Caprario v. Sodexo, Inc.
OPINION AND ORDER granting in part and denying in part 13 Motion to Dismiss for Failure to State a Claim. Signed by Honorable P. K. Holmes, III on June 13, 2014. (src) Modified text on 6/13/2014 (jas).
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
Case No. 3:13-CV-03106
OPINION AND ORDER
Before the Court are Defendant Sodexo, Inc.’s (“Sodexo”) motion to dismiss (Doc. 13)
and brief in support (Doc. 14), Plaintiff Mathew Caprario’s response (Doc. 16), and Sodexo’s
reply (Doc. 17).1 For the reasons explained below, the motion to dismiss is GRANTED IN
PART and DENIED IN PART.
For purposes of the motion to dismiss, the Court takes Caprario’s alleged facts as true.
Caprario is a former employee of Sodexo. Sodexo offers to its employees various employee
benefit plans, and is the administrator for these plans. During his employment with Sodexo,
Caprario participated in several of the employee benefit plans, including the Long Term
Disability Plan, Group Life Insurance Plan, Survivor Income Protection Plan, Accidental Death
and Dismemberment Plan, Free Basic Life Plan, and Group Health Insurance Plan. While
working for Sodexo, Caprario became totally disabled, and though he remained classified as an
employee and continued to participate in the employee benefit plans, he never returned to active
employment. Between the time Caprario left active employment and the time he turned 65, and
despite his continued right to participation in the employee benefit plans, Sodexo terminated
The Court has considered Defendant’s reply even though it was filed without leave of
the Court. See Local Rule 7.2(b) (indicating that the only reply that may be filed as a matter of
course is a reply to a response to a motion for summary judgment).
Caprario’s participation in the plans a number of times, only to reinstate him when Caprario
challenged the cancellations. Sodexo also misclassified Caprario as an active employee after he
left active employment, which resulted in increased costs of Caprario’s healthcare benefits.
When Caprario turned 65 years old on March 3, 2010, Sodexo terminated Caprario’s
participation in the Survivor Income Protection Plan and Group Life Insurance Plan. Sodexo
also terminated Caprario’s participation in the Long Term Disability Plan, despite the terms of
that plan extending coverage until the age of 70.
On May 20, 2011, Caprario sent a request to Sodexo for the summary plan descriptions
(“SPDs”) of Sodexo’s employee benefit plans. On June 10, 2011, Sodexo produced SPDs for
some, but not all, of the employee benefit plans in which Caprario had participated.
particular, Sodexo did not provide SPDs for the Accidental Death and Dismemberment Plan,
Group Term Life Insurance Plan, and Survivor Income Plan. Within 30 days of the May 20
request, Sodexo sent Caprario notice that his employment status was terminated. At some point,
Caprario retained legal counsel. On October 11, 2011, and again on January 6, 2012, Caprario’s
counsel requested the governing documents for the employee benefit plans for which Sodexo had
not produced SPDs, as well as for the Basic Life Insurance Plan.2 Sodexo provided plan
documents and SPDs for those employee benefit plans on February 9, 2012. After Caprario’s
counsel requested the documents, Sodexo sent a second notice to Caprario that his employment
status was terminated.
Caprario filed the instant action on November 14, 2013. Caprario is suing under the
Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., to
recover benefits under the terms of Sodexo’s employee benefit plans, to enjoin Sodexo from
It is unclear why Caprario’s counsel requested documents for this plan, as it was
produced to Plaintiff on June 10, 2011.
violating the plans further, and for retaliation against him for exercising rights to which he is
entitled. Caprario also seeks statutory damages to remedy Sodexo’s refusal to supply requested
information. Finally, Caprario asserts a claim of outrage under Arkansas state law. Sodexo
moved to dismiss Caprario’s complaint on the grounds that exhaustion of administrative
remedies under the employee benefits plans is a requirement in denial of benefits cases and
Caprario has not exhausted his remedies. Sodexo also moves for dismissal of the state law
claim, arguing that it is preempted by ERISA.
In ruling on a motion to dismiss, the Court must “accept as true all facts pleaded by the
non-moving party and grant all reasonable inferences from the pleadings in favor of the nonmoving party.” Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012) (quotation
omitted). “[A] 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 (2009) (quotation
omitted). This includes pleading sufficient factual matter to show that prerequisite conditions of
suit have been satisfied. Id. at 686-87. The alleged facts must be specific enough “to raise a
right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). Pleadings that contain mere “labels and conclusions” or “a formulaic recitation of the
elements of the cause of action will not do.” Id. A court is not required to “blindly accept the
legal conclusions drawn by the pleader from the facts.” Westcott v. City of Omaha, 901 F.2d
1486, 1488 (8th Cir. 1990).
