Torrence v. New Orleans Electrical Pension And Annuity Plan et al

MOTION to Dismiss for Failure to State a Claim

E.D. La.April 19, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA ------------------------------------------------------------------------x ROBERT G. TORRENCE, SR. ) ) Plaintiff, ) CIVIL ACTION NO. ) 2:17-1500-SSV-MBN v. ) Section R: ) (Hon. Sarah S. Vance) ) Magistrate 5: ) (Hon. Michael B. North) ) NEW ORLEANS ELECTRICAL PENSION AND ) ANNUITY PLAN (LOCAL 130 PENSION PLAN), ) SOUTHERN BENEFITS ADMINISTRATORS, INC., ) SOUTHERN ELECTRICAL RETIREMENT FUND, ) INTERNATIONAL BROTHERHOOD OF ) ELECTRICAL WORKERS ) (LOCAL UNION NO. 1077), and INTERNATIONAL ) BROTHERHOOD OF ELECTRICAL WORKERS ) (LOCAL UNION NO. 3) ) Defendants. ) ------------------------------------------------------------------------x DEFENDANT INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS (LOCAL UNION NO.3)’s MOTION TO DISMISS COMPLAINT Defendant, International Brotherhood of Electrical Workers (Local Union No. 3) (“Local 3”), through its undersigned counsel, hereby moves to dismiss Plaintiff Robert G. Torrence, Sr.’s (“Plaintiff”) Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. In support of its Motion to Dismiss, Local 3 states as follows: 1. Plaintiff’s Complaint should be dismissed as to Local 3 because Local 3 is not a proper defendant under the Employee Retirement Income Security Act (“ERISA”). 2. Plaintiff has not alleged any facts that would entitle him to relief from Local 3 under ERISA. Case 2:17-cv-01500-SSV-MBN Document 14 Filed 04/19/17 Page 1 of 3 2 3. Plaintiff cannot bring an action under ERISA Section 502(a)(3) or 502 (a)(1)(B) against Local 3 because Local 3 is not a fiduciary and therefore cannot be found to have breached a fiduciary duty nor is Local 3 an ERISA Fund or Plan and therefore cannot be found to have failed to provide or to deny Plaintiff any benefit. 4. Plaintiff cannot bring an action under ERISA Section 502(a)(3) because Plaintiff has an adequate remedy under ERISA Section 502(a)(1)(B). 5. Plaintiff has not alleged any facts against Local 3 that would entitle him to relief under ERISA Section 502(d)(3). 6. Plaintiff has not alleged that he is entitled to relief against Local 3 under ERISA Section 502(a)(1)(B), nor has he alleged sufficient facts that would entitle him to such relief. 7. To the extent Plaintiff has stated a cause of action against Local 3, it is in the nature of a breach of the duty of fair representation (“DFR”). A cause of action for a breach of the DFR is governed by a six month statute of limitations (“SOL”). DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 169-170, 103 S. Ct. 2281, 76 L. Ed. 2d 476 (1983). To the extent the Court may find that Plaintiff has adequately stated a cause of action for breach of the DFR, Plaintiff is barred by the applicable SOL. 8. Local 3 has attached a Memorandum of Law in Support of its Motion to Dismiss for the Court’s consideration. Case 2:17-cv-01500-SSV-MBN Document 14 Filed 04/19/17 Page 2 of 3 3 WHEREFORE, Defendant International Brotherhood of Electrical Workers (Local Union No. 3) respectfully requests that this Court enter an Order dismissing Plaintiff Robert G. Torrence, Sr.’s Complaint with prejudice. Dated: April 19, 2017 Respectfully submitted, Robein, Urann, Spencer, Picard & Cangemi, APLC s/Louis L. Robein Louis L. Robein (LA Bar No. 11307) 2540 Severn Avenue, Suite 400 Metairie, LA 70002 Phone: 504.885.9994 Fax: 504.885.9969 Email: lrobein@ruspclaw.com -and- s/Richard S. Brook Richard S. Brook (NY Bar No. 154151) LAW OFFICE OF RICHARD S. BROOK 114 Old Country Road, Suite 250 Mineola, New York 11501 Phone: 516 741-8400 Fax: 516-741-0591 Email: rsbrookesq@msn.com Counsel for Defendant, International Brotherhood of Electrical Workers (Local Union No. 3) CERTIFICATE OF SERVICE I hereby certify that on April 19, 2017, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system. Notice of this filing will be sent to all counsel of record by operation of the court’s electronic filing system. s/Louis L. Robein Louis L. Robein (Bar No. 11307) 2540 Severn Avenue, Suite 400 Metairie, LA 70002 Phone: 504.885.9994 Fax: 