Pinney v. AEGON Companies Pension Plan
Filing
53
ORDER denying 39 Motion for Judgment on the Pleadings. Signed by Chief Judge Linda R Reade on 3/30/2015. (pac)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
R. JAN PINNEY,
Plaintiff,
No. 14-CV-125-LRR
vs.
ORDER
AEGON COMPANIES PENSION
PLAN,
Defendant.
____________________
TABLE OF CONTENTS
I.
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II.
RELEVANT PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . 2
III.
SUBJECT MATTER JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . 2
IV.
RELEVANT FACTUAL BACKGROUND .. . . . . . . . . . . . . . . . . . . . . . . 2
A.
B.
V.
ANALYSIS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A.
B.
C.
VI.
Parties.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Overview of the Dispute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Ten Year Statute of Limitations. . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.
Whether to consider the 1998 Letter. . . . . . . . . . . . . . . . . . . 5
2.
Whether Iowa’s statute of limitations bars Pinney’s claim.. . . . 8
Plan’s Limitation of Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.
Applicable plan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.
Dismissal for improper venue. . . . . . . . . . . . . . . . . . . . . . 12
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
I. INTRODUCTION
The matter before the court is Defendant AEGON Companies Pension Plan’s (“the
Plan”) Motion for Judgment on the Pleadings (“Motion”) (docket no. 39).
II. RELEVANT PROCEDURAL HISTORY
On March 4, 2014, Plaintiff R. Jan Pinney filed a Complaint (“Original
Complaint”) (docket no. 1) in the United States District Court for the Northern District of
California. On August 25, 2014, Pinney filed an Amended Complaint (docket no. 18) on
behalf of himself and a class of similarly situated individuals. The Amended Complaint
alleges that the Plan violated the terms of its pension plan when it denied Pinney’s claim
for pension benefits. On August 29, 2014, the Plan filed a Motion to Dismiss or in
Alternative to Transfer (“Motion to Dismiss”) (docket no. 21). On October 30, 2014, the
case was transferred to this court. See October 30, 2014 Minute Entry (docket no. 21).
On November 21, 2014, the Plan filed an Answer (docket no. 36). On that same date, the
Plan filed the Motion. On December 22, 2014, Pinney filed a Resistance (docket no. 47).
On January 2, 2015, the Plan filed a Reply (docket no. 48). The matter is fully submitted
and ready for decision.
III. SUBJECT MATTER JURISDICTION
The court has federal question jurisdiction over Pinney’s claim against the Plan,
which arises under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C.
§ 1132(a)(1)(B).
See 28 U.S.C. § 1331 (“The district courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the
United States.”).
IV. RELEVANT FACTUAL BACKGROUND
Accepting all factual allegations in the Amended Complaint as true and drawing all
reasonable inferences in favor of Pinney, the facts are as follows.
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A. Parties
Pinney is a citizen of California and resides in Roseville, California. In 1971, he
became an employee of Occidental Life Insurance Company of California (“Occidental”),
an affiliate of Transamerica Corporation (“Transamerica”), and thereby became a
participant in its employee benefit pension plan. The Plan is an employee benefit pension
plan within the meaning of ERISA, 29 U.S.C. § 1002, and is administered in Iowa.
B. Overview of the Dispute
The case arises out of Pinney’s claim that the Plan denied him pension benefits to
which he is entitled. In 1971, Pinney began working as an Assistant Branch Manager for
Occidental. In 1972, Pinney began working as a General Agent for Occidental. In 1985,
Pinney became a Branch Manager for Transamerica. Pinney continued working for
Transamerica until July 31, 1997. As an employee of Occidental and Transamerica,
Pinney participated in the employee benefit pension plan, which was sponsored by
Transamerica and its predecessors and successors in interest.
The pension plan has undergone several amendments and changes since Pinney
began his employment, but is currently named the “AEGON Companies Pension Plan.”
