Garcia-Tatupu v. Bert Bell/Pete Rozelle NFL Player Retirement Plan et al

Filing 26

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered denying 13 Motion to Dismiss; denying 13 Motion to Change Venue; denying 13 Motion to Dismiss for Failure to State a Claim. The parties shall submit a joint scheduling proposal on or before April 28, 2017. A further scheduling conference will be held at 3:30 p.m. on May 3, 2017. (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

LINNEA GARCIA-TATUPU,
Plaintiff,
v.
BERT BELL/PETER ROZELLE NFL
PLAYER RETIREMENT PLAN, and
THE NFL PLAYER SUPPLEMENTAL
DISABILITY PLAN
Defendants.

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CIVIL ACTION NO.
16-11131-DPW

MEMORANDUM AND ORDER
April 18, 2017
The Defendants in this ERISA matter, involving the claim of
a divorced spouse for pension benefits as a result of a nunc pro
tunc state court judgment, have moved to dismiss the action.
The complaint has been supplemented by the parties with most —
but not all — documents referenced in the pleading.

I will deny

the motion to dismiss as now argued and in this Memorandum
outline the need for further record development that may permit
early and definitive dispositive judgment practice.
I. BACKGROUND
In connection with the motion to dismiss now before me, I
recite the facts as asserted in the complaint and as properly
supplemented.

I draw all reasonable inferences in the

1

Plaintiff’s favor.

Alternative Energy, Inc. v. St. Paul Fire &

Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001).
Plaintiff, Linnea Garcia-Tatupu married Mosiula F. Tatupu
on July 1, 1978.

Mosiula Tatupu resided in Wrentham,

Massachusetts and was a player in the National Football League
from 1978 to 1991; he was also a member of the National Football
League Players Association.

On December 12 1997, the Plaintiff

and Mosiula Tatupu divorced.

According to the allegations of

the complaint, the divorce judgment entitled Linnea GarciaTatupu to receive pension benefits paid to Mosiula Tatupu.
Mosiula Tatupu died on February 23, 2010.

The Norfolk County

Probate and Family Court, which had entered the divorce decree,
entered an order on October 5, 2012 directing that a domestic
relations order entered on December 29, 2011 be applied nunc pro
tunc to September 24, 1997.
One of the Defendants is the Bert Bell/Pete Rozelle NFL
Player Retirement Plan (the “Retirement Plan”) the entity
recognized under the Employment Retirement Income Security Act
(ERISA) to administer the applicable retirement plan.

The other

named Defendant is The NFL Supplemental Disability Plan (the
“Disability Plan”), which is also recognized under ERISA to

2

administer the retirement plan at issue here.

For purposes of

this motion, the focus will be on the Retirement Plan.1
The Plaintiff requested pension benefits through the
Retirement Plan in accordance with the December 29, 2011
domestic relations order.

That request was denied through a

letter dated March 23, 2012.

The Plaintiff appealed the Plan’s

denial of benefits decision, but the initial decision was upheld
in a December 20, 2012 decision.

The plaintiff asserts that the

December 20, 2012 denial of pension benefits by the Retirement
Plan was wrongful.
Before me is a motion the Defendants have filed to dismiss
the Plaintiff’s claim on two grounds: (1) improper venue, and
(2) failure to state a claim upon which relief may be granted.
I will deny the motion to dismiss (and the related motion to
transfer venue).

Because of its relevance to the question of a

viable claim over the longer term, I also preliminarily consider
grounds under which the Retirement Board might be held to have

1

In their Memorandum in support of their Motion to Dismiss, the
Defendants contend that the Disability Plan no longer exists, at
least by that name. Michael B. Miller, the Plan Director of the
Disability and Retirement Plan states in his Declaration that
the Disability Plan is now known as the NFL Player Disability
and Neurocognitive Benefit Plan. In any event, it is unclear
that a disability plan is implicated in this litigation.
Whether the Disability Plan should remain as a defendant will be
a topic of a future scheduling order.
3

erred in their denial of benefits decision and in doing so frame
further dispositive motion practice.
II. SETTLING ON A VENUE
The Defendants claim that venue in Massachusetts is
improper under ERISA.

