LANCE M. AFRICK, UNITED STATES DISTRICT JUDGE.
Before the Court is a motion to dismiss filed by defendant The Building Trades United Pension Trust Fund (the "Pension Fund").
The Pension Fund filed its motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, asserting in part that Theriot failed to state a claim upon which
The Court must first address the issue of standing. Along with its motion, the Pension Fund attached a number of exhibits that Theriot references in her complaint. At a May 29, 2019 status conference, the parties agreed that the Court may look beyond the pleadings and consider the exhibits when considering the motion.
The Court finds that the following facts related to Theriot's standing under ERISA are undisputed:
Robert A. Hamann ("Mr. Hamann") participated in a pension plan ("the Plan") sponsored and underwritten by the Pension Fund and administered through the Board of Trustees.
On January 11, 2017, Mrs. Hamann submitted her application for the post-retirement survivor benefit to the Pension Fund.
Mrs. Hamann elected to receive her benefits under the monthly annuity option.
In a letter dated March 1, 2017, Mrs. Hamann received notice that her application for survivor benefits had been approved and that she would receive monthly payments of $693.63.
After Mrs. Hamann's death, her daughter, Theriot, inquired about the lump sum payment.
The U.S. Fifth Circuit Court of Appeals has "recognized that standing is essential to the exercise of jurisdiction and is a `threshold question ... [that] determin[es] the power of the court to entertain the suit.'" Coleman v. Champion Int'l Corp./Champion Forest Prods., 992 F.2d 530, 532 (5th Cir. 1993) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)).
Although the Pension Fund filed its motion pursuant to Rule 12(b)(6), the standing inquiry is more appropriately considered under Rule 12(b)(1). The Pension Fund's "argument that [Theriot] lacks standing to bring suit under ERISA is properly considered as a jurisdictional attack under Rule 12(b)(1)." Feingerts v. Feingerts, No. 15-2895, 2016 WL 2744812, at *7 (E.D. La. May 10, 2016) (citing Piro v. Nexstar Broad, Inc., No. 11-2049, 2012 WL 2089596, at *3 (W.D. La. Apr. 10, 2012); Cobb v. Cent. States, 461 F.3d 632, 635 (5th Cir. 2006); see also Lee v. Verizon Comms., Inc., 837 F.3d 523, 533 (5th Cir. 2016) ("As a matter of subject matter jurisdiction, standing under ERISA § 502(a) is subject to challenge through Rule 12(b)(1)."); Mem'l Hermann Health Sys. v. Pennwell Corp. Med. & Vision Plan, No. H-17-2364, 2017 WL 6561165, at *4 (S.D. Tex. Dec. 22, 2017) (recognizing that the Fifth Circuit treats standing under ERISA as a jurisdictional matter and applying Rule 12(b)(1)); James v. La. Laborers Health & Welfare Fund, 766 F.Supp. 530, 531 (E.D. La. 1991) (Feldman, J.) (considering whether the plaintiff had standing under ERISA in response to a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1)).
Pursuant to Rule 12(b)(1), "[a] case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (citation omitted). "The burden of proof for a
When applying Rule 12(b)(1), a court may dismiss an action for lack of subject matter jurisdiction "on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Spotts v. United States, 613 F.3d 559, 565-66 (5th Cir. 2010).
"When subject matter jurisdiction is challenged, the Court first considers whether the defendant has made a `facial' or a `factual' attack upon the complaint." Magee v. Winn-Dixie Stores, Inc., No. 17-8063, 2018 WL 501525, at *2 (E.D. La. Jan. 22, 2018) (Vance, J.) (citing Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981)). "A motion to dismiss for lack of standing is factual rather than facial if the defendant submits affidavits, testimony, or other evidentiary materials." Id. (internal quotation marks omitted) (quoting Superior MRI Servs., Inc. v. Alliance Healthcare Servs., Inc., 778 F.3d 502, 504 (5th Cir. 2015)). "When a defendant makes a factual attack on the complaint, the plaintiff is `required to submit facts through some evidentiary method and has the burden of proving by a preponderance of the evidence that the trial court does have subject matter jurisdiction.'" Id. (quoting Paterson, 644 F.2d at 523). "In the case of a facial attack, the court `is required to look to the sufficiency of the allegations in the complaint because they are presumed to be true.'" Id. (quoting Paterson, 644 F.2d at 523). "Ultimately, a motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief." Ramming, 281 F.3d at 161 (quoting Home Builders Ass'n, 143 F.3d at 1010).