In 2011, Pinney received estimates of his pension benefits and noticed that the Plan had
not credited him for thirteen years of his employment—from May 14, 1972 through May
28, 1985—when he worked as a General Agent. On or about December 6, 2011, Pinney
submitted documents to the Plan claiming that he was an “employee” eligible for pension
benefits during his tenure as a General Agent. The Plan interpreted this as a claim for
benefits. On March 5, 2012, the Plan issued an adverse benefit determination, finding that
Pinney “was not an ‘Employee’ within the meaning of the Plan during the time he worked
as a General Agent” because that position fell outside the Plan’s definition of “employee.”
Amended Complaint ¶ 39.
Pinney timely requested review of the adverse benefit
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determination and has exhausted administrative remedies under the Plan.
V. ANALYSIS
A. Standard of Review
Under Federal Rule of Civil Procedure 12(c), a party may move for judgment on
the pleadings after the pleadings are closed. Such a motion is analyzed under the same
standard that the court employs for a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). St. Paul Ramsey Cnty. Med. Ctr. v. Pennington Cnty., S.D., 857
F.2d 1185, 1187 (8th Cir. 1988); see also Westcott v. City of Omaha, 901 F.2d 1486,
1488 (8th Cir. 1990). Federal Rule of Civil Procedure 12(b)(6) provides that the court
may dismiss a complaint when it “fail[s] to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6). To survive a 12(b)(6) motion, “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) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); accord B & B Hardware, Inc. v. Hargis Indus.,
Inc., 569 F.3d 383, 387 (8th Cir. 2009). “Where the allegations show on the face of the
complaint [that] there is some insuperable bar to relief, dismissal . . . is appropriate.”
Benton v. Merrill Lynch & Co., 524 F.3d 866, 870 (8th Cir. 2008) (citing Parnes v.
Gateway 2000, Inc., 122 F.3d 539, 546 (8th Cir. 1997)). “A grant of judgment on the
pleadings is appropriate ‘where no material issue of fact remains to be resolved and the
movant is entitled to judgment as a matter of law.’ [The court must] view all facts pleaded
by the nonmoving party as true and grant all reasonable inferences in favor of that party.”
Poehl v. Countrywide Home Loans, Inc., 528 F.3d 1093, 1096 (8th Cir. 2008) (quoting
Faibisch v. Univ. of Minn., 304 F.3d 797, 803 (8th Cir. 2002)) (internal citation omitted).
B. Ten Year Statute of Limitations
The Plan argues that Pinney’s claim is barred by Iowa’s ten year statute of
4
limitations on contract claims. The Plan states that “the decision to exclude [the] service
from the calculation of [Pinney’s] benefit was communicated . . . to [Pinney] in 1998,
when he was told the amount of benefits to which he was entitled and the service on which
his benefits were based.” Answer at 4. The Plan argues that this letter (“the 1998
Letter”) constitutes a “clear repudiation” of Pinney’s pension benefits and put Pinney on
notice for purposes of the statute of limitations. The Plan argues that because Pinney
knew, or should have known, about his claim in 1998, his claim is now barred by Iowa’s
statute of limitations for contract actions. Motion at 1-2. Pinney argues that the court
should not consider the 1998 Letter in resolving the Motion, or, if the court does consider
it, then the court must convert the instant Motion into a motion for summary judgment.
Resistance at 11. Furthermore, Pinney argues that the statute of limitations does not bar
his claim because there was never a “clear repudiation” of the relevant pension benefits.
Id. at 5.
1.
Whether to consider the 1998 Letter
The Plan argues that “[t]he 1998 [L]etter and the other documents the . . . Plan used
to support its Rule 12(c) motion are embraced by the pleadings, incorporated by reference
or integral to the claim, and items appearing in the record of the case” and it is therefore
permissible for the court to consider them without converting the Motion into a motion for
summary judgment. Reply at 4 (internal quotation marks omitted). Pinney argues that the
1998 Letter is not necessarily embraced by the pleadings and should not be considered.
Resistance at 11.