ERISA provides that: “Where an action

under this subchapter is brought in a district court of the
United States, it may be brought in the district where the plan
is administered, where the breach took place, or where a
defendant resides or may be found . . . .”
1132(e)(2).

29 U.S.C. §

The parties do not dispute that a breach, if any,

took place in California, because that is where the Plaintiff
now resides and the impact of the denial was experienced.

It is

also not disputed that the Defendants reside in Maryland,
because that is where the Defendant is headquartered.

Where the

plan is administered and where the Defendant may be “found” are,
however, disputed by the parties.

Focusing on the issue of

where the Defendant may be “found,” the Defendant argues that
the Plan is only found in Maryland, while the Plaintiff contends
that the Plan is also found in Massachusetts.
The term “where the defendant may be found” has been
construed liberally.

Varsic v. U.S. Dist. Court for Cent. Dist.

of California, 607 F.2d 245, 248 (9th Cir. 1979).

In adopting

this liberal construction, the Ninth Circuit considered the
similarly liberal constructions of “found” in other contexts,
4

such as in anti-trust and copyright disputes.

Id.

The Varsic

court used the minimum contacts test of International Shoe Co.
v. Washington, 326 U.S. 310 (1945) to determine where the
defendant was “found.”

Id. at 248-49; see also Waeltz v. Delta

Pilots Ret. Plan, 301 F.3d 804, 810 (7th Cir. 2002) (“We believe
that the decision in Varsic is correct.

A fund can be found in

a judicial district if it has the sort of “minimum contacts”
with that district that would support the exercise of personal
jurisdiction under the rule of International Shoe Co. v.
Washington, 326 U.S. 310 (1945).”).

Varsic also made clear that

the defendant need not be “found” only where the plan is
administered.

Id.

Two of my colleagues have followed the

Varsic court’s liberal construction of where a plan may be
“found.”

See Kaufmann v. Prudential Ins. Co. of Am., 667 F.

Supp. 2d 205, 207 (D. Mass. 2009) (Stearns, J); Cole v. Cent.
States Se. & Sw. Areas Health & Welfare Fund, 225 F. Supp. 2d
96, 102 (D. Mass. 2002) (Wolf, J) (adopting magistrate judge’s
report and recommendation, which itself followed Varsic).
Under Varsic’s teaching, a defendant may be found in a
district in which he has “certain minimum contacts with it such
that the maintenance of the suit does not offend traditional
notions of fair play and substantial justice.”

Cole, 227 F.

Supp. at 198 (quoting International Shoe, 326 U.S. at 316).
“The defendant’s conduct must make it reasonable that the
5

defendant would anticipate being haled into court here.”

Id.

(citing World-Wide Volkswagen v. Woodson, 444 U.S. 286, 297
(1980)).

Additionally, “[w]here the defendant’s activities

connected to the forum are not ‘continuous and systematic,’ the
litigation must result from alleged injuries that arise out of
or are related to those activities.”

Id.

(ci ting Burger King

Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985)).
The Plaintiff argues that the Plan has sufficient minimum
contacts with Massachusetts because of its provision of benefits
to players affiliated with the New England Patriots football
team in Foxborough, Massachusetts.

In Varsic, the plaintiff’s

complaint was brought in the United States District Court for
the Central District of California, and the defendant sought to
dismiss or to transfer the action to the Southern District of
New York.

Varsic, 607 F.2d at 247.

In evaluating whether the

defendant was “found” in the Central District of California by
applying the minimum contacts test, the Varsic court observed
that the defendant received contributions from employers on
behalf of employees working in the Central District of
California and that the defendant provided benefits to some
beneficiaries residing in the district.

Id. at 249.

Since the

fund purposefully placed itself in a fiduciary capacity and
received contributions generated from the forum, the Varsic
court ultimately determined that there was specific
6

jurisdiction, and that the defendant was “found” in the Central
District of California.