Standing under ERISA, pursuant to 29 U.S.C. § 1132(a), is limited to participants, beneficiaries, and fiduciaries. Coleman, 992 F.2d at 533.
A beneficiary is "a person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a benefit thereunder." 29 U.S.C. § 1002(8). "In order to qualify as a beneficiary, an individual must have a `reasonable or colorable claim to benefits.'" Feingerts, 2016 WL 2744812, at *7 (quoting Crawford v. Roane, 53 F.3d 750, 754 (6th Cir. 1995)); see also Cobb, 461 F.3d at 635-36 (holding that, to have standing as a beneficiary under ERISA, a plaintiff must show a designation of beneficiary
Theriot argues that as administrator of Mrs. Hamann's estate, she has standing to bring these claims on Mrs. Hamann's behalf. Specifically, Theriot asserts that she has derivative standing.
"The Pension Fund does not dispute that provided Theriot is the administrator of Mrs. Hamann's estate, she would have standing under ERISA if Mrs. Hamann's estate is entitled to benefits from the Pension Fund."
Theriot argues that it would be inappropriate for the Court to resolve the merits of the underlying benefits claim to determine her standing.
Cobb, 461 F.3d at 637.
The parties do not dispute that Mrs. Hamann was a beneficiary of Mr. Hamann's Joint and Survivor benefits while she was alive. Rather, the Pension Fund argues that Mrs. Hamann's estate is not a beneficiary entitled to the lump sum payment because the benefits were no longer payable when she died.
Article VIII Section 1(a) of the Plan, which provides for Joint and Survivor and Optional Forms of Benefit, states:
Mrs. Hamann initially received her benefits in the form of a monthly annuity, but she later elected to receive the benefits as a lump sum. The Pension Fund advised Mrs. Hamann that, if she wished to receive the lump sum payment, she should complete and return the change form "by April 5, 2017 to receive the payment on May 1, 2017."
The Court finds that the phrase "at any time" refers to the time at which the surviving spouse may request receipt of a lump sum. The Plan allows the surviving spouse to elect a lump sum at any time after the election of monthly benefits. This interpretation is made clear by the benefit illustration sheet that Theriot cites in her second amended complaint, which explains: "If you initially elect a monthly benefit payment, you may elect at any time in the futureto receive the remainder of the Post-Retirement Survivor benefit as a lump sum."
The Plan's provisions do not contain any language referencing the change form's effective date or the date on which the benefits would convert from monthly payments to the lump sum. Neither Theriot nor the Pension Fund has directed the Court to any language in the Plan or any other documents that reference the effective date or conversion date for the change form.
The Plan provides that, if and when the surviving spouse elects to receive the benefits as a lump sum, the surviving spouse will receive the actuarial equivalent of the benefits payable.
Furthermore, the Plan clearly provides that the surviving spouse shall receive the participant's reduced monthly benefits for life. There is no dispute that Mrs. Hamann was alive when she elected to receive the lump sum of her remaining benefits and that she was alive when the Pension Fund received her change form. While the Pension Fund advised Mrs. Hamann that she would receive the lump sum on May 1, 2017, nothing in the Plan, the benefit illustration sheet, or the Pension Fund's correspondence with Mrs. Hamann suggests that her election would become invalid or that she would no longer be entitled to the
The Pension Fund has been unable to adequately explain why Mrs. Hamann did not become entitled to the lump sum—the remainder of her benefits—before her death. At this jurisdictional stage, the Court finds that Theriot, on behalf of Mrs. Hamann's estate, had a reasonable or colorable claim entitling the estate to benefits. Therefore, Theriot, on behalf of Mrs. Hamann's estate, has standing to assert her claims.
The Pension Fund also argues that venue is improper in the Eastern District of Louisiana.
Pursuant to ERISA, 29 U.S.C. § 1132(e)(2), an action "may be brought in the district where the plan is administered, where the breach took place, or where a defendant resides or may be found...." The Pension Fund asserts that the Pension Fund resides in, is administered in, and is maintained in the Eastern District of Wisconsin.
