FIRST UNUM Life INSURANCE COMPANY, Plaintiff-Appellee, v. Teah WULAH, Defendant-Appellant, 364 F. App'x 673

SUMMARY ORDER Appellee First Unum Life Insurance Company (“First Unum”) commenced this action under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. and state law, seeking to recover long-term disability benefits that it paid to appellant Teah Wulah. The parties consented to have the matter resolved before a magistrate judge of the Southern District of New York (Francis, J.), see 28 U.S.C. § 636(c), who granted

summary judgment in favor of First Unum. Wulah — who has proceeded as a pro se litigant since the inception of the action — appeals. We presume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. On June 1, 2007, the magistrate judge entered a scheduling order that directed: First Unum to file a motion for

summary judgment by June 29, 2007, appellant to “answer” any such motion by July 31, 2007, and First Unum to submit a reply by August 15, 2007. First Unum filed its motion for

summary judgment as directed, along with a “Statement of Material Uncontested Facts” pursuant to S.D.N.Y. Local Rule 56.1. However, there is no indication in the appellate record that First Unum submitted a “Notice To Pro Se Litigant Who Opposes a Motion For

Summary Judgment” pursuant to S.D.N.Y. Local Rule 56.2. Appellant responded to First Unum’s motion for

summary judgment with an August 6, 2007 submission that was, according to the magistrate judge, “styled as an Answer.” The magistrate judge granted the motion for

summary judgment on October 8, 2007. With respect to First Unum’s claim for repayment of benefits pursuant to § 502(a)(3) of ERISA, 29 U.S.C. § 1132(a)(3), the magistrate judge rejected appellant’s argument that he was unaware of the provisions of First Unum’s ERISA Plan. In doing so, he assumed that First Unum had not provided a

Summary Plan Description document, but reasoned that appellant had “offer[ed] no evidence” that he was prejudiced by that omission. Because of the procedural posture of the case, this was error. “[I]t is not ‘obvious to a layman that when his opponent files a motion for

summary judgment supported by affidavits he must file his own affidavits contradicting his opponent’s if he wants to preserve factual issues for trial.’ ” Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620 (2d Cir.1999) (quoting Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir.1988)). Based on that practical reality, we have reversed a decision granting

summary judgment where neither the district court nor the movant provided a pro se litigant with advance, “explicit notice” regarding “the nature and consequences of a

summary judgment motion,” and where the pro se litigant did not appear to understand the potentially adverse result of the motion. Id. at 621. The principles articulated in Vital require reversal here as well. First, there is no indication in the record that either First Unum or the magistrate judge provided any notice to appellant of the nature of

summary judgment or the standards by which the motion would be resolved. Second, the record suggests that appellant was hewing carefully to the terms of the magistrate judge’s instructions: the June 1, 2007 scheduling order called for an “answer” to First Unum’s motion, and appellant’s submission (although late) was titled as such. Appellant did not, however, submit any affidavits or sworn materials, which might have indicated that he understood more fully the legal requirements that applied to the motion that he was opposing. See id. Finally, the failure to comply with Vital and S.D.N.Y.

Local Rule 56.2 was exacerbated when the magistrate judge faulted appellant for failing to adduce evidence in support of his contentions. Collectively, these circumstances require reversal. Accordingly, the magistrate judge’s October 8, 2007 order is hereby REVERSED and the case is REMANDED for proceedings consistent with this order. We of course express no view as to the merits of either party’s claims, which remain to be resolved in the district court. . 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://wwwl. nysd.uscourts.gov/courtrules.php.