Id. at 250.

Similarly here, even though the Plaintiff’s alleged
benefits were denied while she was living in California, the
denial directly involved the fund’s activities in the District
of Massachusetts.

The Plaintiff and Tatupu lived in and accrued

the right to pension benefits within the District of
Massachusetts while Tatupu played football in this District for
the New England Patriots.

Additionally, I note that as in

Varsic, the Defendants here did not oppose to this court’s
exercise of personal jurisdiction, presumably conceding minimum
contacts with this jurisdiction.
In Waeltz, the Seventh Circuit dismissed a case for
improper venue where only two participants of the plan lived in
the area covered by the court’s jurisdiction and there were no
other meaningful contacts between the plan and that district.
Waeltz, 301 F.3d at 811.

The plaintiffs, Waeltz and Johnson,

lived in Florida and the Southern District of Illinois,
respectively.

Id. at 805-06.

Neither received benefits in the

Southern District of Illinois, since Johnson had not yet
retired.

Id. at 806.

Furthermore, neither plaintiff earned

any benefits in the Southern District of Illinois because
neither had performed any work there.

Id.

Tatupu, to be sure,

had also not begun receiving benefit payments, but unlike the
7

plaintiffs in Waeltz, Tatupu earned benefits in the District of
Massachusetts while employed with the New England Patriots
football team.

I am satisfied the Defendants are “found” in

Massachusetts and venue is proper here under ERISA.
The Defendants also argue that regardless of whether venue
is proper in Massachusetts, I should use my discretion to
transfer this case to Maryland.

Under 29 U.S.C. 1404(a), venue

may be transferred to another district or division where the
case might have been brought “[f]or the convenience of parties
and witnesses,” or “in the interest of justice.”

Simply because

venue is proper in a particular jurisdiction, of course, does
not make it appropriate.

Kaufmann, 667 F. Supp. 2d at 207.

District courts have broad power to transfer cases, and in doing
so, must weigh both private and public interests.

Id. at 208.

Private interests include: relative ease of access to sources of
proof, availability of compulsory process, comparative trial
cost, and ability to enforce a judgment.

Id. at 208.

Public

interests include: practical difficulties of unnecessarily
imposing upon a busy court (or citizens called to jury duty),
the obligation to hear a case more fairly adjudicated elsewhere,
and having a judge more familiar with relevant law make the
requisite legal determinations.

Id. at 208.

Of the factors

identified, the convenience of expected witnesses is generally

8

most salient.

Id. at n. 4 (quoting Boateng v. Gen. Dynamics

Corp., 460 F.Supp.2d 270, 275 (D. Mass. 2006)).
But there are no expected witnesses in the traditional
sense here; I will ultimately decide this case through
dispositive motion practice based on the administrative record
used by the Plan to determine that the Plaintiff was ineligible
for benefits.

Similarly, the location of documents and ease of

access to evidence are not factors that weigh heavily here
because the operative documents are limited in scope.

It should

be noted, nevertheless, that relevant court orders and the
divorce judgment at issue were obtained in Massachusetts courts.
The thrust of the Defendants’ argument to transfer venue
centers on the belief that the convenience of parties weighs
heavily in favor of shifting the venue to Maryland.

The

Defendants reason that this will lessen the burden on the Plan,
and its beneficiaries, because the travel related expenses will
be lessened.

The Defendants observe that a change of venue to

Maryland is not any less convenient to the Plaintiff, who
resides in California.

Although the Plaintiff’s counsel is

located in Massachusetts, that factor does not as such weigh
heavily in decision.

See Dearing v. Sigma Chem. Co., 1 F. Supp.

2d 660, 665 (S.D. Tex. 1998).

What I do weigh heavily, however,

is the strong presumption in favor of the Plaintiff’s choice of
forum.

Coady v. Ashcraft & Gerel, 223 F.3d 1, 11 (1st Cir.
9

2000).