“When considering a motion for judgment on the pleadings . . . , the court
generally must ignore materials outside the pleadings, but it may consider ‘some materials
that are part of the public record or do not contradict the complaint.’” Porous Media
Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999) (quoting Missouri ex rel. Nixon
5
v. Coeur D’Alene Tribe, 164 F.3d 1102, 1107 (8th Cir. 1999)). The court may also
consider “materials that are ‘necessarily embraced by the pleadings.’” Id. (quoting Piper
Jaffray Cos. v. Nat’l Union Fire Ins. Co., 967 F. Supp. 1148, 1152 (D. Minn. 1997)).
“Documents necessarily embraced by the pleadings include ‘documents whose contents are
alleged in a complaint and whose authenticity no party questions.’” Ashanti v. City of
Golden Valley, 666 F.3d 1148, 1151 (8th Cir. 2012) (quoting Kushner v. Beverly Enters.,
Inc., 317 F.3d 820, 831 (8th Cir. 2003)). Therefore, “courts are not strictly limited to the
four corners of complaints.” Dittmer Properties, L.P. v. F.D.I.C., 708 F.3d 1011, 1021
(8th Cir. 2013).
“[W]hile courts primarily consider the allegations in the
complaint in determining whether to grant a [Federal Rule of
Civil Procedure] 12(b)(6) motion, courts additionally consider
matters incorporated by reference or integral to the claim,
items subject to judicial notice, matters of public record,
orders, items appearing in the record of the case, and exhibits
attached to the complaint whose authenticity is unquestioned
. . . without converting the motion into one for summary
judgment.”
Id. (quoting Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 n.3 (8th Cir.
2012)) (internal quotation marks omitted). A document is incorporated by reference when
the complaint mentions or refers to it and the defendant then attaches it to the answer.
Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 691 (7th Cir. 2012) (“In
effect, the incorporation-by-reference doctrine provides that if a plaintiff mentions a
document in his complaint, the defendant may then submit the document to the court
without converting . . . the motion into a motion for summary judgment.”). Accordingly,
a document attached to an answer is considered to be “part of the pleadings.” Horsley v.
Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002) (stating that “if an attachment to an answer
is a ‘written instrument,’ it is part of the pleadings and can be considered on a Rule 12(c)
6
motion for judgment on the pleadings”).
Here, the 1998 Letter is not referenced in the Amended Complaint. However, in
the parties’ proposed Joint Case Management Statement, the issue of “[w]hether the statute
of limitations has run on Plaintiff Pinney’s claim, because he was informed no later than
1998 that he would not receive credit for the service for which he seeks credit in this case”
is identified as a legal issue. Joint Case Management Statement (docket no. 31) at 3. The
parties filed this statement on October 22, 2014, prior to the case being transferred to this
court. The Plan argues that this statement constitutes an admission that Pinney “was
informed no later than 1998” that he would not receive credit for his service. Reply at 4.
However, the Joint Case Management Statement merely notified the Northern District of
California that this was a legal issue that would need to be resolved. It does not constitute
an admission that Pinney received the 1998 Letter. The 1998 Letter is also referenced in
the Plan’s Answer and in the Plan’s Motion to Dismiss. See Answer at 4, 11 and Motion
to Dismiss at 7. However, the 1998 Letter is not incorporated by reference because it is
not mentioned or referred to anywhere in the Amended Complaint and the letter itself is
not attached to the Answer. Brownmark Films, LLC, 682 F.3d at 691. Furthermore,
nothing in the Amended Complaint references the contents of the 1998 Letter and Pinney
has raised questions regarding when the 1998 Letter was sent by the Plan and received by
Pinney. Resistance at 3-4. Therefore, the 1998 Letter is not necessarily embraced by the
pleadings. See Ashanti, 666 F.3d at 1151. Because the 1998 Letter is not incorporated
by reference and is not necessarily embraced by the pleadings, the court may only consider
it if it converts the instant Motion into a motion for summary judgment. The court
declines to do so at this stage in the proceedings. Therefore, the court will not consider
the 1998 Letter in its analysis.
