Bacon et al v. Stiefel Laboratories, Inc. et al

Filing 69

ORDER ON MOTIONS TO DISMISS. Signed by Senior Judge James Lawrence King on 5/26/2010. (jw)

IN THE UNITED STATES DISTRICT (:'C)URT FOR THE SOUTHERN DISTRICT OF FI[,~I:)RIDA MIAMI DIVISION CASE NO. 09-21871-CV-KING

JAMES A. BACON, KARL F. POPP, and MARION BURK, individually and on behalf of others similarly situated, Plaintiffs,

STIEFEL LABORATORIES, INC., a Delaware corporation, CHARLES 'W. STIEFEL, BRENT D. STIEFEL, TODD STIEFEL, LODEWIJK DE VINK, COMMITTEE MEMBER # 1, COR4MITTEE MEMBER #2, COMMITTEE MEMBER # 3, MATT S. PATULLO, TERRENCE N. BOGUSH, and BOGUSH & GRAIIY, LLP., a New York Limited Liability Partnership, Defendants.
1

ORDER ON MOTIONS TO DISMIjjS

THIS CAUSE comes before the Court upon two motion:

10

dismiss. One was filed by

Stiefel Laboratories, Inc., Charles W. Stiefel, Brent D. Stiefel, T~:~tld Stiefel, Lodewijk de Vink, Steve Karasick, Michael Cornelius, and Matt S. Pattullo (collecti~vr~.:ly, "Stiefel Defendants") the (DE #50), and one was filed by Te~rrence Bogush and Bogush ($5 Grady, LLP (collectively, the N. "Bogush Defendants") (DE #51). Plaintiffs have filed Response!; (Dl: #57 & 58), and both sets of Defendants have filed Replies (IIE #66 & 65). The factual allegations in the Amended Complaint (DE #4 7 ) are substantially the same as those set forth in the original Complaint, and those allegations tu e summarized in the Court's

Order Granting Motions to Dismiss in Part (DE #43). The inslant Motions to Dismiss are directed at the Amended Complaint, and the Court will address each, motion in turn.'

H.

The Stiefel Defendants' Motion to Dismiss

The Stiefel Defendants' first argument is that Plaintiffs lack standing to bring their ERISA claims. Claims under EWSA

8

502(a) may be brou~ght only by "participants,"

"fiduciaries," beneficiaries," and the Secretary of Labor. 29 U S , 12.

8

1132(a). Participant is

defined as "any employee or former employee . . . who is or may become eligible to receive a benefit of any type from an employee benefit plan.'' 29 U.S.C. {;, 1002(7). Thus, the Stiefel are Defendants argue that Plaintiffs are not "participants" because Il-~ey no longer eligible to receive Plan benefits. This argument does not have merit. In L a ~ ~ f lv. a r ~ Home Depot, Inc., 536 F.3d 1217, 1222 (1 1th Cir. 2008), the Eleventh Circuit squarely atl u tressed this issue, holding that J "[a] complaint for the decrease in value of a defined contribution account due to a breach of fiduciary duty is not for damages because it is limited to the dif erence between the benefits ;~ctually received and the benefits that would have been receive1:l if the plan management had fulfilled its statutory obligations. Blzcause their complaint is for be~u,~fits, damages, the former not
employees qualify as participants." That is precisely the case Ilere: Former employees are

:seeking the true value of their ERISA benefits, which is the fair rniuk.et value of their company stock. See also LaRue v. DeWolfJ: Boberg & Assocs., 552 U.S. 248, 256 n. 6 (2008) ("A plan 'participant,' as defined by fj 3(7) of ERISA, 29 U.S.C. $ 1002('7), may include a former
Two preliminary issues need to be addressed. First, Plaintiffs' suggesti~m Defendants have waived that arguments not raised in the first motion to dismiss is without merit. Under Federal Rule of Civil Procedure 12(h)(2), a defense of failure to state a claim is not waived I)!! the failure to raise it in a first motion. Second, Plaintiffs failed to file their Amended Complaint wii -11i1 30 days as required by Court them with 3 additional days. Order. Plaintiffs argue that Federal Rule of Civil Procedure 6(d) prov d~,:s This is incorrect. Rule 6(d) adds 3 days when action must be taken 'kitlli~la specified time after service." Here, Plaintiffs were not ordered to act within a specified time after sert Ice. When the Court orders action by a certain date, such action must be taken by that date, not 3 days liter. In the interests of justice, however, the Court will accept Plaintil'fs' late submissions.
1

employee with a colorable claim for benefits."). Thus, Plaintiffs cluiilify as participants. The Stiefel Defendants' next argument is that ER