The Defendant has the burden of “establish[ing] that, on

balance, the interests of justice and convenience weigh heavily
in favor of transfer.”

Boston Post Partners II, LLP v. Paskett,

No. 15-13804-FDS, 2016 WL 3746474, at *9 (D. Mass. July 8, 2016)
(quoting Systemation, Inc. v. Engel Indus., 992 F. Supp. 58, 64
(D. Mass. 1997)).

The Defendants have not done so here.

The

purported inconvenience and expense of travel to Boston from
Maryland for the Defendants’ representatives is not enough to
tip the scale against the Plaintiff’s chosen forum.
The Defendants have failed to meet their burden of showing
that any inconvenience of litigating in Massachusetts is
sufficiently burdensome to justify disturbing the Plaintiff’s
choice of venue and support either outright dismissal or
transfer.
III. STATING A CLAIM
The Defendants are also seeking to dismiss the Plaintiff’s
complaint on grounds it does not contain enough facts to state a
plausible cause of action.
A.

Standard of Review
A complaint may not be dismissed under Rule 12(b)(6) if the

complaint provides a “short and plain statement showing that the
pleader is entitled to relief.”

Ocasio-Hernandez v. Fortuno-

Burset, 640 F.3d 1, 11 (1st Cir. 2011) (quoting Fed. R. Civ. P.
8(a)(2)).

A “short and plain statement” is only required to
10

provide enough detail to give the defendant “fair notice of what
the . . . claim is and the grounds upon which it rests,” but the
complaint must also contain enough factual material to “raise a
right to relief above the speculative level on the assumption
all the allegations in the complaint are true (even if doubtful
in fact).”

Id. at 12 (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007)).

In sum, a complaint is adequate when it

provides fair notice to the defendants and states a facially
plausible legal claim.
B.

Id.

Supplemental Materials
The Defendants submitted supplemental documents with their

motion to dismiss.

When a party submits supplemental materials

outside of the pleadings as part of the motion to dismiss, the
motion is typically treated as a motion for summary judgment.
Chebotnikov v. LimoLink, Inc., 150 F. Supp. 3d 128, 130 (D.
Mass. 2015).

An exception is made, however, for “documents the

authenticity of which are not disputed by the parties; for
official public records; for documents central to plaintiffs'
claim; or for documents sufficiently referred to in the
complaint.”

Alternative Energy, Inc. v. St. Paul Fire and

Marine Ins. Co., 267 F.3d 30, 33 (1st Cir.

2001).

The documents submitted to me in connection with the
motions include the Plan and the Retirement Board’s decision to

11

deny benefits.

These items are expressly referenced in the

complaint and are central to the complaint.
C.

Failure to State a Claim
The Defendants contend that the Plaintiff’s complaint does

not provide facts that plausibly explain why she is entitled to
relief.

This contention will likely be informed by the standard

of review to be applied.
The First Circuit has held that when an ERISA plan provides
plan administrators “with the authority and discretion to
interpret the plan and to determine eligibility for benefits, we
must uphold the administrator’s decision unless it was
arbitrary, capricious, or an abuse of discretion.”

O'Shea

through O'Shea v. UPS Ret. Plan, 837 F.3d 67, 73 (1st Cir. 2016)
(internal quotation marks omitted) (quoting Niebauer v. Crane &
Co., 783 F.3d 914, 922–23 (1st Cir. 2015)).

The analysis in

such circumstances is focused on “whether the record as a whole
supports a finding that the plan administrator’s decision was
plausible or, put another way, whether the decision is supported
by substantial evidence in the record.”

Id. (internal quotation

marks omitted); see also Denmark v. Liberty Life Assur. Co. of
Boston, 566 F.3d 1, 9 (1st Cir. 2009) (“. . . judicial review of
such a benefit-denial decision is for abuse of discretion.”).
ERISA benefit-denial cases are typically decided on the record
before the plan administrator.