To answer the question of where the breach took place, the Pension Fund relies on Orgeron v. Moran Towing Corp., No. 93-4164, 1994 WL 462995 (E.D. La. Aug. 22, 1994). The plaintiff in Orgeron had applied for, but was denied, long-term disability benefits. 1994 WL 462995, at *1. The district court held that the breach did not occur in Louisiana and that venue was improper in the Eastern District of Louisiana because the plaintiff never received long-term disability benefits in Louisiana. Id. at *1-2. The court in Orgeron relied on Brown Schools, Inc. v. Florida Power Corp., 806 F.Supp. 146 (W.D. Tex. 1992), which "distinguished alleged breaches involving payments which had been made to a beneficiary within the district and then ceased, from alleged breaches in which payments were simply denied, with no transactions taking place within the district at all...." Orgeron, 1994 WL 462995, at *2. In Orgeron, no payments had been made in the Eastern District at all. Id.
The Pension Fund argues that Mrs. Hamann never received the type of benefit at issue in this litigation—the lump sum survivor benefit—in the Eastern District of Louisiana. Specifically, the Pension Fund argues, without providing any legal support, that the lump sum survivor benefit is a different benefit than the monthly
Finding there to be no dispute between the parties that the breach at issue was the denial of the lump sum payment of Mrs. Hamann's survivor benefits to Mrs. Hamann's estate, and that there is no dispute that Mrs. Hamann was receiving said survivor benefits in monthly payments and residing in the Eastern District of Louisiana when she died, the Court finds that the benefits at issue were received in this district and that venue is proper. See French v. Dade Behring Life Ins. Plan, No. 09-394, 2010 WL 2360457, at *2 (M.D. La. Mar. 23, 2010) ("While not yet addressed by the Fifth Circuit, several district courts within this circuit have either held or assumed that ERISA venue is proper where a plan participant/beneficiary receives or was to receive benefits.").
Finally, the Pension Fund argues that counts I, II, IV, and V of Theriot's second amended complaint should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to exhaust administrative remedies.
Pursuant to Rule 12(b)(6), a district court may dismiss a complaint or part of a complaint when a plaintiff fails to set forth well-pleaded factual allegations that "raise a right to relief above the speculative level." See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). The complaint "must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 547, 127 S.Ct. 1955)).
A facially plausible claim is one in which "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. If the well-pleaded factual allegations "do not permit the court to infer more than the mere possibility of misconduct," then "the complaint has alleged—but it has not `show[n]'—`that the pleader is entitled to relief.'" Id. at 679, 129 S.Ct. 1937 (quoting Fed. R. Civ. P. 8(a)(2)) (alteration in original).
In assessing the complaint, a court must accept all well-pleaded facts as true and liberally construe all factual allegations in the light most favorable to the plaintiff. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). Furthermore, "the Court must typically limit itself to the contents of the pleadings, including attachments thereto." Admins. of the Tulane Educ. Fund v. Biomeasure, Inc., 08-5096, 2011 WL 4352299, at *3 (E.D. La. Sept. 6, 2011) (Vance, J.) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000)). "[T]he Court may consider documents that are essentially `part of the pleadings'—that is, any documents attached to or incorporated into the plaintiff's complaint by reference that are central to the plaintiff's claim for relief."
The following facts alleged in Theriot's second amended complaint relate to the Pension Fund's motion to dismiss for failure to exhaust administrative remedies:
Theriot alleges that the April 18, 2017 letter, by which the Pension Fund first informed Theriot that the estate was not entitled to the lump sum payment, did not meet the criteria for a proper claim denial under ERISA.
Theriot alleges that on January 5, 2018, Theriot's then-counsel wrote to the Pension Fund requesting payment of the out-standing lump sum benefit.
Theriot claims that on November 2, 2018, her current counsel wrote to the Pension Fund requesting a decision with respect to Theriot's original claim for benefits or, to the extent that the Pension Fund considered the November 2, 2018 letter as an administrative appeal, requesting a submission date permitting receipt and review of evidence to support Theriot's appeal.
Theriot contends that she did not receive a response to the November 2, 2018 letter, so her counsel wrote to the Pension Fund again on December 19, 2018.
The Pension Fund argues that Theriot's claim for benefits in count I of her second amended complaint should be dismissed for failure to exhaust available administrative procedures.