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2.
Whether Iowa’s statute of limitations bars Pinney’s claim
“ERISA does not contain its own statute of limitations governing actions to recover
benefits.”
Shaw v. McFarland Clinic, P.C., 363 F.3d 744, 747 (8th Cir. 2004).
Therefore, courts must look to state law and “determine the most analogous statute of
limitations.” Id. Under Iowa law, “a claim brought under ERISA relating to a contract
. . . is governed by a ten-year statute of limitations.” Id. at 748; Iowa Code § 14.1.
Federal law governs when the cause of action accrues:
[I]n an ERISA action “[c]onsistent with the discovery rule, the
general rule . . . is that a cause of action accrues after a claim
for benefits has been made and has been formally denied.”
There are times, however, when “an ERISA beneficiary’s
cause of action accrues before a formal denial, and even before
a claim for benefits is filed when there has been a clear
repudiation by the fiduciary which is clear and made known to
the beneficiar[y].”
Bennett v. Federated Mut. Ins. Co., 141 F.3d 837, 839 (8th Cir. 1998) (quoting Union
Pacific R.R. Co. v. Beckham, 138 F.3d 325, 330 (8th Cir. 1998)) (alterations in original)
(citations omitted) (internal quotation marks omitted). A cause of action may accrue,
therefore, when the beneficiary knew or should have known of the repudiation of benefits
“regardless of whether the [beneficiary] formally applied for benefits.” Carey v. Int’l
Broth. of Elec. Workers Local 363 Pension Plan, 201 F.3d 44, 47-48 (2d Cir. 1999). To
qualify as a “clear repudiation,” the communication must be “unequivocal.” See Union
Pacific R.R. Co., 138 F.3d at 330-31.
Because the court declines to consider the 1998 Letter for purposes of the Motion,
the ten year statute of limitations argument necessarily fails. Accepting all facts in the
Amended Complaint as true, nothing suggests that this action is barred by a ten year statute
of limitations. Accordingly, the court shall deny the Motion with respect to the Plan’s
argument that Pinney’s claim is barred under Iowa’s ten year statute of limitations.
8
Even if the court were to consider the 1998 Letter in analyzing whether Pinney’s
claim is barred, the 1998 Letter by itself does not appear to rise to the level of a “clear
repudiation.” See id. The Plan sent the 1998 Letter to Pinney to correct a mistaken
calculation in a previous letter. The 1998 Letter informs Pinney that he has satisfied the
requirements to receive benefits upon retirement, includes the date when Pinney will be
eligible to receive benefits and explains how his benefits were calculated. The 1998 Letter
also references a Retirement Estimate, which states that Pinney’s years of service are
calculated at 13.66667 years. See Retirement Estimate (docket no. 21-4). The Plan argues
that Pinney’s cause of action accrued when he received the 1998 Letter, because the 1998
Letter did not include his service from 1972 to 1985 in its years of service calculation. See
1998 Letter (docket no. 21-4). The Plan argues that this was a clear repudiation because
the 1998 Letter “stated that Pinney began his service . . . in 1971 and that Pinney
terminated his employment in July of 1997. Of that 26 ½ year period, the [1998] [L]etter
states that he is entitled to 13 ½ years of benefit service.” Reply at 3. Pinney argues that
the 1998 Letter does not constitute a “clear repudiation” of his pension benefits and,
therefore, his cause of action did not begin to accrue upon receipt of the 1998 Letter.
In cases where courts have found a clear repudiation of benefits, there has been a
much more direct repudiation than the arguable repudiation contained in the 1998 Letter.