Nicholas v. Cigna Life Ins. Co.
12

of N.Y., No. 14-CV-14117-ADB, 2016 WL 755612, at *2 (D. Mass.
Feb. 25, 2016); Denmark, 566 F.3d at 10.
By contrast, the Retirement Plan’s construction and
interpretation of a domestic relations order is given de novo
review.

Owens v. Auto. Machinists Pension Trust, 551 F.3d 1138,

1142 (9th Cir. 2009).

Here, the Retirement Plan construes the

Plaintiff’s domestic relations order; consequently, its decision
is reviewed de novo with respect to that issue.
The Defendants argue that the Plaintiff failed to plead
plausibly the elements required to state a claim under the abuse
of discretion standard.

In her complaint, the Plaintiff merely

states that “the defendant has wrongfully denied the plaintiff
the above-referenced pension benefits.”

Since it appears — as

more fully discussed below — that the challenged decision will
ultimately be decided under de novo review, the Plaintiff is
unlikely to be required to plead that the Retirement Board’s
decision was an abuse of discretion or arbitrary and capricious.
In any event, while the Plaintiff’s pleadings lack detailed
facts, they are sufficient because they state a plausible claim
for relief under ERISA.

The motion to dismiss before me will be

denied and this claim will be permitted to proceed.

13

III. REVIEWING THE RETIREMENT BOARD DECISION
A.

Standard of Review
A dispositive motion is appropriate when there are no

genuine issues of fact and the moving party is entitled to
judgment as a matter of law.

Thompson v. Coca-Cola Co., 522

F.3d 168, 175 (1st Cir. 2008) (quoting Fed. R. Civ. P. 56(c)).
As noted, I use an abuse of discretion standard for the
Retirement Board’s determinations with respect to the Plan.
Denmark, 566 F.3d at 9.

See

Under an abuse of discretion standard,

the administrator’s decision must be plausible and based on
evidence found in the record.

Id.; see also Metro. Life Ins.

Co. v. Glenn, 554 U.S. 105, 112 (2008) (conflicts of interest
should be taken into consideration as one factor in determining
whether there was abuse of discretion).

While the abuse of

discretion standard is applicable to the plan administrator’s
interpretation of the plan itself, I review de novo the plan
administrator’s decisions concerning whether a domestic
relations order is a qualified domestic relations order (QDRO)
under ERISA and the construction of that QDRO.

Owens, 551 F.3d

at 1142 (“We review de novo the district court's review of a
plan administrator's conclusions regarding legal obligations
under a QDRO.”).

I am likely ultimately to review the

challenged decision here de novo because the Retirement Plan’s
decision is based on an interpretation of court orders, and not
14

the Plan.

I use this occasion to shape discussion at a further

scheduling conference regarding the development of dispositive
motions.
B.

ERISA and QDROs
ERISA is a federal regulatory scheme that governs employee

benefit plans; all benefit plans must conform with ERISA
reporting, disclosure, and fiduciary requirements.
Boggs, 520 U.S. 833, 841 (1997).

Boggs v.

Pension plans must also comply

with participation, vesting, and funding requirements.

Id.

As

a general matter, pension plans may not be assigned or
alienated.

29 U.S.C. § 1056(d)(1).

general rule is made for QDROs.

An exception to this

29 U.S.C. § 1056(d)(3).

The Retirement Equity Act of 1984 (REA) amended ERISA to
ensure pension income for surviving spouses.
843.

Boggs, 520 U.S. at

As specifically relevant to this case, the REA expanded

ERISA protections by providing that “if a vested participant
dies before the annuity start date, leaving a surviving spouse
to whom he has been married for at least one year, a qualified
preretirement survivor annuity shall be provided to the
surviving spouse.”

Hamilton v. Washington State Plumbing &

Pipefitting Indus. Pension Plan, 433 F.3d 1091, 1095 (9th Cir.
2006); 29 U.S.C. § 1055(a)(2).
A qualified domestic relations order is defined, in part,
as a domestic relations order “which creates or recognizes the
15

existence of an alternate payee’s right to, or assigns to an
alternate payee the right to, receive all or a portion of the
benefits payable with respect to a participant under the
plan . . . .”