"This requirement is not one specifically required by ERISA, but has been uniformly imposed by the courts in keeping with Congress' intent in enacting ERISA." Hall v. Nat'l Gypsum Co., 105 F.3d 225, 231 (5th Cir. 1997); see also Medina v. Anthem Life Ins. Co., 983 F.2d 29, 33 (5th Cir. 1993) ("[W]e have fully endorsed the prerequisite of exhaustion of administrative remedies in the ERISA context.") (citations omitted). "Dismissal of a complaint is appropriate when the proper procedure has not been followed for filing a claim and administrative remedies have not been exhausted." Long v. Aetna Life Ins. Co., No. 14-403, 2014 WL 4072026, at *3 (E.D. La. Aug. 18, 2014) (Africk, J.) (citing Medina, 983 F.2d at 33). A plaintiff fails to exhaust administrative remedies when she does not file a timely administrative appeal. Moss v. Unum Grp., 638 F. App'x 347, 349-50 (5th Cir. 2016) (citing Lacy v. Fulbright & Jaworski, 405 F.3d 254, 257 (5th Cir. 2005)).
In order to trigger the running of the administrative appeal period, notice of the adverse benefit determination need only substantially comply with ERISA's notice requirements, 28 U.S.C. § 1133 and 29 C.F.R. § 2560.503-1(g). McGowan v. New Orleans Emps. Int'l Longshoremen's Ass'n, 538 F. App'x 495, 498 (5th Cir. 2013) ("Strict compliance with ERISA is not necessary.... Fifth Circuit precedent makes clear that substantial compliance will suffice to trigger the running of the administrative appeal period.") (per curiam) (citing Lacy, 405 F.3d at 257). "In assessing whether the administrator has `substantially complied' with the applicable procedural requirements, the court must `consider[] all communications between an administrator and plan participant to determine whether the information provided was sufficient under the circumstances.'" Baptist Mem. Hosp.-DeSoto, Inc. v. Crain Automotive, Inc., 392 F. App'x 288, 293 (5th Cir. 2010) (quoting Wade v. Hewlett-Packard Dev. Co. LP Short Term Disability Plan, 493 F.3d 533, 539 (5th Cir. 2007),
Article XIII, Section 3 of the Plan provides, in relevant part:
The Pension Fund asserts that Theriot failed to exhaust administrative procedures because she failed to timely appeal the denial of benefits under the Plan. As stated above, a request for review of a denial of benefits must be made within sixty days of the participant's or claimant's receipt of such denial. The Pension Fund argues that because Theriot did not submit a request for review of the Pension Fund's denial of benefits until November 2, 2018, nearly eight months after its March 2, 2018 letter, Theriot did not adequately exhaust available administrative remedies.
In response, Theriot argues that any untimeliness in appealing the benefit denial was a direct result of the Pension Fund's failure to comply with its own and/or ERISA's procedural requirements and that any further attempts by Theriot for review of her claim would have been futile.
The Pension Fund does not dispute that its April 18, 2017 letter was non-compliant
As previously stated, when a claim for benefits is denied, the Plan, in accordance with 29 C.F.R. § 2560.501-1(g), requires that the Administrative Manager or the Eligibility Committee of the Trustees ("Eligibility Committee") provide the participant with written or electronic notification that sets forth the specific reason(s) for the denial, reference the specific provisions of the Plan that served as the basis for the denial, describe additional materials or information, if any, necessary for the participant to perfect her claim and, where appropriate, explain why such information is necessary.
On January 5, 2018, Theriot's then-counsel wrote the Pension Fund demanding the value of the outstanding lump sum payment owed to Mrs. Hamann's estate.
Theriot has failed to explain why the March 2, 2018 letter did not comply with ERISA or provide proper notice of the Plan's review procedures. While the Pension Fund's March 2, 2018 letter advised Theriot that it construed the April 18, 2017 letter as the initial denial of her claim for benefits, making her January 5, 2018 letter untimely, the Pension Fund still provided Theriot with the Plan provisions that made clear that she had sixty days from receipt of the March 2, 2018 letter to appeal the Eligibility Committee's denial.
As previously stated, an initial denial by the administrator or the Eligibility Committee can be reviewed by the Eligibility Committee, but the request for review must be filed within sixty days of the participant's receipt of the denial. If the Eligibility Committee denies the claim for benefits a second time, the participant can request a review by the Executive Committee, but the participant must request
Theriot has not alleged in her second amended complaint that she requested review by the Eligibility Committee of the March 2, 2018 denial of her claim for benefits. Even if the Court were to construe her November 2, 2018 letter as a request for review by the Eligibility Committee, such request was clearly untimely. Additionally, Theriot has not alleged that she requested any further review by the Executive Committee.
