Zarate v. Voya Institutional Plan Services, LLC

Filing 22

ORDER granting 17 --motion to dismiss; dismissing the action without prejudice; directing the clerk to CLOSE the case. Signed by Judge Steven D. Merryday on 3/28/2018. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
IVONNE ZARATE,
Plaintiff,
v.

CASE NO. 8:17-cv-2995-T-23JSS

VOYA INSTITUTIONAL
PLAN SERVICES, LLC,
Defendant.
____________________________________/

ORDER
After Felipe Zarate’s death, his wife Ivonne requested from Voya Institutional
Plan Services access to Felipe’s individual retirement account. During several
decades of employment at ExxonMobil, Zarate purportedly “amassed a significant
amount of cash and securities in the [a]ccount.” (Doc. 12 at ¶ 14) Voya, which
ExxonMobil hired to administer ExxonMobil’s retirement plan, allegedly denied
Ivonne access to her deceased husband’s account for eight months. During the eight
months, a decrease in the value of ExxonMobil stock allegedly diminished the value
of Felipe’s account. Suing (Doc. 12) Voya under ERISA for “breach of fiduciary
duty,” Ivonne requests damages for the diminution in the value of the ExxonMobil
stock. Also, Ivonne claims that Voya breached a fiduciary duty by advising Ivonne

to “liquidate” the account instead of “rolling over” the ExxonMobil stock. Voya
moves (Doc. 17) to dismiss for failure to exhaust the administrative process.*
DISCUSSION
A beneficiary of an ERISA plan ordinarily must exhaust the administrative
process before suing under ERISA. Springer v. Wal-Mart Assocs. Grp. Health Plan,
908 F.2d 897, 899 (11th Cir. 1990). As Voya correctly observes, the complaint fails
to allege that Ivonne exhausted the administrative process. Tacitly conceding a
failure to invoke and to exhaust the administrative process, Ivonne argues (Doc. 18)
that the administrative process cannot resolve a claim under ERISA for breach of a
fiduciary duty. But Bickley v. Caremark RX, Inc., 461 F.3d 1325 (11th Cir. 2006),
which forecloses Ivonne's argument, holds that a plaintiff who claims a breach of
fiduciary duty must invoke and exhaust the administrative process before suing.
Also, Ivonne argues that the administrative process would prove futile. As
Bickley explains, excusing the exhaustion requirement demands “clear and positive”
proof of futility. Bickley, 461 F.3d at 1330 (affirming the dismissal of a complaint
where the plaintiff’s “claim of futility is merely speculative”). For example, evidence
of an administrator’s deliberate effort to block a beneficiary’s access to the
administrative process warrants excusing the exhaustion requirement. Curry v.
Contract Fabricators Inc. Profit Sharing Plan, 891 F.2d 842, 846–47 (11th Cir. 1990).
Because Ivonne’s speculative belief that Voya or ExxonMobil will deny Ivonne’s

*

Because Ivonne failed to exhaust the administrative process, this order declines to resolve
Voya’s other arguments for dismissal.

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breach-of-fiduciary-duty claim fails to show clearly and positively the futility of the
administrative process, the motion (Doc. 17) to dismiss for failure to exhaust an
administrative remedy is GRANTED, and the action is DISMISSED WITHOUT
PREJUDICE. The clerk is directed to close the case.
ORDERED in Tampa, Florida, on March 28, 2018.

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