29 U.S.C. § 1056(d)(3)(B)(i)(I).

A domestic

relations order is considered a QDRO only when certain
requirements are met under ERISA, 29 U.S.C. § 1056(d)(1)(C)-(D),
as will be discussed in greater detail below.

I observe as a

general proposition that Linnea Garcia-Tatupu, as a former
spouse of a pension plan participant, may be treated as a
surviving spouse of the participant, and as such is treated as
meeting all of the applicable marriage requirements because she
was married to a plan participant for at least one year.

29

U.S.C. § 1056(d)(1)(F); 29 U.S.C. § 1055(f).
C.

Analysis
The Plaintiff asserts in her complaint that “according to

the judgment of divorce” she was entitled to certain pension
benefits.

The divorce decree has not been produced in the

record at this time.

The Plaintiff has submitted a court order

titled “Qualified Domestic Relations Order,” dated December 29,
2011; which was ordered to apply nunc pro tunc as of October 5,
2012 to the date of divorce on September 24, 1997.

As explained

above, a QDRO serves as a “limited exception to the pension plan
anti-alienation provision in ERISA and allows courts to
recognize a nonparticipant spouse’s community property interest
16

in pension plans under specific circumstances.”

Boggs, 520 U.S.

at 839; see 29 U.S.C. § 1056(d)(1); 29 U.S.C. § 1056(d)(3)(A).
The Retirement Plan’s decision to deny benefits was based
on three reasons:
First, that the “retirement benefits are not payable where
a Player dies before he has made an election to receive
retirement benefits under the Plan,” because these retirement
benefits only continue after a player’s death “where the Player
properly elected a form of benefits that includes payment after
his death to his survivor.”

Tatupu received a partial lump-sum

retirement payment while living, but he had not made an election
with respect to the remainder of his pension.
Second, that there must be a surviving spouse at the time
of the player’s death for benefits to be paid, and Tatupu did
not have a surviving spouse at the time of his death.
Third, that although QDROs can have a retroactive effect,
Tatupu had neither a surviving spouse nor minor children, and so
the QDRO cannot create a new benefit that is otherwise not
payable.
Looking to the text of the Retirement Plan and the relevant
provisions as cited by the Retirement Board, I assume, although
the parties have not formally stipulated to this finding, that
Tatupu was a “vested” player as a result of his long career in
the NFL.

Under Section 4.3 of the Retirement Plan, “[a] Vested
17

Player may elect to begin to receive benefits as of his Normal
Retirement Date,” and this election “must be filed in writing.”
Tatupu was 54 years old at the time of his death, since he
played from 1978 to 1991, he could have elected to receive
benefits as of his 45th birthday, making him eligible to receive
benefits at the time of his death.
Upon electing to receive benefits, under section 4.4,
beneficiaries are given the choice among several alternatives.
Section 4.4 provides that an “unmarried Vested Player’s monthly
pension will be paid in the form of a ‘life only pension.’”
This pension payment is only payable during the player’s
lifetime.

Married players are paid “in the form of a ‘Qualified

Joint and Survivor Annuity.’”
The pension plan also provides for two death benefit
options; a surviving spouse may only elect one option, even if
eligible for both.

The first death benefit option, found in

Section 7.2, is the Widow’s and Surviving Children’s Benefit,
which applies to a player who at his time of death, but before
the date that his retirement begins, was “a Vested Inactive
Player.”

Under this circumstance, “his surviving Spouse . . .

will . . . receive a monthly widow’s and surviving children’s
benefit.”

