Macaluso v. Myering et al
Filing
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MEMORANDUM OPINION. Signed by Magistrate Judge Susan K. Gauvey on 10/4/13. (apls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Joseph Macaluso, Jr.,
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Plaintiff
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V.
* Civil No. 1:12-cv-00399-SKG
Sharon Macaluso Myering,
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Defendant.
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MEMORANDUM OPINION
Pending before the Court is defendant Sharon Macaluso
Myering’s Motion to Dismiss (ECF No. 23), and plaintiff’s
response in opposition.
(ECF No. 26).
For the reasons set
forth herein, defendant’s motion is GRANTED.
I.
Background
Plaintiff and Ms. Macaluso Myering divorced in 1991.
2-3).
(ECF No.
On August 15, 1991, they entered into a Separation And
Property Settlement Agreement.
(ECF No. 2-2).
On or around
this date the parties also entered into a Qualified Domestic
Relations Order (“QDRO”), a revised version of which was entered
into and approved by US Airways, plaintiff’s employer, in
December 2000.
(ECF No.
2-15).
1
Plaintiff’s pension plan was established under and is governed
by the Employee Retirement Income Security Act of 1974, as
amended (“ERISA”).
29 U.S.C. §§ 1001, et seq.
The Pension
Benefit Guaranty Corporation (“PBGC”) took over the pension plan
in 2005 following US Airways’ bankruptcy.
(ECF No. 2-19, 2).
PBGC is the plan’s trustee, and is responsible for paying
benefits owed to participants.
(Id.).
At some point prior to May 2010, plaintiff filed a claim for
benefits with PBGC.
(Id. at 1).
He challenged his benefit of
$1,117.28 a month through October 2005, and $312.58 thereafter,
arguing that under the terms of the QDRO, he should receive a
greater sum.
appeal.
(Id.).
(Id.).
The claim was denied initially and on
PBGC provided a detailed breakdown of
plaintiff’s and defendant’s benefits under the QDRO and
determined that his benefit was not incorrectly calculated.
(Id. at 2-4).
It is unclear if plaintiff attacked the validity
of the QDRO in this claim, as he does here, or merely challenged
the calculation of benefits.
II.
Motion to Dismiss Standard
In evaluating a motion to dismiss, a court “accepts all
well-pled facts as true and construes these facts in the light
most favorable to the plaintiff.”
Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).
2
To survive a motion to dismiss, 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, 663 (2009)(quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
A claim “has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.”
Id.
Plaintiff is not under an obligation to “forecast” evidence
sufficient to prove the elements of the claim.
McMahen, 684 F.3d 435, 439 (4th Cir. 2012).
Walters v.
Plausibility does
not entail a probability requirement, but does require more than
the sheer possibility that a defendant has acted unlawfully.
Id.
“Legal conclusions, elements of a cause of action, and bare
assertions devoid of factual enhancement,” in addition to
“unwarranted inferences, unreasonable conclusions, or
arguments,” fail to constitute well-pled facts.
Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255
(4th Cir. 2009).
Ultimately, plaintiff must allege sufficient
factual allegations “to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
3
III. Analysis
In his complaint, plaintiff seeks to “either nullify or
disqualify the Revised QDRO.”
(ECF No. 2, 1).
More
specifically, he alleges the following defects in the QDRO: 1)
plaintiff’s address is incorrect; 2) plaintiff’s birthday is
incorrect; 3) the formula and language in the QDRO is different
than that used in plaintiff’s separation and property agreement
and 4) additional language (of unclear origin) was missing from
QDRO.
(ECF No. 2, 2-6).
Defendant makes three arguments in her motion to dismiss.
First, she contends that “[t]he proper party defendant in an
action for benefits under ERISA [§ 1132(a)(1)(B)] is the entity
with decision-making authority over the plan at issue.”
No. 23-1, 3-4).
(ECF
Because PBGC “has been the Plan’s trustee and
has been paying benefits owed to participants under the plan,”
defendant argues, it is the “only proper defendant.”
4).
(Id. at
Second, defendant argues that plaintiff’s complaint is
barred by the relevant statute of limitations.
(Id. at 4-5.).
Third, she argues that plaintiff’s substantive claims are
without merit.
(Id. at 6-7.).
The Court will address each
argument in turn.
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A. Proper Party
In response to defendant’s contention that she is not the
proper defendant in this action, plaintiff argues that he may
bring the case against defendant “because her signature was
required to make the revised QDRO active . . . and therefore her
signature would be required to change any conditions on the
revised QDRO in question.”
