com
JAMES CRAIG ORR, JR.
State Bar No. 15313550
jim@hop-law.com
HEYGOOD, ORR & PEARSON
6363 North State Highway 161, Suite 450
Irving, Texas 75038
(214) 237-9001
(214) 237-9002 (fax)

ATTORNEYS FOR PLAINTIFF

————————————————————————————-

[1] Although each Defendant filed a separate answer, each such separate answer was filed by the same law firm and, for the specific allegations and portions of such answers relevant to this Motion, the answers for each separate Defendant were identical and the same.  As a result, for purposes of this Motion, Plaintiff will refer to Defendants’ answers collectively since there is no difference in the wording as between each Defendant.