See, e.g., Union Pacific R.R. Co., 138 F.3d at 330-31 (finding that a cause of action
accrued when the claimants stated that they “repeatedly have been informed by numerous
individuals, including employee benefit department employees . . . , that they would not
receive any benefit credit under [the plan] for their . . . service” and citing a collection of
cases analyzing whether a cause of action accrued prior to the beneficiaries filing a formal
claim for benefits); Thompson v. Ret. Plan for Emps. of S.C. Johnson & Son, Inc., 651
F.3d 600, 605 (7th Cir. 2011) (“Although it is certainly possible that generic [p]lan
9
communications can prospectively repudiate unequivocally participant rights, we note that
the more traditional case in which recovery is barred involves some direct communication
to a participant who is actually pressing the issue.” (citation omitted)).
The 1998 Letter informs Pinney that he is eligible for benefits and provides an
estimate of the monthly annuity he will receive. The Retirement Estimate, containing the
13.66667 years of service calculation, does not purport to inform Pinney that the Plan has
repudiated any benefits to him. Moreover, even if the court were to interpret this
document as a purported repudiation of benefits, the calculation of benefits is extremely
general. Nothing in the 1998 Letter or the Retirement Estimate specifically states that
Pinney worked for twenty six years and was only credited for half that time. Nor does the
1998 Letter or the attachment specify which years were used to calculate the 13.66667
figure. Although Pinney could perhaps have paid closer attention to the contents of the
1998 Letter and the included Retirement Estimate, the 1998 Letter does not rise to the
level of a “clear repudiation” of benefits, as required for a cause of action to accrue. See
Bennett, 141 F.3d at 839 (ruling that a “letter on the date of [the beneficiary’s] resignation
that he forfeited any credit . . . in the . . . plan . . . was a clear repudiation by the
fiduciary”); Daill v. Sheet Metal Workers’ Local 73 Pension Fund, 100 F.3d 62, 66 (7th
Cir. 1996). Therefore, Pinney’s cause of action would not have accrued based on receipt
of the 1998 Letter alone.
C. Plan’s Limitation of Action
The Plan argues that its requirement that “[a]ny participant or [b]eneficiary can
bring an action . . . only in Federal District Court in Cedar Rapids, Iowa within two years
of the initial benefit determination” bars Pinney’s suit because he initially filed suit in
California. Brief in Support of the Motion (docket no. 39-1) at 14. Pinney argues that the
version of the Plan containing the limitation on actions clause is inapplicable to him and
10
even if it were applicable, he timely filed the instant action.
1.
Applicable plan
The 2010 Plan states that “[a]ny participant or [b]eneficiary can bring an action
. . . only in Federal District Court in Cedar Rapids, Iowa within two years of the initial
benefit determination.” Id. at 8. The 2012 Plan states that “[a] Participant or Beneficiary
shall bring a cause of action in connection with the Plan only in Federal District Court in
Cedar Rapids, Iowa. No Participant or Beneficiary shall bring a cause of action after two
years of the initial adverse benefit determination.” Resistance at 18. The 1996 Plan,
which Pinney argues is the applicable plan, does not contain any limitation on actions. See
id.
The Plan argues that the 2010 Plan governs Pinney’s case because the California
district court relied on the 2010 Plan’s forum selection clause when it transferred the case
to this court. See October 30, 2014 Minute Entry. The Plan also argues that the 2010
Plan controls because that was the version of the plan in effect when Pinney filed his claim
for benefits in 2011. Reply at 2-3. Pinney argues that the 1996 Plan, the year in which
Pinney terminated his employment, is the applicable version because the 2010 Plan states
that
the provisions of this Plan shall apply to Employees of the
Employer who complete one hour of service on or after
January 1, 2010. The rights of former Employees who
terminated employment prior to January 1, 2010 shall be
governed by the terms of the plan as in effect on the
Employee’s Termination Date.
Resistance at 17; 2010 Plan (docket no. 21-5) at 7. The court agrees that it appears the
2010 Plan is not applicable based on the above clause. However, even if the 2010 Plan’s
forum selection clause applies to Pinney’s claim, the outcome is the same. Therefore, the
court will proceed as if the 2010 Plan governs for purposes of analyzing the contractual
11
limitations clause.
2.