In moving to dismiss the complaint, Sodexo argues that Caprario failed to exhaust his
administrative remedies under the employee benefit plans before filing suit and that Caprario’s
state tort claim is preempted by ERISA. Caprario responds that exhaustion is an affirmative
defense not considered on a motion to dismiss, and, at any rate, he pleaded exhaustion in his
complaint or exhaustion was otherwise not required. Caprario also contends that his state tort
claim is not preempted because it does not relate to an employee benefit plan. The Court will
address each argument in turn.
The ERISA Claims
In the complaint, Caprario alleges that Sodexo failed to timely produce SPDs for its
employee benefit plans in response to Caprario’s requests and denied or terminated benefits due
to him. Caprario further alleges that these actions are contrary to the contractual terms of the
employee benefit plans and are actionable under ERISA.3 Sodexo argues in its motion to dismiss
that Caprario’s complaint does not allege facts sufficient for the Court to infer that Caprario has
exhausted his administrative remedies under the employee benefit plans. Caprario responds that
the exhaustion doctrine is an affirmative defense rather than a matter of jurisdiction, that there is
no evidence that the employee benefit plans required exhaustion, and that he “need only craft his
complaint in a way to put the burden on Sodexo to prove its affirmative defense through
summary judgment or at trial” in order to survive dismissal. (Doc. 16, at 3).
Federal courts apply a judicially-created exhaustion requirement to any action
“challenging the denial of benefits under a plan governed by ERISA.” Reindl v. Hartford Life
and Accident Ins. Co., 705 F.3d 784, 787 (8th Cir. 2013). The exhaustion requirement allows
plan administrators to correct their own errors, promotes consistent treatment of claims, provides
a nonadversarial resolution process, decreases claim resolution costs and time, creates a fact
record to assist the court should judicial review become necessary, and cuts down on frivolous
In particular, Plaintiff claims that his ERISA causes of action arise under 29 U.S.C. §§
1132(a)(1)(B), (a)(3), (c)(1)(B), and 1140.
claims. Galman v. Prudential Ins. Co. of Am., 254 F.3d 768, 770 (8th Cir. 2001). “ERISA
provides that every plan must provide a benefits appeal procedure. See 29 U.S.C. § 1133(2). In
this circuit, benefit claimants must exhaust this procedure before bringing claims for wrongful
denial to court.” Id. Satisfying the exhaustion requirement is a prerequisite condition of suit.
See Reindl, 705 F.3d at 787 (“[A] timely administrative appeal is a prerequisite to filing an action
in federal court challenging the denial of benefits under a plan governed by ERISA.”); Angevine
v. Anheuser-Busch Cos. Pension Plan, 646 F.3d 1034, 1037 (8th Cir. 2011) (“Before filing in
federal court . . . a claimant must exhaust the administrative remedies required under the
particular ERISA plan.”); Brown v. J.B. Hunt Transp. Servs., Inc., 586 F.3d 1079, 1084 (8th Cir.
2009) (“[F]ederal courts have universally construed § 1133 [of ERISA] to require exhaustion
[prior to bringing suit].”). Exhaustion is excused “only when pursuing an administrative remedy
would be futile or there is no administrative remedy to pursue.” Angevine, 646 F.3d at 1037.
A complaint must contain sufficient factual allegations for the Court to be able to infer
that conditions precedent to suit are satisfied, and conclusory statements will not do. Caprario
states in his complaint that:
Caprario has satisfied all administrative remedies for
bringing these claims against Sodexo.
Alternatively, Caprario contends that such administrative
remedies are futile and exhaustion is not required.
In the second alternative, Caprario contends that Sodexo
waived its right to seek exhaustion of administrative remedies.
In the third alternative, Caprario contends that exhausting
such administrative remedies is an impossibility.
(Doc. 1, ¶¶ 35-38).
The exhaustion allegations in Caprario’s complaint are bare legal
conclusions unsupported by any factual allegations, and the Court is not required to blindly
accept them. Westcott, 901 F.2d at 1488. The complaint alleges no facts from which the Court
can infer that the employee benefit plans do not provide Caprario with the legally-mandated
benefits appeal procedure, nor has Caprario pleaded any facts describing how he exhausted his
remedies under the employee benefit plans. Finally, Caprario has not pleaded any facts from
which the Court can infer that exhaustion of plan remedies would be futile. Because the Court
cannot infer that Caprario has satisfied this prerequisite condition of suit, or is excused from
doing so, the Court cannot reach a decision on the merits, and no relief can be granted.
Accordingly, Sodexo’s motion to dismiss Counts II-IV of Caprario’s complaint will be granted.