504.885.9969 Email: lrobein@ruspclaw.com Case 2:17-cv-01500-SSV-MBN Document 14 Filed 04/19/17 Page 3 of 3 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA ------------------------------------------------------------------------x ROBERT G. TORRENCE, SR. ) ) Plaintiff, ) CIVIL ACTION NO. ) 2:17-1500-SSV-MBN v. ) Section R: ) (Hon. Sarah S. Vance) ) Magistrate 5: ) (Hon. Michael B. North) ) NEW ORLEANS ELECTRICAL PENSION AND ) ANNUITY PLAN (LOCAL 130 PENSION PLAN), ) SOUTHERN BENEFITS ADMINISTRATORS, INC., ) SOUTHERN ELECTRICAL RETIREMENT FUND, ) INTERNATIONAL BROTHERHOOD OF ) ELECTRICAL WORKERS ) (LOCAL UNION NO. 1077), and INTERNATIONAL ) BROTHERHOOD OF ELECTRICAL WORKERS ) (LOCAL UNION NO. 3) ) Defendants. ) ------------------------------------------------------------------------x DEFENDANT INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS (LOCAL UNION NO.3)’s MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS THE COMPLAINT This Memorandum of Law In Support of Defendant, International Brotherhood of Electrical Workers (Local Union No. 3)’s (“Local 3”), Motion to Dismiss the Complaint is submitted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (“Fed.R.Civ.P.”). The Complaint was filed on February 21, 2017. STATEMENT OF FACTS Local 3 is a New York local union affiliated with the International Brotherhood of Electrical Workers (Complaint ¶7). Plaintiff, Robert G. Torrence, Sr. worked within the jurisdiction of Local 3 as a traveler. (Complaint ¶11). While working within the jurisdiction of Local 3, Plaintiff signed a reciprocity agreement. The reciprocity agreement instructed that his Case 2:17-cv-01500-SSV-MBN Document 14-1 Filed 04/19/17 Page 1 of 6 2 pension contributions and his health and welfare benefits be paid to Local 130 of the International Brotherhood of Electrical Workers located in New Orleans. Id. Plaintiff concedes that his health and welfare benefit contributions were properly forwarded. Id. He also states that Local 130 may have failed to record his pension contributions earned while working in New York. Id. Plaintiff does not, nor could he, allege that Local 3 is an Employee benefit plan covered by the Employee Retirement Income Security Act (“ERISA”) of 1974, 29 U.S.C. §1001, et. seq. Plaintiff brings his action under ERISA as a plan participant of the New Orleans Electrical Pension and Annuity Plan as well as the Southern Electrical Retirement Fund. (Complaint¶¶ 1 and 2). Plaintiff alleges that he joined the International Brotherhood of Electrical Workers (“IBEW”) in 1972 as a member of Local 1077. (Complaint ¶8). Purportedly, Local 1077 was very small and did not have a welfare benefit plan nor a retirement plan so that an agreement was signed with Local 130 out of New Orleans to provide these benefits. Id. While remaining a member of Local 1077, Plaintiff alleges that he worked in various other regions of the country including New York. (Complaint ¶¶9-11, and 17). Plaintiff alleges that he began working in New York in July or August of 1986 (Complaint ¶12) and that he worked in New York for approximately five (5) years. (Complaint ¶11).1 Plaintiff also alleges that on December 17, 2015 the Southern Electrical Benefit Fund sent a memo to the New Orleans Local 130 office stating that contributions were made on Plaintiff’s behalf from 1986 to 1990. (Complaint ¶14). This admission combined with the concession in paragraph 11 of the Complaint, demonstrates that pension benefit contributions for Plaintiff were forwarded by the Local 3 Funds on Plaintiff’s behalf for work he performed under Local 3’s jurisdiction. No other specific allegation is made in the Complaint as to Local 3 save for the fact that Plaintiff lumped all Defendants together in his allegations surrounding his application 1 That would place him in New York from 1986 to 1991. Case 2:17-cv-01500-SSV-MBN Document 14-1 Filed 04/19/17 Page 2 of 6 3 for and denial of pension benefits i.e. Complaint ¶25 (“Defendants’ denial of benefits was an abusive discretion.”) See, also, Complaint ¶¶26-28; 32-33; 36. SUMMARY OF ARGUMENT Plaintiff’s Complaint as against Local 3 is fundamentally and facially deficient for a multitude