REPORT AND RECOMMENDATION RE: DEFENDANT'S MOTION TO DISMISS Docket No. 5
RONALD E. BUSH, Magistrate Judge.
Currently pending before the Court is Defendant's Motion to Dismiss (Docket No. 5). Having carefully considered the record and otherwise being fully advised, the undersigned enters the following Report and Recommendation:
Plaintiff Brandon Hixon ("Plaintiff") worked for Liberty Mutual from March 23, 2009 through May 17, 2012. See Mem. in Supp. of MTD, p. 2 (Docket No. 5, Att. 1). As a Liberty Plaintiff was a participant in certain Liberty Mutual benefit plans, including the Liberty Mutual Heath Care Flexible Spending Account Plan ("FSA Plan"). See id. at p. 1.
For 2012, Plaintiff elected to contribute $5, 000 to his flexible spending account ("FSA"). See id. at p. 3. As of May 17, 2012 (Plaintiff's last day with Liberty Mutual), Plaintiff contributed $2, 446.17 to his FSA and was reimbursed $4, 492.14 in qualified medical expenses. See id.
Plaintiff initiated this action against Defendant Hewitt Associates ("Hewitt") in the Third Judicial District, State of Idaho, Canyon County, Small Claims Department on or around August 13, 2012, alleging that, "[d]ue to the unorganization [sic] and blatant incompetency of Hewitt Associates, [he] [has] been forced to forgo the remainder of [his] flexible spending account funds as well as many hours of [his] time wasted." See Claim (Docket No. 1, Att. 2). Hewitt is Liberty Mutual's record keeper for various employee benefit plans, including Liberty Mutual's FSA Plan. Plaintiff estimated the amount of his claim at $5, 000. See id.
On September 19, 2012, Hewitt removed the action, asserting that this Court has original jurisdiction pursuant to 28 U.S.C. § 1331 inasmuch as Plaintiff's claim arises under the laws of the United States - specifically, Hewitt contends that Plaintiff's claim necessarily relates to Liberty Mutual's FSA Plan and, therefore, arises under the Employee Retirement Income Security Act of 1974 ("ERISA"). See Not. of Removal, pp. 2, 5-6 (Docket No. 1).
A week later, on September 26, 2012, Hewitt moved to dismiss Plaintiff's claim, arguing that Plaintiff did not exhaust his administrative remedies before initiating the action. See Mem. in Supp. of MTD, pp. 5-7 (Docket No. 5, Att. 1). Plaintiff did not submit any response to Hewitt's Motion to Dismiss by the October 22, 2012 deadline. On December 10, 2012, the undersigned issued the following Docket Entry Order to Plaintiff:
Defendant filed a Motion to Dismiss on September 26, 2012. Plaintiff's response to Defendant's Motion to Dismiss was due on October 22, 2012. To date, Plaintiff has not filed a response to Defendant's Motion to Dismiss. Plaintiff is HEREBY ORDERED to respond to Defendant's motion to Dismiss on or before December 28, 2012 or risk a dismissal of this action without further notice.
See 12/10/12 DEO (Docket No. 8) (capitalization in original). Notwithstanding the Court's December 10, 2012 directive, Plaintiff still has not responded to Hewitt's Motion to Dismiss.
A. Motion to Dismiss for Failure to Exhaust Administrative Remedies
The defense of "failure to exhaust nonjudicial remedies should be raised in a motion to dismiss, or be treated as such if raised in a motion for summary judgment." Ritza v. Int'l Longshoremen's and Warehousemen's Union, 837 F.2d 365, 368-69 (9th Cir. 1988). A defendant may raise the exhaustion defense early in the case, on an incomplete record, via an unenumerated FRCP 12(b) motion "as a matter of abatement." Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003); Payne v. Peninsula School Dist., 653 F.3d 863, 881 (9th Cir. 2011) (discussing unenumerated FRCP 12(b) motions in context of IDEA).
To resolve an FRCP 12(b) motion raising failure-to-exhaust issues, "the court may look beyond the pleadings and decide disputed issues of fact." Wyatt, 316 F.3d at 1119-20. In such instances, the court "has a broad discretion as to the method to be used in resolving the factual dispute." Ritza, 837 F.2d at 369. However, the court "must assure that [the plaintiff] ...