Stevenson v. Schneider Electric USA, Inc.

Filing 68

ORDER denying 46 Renewed Motion to Dismiss Plaintiff's ERISAClaims by Judge Philip A. Brimmer on 09/10/14.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-01609-PAB-KMT
TRACY LYNN STEVENSON,
Plaintiff,
v.
SCHNEIDER ELECTRIC U.S.A., INC.,
Defendant.

ORDER

This matter is before the Court on the Defendant’s Renewed Motion to Dismiss
Plaintiff’s ERISA Claims [Docket No. 46] filed by defendant Schneider Electric USA, Inc.
I. BACKGROUND1
On May 13, 2013, plaintiff filed this action in the District Court for the City and
County of Denver, Colorado. Docket No. 1 at 1. Plaintiff indicates that she is legally
disabled and has had surgery on her hip and back. Docket No. 20 at 2, ¶ 10. Plaintiff
and her husband, Ronald Stevenson, divorced in 2003. Id. at 2, ¶ 7. After the divorce,
plaintiff continued to be covered on her ex-husband’s medical insurance, which was
provided through defendant. Id. at 2, ¶¶ 8-9. In 2012, Mr. Stevenson removed plaintiff
from such coverage. Id. In order to acquire substitute health insurance coverage
through Medicare, plaintiff needed defendant to complete a “Request for Employment

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The following factual allegations are taken from plaintiff’s amended complaint
and, for the purposes of resolving this motion, are presumed true.

Information” (“REI”) form. Id. at 2, ¶ 11. Plaintiff claims that defendant refused to
complete the REI form, but vaguely suggests that defendant completed the form after
plaintiff filed this case. Id. at 2, ¶ 12. On November 1, 2012, plaintiff served defendant
with a writ of continuing garnishment pursuant to the divorce action between plaintiff
and Mr. Stevenson, with which defendant has not entirely complied. Docket No. 20 at
3-4, ¶ 13, 23.
In her original complaint, Ms. Stevenson sought injunctive relief, requiring
defendant to complete the REI form, and brought additional claims of breach of
contract, aiding and abetting breach of fiduciary duties, civil conspiracy, and a monetary
judgment for failure to comply with the writ of garnishment. Docket No. 1-1 at 3-6.
Defendant filed a motion to dismiss, arguing that plaintiff’s claims were preempted by
the Employment Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001
et seq. Docket No. 15. Plaintiff subsequently filed an amended complaint and
defendant’s motion was denied as moot. See Docket No. 43. Plaintiff’s amended
complaint contains a claim for monetary judgment based on the failure to comply with
the writ of garnishment, a claim for aiding and abetting breach of fiduciary duties, and a
claim for civil conspiracy. Docket No. 20 at 3-5. Defendant filed a renewed motion to
dismiss, which is substantially identical to its original motion to dismiss. Compare
Docket No. 15, with Docket No. 46. Defendant again argues that, pursuant to Fed. R.
Civ. P. 12(b)(6), plaintiff’s second claim for relief for aiding and abetting a breach of
fiduciary duty and plaintiff’s third claim for relief for civil conspiracy are completely
preempted by ERISA’s civil enforcement provision. Docket No. 46 at 4. Defendant

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also argues that plaintiff’s second and third claims for relief are therefore converted into
claims under ERISA’s civil enforcement provision, 29 U.S.C. § 1132(a), and, as such,
should be dismissed for failure to state a claim. Docket No. 46 at 8.
II. STANDARD OF REVIEW
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a complaint must allege enough factual matter that, taken as true, makes
the plaintiff’s “claim to relief . . . plausible on its face.” Bryson v. Gonzales, 534 F.3d
1282, 1286 (10th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “[W]here 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 shown–that the
pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal
quotation marks and alteration marks omitted). Thus, even though modern rules of
pleading are somewhat forgiving, “a complaint still must contain either direct or
inferential allegations respecting all the material elements necessary to sustain a
recovery under some viable legal theory.” Bryson, 534 F.3d at 1286 (alteration marks
omitted ); see also Mein v. Pool Co. Disabled Int’l Emp. Long Term Disability Benefit
Plan, Pool Co., Inc., 989 F. Supp. 1337, 1344 (D. Colo. 1998) (considering preemption
argument in resolving Fed. R. Civ. P. 12(b)(6) motion to dismiss).
III. ERISA PREEMPTION
Defendant has the burden of establishing the preemption defense, which, as a
threshold matter, requires a defendant to show that the applicable benefit plan is
offered by an employer engaged in interstate commerce. Settles v. Golden Rule Ins.

