Bonczek v. Board of Trustees National Roofing Industry Pension Plan et al

Filing 55

MEMORANDUM AND OPINION, ORDER vacating 6 Order Adopting Report and Recommendations, reversing in part 4 REPORT AND RECOMMENDATION re 1 Complaint, filed by Robert Bonczek, sustaining in part 9 Objection to Report and Recommendations filed by Robert Bonczek, sustaining in part to objections raised in 11 Response, (Written Opinion). Signed by Judge John R. Tunheim on April 23, 2015. (DML) cc: Bonczek. Modified text on 4/23/2015 (MMP).

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
ROBERT BONCZEK,

Civil No. 14-3768 (JRT/LIB)
Plaintiff,

v.
BOARD OF TRUSTEES NATIONAL
ROOFING INDUSTRY PENSION
PLAN; ZENITH ADMINISTRATORS,
Third-Party Administrative Manager; and
AGENT FOR SERVICE OF LEGAL
PROCESS, Wilson-McShane
Corporation,

MEMORANDUM
OPINION AND ORDER
ON REPORT AND
RECOMMENDATION OF
THE MAGISTRATE JUDGE

Defendants.
Robert Bonczek, P.O. Box 18782, Minneapolis, MN 55418, pro se.
Thomas C. Atmore and Thomas R. Haugrud, LEONARD, O’BRIEN,
SPENCER, GALE & SAYRE, LTD, 100 South Fifth Street, Suite 2500,
Minneapolis, Minnesota 55402, and Librado Arreola, ASHER, GITTLER
& D’ALBA, LTD., 200 West Jackson Boulevard, Suite 1900, Chicago, IL
60606, for defendants.
Robert Bonczek filed this pro se action under the Employee Retirement Income
Security Act (“ERISA”), against the Board of Trustees National Roofing Industry
Pension Plan (“National Roofing Industry Pension Plan”), Zenith Administrators, and
Agent for Service of Legal Process, Wilson-McShane Corporation (together,
“Defendants”). Bonczek did not pay the filing fee for this matter, but instead filed an
application to proceed in forma pauperis (“IFP”). Based on a review of Bonczek’s IFP
application and complaint, United States Magistrate Judge Leo I. Brisbois issued a Report
and Recommendation (“R&R”) on October 2, 2014, recommending that the Court

29

dismiss Bonczek’s claims against defendant Agent for Service of Legal Process, WilsonMcShane Corporation (“Agent for Service of Legal Process” or “Wilson-McShane”).
This matter is before the Court on Bonczek’s objections to the R&R
recommending dismissing with prejudice all claims against Wilson-McShane. Pursuant
to Federal Rule of Civil Procedure 72(b)(3) and D. Minn. LR 72.2(b)(3), the Court has
reviewed de novo the portions of the R&R to which Bonczek objects. Because the Court
concludes that Bonczek fails to state a claim against Agent for Service of Legal Process /
Wilson-McShane, the Court will dismiss any claims against Agent for Service of Legal
Process.1 The Court will sustain Bonczek’s objections, however, to the extent they object
to dismissal with prejudice. Thus, the Court will dismiss Bonczek’s claims against Agent
for Service of Legal Process without prejudice.

BACKGROUND
I.

Bonczek’s Claim
Bonczek alleges that defendants National Roofing Industry Pension Plan and

Zenith Administrators breached their fiduciary duty when they deprived him of pension
benefits in which he had become vested. (Compl., Attach. 1 ¶¶ 7–10, 14(k), (l), 18,
Sept. 23, 2014, Docket No. 1.) Bonczek turned 65 on January 19, 2008, at which point
he became eligible to retire and receive full retirement benefits from the National
1

The Court acknowledges Bonczek’s position that he is not raising any claims against
Wilson-McShane. Wilson-McShane was listed as a defendant on Bonczek’s complaint form,
however, which caused the Clerk of Court to identify Wilson-McShane as a defendant from
whom Bonczek is attempting to obtain relief. Dismissing any claims against Agent for Service
of Legal Process, Wilson-McShane is simply the mechanism by which the Court formally
communicates to all parties that Bonczek does not have any claims against Wilson-McShane.

