Cunningham v. USI Insurance Services, LLC
- Nelson Roman
- 7:21-cv-01819
- U.S. District Court · Southern District of New York
- 7
In Cunningham v. USI, Judge Roman scheduled briefing on amendment and dismissed defendants’ pending motion to dismiss without prejudice to renew.
The plaintiff and defendants are affected by the new briefing schedule. Defendants’ pending motion to dismiss was dismissed without prejudice to renew after resolution of the plaintiff’s motion for leave to amend.
What happened
In Cunningham v. USI Insurance Services, LLC, the plaintiff asked to seek permission to add an ERISA claim concerning services provided to a retirement plan by a USI affiliate. Defendants opposed the request, arguing that the proposed claim was untimely.
The court waived the requested pre-motion conference and set deadlines for the parties’ papers on the proposed amendment. It also dismissed defendants’ pending motion to dismiss without prejudice to renew after the court resolves the plaintiff’s motion for permission to amend.
Judge Nelson S. Roman did not decide whether the plaintiff may amend the complaint, whether the proposed claim is timely, or whether the existing claims should be dismissed.
The detailed version
- Cunningham v. USI Insurance Services, LLC · No. 7:21-cv-01819
- Nelson Roman
- May 6, 2025
Background
The plaintiff requested a pre-motion conference to seek permission to amend her Second Amended Complaint. She proposed adding an ERISA prohibited-transaction claim under 29 U.S.C. § 1106(a)(1)(C), based on allegations that USI defendants hired the USI affiliate USICG to provide recordkeeping and other services for the USI 401(k) plan. The plaintiff’s letter said the amendment would add a new count without adding factual allegations.
The plaintiff argued that a recent Supreme Court decision had clarified the pleading standard for the proposed claim and that the claim would relate back to the original complaint. Defendants opposed the request, arguing that the proposed amendment was untimely and therefore futile. These arguments appeared in the parties’ letters; the court did not resolve them in this order.
Court’s Action
The court waived the pre-motion conference and established a briefing schedule:
- The plaintiff’s moving papers were to be served, but not filed, on June 16,
- - Defendants’ opposition was to be served on or before July 16,
- - The plaintiff’s reply was to be served on July 31,
- - All motion papers were to be filed on July 31, 2025.
The court also directed the parties to email electronic copies of the papers to chambers as they were served and to provide two hard copies of each set of papers.
The court dismissed defendants’ pending motion to dismiss without prejudice to renew subject to resolution of the plaintiff’s motion for leave to amend. It directed the clerk to terminate the motion listed at ECF No. 73.
What the Order Did Not Decide
The order did not grant or deny the plaintiff’s request to amend the complaint. It also did not decide the parties’ arguments about ERISA’s statute of limitations, relation back, the adequacy of the proposed claim, or the merits of the pending motion to dismiss. Judge Nelson S. Roman’s order addressed the conference request, briefing schedule, and status of the pending motion.
Read the full 7-page opinion on CourtListener, the free public archive maintained by the Free Law Project.