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Co., 927 F.2d 505, 508 (10th Cir. 1991); see also Kanne v. Conn. Gen. Life Ins. Co.,
867 F.2d 489, 492 n.4 (9th Cir. 1988) (“Because [defendant’s] claim of ERISA
preemption is a federal defense in this lawsuit, the burden is on the defendant to prove
the facts necessary to establish it” (citation omitted)). The amended complaint contains
no allegations upon which to base a conclusion that defendant is engaged in interstate
commerce. Cf. Settles, 927 F.2d at 508 (holding that plaintiff pled sufficient facts “to
support the conclusion that [defendant] participated in business affecting interstate
commerce” so as to concede that ERISA was applicable). Instead, defendant asserts
that defendant’s welfare benefit plan (“defendant’s plan”) is governed by ERISA and
that defendant is a plan administrator as the term is defined under ERISA. Docket No.
46 at 3. However, “[j]ust because a plan exists . . . does not mean that it is an ERISA
plan” and the amended complaint contains no mention of the plan itself and no
allegations to support either of defendant’s assertions. See Gaylor v. John Hancock
Mut. Life Ins. Co., 112 F.3d 460, 464 (10th Cir. 1997). Moreover, the amended
complaint contains no facts upon which defendant can establish the definitional
elements of an ERISA plan, which are “(1) a plan, fund, or program (2) established or
maintained (3) by an employer (4) for the purpose of providing health care or disability
benefits (5) to participants or their beneficiaries.” Id. (quotations omitted). Defendant
has therefore failed to establish that it is entitled to the ERISA preemption defense.
The premise of defendant’s argument, that its only relationship with plaintiff was
through its welfare benefit plan, is not without common sense appeal. The amended
complaint is vague concerning how the duties underlying plaintiff’s claims arose and
contains few allegations that otherwise explain the factual basis for plaintiff’s claims.
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However, defendant does not attack the complaint on vagueness grounds.2 Defendant
attaches a copy of the relevant plan to its motion and urges that “[b]ecause Schneider
Electric’s Plan is referred to in the Amended Complaint and is central to Ms.
Stevenson’s claims, the Court may consider the Plan document without converting this
Motion into a motion for summary judgment.” Docket No. 46 at 3. However, as noted
above, defendant’s plan documents are not “explicitly referenced in the complaint” and
therefore the Court cannot consider them without converting defendant’s motion to
dismiss into a motion for summary judgment, which the Court declines to do. See
Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215-16 (10th Cir. 2007) (holding that
converting Rule 12(b)(6) motion to motion for summary judgment should only be done
after the parties have had a reasonable opportunity to present material made pertinent
to such a motion). Thus, it is inappropriate for the Court to consider the plan
documents attached to defendant’s brief in resolving the present motion.3 Rather, it is
more appropriate for the Court to consider defendant’s arguments on a more complete
record.

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Defendant argues, for the first time in its reply brief, that plaintiff’s state law
claims, if not preempted by ERISA, fail to “identify a source of a duty owed by
Schneider Electric necessary to support her claims” and, as such, should be dismissed
for failure to state a claim. Docket No. 60 at 1, 3, 8. Because this argument is raised
for the first time in defendant’s reply brief, the Court declines to consider it. See Tran v.
Trustees of State Colleges in Colo., 355 F.3d 1263, 1266 (10th Cir. 2004) (“Issues not
raised in the opening brief are deemed abandoned or waived.”).
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Even if the Court were to consider the plan documents, which mention ERISA
and state that participants are “entitled to certain rights and protection under [ERISA],”
Docket No. 16-3 at 53-54, defendant does not fully explain how the plan documents
are, by themselves, sufficient to establish that defendant’s plan is governed by ERISA.
See Gaylor, 112 F.3d at 464.
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IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that Defendant’s Renewed Motion to Dismiss Plaintiff’s ERISA
Claims [Docket No. 46] is DENIED.

DATED September 10, 2014.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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