The second death benefit option, under Section 7.3,

describes the Spouse’s Pre-Retirement Death Benefit, which
provides that “if a married Vested Player dies before the date
18

his retirement benefits begin, his surviving Spouse will . . .
receive payments . . . .”
Critically in this case, under the Retirement Plan, a
“Spouse” refers to “a Player’s lawful spouse . . . or a former
spouse to the extent provided under a Qualified Domestic
Relations Order as described in section 414(p) of the Code.”
For a domestic relations order to be considered a QDRO
certain requirements must be met: the order must (1) clearly set
out certain facts (name, last known address of participant and
alternate payee, amount/percentage of benefits to be paid by the
plan to the alternate payee, the number of payments or period to
which the order applies, and each plan to which the order
applies), and (2) not alter the amount or form of benefits.
U.S.C. § 414(p); see 29 U.S.C. § 1056(d)(3)(c).

26

An order that

does not alter the amount or form of benefits is one that:
(a) does not require a plan to provide any type or
form of benefit, or any option, not otherwise provided
under the plan, (b) does not require the plan to
provide increased benefits (determined on the basis of
actuarial value), and (c) does not require the payment
of benefits to an alternate payee which are required
to be paid to another alternate payee under another
order previously determined to be a qualified domestic
relations order.
26 U.S.C. § 414(p).
While the assignment of benefits is generally prohibited
under ERISA, 29 U.S.C. § 1056(d)(1), ERISA requires pension
plans to pay benefits in accordance with the requirements set

19

out by a QDRO, 29 U.S.C. § 1056(d)(3)(A), and pension plans are
given the authority to use reasonable procedures to determine
the validity of QDROs, 29 U.S.C. § 1056(d)(3)(G)(ii).

Owens,

551 F.3d at 1142-43.
The Retirement Board points out that the court order of
December 29, 2011 was obtained more than 18 months after
Tatupu’s death.

This is relevant because any determination that

an order is a QDRO after the close of the 18 month period,
beginning on the date on which the first payment would have been
required to be made under the domestic relations order, is only
applied prospectively.

29 U.S.C. § 1056 (d)(3)(H)(i)-(v).

Nevertheless, while it appears there can be no retroactive
payments to the Plaintiff, this 18-month limitation does not bar
her from bringing this claim for prospective benefits.

29

U.S.C. § 1056(d)(3)(H)(iv).
In analyzing the Plaintiff’s claim, I must determine
whether her domestic relations order was a QDRO under ERISA.
The Plaintiff here claims that she is entitled to rights under
her 1997 divorce decree, which she alleges provides that she is
entitled to a portion of Tatupu’s pension benefits, and her nunc
pro tunc court order that entitles her to treatment as a
“surviving spouse” with respect to Tatupu’s remaining benefits
under the Plan.
to me.

But the divorce decree has not been presented

In any event, the Retirement Board’s denial hinges on an
20

interpretation of the domestic relations order as not being a
QDRO because it provides “increased benefits” or “rights not
otherwise available under the terms of the Retirement Plan.”
A Tenth Circuit case dealing with a similar facts decided
that “[b]ecause the nunc pro tunc order in the present case must
be considered to have been entered before the death of the
participant, it does not increase the benefits to be paid.”
Patton v. Denver Post Corp., 326 F.3d 1148, 1152 (10th Cir.
2003) (“the very point of a nunc pro tunc order is the creation
of a legal fiction that the order did exist as of the date to
which it is made effective.”).

The Second Circuit has also held

that a QDRO ordered after the death of a plan participant does
not fail solely because of the time at which it was issued.
Yale-New Haven Hosp. v. Nicholls, 788 F.3d 79, 85 (2d Cir.
2015), reh'g denied, 811 F.3d 541 (2d Cir. 2016) (posthumous
nunc pro tunc orders were valid QDROs).
Other cases have, however, emphasized that an interest in
pension benefits must be established before the beneficiary’s
death.

See Trustees of Directors Guild of Am.-Producer Pension

Benefits Plans v. Tise, 234 F.3d 415, 426 (9th Cir.), opinion
amended on denial of reh'g, 255 F.3d 661 (9th Cir. 2000);
Samaroo v. Samaroo, 193 F.3d 185, 187 (3d Cir. 1999).
Establishing such an interest need not take the form of a QDRO,
a suitable divorce decree that establishes rights to pension
21

benefits is enough when it creates the right to go back to
obtain an order that meets the criteria of a QDRO.