Unlike those counts, Caprario’s claim for statutory damages in Count I of his complaint
does not arise from a denial of benefits. The statutory damages allowed by 29 U.S.C. §
1132(c)(1)(B) do not exist to remedy a denial of benefits, but “to provide plan administrators
with an incentive to comply with the requirements of ERISA.” Starr v. Metro Sys., Inc., 461
F.3d 1036, 1040 (8th Cir. 2006). Section 1024(b)(4) entitles participants or beneficiaries to
receive the latest updated SPDs on written request to the plan administrator.
1132(c)(1)(B) allows a court to assess statutory damages to an administrator for failure to do so.
To survive the instant motion to dismiss, Count I of Caprario’s complaint need only be
supported by sufficient facts from which the Court can infer that Caprario made a permissible
request for disclosure of information from the plan administrator and the plan administrator did
not timely make the disclosure. Caprario alleges that Sodexo is the plan administrator for the
employee benefit plans in which he participated, that on May 20, 2011, Caprario properly mailed
a request to Sodexo for SPDs, that a second and third request were mailed for specific SPDs not
produced in response to the first request on October 11, 2011, and that copies of the requested
information were finally provided on February 9, 2012. The time between the alleged date of
first request and the alleged date of production for the last of the SPDs is well past the 30-day
statutory limit. Caprario has pleaded facts sufficient to state a claim for the statutory damages
allowed under 29 U.S.C. § 1132(c)(1)(B). Accordingly, Sodexo’s motion to dismiss Count 1 of
Caprario’s complaint will be denied.
The State Tort Claim and ERISA Preemption
Caprario alleges that Sodexo committed the tort of outrage by denying various benefits,
plan participation, and requested SPDs to Caprario, and by sending Caprario letters that
communicated that Caprario’s employment status was terminated. Sodexo argues that this claim
is preempted under 29 U.S.C. § 1144(a). Caprario counters that his outrage claim is not a claim
for benefits and so does not relate to the benefit plans.
Sodexo’s preemption argument is specific to ERISA plans. ERISA preempts
“any and all State laws insofar as they may now or hereafter relate to any employee benefit
plan.” Daley v. Marriott Int’l, Inc., 415 F.3d 889, 894 (8th Cir. 2005) (quoting 29 U.S.C.
§1144(a)). This preemption clause is drafted “in broad terms.” Kuhl v. Lincoln Nat’l Health
Plan of Kan. City, Inc., 999 F.2d 298, 301 (8th Cir. 1993). A state law “relates to” a benefit plan
when it “has a connection with or reference to such a plan” even if its effect is incidental. Id. at
302. To determine whether a law has a connection with an employee benefit plan, the Court can
 whether the state law negates an ERISA plan provision, 
whether the state law affects relations between primary ERISA
entities,  whether the state law impacts the structure of ERISA
plans,  whether the state law impacts the administration of
ERISA plans,  whether the state law has an economic impact on
ERISA plans,  whether preemption of the state law is consistent
with other ERISA provisions, and  whether the state law is an
exercise of traditional state power. Wilson v. Zoellner, 114 F.3d
713, 717 (8th Cir. 1997) (brackets in original).
The Arkansas tort of outrage is “also known as the intentional infliction of emotional
distress.” Deitsch v. Tillery, 309 Ark. 401, 407 (Ark. 1992). A state’s intentional infliction of
emotional distress tort is preempted when it seeks liability for actions taken in administering an
ERISA plan. See, e.g., Kuhl, 999 F.2d at 303 (“[A]ny state law claim that [Plaintiff] may have
had . . . arose from [Defendant’s] denial of benefits under the Belger Plan. . . . Accordingly, the
[Plaintiff’s] state law claims . . . ‘relate to’ the Belger plan and are preempted by ERISA.”).
Caprario’s outrage claim is a claim for damages for the emotional distress Caprario suffered as a
result of actions Sodexo took in administering its employee benefit plans.
Caprario’s emotional distress was caused by Sodexo’s delay in responding to Caprario’s requests
for information, decisions to deny or terminate benefits, and decision to notify Caprario that it
considered his employment status terminated. Holding Sodexo liable for outrage for its actions
in administering the plans would impact the administration of ERISA plans and the relations
between primary ERISA entities. On the alleged facts, Caprario’s outrage claim is preempted,
and the Court cannot grant him the relief he requests. Accordingly, Sodexo’s motion to dismiss
Count V of the complaint will be granted.
For the reasons stated above, IT IS HEREBY ORDERED that Sodexo’s motion to
dismiss for failure to state a claim (Doc. 13) is GRANTED IN PART and DENIED IN PART.
The motion is GRANTED IN PART insofar as Counts II, III, IV, and V of the complaint
are DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that the motion is DENIED IN PART insofar as Count I
remains pending against Sodexo.
IT IS SO ORDERED this 13th day of June, 2014.
/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE
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