MEMORANDUM OPINION

SARA LIOI, District Judge.

Before the Court is defendants' joint motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6)1 (Doc. No. 6 ["Mot."]). Plaintiff has filed a response in opposition (Doc. No. 9 ["Opp'n"]) and defendants filed a reply (Doc. No. 10 ["Reply"]). For the reasons set forth herein, the motion to dismiss is granted.

I. BACKGROUND

On August 21, 2019, plaintiff The Retirees of the Goodyear Tire & Rubber Company Employee Healthcare Trust Committee ("plaintiff" or the "Trust Committee") filed a three-count complaint (Doc. No. 1 ["Compl."]) against defendants Pamela Steely ("Steely") and Eshelman Legal Group, Ltd. ("Eshelman Legal") (collectively, "defendants"). The complaint seeks "to enforce the terms and preserve the assets of an employee welfare benefit plan under the terms of the Employee Retirement Income Security Act of 1974 (`ERISA'), 29 U.S.C. § 1000-1461." (Compl. ¶ 1.)

The Trust Committee was "established by a Settlement Agreement dated October 29, 2007 which settled a lawsuit titled Redington, et al. v. The Goodyear Tire & Rubber Company, 07-cv-01999, United States District Court for the Northern District of Ohio." (Id. ¶ 2.; see Doc. No. 9-1 (the "Settlement Agreement").)2 "The Settlement Agreement calls for the establishment of The Retirees of the Goodyear Tire & Rubber Company Health Care Trust. . . to fund health care benefits for eligible retirees of the Goodyear Tire & Rubber Company." (Id.; see Doc. No. 9-2 (the "Goodyear Trust").) The Trust Committee "was established pursuant to the Settlement Agreement to serve as fiduciary of the Goodyear Trust." (Id.)

The Trust Committee alleges that it is "an employees' beneficiary association" under ERISA. (Id. ¶ 3 (citing 29 U.S.C. § 1002(4)).)3 Pursuant to the Settlement Agreement, the Trust Committee was authorized to establish The Retirees of Goodyear Tire & Rubber Company Health Care Plan. (Id. ¶ 4; see Doc. No. 9-3 (the "Goodyear Plan").4) It further alleges that it is "authorized to bring this action on behalf of all the Goodyear Plan participants and beneficiaries to enforce the terms of the Goodyear Plan and to protect the assets of the Goodyear Plan under 29 U.S.C. § 1132(a)(3) and federal common law." (Id. ¶ 5.)

The particular dispute underlying the complaint relates to reimbursement of medical benefits in the amount of $434,688.45 paid by the Goodyear Plan on behalf of Steely, who sustained personal injuries in an accident with a golf cart. (Id. ¶¶ 11-12.) "The Goodyear Plan contains an express provision which provides for the Plan's right to be reimbursed from settlement proceeds recovered by a Plan participant in settlement of a bodily injury claim from any source." (Id. ¶ 13.) "The Plan further provides: `By accepting [any] benefits advanced by the Plan. . . the Injured Participant acknowledges that any proceeds held by another person, held by the Injured Participant or by another, are being held for the benefit of the Plan. . . .'" (Id. (quoting Doc. No. 1-2 at 12).) Steely allegedly settled her personal injury claim for $439,500.00 in April, 2019. (Id. ¶ 15.) The Trust Committee alleges that "a portion of the settlement funds was distributed directly to [Steely] in violation of the Plan's lien." (Id. ¶ 19.) It further alleges that defendant Eshelman Legal "is holding $145,000 of the settlement proceeds in its client trust account[,]" and "has paid itself a portion of the settlement funds as a legal fee in violation of the Plan's lien." (Id. ¶¶ 20-21.) "Defendants refuse to reimburse the Goodyear Plan from the proceeds of the aforementioned settlement which are held in their possession." (Id. ¶ 22.)

Defendants argue that this Court lacks subject matter jurisdiction because the Goodyear Plan is not a qualifying ERISA plan, having not been established or maintained by either an employer or an employee association. (Mot. at 36 (citing 29 U.S.C. § 1003).)

II. DISCUSSION

A. Legal Standard

The Sixth Circuit recognizes two kinds of motion to dismiss for lack of subject matter pursuant to Rule 12(b)(1): a facial attack and a factual attack. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). A facial attack questions the sufficiency of the pleading. Id. In deciding a facial motion to dismiss, "the court must take the material allegations of the petition as true and construed in the light most favorable to the nonmoving party." Id. A factual attack, on the other hand, is an attack on the factual existence of subject matter jurisdiction. Id. In deciding a factual motion to dismiss, "no presumptive truthfulness applies to the factual allegations, and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Id. (internal citation omitted). On this type of challenge, the Court has broad discretion to consider extrinsic evidence, including affidavits and documents, and can conduct a limited evidentiary hearing if necessary. See DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004); Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). In either case, however, "the plaintiff has the burden of proving jurisdiction in order to survive the motion." Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986) (emphasis omitted).

B. Analysis

Defendants present a factual attack, arguing that there is no federal question jurisdiction5 because there is no proper ERISA claim. Defendants assert that the Goodyear Plan, which the Trust Committee seeks to enforce herein, can only be an "employee benefit plan" under ERISA if it was established or maintained by an "employer" or by an "employee organization. . . representing employees." (Mot. at 36 (citing 29 U.S.C. § 1003).) Defendants challenge the Trust Committee's allegation (see Compl. ¶ 3) that it qualifies as an "employee organization" under 29 U.S.C. § 1002(4), which defines "employee organization" as including "any employees' beneficiary association organized for the purpose in whole or in part, of establishing [an employee benefit] plan."