-2-

Roofing Industry Pension Plan. (Id. at 16.) On May 25, 2010, Bonczek received a letter
from the National Roofing Industry Pension Plan stating that their “records indicate that
you are approaching or have attained age 65 and have participated in the Fund at least
5 years without a loss of service.” (Id. at 75.) The letter explained:
You may be eligible to begin receiving pension benefits whenever you wish
to stop working. If you continue to work after your Normal Retirement
Date (NRD), your retirement benefit payments will not begin until you
decide to actually retire and apply for them. The Plan is required to
commence benefit payments no later than April 1st following the year in
which you attain 70½.
When you are an active employee, you will continue to accrue a benefit
under the Plan in accordance with its terms. . . . The Plan does not,
however, make up or otherwise adjust your benefit for months you could
have received a Plan payment but chose not to do so.
(Id.)
In addition to National Roofing Industry Pension Plan and Zenith Administrators,
Bonczek also named Wilson-McShane as a defendant in part of his complaint.
(Compl. ¶ 2(c).) But, in the attachment to the complaint in which Bonczek explains the
nature of his claim, Bonczek does not list Wilson-McShane as a defendant and does not
raise any claims against them.
Upon a review of Bonczek’s complaint and the documents attached to it, WilsonMcShane appears to be a third-party administrator of National Roofing Industry Pension
Plan’s pension fund. (Compl., Attach. 1, Ex. E at 50.) Chris Reitmeier, a pension
specialist at Wilson-McShane, corresponded with Bonczek about his retirement benefits.
(Id. at 50, 55-56.) Reitmeier does not appear to be a decision-maker with respect to
Bonczek’s benefits; it appears that Reitmeier’s role – and, in turn, Wilson McShane’s
-3-

role – was solely to convey information to Bonczek from the National Roofing Industry
Pension Plan’s Fund Office. (Id.) In Bonczek’s description of the nature of his case, he
explains that he met with Reitmeier on August 7, 2014, to discuss some of his benefits
concerns, but Bonczek does not allege that Reitmeier committed any wrongs against him.
(Compl., Attach. 1, ¶ 14.)

II.

Procedural History
On October 2, 2014, the Magistrate Judge issued an R&R recommending

dismissal with prejudice of any claims against Wilson-McShane. (R&R at 3, Oct. 2,
2014, Docket No. 4.) Pursuant to Local Rule 72.1(a)(1), the parties had fourteen days to
file objections to the R&R.

The deadline passed without the submission of any

objections by either party. As a result, the Court issued an Order adopting the R&R.
(Order Adopting R&R, Oct. 22, 2014, Docket No. 6.) The following day, Bonczek filed
a motion to extend the deadline for objections. (Req. for Extension of Time to Appeal
the R&R (“Extension Mot.”), Oct. 23, 2014, Docket No. 8.) At the same time, he raised
several objections to the R&R. (Objection to R&R (“First Objections”), Oct. 23, 2014,
Docket No. 9.) On November 3, 2014, this Court granted Bonczek’s motion and stayed
the order adopting the R&R. (Order Granting Extension Mot., Nov. 3, 2014, Docket
No. 10.) Bonczek then filed a new set of objections on November 5, 2014. (Resp. to
Order Adopting R&R (“Second Objections”), Nov. 5, 2014, Docket No. 11.)

-4-

DISCUSSION
I.

STANDARD OF REVIEW
Under 28 U.S.C. § 1915, federal courts may authorize a civil action to proceed

without prepayment of fees if a person submits an affidavit indicating that he or she is
unable to pay the fees. However, if the court determines that the action “fails to state a
claim on which relief may be granted,” Section 1915(e)(2)(B)(ii) directs the court to
dismiss the case. See Higgins v. Carpenter, 258 F.3d 797, 800 (8th Cir. 2001) (explaining
that 28 U.S.C. § 1915(e)(2)(B)(ii) “allows a court to dismiss, prior to service of process
and without leave to amend, an IFP action or appeal if it fails to state a claim on which
relief may be granted”). To properly state a claim, a plaintiff must provide “more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007). That is, a plaintiff
must state “a claim to relief that is plausible on its face.” Id. at 1974.
Pro se pleadings should be liberally construed, and are held to a less stringent
standard when considering a dismissal for failure to state a claim. See Haines v. Kerner,
404 U.S. 519, 520 (1972); Horsey v. Asher, 741 F.2d 209, 211 n.3 (8th Cir. 1984). Even
liberally construed, a pro se complaint must still contain specific facts to support its
conclusions. Kaylor v. Fields, 661 F.2d 1177, 1183 (8th Cir. 1981).

II.