of reasons. Local 3 is not an ERISA fiduciary and thus could not/did not breach any such duty. Local 3 is not an ERISA Plan or the Administrator of an ERISA Plan and thus it could not/did not deny Plaintiff benefits. Plaintiff’s conclusory allegations against all Defendants as a whole do not meet the pleading standard for stating a claim against Local 3. ARGUMENT POINT I. STANDARD OF REVIEW UNDER FED.R.CIV.P. 12(b)(6). Fed. R. Civ. P. 12(b)(6) allows for the dismissal of a cause of action if a plaintiff’s complaint fails “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Fed. R. Civ. P. 8(a)(2) requires a pleading to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While Rule 8 “does not require ‘detailed factual allegations,’ [ ] it demands more than an unadorned, the -defendant-unlawfully- harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). Thus, “[a] pleading that offers ‘labels and legal conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not do’”. Id. (quoting Twombly, 550 U.S. at 555). In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim, a court must “accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party.” Those asserted facts, however, must “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Case 2:17-cv-01500-SSV-MBN Document 14-1 Filed 04/19/17 Page 3 of 6 4 Nor is it enough for allegations to form a “conceivable” claim. Twombly, 550 U.S. at 570. More is required: the allegations “must be enough to raise a right to relief above the speculative level.” Id. at 555. If “ the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]’ - ‘that the pleader is entitled to relief’” and the complaint must be dismissed. Iqbal, 556 U.S. at 679, citing Fed. R. Civ. P. 8(a)(2). Plaintiff had not met his burden under Fed. R. Civ. P. 12(b)(6). POINT II. THE COMPLAINT FAILS TO STATE A CLAIM AGAINST LOCAL 3 UNDER ERISA. The Complaint asserts jurisdiction under ERISA Section 502(a)(3), 29 U.S.C. §1132(a)(3), for breach of fiduciary duty (Complaint ¶35). However, Local 3 is a labor union, an “employee organization” (Complaint ¶¶7, 11) within the meaning of ERISA Section 3(4), 29 U.S.C. §1002(4). Local 3 is not a fiduciary within the meaning of ERISA Section 3(21), 29 U.S.C. §1002 (21), and the Complaint does not allege a single fact to indicate that Local 3 is a fiduciary or that Local 3 breached any such duty. Plaintiff’s claims are actually a claim for denial of benefits (by other Defendants), not a claim for breach of fiduciary duty. See, e.g., McCall v. Burlington Northern Santa Fe Co., 237 F.3d 506 (5th Cir. 2000). ERISA Section 502(a)(1)(B), 29 U.S.C. §1132(a)(1)(B) allows suit for denial of benefits by an ERISA plan, which is what in effect is alleged. (Complaint ¶¶20, 21). Such a claim cannot be brought against Local 3 because it is not an ERISA Plan, it is not the Administrator of an ERISA Plan, and it did not deny Plaintiff’s request for benefits and Plaintiff alleges no facts to the contrary. Case 2:17-cv-01500-SSV-MBN Document 14-1 Filed 04/19/17 Page 4 of 6 5 POINT III. PLAINTIFF’S CLAIM AGAINST LOCAL 3 IS IN THE NATURE OF A CLAIM FOR BREACH OF THE DUTY OF FAIR REPRESENTATION. SUCH CLAIM IS UNTIMELY AND DEFICIENT. Plaintiff’s claim against Local 3 is, in essence, a claim for the breach of the duty of fair representation (“DFR”). To establish such claim a plaintiff must show that a union acted in a manner that was “arbitrary, discriminatory or in bad faith”. Vaca v. Sipes, 386 U.S. 171, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967); Airline Pilots v. O’Neill, 499 U.S. 65, 111 S. Ct. 1127, 113 L.Ed. 2d 51 (1991). Plaintiff alleges no facts to establish such violations. Furthermore, Plaintiff is untimely. An action for breach of the DFR must be made within six (6) months. DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 169-170 103 S. Ct. 2281, 76 L. Ed. 2d 476 (1983). The statute of limitations begins to run when the Plaintiff either knew or should have known of the injury or breach rather than its manifestations. Barrett v. Ebasco Constructors, Inc., 868 F. 2d 170, 171 (5th Cir. 1989). Plaintiff was aware of issues concerning his pension credits in August 2015 and