Although ERISA does not separately define "employees' beneficiary association," the United States Department of Labor ("DOL") has consistently applied the following criteria when making this determination:

Opinion No. 2015-01A (ERISA), 2015 WL 6438141, at *3 (Oct. 19, 2015)6 (citation omitted) (bolding added).7 Therefore, defendants argue, the plaintiff Trust Committee, which established the Goodyear Plan and serves as its fiduciary (Compl. ¶ 4), must meet all these criteria for the Goodyear Plan to be a qualified ERISA plan established by an "employees' beneficiary association[,]" — a requirement for this Court's subject matter jurisdiction under ERISA.

Defendants point out that the Trust Committee consists of nine (9) members: "three appointed by the Service Workers' Union (USW), two retiree class members and four public members." (Mot. at 37.) Defendants cite to the Trust Committee's website for this information, but membership in the Committee is also identically defined in the Settlement Agreement (Settlement Agreement at 103) and in the trust agreement (Goodyear Trust at 135). Defendants point out that employees do not participate in the Trust Committee, nor is membership on the Trust Committee conditioned on employment status or membership in a single union. (Mot. at 37-38.) As a result, defendants argue, any plan created by the Trust Committee is not a qualifying ERISA plan that can form the underlying basis for this Court's subject matter jurisdiction.8

In opposition, the Trust Committee does not squarely address defendants' argument. Rather, it asserts that "the Goodyear Trust `is intended to comply with the requirements of section 501(c)(9) of the Internal Revenue Code of 1986, . . . the applicable provisions of [ERISA] and section 302 of the Labor Management Relations Act of 1947. . .[.]'" (Opp'n at 95 (quoting the trust agreement); see Goodyear Trust at 133.9) The Trust Committee further argues that it established the Goodyear Plan that is funded by the Goodyear Trust, and that it serves as the Plan administrator and as a fiduciary, both as defined by ERISA. The Trust Committee claims that the Goodyear Plan is limited to certain defined individuals (or their dependents) who were eligible for coverage under Goodyear's original medical benefits plan (the so-called "Original Plan") or who qualified for disability retirement. The Trust Committee explains: "In other words, all participants in [the Goodyear] Plan have one thing in common: They are all former employees (or spouses or dependents of former employees) of Goodyear. . . who were eligible to participate in the Original Plan negotiated by the USW." (Opp'n at 95.)

In reply, defendants argue that the Trust Committee has done no more than attempt to show that the beneficiaries of the Goodyear Plan meet the DOL's criteria for defining an "employees' beneficiary association," but not the Trust Committee itself — which is fatal to any ERISA claim.

Defendants have the correct view. As explained supra, under ERISA, a health care plan (such as the Goodyear Plan at issue here) is an "employee welfare benefit plan" only if it was

29 U.S.C. § 1002(1). In determining whether the Trust Committee is an "employee organization" or an "employees' beneficiary association," this Court is contrained by the language of the Settlement Agreement, which states: "The [Trust] Committee is hereby formed to establish the [Goodyear] Trust and to exercise such authority set forth herein to carry out the purposes of the Trust. The Committee shall be comprised of four Public Members, three USW Members and two Class Committee Members." (Settlement Agreement at 109.10) Therefore, the Trust Committee, as the entity that established the Goodyear Trust that funded the Goodyear Plan, must meet the criteria for an "employee organization," which includes an "employees' beneficiary association."11 It is not the Goodyear Trust or the Goodyear Plan that must meet the criteria.12

Plaintiff fails in this regard. It cannot meet all the criteria set forth by the DOL for an "employees' beneficiary association." In particular, as properly argued by defendants, membership on the Trust Committee is not conditioned on employment (or former employment/retirement) status. The presence of the "Public Members" on the Trust Committee negates that criterion.13

The mere fact that the Trust Committee was created under the terms of the Redington Settlement Agreement, which generally mentions ERISA at several points (without specifying any particular statutory citation), does not insulate the Trust Committee from having to meet the criteria to establish itself as an "employees' beneficiary association."

Nor is it sufficient to show (which plaintiff has neither done nor even attempted) that, because the Original Plan may have been an ERISA plan, the Goodyear Plan created to replace it under the terms of the Settlement Agreement must automatically be an ERISA plan, whether or not it was established by an "employer" or "an employee organization."14

Finally, even if the overall structure put in place by the Settlement Agreement might qualify as a "voluntary employees' beneficiary association" for tax-exemption purposes under the IRC,15 that does not automatically mean, as clearly reflected in the relevant regulations, that the requirements were also met for establishing an "employee benefit plan" protected by (and enforceable under) ERISA. See 26 C.F.R. § 1.501(c)(9)-7.

Since plaintiff cannot establish that this lawsuit addresses an ERISA plan, defendants are entitled to dismissal for lack of subject matter jurisdiction. That said, the Court emphasizes that it takes no position on whether plaintiff may have a viable breach of contract claim. Absent diversity jurisdiction, this Court has no authority to decide that issue, even if plaintiff were permitted to amend the complaint.

III. CONCLUSION

For the reasons set forth herein, because there is no proper ERISA claim16 here, defendants' joint motion to dismiss for lack of subject matter jurisdiction (Doc. No. 6) is granted. This case is closed.

IT IS SO ORDERED.