(ECF No. 26-1, 1).
The Court
disagrees.
QDROs are a “limited exception to ERISA’s general requirement
that benefit provided under a pension plan may not be assigned
or alienated.”
Fox v. Fox, 167 F.3d 880, 883 (4th Cir.
1999)(citations and quotations omitted).
QDROs, as opposed to
domestic relations orders, are the “acceptable method for a
divorced spouse to attach an interest in a former spouse’s
benefit plan.”
Metropolitan Life Ins. Co. v. Pettit, 164 F.3d
857, 863 (4th Cir. 1998).
As such, if an agreement does not
qualify as a QDRO, it does not operate to assign benefits to a
former spouse.
While plaintiff’s complaint is not explicit, he ultimately
seeks to nullify the QDRO and receive benefits wrongfully
distributed to defendant.
(ECF No. 2, 7)(alleging that
“defendant is actually receiving my retirement benefit” and
asking for the benefits plaintiff “should have been receiving
since his retirement began.”).
As such, it is best construed as
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a claim under ERISA § 1132(a)(1)(B) for wrongful distribution of
benefits under a QDRO.
This section provides that “[a] civil
action may be brought . . . by a participant or beneficiary . .
. to recover benefits due to him under the terms of his plan, to
enforce his rights under the terms of the plan, or to clarify
his rights to future
benefits under the terms of the plan.”
29
U.S.C. § 1132(a)(1)(B).
An individual with no control over a benefits plan may not be
sued in a §1132(a)(1)(B) claim:
“the law in this district is
that the proper party defendant is the entity which holds the
discretionary decision-making authority.”
Ankney v. Metro. Life
Ins. Co., 438 F. Supp. 2d 566, 574 (D. Md. 2006).
A party with
“with no control over its [the plan’s] administration, is not a
proper defendant in this [1132(a)(1)(B)] action.”
Gluth v. Wal-
Mart Stores, Inc., No. 96-1307, 1997 U.S. App. LEXIS 16451, (4th
Cir. 1997); see also Sawyer v. Potash Corporation of
Saskatchewan, 417 F.Supp.2d 730, 737 (E.D.N.C. 2006)(“The party
that controls administration of an employee benefits plan is the
only proper defendant in an action concerning benefits under
ERISA.”).
Plaintiff has not alleged that Ms. Macaluso Myering holds any
discretionary power over the plan’s administration.
While he is
correct that Ms. Macaluso Myering’s signature may be required to
revise a QDRO, plaintiff seeks to “nullify or disqualify” the
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current QDRO and recover lost benefits.
This action is best
categorized as a §1132(a)(1)(B) action, and therefore must be
brought against an individual or entity with discretionary
authority over the plan.
As such, PBGC, not Ms. Macaluso
Myering, is the proper defendant.
B. Statute of Limitations
The cause of action for benefits due under ERISA does not
contain a statute of limitations.
As a result, courts borrow
the state law limitations period applicable to claims most
closely corresponding to the cause of action.
White v. Sun Life
Assur. Co., 488 F.3d 240, 245 (4th Cir. 2007).
Actions brought
under § 1132 are construed as breach of contract actions for
statute of limitations purposes.
Cross v. Bragg, 329 Fed. Appx.
443, 453 (4th Cir. 2009); Dameron v. Sinai Hospital of
Baltimore, Inc., 815 F.2d 975, 981 (4th Cir. 1987).1
In
Maryland, a breach of contract action is governed by a three
year statute of limitations.
Id.
Plaintiff notes that he is aware of the three year statute of
limitations, but argues that because of the “alternate payee’s
1
Defendant notes that plaintiff’s claim could be construed as a breach of
fiduciary duty, which is subject to a six year statute of limitations, or
three years after the earliest date on which the plaintiff had actual
knowledge of the breach of violation. 29 U.S.C. § 1113. The Court finds
that this action, in which plaintiff alleges that the plan has failed to
provide benefits due to him, is most analogous to a breach of contract.
Cross v. Bragg, 329 Fed. Appx. 443, 452 (4th Cir. 2009); Jones v. Stafford,
No. 8:12-cv-00891, 2012 U.S. Dist. LEXIS 166169 (D. Md. Nov. 20,
2012)(finding that “miscalculation of benefits actions sound in breach of
contract.”).