BONCZEK’S OBJECTIONS TO R&R
Bonczek has submitted two sets of objections – the first, filed on October 23,

2014, raises several challenges to the R&R. After being given an extension to respond to

-5-

the R&R, Bonczek filed a second set of objections on November 5, 2014. The Court has
reviewed both sets of objections.

A.

Dismissal of Wilson-McShane as a Defendant

In his first set of objections, Bonczek explains that Wilson-McShane is addressed
in the complaint because they are listed as the Agent of Legal Process. (First Objections
at 1.) He notes in his second set of objections that it was an error to name Agent for
Service of Legal Process, Wilson-McShane as a defendant on the complaint form
supplied by the Clerk of Court. (Second Objections at 1.) As Bonczek makes clear in
both sets of objections, he has not brought any substantive claims against WilsonMcShane. Therefore, the Court will dismiss Wilson-McShane as a defendant.
Bonczek objects that the Court should not dismiss “non-existent claims and
possible future claims . . . in advance.” (Id. at 2.) Liberally construing Bonczek’s
objection, the Court will treat this as an objection to the “with prejudice” nature of the
Magistrate Judge’s recommended dismissal.

The Court understands Bonczek to be

arguing that he should not be permanently barred from raising future claims against
Wilson-McShane if it turns out that Wilson-McShane violated a fiduciary duty to
Bonczek or otherwise harmed him, and he is able to sufficiently plead facts that would
support such a claim.
Courts have interpreted 28 U.S.C. § 1915(e)(2)(B) as granting trial courts
discretion to dismiss actions either with or without prejudice. Smith-Bey v. Hosp. Adm’r,
841 F.2d 751, 756 (7th Cir. 1988) (“Congress intended to leave the decision to dismiss

-6-

with or without prejudice in the district court’s discretion.”); Goodroad v. Bloomberg,
No. 97-2091, 1997 WL 633078, *1 (8th Cir. Oct. 15, 1997) (affirming dismissal of pro se
complaint with prejudice upon review under 28 U.S.C. § 1915(e)(2)(B)(ii)). The ultimate
decision as to whether a Court should dismiss with or without prejudice turns on
“whether the deficiencies in the complaint could be cured by amendment.

If the

allegations show that an arguable claim is ‘indisputably absent,’ then the district court
should dismiss the case with prejudice . . . .” Smith-Bey, 841 F.2d at 758. Because a
pro se plaintiff is owed a liberal reading of his pleadings to account for his lack of legal
training, see Estelle v. Gamble, 429 U.S. 97, 106 (1976), the Eighth Circuit has generally
approved dismissals without prejudice. See, e.g., Martin-Trigona v. Stewart, 691 F.2d
856, 858 (8th Cir. 1982); Navarro v. Chief of Police, Des Moines, Iowa, 523 F.2d 214,
218 & n.3 (8th Cir. 1975).
In this case, the Court concludes that Wilson-McShane should be dismissed
without prejudice. By Bonczek’s own admission, he does not currently have any claims
against Wilson-McShane. (First Objections at 2; Second Objections at 1.) Because it
appears that Wilson-McShane was a third-party administrator of the National Roofing
Industry Pension Plan during the relevant time period, though, it is possible that as
Bonczek proceeds in this litigation, details may come to light which would enable him to
plead sufficient facts to state a claim against Wilson-McShane connected to his claim for
lost pension benefits. Given that Bonczek is proceeding pro se, the Court will not
foreclose him at this point from being able to bring future claims against WilsonMcShane should such claims arise. The Court takes no position on whether such claims
-7-

would likely be successful, nor on whether Bonczek’s claims against the Board of
Trustees National Roofing Industry Pension Plan and Zenith Administrators are likely to
succeed on the merits.

ORDER
Based on the foregoing, and all the files, records, and proceedings herein, the
Court SUSTAINS in part Bonczek’s objections [Docket Nos. 9 and 11] and
REVERSES in part the Report and Recommendation of the Magistrate Judge [Docket
No. 4]. IT IS HEREBY ORDERED that:
1.

The Court’s October 22, 2014 Order Adopting the Report and

Recommendation [Docket No. 6] is VACATED.
2.

Defendant Agent for Service of Legal Process, Wilson-McShane

Corporation is DISMISSED without prejudice from the present action pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii).
DATED: April 23, 2015
at Minneapolis, Minnesota.

____s/
____
JOHN R. TUNHEIM
United States District Judge

-8-