Theriot argues in her response, however, that any further request for review would have been futile. "The exceptions to the exhaustion requirement [in ERISA cases] are limited: a claimant may be excused from the exhaustion requirement if he shows either that pursuing an administrative remedy would be futile or that he has been denied meaningful access to administrative remedies." McGowan v. New Orleans Emp'rs Int'l Longshoremen's Ass'n, No. 12-990, 2012 WL 4885092, at *7 (E.D. La. Oct. 15, 2012), aff'd, 538 F. App'x 495 (5th Cir. 2013) (per curiam) (citing Denton, 765 F.2d at 1302; Meza, 908 F.2d at 1279). "These exceptions apply, however, only in extraordinary circumstances." Cent. States Se. & Sw. Areas Pension Fund v. T.I.M.E.-DC, Inc., 826 F.2d 320, 329 (5th Cir. 1987). "A failure to show hostility or bias on the part of the administrative review committee is fatal to a claim of futility." McGowin v. ManPower Int'l, Inc., 363 F.3d 556, 559 (5th Cir. 2004) (citing Bourgeois v. Pension Plan for Emps. of Santa Fe. Int'l Corps., 215 F.3d 475, 479-80 (5th Cir. 2000)).
Theriot does not specifically allege in her second amended complaint that a request for review of the March 2, 2018 letter, either by the Eligibility Committee or the Executive Committee, would have been futile.
In its March 2, 2018 letter, the Pension Fund advised Theriot that it was reserving its right to assert that she had failed to exhaust administrative remedies due to the untimeliness of her January 5, 2018 letter, and that such untimeliness, pursuant to the Plan, forecloses judicial review.
Theriot has also failed to allege or argue that she received hostile treatment from the Pension Fund or the Eligibility Committee
To the extent that Theriot argues she did not timely pursue her administrative remedies because the March 2, 2018 letter did not provide for further means of administrative review or state that she could seek further administrative review, the Court is not convinced. The Plan's administrative appeal procedures were enclosed with the March 2, 2018 letter sent to Theriot, as stated in the letter.
The Court finds that Theriot failed to exhaust her administrative remedies and that any exceptions to such a requirement are inapplicable in this case. Theriot has also failed to demonstrate that she will be able to exhaust her administrative remedies in the future, considering her untimely attempt to appeal the March 2, 2018 letter. Accordingly, the Court dismisses count I of the second amended complaint, Theriot's claim for benefits pursuant to § 1132(a)(1)(B), with prejudice. See Moss, 638 F. App'x at 349-50 (affirming the district court's dismissal with prejudice because the plaintiff did not show that he would be able to timely exhaust his administrative remedies in the future).
The Pension Fund also argues that counts II, IV, and V of Theriot's second amended complaint must be dismissed for failure to exhaust administrative procedures because they are disguised claims for benefits.
As previously discussed, an ERISA participant or beneficiary may bring a civil action to recover benefits pursuant to 29 U.S.C. § 1132(a)(1)(B) (ERISA § 502(a)(1)(B)).
"Generally, an [§ 1132](a)(3) claim for equitable relief may not be maintained when [§ 1132](a)(1)(B) `affords an adequate remedy.'" Id. at 865 (quoting Estate of Bratton v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 215 F.3d 516, 526 (5th Cir. 2000)). "[R]elief under § 1132(a)(3) generally is unavailable when a plaintiff may seek monetary relief under § 1132(a)(1)(B)." Innova Hosp. San Antonio, Ltd. P'ship v. Blue Cross & Blue Shield of Ga., Inc., 892 F.3d 719, 733 (5th Cir. 2018) (citing Swenson v. United of Omaha Life Ins. Co., 876 F.3d 809, 812 (5th Cir. 2017)). "By looking at the underlying alleged injury, it is possible to determine whether a given claim is duplicative of a claim that could have been brought under [§ 1132](a)(1)(B)." Manuel, 905 F.3d at 865. "Simply because a plaintiff does not prevail on a § 1132(a)(1) claim does not make viable an alternative claim under § 1132(a)(3)." Innova, 892 F.3d at 733 (citing Tolson v. Avondale Indus., Inc., 141 F.3d 604, 610 (5th Cir. 1998)).