December 2015 (Complaint ¶¶13, 14); his application for pension benefits under the New Orleans (Local 130) Plan were denied in December 2015 (Complaint ¶20) and his appeal was denied on May 3, 2016 (Complaint ¶21). Thus, he was put on notice as early as August 2015 but no later than May 3, 2016 of the alleged breach, and the six (6) months statute of limitations ended no later than November 3, 2016, no more than three (3) months before this suit was filed. Case 2:17-cv-01500-SSV-MBN Document 14-1 Filed 04/19/17 Page 5 of 6 6 CONCLUSION For the reasons set forth above, the Court should grant Local 3’s motion to dismiss the Complaint in its entirety with prejudice. Dated: April 19, 2017 Respectfully submitted, Robein, Urann, Spencer, Picard & Cangemi, APLC s/Louis L. Robein Louis L. Robein (LA Bar No. 11307) 2540 Severn Avenue, Suite 400 Metairie, LA 70002 Phone: 504.885.9994 Fax: 504.885.9969 Email: lrobein@ruspclaw.com -and- s/Richard S. Brook Richard S. Brook (NY Bar No. 154151) LAW OFFICE OF RICHARD S. BROOK 114 Old Country Road, Suite 250 Mineola, New York 11501 Phone: 516 741-8400 Fax: 516-741-0591 Email: rsbrookesq@msn.com Counsel for Defendant, International Brotherhood of Electrical Workers (Local Union No. 3) CERTIFICATE OF SERVICE I hereby certify that on April 19, 2017, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system. Notice of this filing will be sent to all counsel of record by operation of the court’s electronic filing system. s/Louis L. Robein Louis L. Robein (Bar No. 11307) 2540 Severn Avenue, Suite 400 Metairie, LA 70002 Phone: 504.885.9994 Fax: 504.885.9969 Email: lrobein@ruspclaw.com Case 2:17-cv-01500-SSV-MBN Document 14-1 Filed 04/19/17 Page 6 of 6 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA ------------------------------------------------------------------------x ROBERT G. TORRENCE, SR. ) ) Plaintiff, ) CIVIL ACTION NO. ) 2:17-1500-SSV-MBN v. ) Section R: ) (Hon. Sarah S. Vance) ) Magistrate 5: ) (Hon. Michael B. North) ) NEW ORLEANS ELECTRICAL PENSION AND ) ANNUITY PLAN (LOCAL 130 PENSION PLAN), ) SOUTHERN BENEFITS ADMINISTRATORS, INC., ) SOUTHERN ELECTRICAL RETIREMENT FUND, ) INTERNATIONAL BROTHERHOOD OF ) ELECTRICAL WORKERS ) (LOCAL UNION NO. 1077), and INTERNATIONAL ) BROTHERHOOD OF ELECTRICAL WORKERS ) (LOCAL UNION NO. 3) ) Defendants. ) ------------------------------------------------------------------------x NOTICE OF SUBMISSION Defendant, International Brotherhood of Electrical Workers (Local Union No. 3) (“Local 3”), hereby gives notice that it has moved pursuant to Federal Rule of Civil Procedure 12(b)(6) for the dismissal of Plaintiff Robert G. Torrence, Sr.’s (“Plaintiff”) Complaint for failure to state a claim upon which relief may be granted. Local 3 will submit this matter for decision by the Court on Wednesday, May 31, 2017 at 10:00 a.m. Any party objecting to the relief requested in the Motion must file an objection with the Court no later than eight (8) days prior to the submission date indicated above. The objection should also be served on the undersigned counsel. Case 2:17-cv-01500-SSV-MBN Document 14-2 Filed 04/19/17 Page 1 of 2 2 Dated: April 19, 2017 Respectfully submitted, Robein, Urann, Spencer, Picard & Cangemi, APLC s/Louis L. Robein Louis L. Robein (LA Bar No. 11307) 2540 Severn Avenue, Suite 400 Metairie, LA 70002 Phone: 504.885.9994 Fax: 504.885.9969 Email: lrobein@ruspclaw.com -and- s/Richard S. Brook Richard S. Brook (NY Bar No. 154151) LAW OFFICE OF RICHARD S. BROOK 114 Old Country Road, Suite 250 Mineola, New York 11501 Phone: 516 741-8400 Fax: 516-741-0591 Email: rsbrookesq@msn.com Counsel for Defendant, International Brotherhood of Electrical Workers (Local Union No. 3) CERTIFICATE OF SERVICE I hereby certify that on April 19, 2017, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system. Notice of this filing will be sent to all counsel of record by operation of the court’s electronic filing system. s/Louis L. Robein Louis L. Robein (Bar No. 11307) 2540 Severn Avenue, Suite 400 Metairie, LA 70002 Phone: 504.885.9994 Fax: 504.885.9969 Email: lrobein@ruspclaw.com Case 2:17-cv-01500-SSV-MBN Document 14-2 Filed 04/19/17 Page 2 of 2