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refusal to let me know how much of my USAIR retirement benefit
she is receiving,” he was unable to learn what calculations were
being used by PBGC to disperse benefits until March 2011, when
he was informed in response to his appeal.
(ECF No. 26-1, 2).
He therefore asks that the court “waive any statute of
limitations restrictions.”
(Id.).
The Court declines to waive the statute of limitations.
First, plaintiff’s argument ignores the stated purpose of his
complaint: “to nullify or disqualify the Revised QDRO.”
No. 2, 1).
(ECF
Plaintiff’s complaint is based on alleged defects in
the QDRO, including an incorrect address, incorrect birthdate,
and the fact that the QDRO’s retirement distribution provision
was not modeled on plaintiff’s separation agreement.
3).
(Id. at 1-
Plaintiff signed the QDRO on September 18, 2000, and
therefore was well aware of these alleged defects on that date.
While plaintiff claims that he only was informed of the
calculations used to disperse benefits until later, he was aware
of the benefit distribution under the QDRO on the date that it
was signed, and knew the amount of benefits he received
thereafter.
As such, he had sufficient information to bring
this claim in 2000.
Accordingly, the Court finds that the
complaint is time-barred under the three-year statute of
limitations.
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C. The Validity of the QDRO
As noted supra, plaintiff claims that the QDRO is invalid
because it contains the following defects: 1) plaintiff’s
address is incorrect; 2) plaintiff’s birthday is incorrect; 3)
the formula and language in the QDRO is different than the one
used in plaintiff’s separation and property agreement and 4)
additional language (of unclear origin) was missing from QDRO.
In order to qualify as a QDRO, a domestic relations order must
contain:
i.
ii.
iii.
iv.
the name and the last known mailing address (if any)
of the participant and the name and mailing address
of each alternate payee covered by the order,
the amount or percentage of the participant's
benefits to be paid by the plan to each such
alternate payee, or the manner in which such amount
or percentage is to be determined.
the number of payments or period to which such order
applies, and
each plan to which such order applies.
29 U.S.C. 1056(d)(3)(C).
Defendant correctly notes that there is no requirement that
a birthdate or any additional language beyond that cited above
be included in a QDRO. Neither is there any requirement that a
QDRO replicate a prior separation agreement.
As such,
plaintiff’s later three allegations are without support in law.
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Defendant acknowledges that the address of the payee is
required in a QDRO, but argues that this is not a strict
requirement.
The Ninth Circuit has dismissed as “exalting form
over substance” the notion that “any arguable defect in the
precise language of a ‘domestic relations order’ precluded its
designation as a QDRO under ERISA.”
Stewart v. Thorpe Holding
Co. Profit Sharing Plan, 207 F.3d 1143, 1151 (9th Cir. 2000).
In so finding, the court cited to the legislative history of §
1056, which states:
[t]he Senate committee intends that an order will not
be treated as failing to be a qualified order merely
because the order does not specify the current mailing
address of the participant and alternate payee if the
plan administrator has reason to know that address
independently of the order.
S. Rep. No. 575, 98th Cong., 2d Sess., reprinted in 1984
U.S.C.C.A.N., at 2547, 2566.
The Second and Tenth Circuits
have similarly found that QDROs are not invalidated by the
lack of an address, provided that the plan administrator
has reason to know the address independently of the order.
Metro. Life Ins. Co. v. Bigelow, 283 F.3d 436, 444 (2d Cir.
2002); Hawkins v. Commissioner, 86 F.3d 982, 991 (10th Cir.
1996).
Plaintiff has failed to state a plausible ERISA claim.
First, the relevant requirement states only that a QDRO include
the address of the participant and alternate payee.
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Here, the
purported QDRO does contain the participant’s address, albeit
with a typographical error in one number.
(ECF No. 2-4, 1).
It
is unlikely that the specificity requirements for QDROs were
targeted towards such a minor defect.
Second, plaintiff
acknowledges in his complaint that U.S. Airways “had the
plaintiff’s correct address on file when reviewing the revised
qdro.”
(ECF No. 26-1, 7).
It is therefore clear that the plan
administrator here had reason to know the correct address
independent of the QDRO.
Accordingly, the Court finds that even
accepted as true and in the light most favorable to plaintiff,
the allegations in plaintiff’s complaint fail to plausibly state
a claim under ERISA.
IV.
Conclusion
For the reasons set forth herein, the Court dismisses
plaintiff’s complaint with prejudice.
Date:
10/4/13_______
/s/
Susan K. Gauvey
United States Magistrate Judge
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