"[A]lthough benefits claims require administrative exhaustion, fiduciary claims do not." Galvan v. SBC Pension Benefit Plan, 204 F. App'x 335, 339 (5th Cir. 2006) (per curiam) (citing cases). The Fifth Circuit recognizes, however, that "the exhaustion requirement applies to fiduciary claims that are instead disguised benefits claims, not to true breach-of-fiduciary-duty claims." Id. (citing Simmons v. Willcox, 911 F.2d 1077, 1081 (5th Cir. 1990)). "[T]he exhaustion requirement would be rendered meaningless if plaintiffs could avoid it simply by recharacterizing their claims for benefits as claims for breach of fiduciary duty." Simmons, 911 F.2d at 1081 (citing Drinkwater v. Metropolitan Life Ins. Co., 846 F.2d 821, 826 (1st Cir. 1988)). "Fiduciary claims amount to benefits claims when `resolution of the claims rests upon an interpretation and application of an ERISA-regulated plan rather than on an interpretation and application of ERISA.'" Galvan, 204 F. App'x at 339 (quoting D'Amico v. CBS Corp., 297 F.3d 287, 291 (3d Cir. 2002)).
Count IV of Theriot's second amended complaint asserts a claim for breach of fiduciary duties pursuant to § 1132(a)(3).
Theriot further alleges that the Pension Fund violated its fiduciary duties by operating under a conflict of interest because it was both the entity charged with deciding whether benefits should be paid and the entity that paid such benefits.
The Pension Fund argues that Theriot's claims for breach of fiduciary duty under count IV of her second amended complaint are disguised claims for benefits and should be dismissed for failure to exhaust administrative procedures.
Theriot's claims in paragraph 30 of the second amended complaint alleging procedural irregularities and her claim in paragraph 32 alleging that the Pension Fund operated in a "dual role" creating a conflict of interest are cognizable under § 1132(a)(1)(B). Theriot has not responded to the Pension Fund's arguments in connection with these claims or attempted to distinguish such claims from her claim for benefits. The Court finds, therefore, that Theriot's claims in paragraphs 30 and 32 of her second amended complaint must be dismissed as disguised claims for benefits which were not exhausted through administrative procedures.
Theriot only defends her claim in paragraph 33 of her second amended complaint that the Pension Fund maintained a SPD that deviated from the Plan.
In Manuel, the Fifth Circuit held that "claims for injuries related to SPD deficiencies are cognizable under [§ 1132(a)(3)] and not [§ 1132(a)(1)(B)]." Manuel, 905 F.3d at 865-66. Theriot argues that, like the plaintiff in Manuel, she has alleged that the SPD contained a deficiency and failed to apprise Mrs. Hamann of the exclusion upon which it denied her claim for benefits.
This Court recognizes that injuries related to SPD deficiencies are cognizable under § 1132(a)(3). However, the Court finds that Theriot has not alleged an injury related to an SPD deficiency. As previously stated, Theriot alleges that the SPD deviates from the Plan's terms by failing to disclose the Pension Fund's position that the survivor's lump sum benefit election could only be made during a period for which benefits had not been paid rather than "at any time" as stated in the Plan.
In count II of her second amended complaint, Theriot asserts that the Pension Fund failed to provide her with a full and fair review of an adverse benefits determination pursuant to ERISA, 29 U.S.C. § 1133; Article XIII, Section 3 of the Plan; and the SPD.
The Pension Fund argues that Theriot's claim pursuant to § 1133 in count II of her second amended complaint can only be enforced though § 1132(a)(3), which, as discussed supra, cannot be maintained when it is, in fact, a disguised and duplicative claim for benefits.
As previously discussed,
Lafleur, 563 F.3d at 154.
While "ERISA regulations provide insight into what constitutes full and fair review," of which there are many, id., Theriot's allegations with respect to the Pension Fund's alleged violation of § 1133 concern only the contents of the notice she received in connection with the Pension Fund's adverse benefits determination.
Theriot has not alleged any facts that might support an additional theory or basis underlying her claim that the Pension Fund failed to provide her with a full and fair review. Even construing the facts in the light most favorable to Theriot, the Court cannot reasonably infer that the Pension Fund is liable for the misconduct plaintiff alleges in count II of her second amended complaint. Therefore, the Court finds that Theriot has failed to state a plausible claim for relief and it must dismiss count II of the second amended complaint.