See id. at

421; In re Gendreau, 122 F.3d 815, 818 (9th Cir. 1997).
In Samaroo v. Samaroo, a divorced plaintiff’s ex-husband
died with a vested right to a pension that provided a preretirement survivor annuity, available to the surviving spouse
of a Plan participant who died after vesting but before
retiring.

193 F.3d at 187.

The divorce decree in Samaroo did

not state that the plaintiff was entitled to receive benefits
under her former husband’s pre-retirement survivor’s annuity.
Id.

Only after the ex-husband’s death did the plaintiff obtain

a nunc pro tunc amendment to the divorce decree that created
such an entitlement.

Id.

The court decided, “because the

divorce decree did not mention any entitlement to such rights,
and in the absence of a surviving spouse or a QDRO designating
the former spouse as such, there was simply no pre-retirement
survivor’s annuity payable.”

Id.

The court reasoned that the amendment to the divorce decree
did not become a QDRO because the amendment required the plan to
provide benefits not otherwise provided.

Id.

The entitlement

to a survivor’s annuity was determined on the day the
plaintiff’s ex-husband died, and “the successful operation of a
defined benefit plan requires that the plan’s liabilities be
ascertainable as of particular dates.”
22

Id. at 190–91.

As of

the date that the plaintiff’s ex-husband died, there was no
requirement to pay anyone under the plan, so the domestic
relations order increased the liability of the plan and did not
qualify as a QDRO.

Id.

The majority emphasized in a footnote

that the holding was limited to the facts of Samaroo, and did
not reach the broader issue of whether a QDRO could be modified
after death.

Id. at n.3.

The Third Circuit later explicitly limited Samaroo’s
application further in Files v. ExxonMobil Pension Plan, noting
that in “Samaroo, the divorce decree was silent as to the preretirement survivor’s annuity,” but that in Files the divorce
decree awarded a portion of the deceased’s pension;
consequently, in Files an interest was created before the plan
participant’s death regardless of whether the statutory
requirements for a QDRO were met at that time.
487 (3d Cir. 2005).

428 F.3d 478,

The Files court held the wife was free to

obtain a revised state court order that met the QDRO
requirements in order to enforce the property interest conferred
upon her by the divorce decree.

Id.

The Retirement Board here does not fully explain the
reasoning behind its decision, but it appears the Board was
taking the Samaroo approach to the Plaintiff’s order.

The

Board’s denial of benefits decision stated that no benefits were
payable to any person at the time of Tatupu’s death, suggesting
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a view that the court order, obtained after Tatupu’s death,
created a new benefit not otherwise payable, preventing the
order from being a valid QDRO.

However, if the Plaintiff’s

divorce judgment with Tatupu contemplated these pension
benefits, the Retirement Board’s analysis does not take into
consideration the Plaintiff’s preexisting rights under her
divorce decree with Tatupu.

If the Plaintiff was granted rights

to Tatupu’s pension under her divorce decree, in accordance with
Files a postmortem court order that complies with ERISA’s
statutory requirements does not create new benefits not
otherwise payable.

As noted above, I do not — at this time —

have the divorce decree, so I cannot decide whether the
Plaintiff had a pre-existing interest in the pension.

Without

this documentation, it will not be possible to make a
dispositive determination on the merits.

Nevertheless, it

appears this case can be resolved by dispositive motion
practice.

I will convene a further scheduling conference to

explore how to do so.
IV. CONCLUSION
The Defendants’ motion to dismiss for improper venue is
DENIED; the Defendants’ request to transfer venue is DENIED and
the Defendants’ motion to dismiss for failure to state a claim
is DENIED.

The parties shall submit a joint scheduling proposal

on or before April 28, 2017.
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A further scheduling conference will be held at 3:30 p.m. on May
3, 2017.

/s/ Douglas P. Woodlock______
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

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