Dismissal for improper venue
The Plan argues that Pinney’s claim is barred under the 2010 Plan’s two-year
limitation on actions, which states: “[a]ny Participant or Beneficiary can bring an action
in connection with benefits payable under the Plan only in Federal District Court in Cedar
Rapids, Iowa within two years of the initial benefit determination,” because Pinney did not
file his claim in this court. Brief in Support of the Motion at 14. The Plan argues that
November 20, 2014 is the filing date because that date is when the case was received and
filed in this court. See Case Transfer (docket no. 33). Pinney argues that even if the 2010
Plan applies to him, he timely commenced this action by filing a complaint in the federal
district court in California on March 4, 2014. Resistance at 19-20.
The United States District Court for the Northern District of California transferred
this case pursuant to the forum selection clause in the 2010 Plan. See October 29, 2014
Minute Entry at 1. Transfer based on a forum selection clause is proper under 28 U.S.C.
§ 1404(a), which “provides a mechanism for enforcement of forum-selection clauses that
point to a particular federal district” court. Atlantic Marine Const. Co., Inc. v. U.S. Dist.
Court for Western Dist. of Texas, 134 S.Ct. 568, 579 (2013); 28 U.S.C. § 1404(a) (“For
the convenience of parties and witnesses, in the interest of justice, a district court may
transfer any civil action to any other district or division where it might have been brought
or to any district or division to which all parties have consented.”).1 A forum selection
clause may not “be enforced by a motion to dismiss under 28 U.S.C. § 1406(a) or [Federal
1
The United States District Court for the Northern District of California stated that
it also relied on 28 U.S.C. § 1406 to support its transfer of the case. However, the court
recognizes that 28 U.S.C. § 1404 is the proper authority for transfer based on a forum
selection clause, as the existence of such a clause does not render the initial forum
statutorily “improper.” See Atlantic Marine Const. Co., Inc., 134 S. Ct. at 578-79.
12
Rule of Civil Procedure] 12(b)(3) . . . . Instead, a forum-selection clause may be enforced
by a motion to transfer under [28 U.S.C.] § 1404(a).” Atlantic Marine Const. Co., Inc.,
134 S. Ct. at 575. However, even if transfer had been based on 28 U.S.C. § 1406 for
improper venue, “the date of the initial filing in [an] improper forum counts as the date of
the filing in the transferee forum for limitations purposes when the case is transferred
rather than dismissed.” Lafferty v. St. Riel, 495 F.3d 72, 81 (3d Cir. 2007) (discussing
the choice of law analysis distinctions between 28 U.S.C. § 1404(a) transfers and 28
U.S.C. § 1406(a) transfers); see also Gro Master, Inc. v. Farmweld, Inc., 920 F. Supp.
2d 974, 991 (N.D. Iowa 2013) (noting that “[v]arious federal appellate courts have
recognized that the effect of a transfer pursuant to [28 U.S.C.] § 1406(a) is to preserve the
initial filing date for the purposes of the statute of limitations, at least where the plaintiff’s
initial choice of venue was in good faith”).
The Northern District of California properly transferred the case to the Northern
District of Iowa based on the applicable case law. However, the fact that the forum
selection clause in the 2010 Plan was found to be enforceable has no bearing on the date
of the initial filing. When a case is transferred, whether under 28 U.S.C. § 1404(a) or
§ 1406(a), the date of the filing is the initial filing date of the Original Complaint, not the
date of the transfer. The court is unaware of case law to the contrary and the Plan did not
present any in its filings. Pinney filed his case within two years of the adverse benefit
determination. His failure to file in Cedar Rapids does not affect that date. Therefore,
Pinney timely filed his Original Complaint. Accordingly, the court shall deny the Motion
with respect to the Plan’s argument that the 2010 Plan’s contractual limitations clause bars
Pinney’s claim.
VI. CONCLUSION
In light of the foregoing, the Motion for Judgment on the Pleadings (docket no. 39)
13
is DENIED.
IT IS SO ORDERED.
DATED this 30th day of March, 2015.
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