         08-0948-cv
         First Unum Life Ins. Co. v. Wulah

                                 UNITED STATES COURT OF APPEALS
                                       F OR T HE S ECOND C IRCUIT

                                               SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.



              At a stated Term of the United States Court of Appeals
         for the Second Circuit, held at the Daniel Patrick Moynihan
         United States Courthouse, 500 Pearl Street, in the City of
         New York, on the 2 nd day of February, two thousand and ten.

         Present: PIERRE N. LEVAL,
                  RICHARD C. WESLEY,
                                Circuit Judges,
                  JOHN GLEESON,
                                District Judge. *
         __________________________________________________

         FIRST UNUM LIFE INSURANCE COMPANY,

                                              Plaintiff-Appellee,

                        - v. -                                                (08-0948-cv)

         TEAH WULAH,

                                Defendant-Appellant. **
         __________________________________________________




         *
            The Honorable John Gleeson, United States District Court for the Eastern
         District of New York, sitting by designation.
         **
            The Clerk of the Court is respectfully directed to amend the official
         caption of this action to conform to the caption of this summary order.
     For Appellant:    TEAH WULAH, pro se, Bronx, New York.

     For Appellee:     LOUIS P. DIGIAIMO (Randi F. Knepper, of
                       counsel; Mee Sun Choi, on the brief),
                       McElroy, Deutsch, Mulvaney & Carpenter,
                       LLP, Morristown, New Jersey.

          Appeal from the United States District Court for the
     Southern District of New York (Francis, J.).

 1       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 2   AND DECREED that the October 8, 2007 order of the United

 3   States District Court for the Southern District of New York

 4   is REVERSED and REMANDED.

 5       Appellee First Unum Life Insurance Company (“First

 6   Unum”) commenced this action under the Employee Retirement

 7   Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et

 8   seq. and state law, seeking to recover long-term disability

 9   benefits that it paid to appellant Teah Wulah.   The parties

10   consented to have the matter resolved before a magistrate

11   judge of the Southern District of New York (Francis, J.),

12   see 28 U.S.C. § 636(c), who granted summary judgment in

13   favor of First Unum.   Wulah — who has proceeded as a pro se

14   litigant since the inception of the action — appeals.     We

15   presume the parties’ familiarity with the underlying facts,

16   the procedural history of the case, and the issues on

17   appeal.

18


                                   2
 1         On June 1, 2007, the magistrate judge entered a

 2   scheduling order that directed:            First Unum to file a motion

 3   for summary judgment by June 29, 2007, appellant to “answer”

 4   any such motion by July 31, 2007, and First Unum to submit a

 5   reply by August 15, 2007.          First Unum filed its motion for

 6   summary judgment as directed, along with a “Statement of

 7   Material Uncontested Facts” pursuant to S.D.N.Y. Local Rule

 8   56.1.    However, there is no indication in the appellate

 9   record that First Unum submitted a “Notice To Pro Se

10   Litigant Who Opposes a Motion For Summary Judgment” pursuant

11   to S.D.N.Y. Local Rule 56.2. 1          Appellant responded to First

12   Unum’s motion for summary judgment with an August 6, 2007

13   submission that was, according to the magistrate judge,

14   “styled as an Answer.”

15         The magistrate judge granted the motion for summary

16   judgment on October 8, 2007.           With respect to First Unum’s

17   claim for repayment of benefits pursuant to § 502(a)(3) of

18   ERISA, 29 U.S.C. § 1132(a)(3), the magistrate judge rejected


     1
         S.D.N.Y. Local Rule 56.2 states:

         Any represented party moving for summary judgment against a party
         proceeding pro se shall serve and file as a separate document, together
         with the papers in support of the motion, a “Notice To Pro Se Litigant
         Who Opposes a Motion For Summary Judgment” in the form indicated [by the
         Local Rules]. Where the pro se party is not the plaintiff, the movant
         shall amend the form notice as necessary to reflect that fact.

     S.D.N.Y. R. 56.2, available at http://www1.nysd.uscourts.gov/courtrules.php.

                                            3
 1   appellant’s argument that he was unaware of the provisions

 2   of First Unum’s ERISA Plan.     In doing so, he assumed that

 3   First Unum had not provided a Summary Plan Description

 4   document, but reasoned that appellant had “offer[ed] no

 5   evidence” that he was prejudiced by that omission.     Because

 6   of the procedural posture of the case, this was error.

 7       “[I]t is not ‘obvious to a layman that when his opponent

 8   files a motion for summary judgment supported by affidavits

 9   he must file his own affidavits contradicting his opponent’s

10   if he wants to preserve factual issues for trial.’”     Vital

11   v. Interfaith Med. Ctr., 168 F.3d 615, 620 (2d Cir. 1999)

12   (quoting Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir.

13   1988)).   Based on that practical reality, we have reversed a

14   decision granting summary judgment where neither the

15   district court nor the movant provided a pro se litigant

16   with advance, “explicit notice” regarding “the nature and

17   consequences of a summary judgment motion,” and where the

18   pro se litigant did not appear to understand the potentially

19   adverse result of the motion.       Id. at 621.

20       The principles articulated in Vital require reversal

21   here as well.   First, there is no indication in the record

22   that either First Unum or the magistrate judge provided any

23   notice to appellant of the nature of summary judgment or the


                                     4
 1   standards by which the motion would be resolved.     Second,

 2   the record suggests that appellant was hewing carefully to

 3   the terms of the magistrate judge’s instructions:     the June

 4   1, 2007 scheduling order called for an “answer” to First

 5   Unum’s motion, and appellant’s submission (although late)

 6   was titled as such.   Appellant did not, however, submit any

 7   affidavits or sworn materials, which might have indicated

 8   that he understood more fully the legal requirements that

 9   applied to the motion that he was opposing.   See id.

10   Finally, the failure to comply with Vital and S.D.N.Y. Local

11   Rule 56.2 was exacerbated when the magistrate judge faulted

12   appellant for failing to adduce evidence in support of his

13   contentions.   Collectively, these circumstances require

14   reversal.

15       Accordingly, the magistrate judge’s October 8, 2007

16   order is hereby REVERSED and the case is REMANDED for

17   proceedings consistent with this order.    We of course

18   express no view as to the merits of either party’s claims,

19   which remain to be resolved in the district court.

20                                For the Court
21                                Catherine O’Hagan Wolfe, Clerk
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