Finally, the Pension Fund moves to dismiss count V of Theriot's second amended complaint. Without reaching the Pension Fund's reasons as to why count V of the second amended complaint should be dismissed as a disguised claim for benefits, the Court finds that Theriot has failed to state a plausible claim for relief.
In count V, Theriot alleges that the Pension Fund interfered with her right to be reasonably apprised of her rights, obligations and review procedures under the Plan, in violation of ERISA, 29 U.S.C. § 1140, in a number of ways.
First, Theriot alleges that the Pension Fund interfered with her right to review when it "twice conveyed to Plaintiff its legal conclusion that she had failed to exhaust her administrative remedies and even went so far as to state that her options for administrative/judicial review were foreclosed instead of apprising her of her rights."
As previously discussed, the Pension Fund did not inform Theriot in the March 2, 2018 letter that her rights to review were foreclosed; rather, the Pension Fund explained its position that her January 5, 2018 letter was untimely and it stated simply that it was reserving its right to assert that Theriot failed to exhaust her administrative remedies pursuant to Article XIII, Section 3 of the Plan.
Next, Theriot asserts that the Pension Fund interfered with her rights in violation of § 1140 because it "failed to apprise Plaintiff of her rights for review, including her right to appeal the adverse benefits determination."
Third, Theriot alleges that the Pension Fund interfered with her rights in violation of § 1140 by failing "to include clear procedures in the plan documents and SPD for addressing the distribution of benefits in Plaintiff's situation."
Finally, Theriot alleges that the Pension Fund discriminated against the exercise of her rights to appeal and to judicial review "by failing to provide an initial formal claim denial and by subsequently instructing her that she has no rights to judicial review."
The Court finds that count V of Theriot's second amended complaint must be dismissed for failure to state a plausible claim for relief.
For the foregoing reasons,
At a June 21, 2019 telephone conference, the Court asked the parties to confirm whether the Board of Trustees was the proper defendant as to count III and whether the Pension Fund should be dismissed as to count III. The Court did not receive a clear answer as to who was the proper defendant, but the parties agreed that the Board of Trustees should be added as a defendant with respect to count III. The Court then granted Theriot's motion for leave to file a second amended complaint. R. Doc. No. 43; see generally R. Doc. No. 44. Because the Board of Trustees was made a defendant with respect to count III, the Pension Fund has failed to articulate why it (the Pension Fund) is not a proper defendant with respect to count III, and the Pension Fund has failed to assert any other basis for dismissal of count III, the Court will not dismiss that claim at this time.
The Supreme Court and the Fifth Circuit have recognized that surcharge—"monetary `compensation' for a loss resulting from a trustee's breach of duty, or to prevent the trustee's unjust enrichment"—is within the scope of appropriate equitable relief with respect to § 1132(a)(3). Gearlds v. Entergy Services, Inc., 709 F.3d 448, 451 (5th Cir. 2013) (discussing CIGNA Corp. v. Amara, 563 U.S. 421, 441-42, 131 S.Ct. 1866, 179 L.Ed.2d 843 (2011)). However, Theriot essentially argues that the Pension Fund should be estopped from denying her benefits and that she should receive monetary surcharge for the benefits she would have received. Id. Such requests are requests for benefits and lends support to the Court's finding that Theriot has not alleged an injury separate from the denial of benefits in connection with her claims in count IV of her second amended complaint.
Theriot also argues that she does not have to specifically request equitable relief in her complaint for the district court to award such relief. R. Doc. No. 46, at 4. She relies on Gearlds, which instructed courts to "focus on the substance of the relief sought and the allegations pleaded, not on the label used." Gearlds, 709 F.3d at 452. Theriot's reliance on Gearlds is unpersuasive. In that case, the plaintiff specifically requested "[a]ny and all other damages and/or relief, equitable or otherwise, to which [he] may be entitled under federal law." Id. at 452 (alterations in original). The Fifth Circuit explained that while the plaintiff had not specifically requested the type of equitable relief sought, he had nevertheless specifically requested equitable relief and pleaded a plausible claim for such relief. Id. Theriot, on the other hand, has not specifically requested any form of equitable relief in connection with the alleged SPD deficiencies or other claims in count IV of her second amended complaint. For the reasons stated, the Court, having reviewed the substance of her claims, has determined that count IV is in fact a disguised claim for benefits rather than a claim for breach of fiduciary duty.
