Van Gent v. Saint Louis Country Club et al

Filing 205

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendant Stephen D. LillysMotion For Summary Judgment (Docket No. 140) is granted. IT IS FURTHER ORDERED that judgment shall be entered in favor of defendant Stephen D. Lilly and against plaintiff on Counts III through VII of the Second Amended Complaint. re: 140 MOTION for Summary Judgment filed by Defendant Stephen D. Lilly. Signed by Magistrate Judge Frederick R. Buckles on 11/27/13. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
HUBERT VAN GENT,

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)
)
)
)
)
)
)
)
)

Plaintiff,
v.
SAINT LOUIS COUNTRY CLUB,
et al.,
Defendants.

Case No. 4:08CV959 FRB

MEMORANDUM AND ORDER
Presently

before

the

Court

Lilly’s Motion For Summary Judgment.

is

Defendant

Stephen

(Docket No. 140).

D.
All

matters are pending before the undersigned United States Magistrate
Judge, with consent of the parties, pursuant to 28 U.S.C. § 636(c).
The extensive factual background and procedural history
of this case is familiar to the parties, has been recited in
Memoranda and Orders previously filed by this court and on this
date.

Briefly, however, unless otherwise specified, the following

facts are undisputed.

This case is centered around two pension

plans that are governed by the Employee Retirement Income Security
Act, 29 U.S.C. § 1001 et seq.1 (“ERISA”).

Plaintiff Hubert Van

Gent (“plaintiff”) was employed by defendant Saint Louis Country
Club (“SLCC”) from 1976 until 2007.
position

of

General

Manager,

a

From 1984 to 2007, he held the
high-ranking,

1

well-compensated

In its previously-filed Memorandum and Order, this Court
determined that both plans are ERISA plans.
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position.

In

February

of

2009,

defendant

Stephen

D.

Lilly

(“defendant” or “Lilly”) became SLCC’s treasurer and a member of
SLCC’s Governance, Finance and Benefits Committee.

The parties

agree that Lilly was not involved in SLCC governance or the
administration of either of the plans at issue until February of
2009.
After receiving leave of court, plaintiff filed his ninecount Second Amended Complaint on December 22, 2010.
through VIII allege claims pursuant to ERISA.

Counts I

Count IX, which

alleged civil conspiracy against eight individual defendants, was
dismissed upon the motion of those defendants on October 12, 2011.
Lilly is a named defendant in Counts III through VII.
In Counts III through VI, plaintiff alleges that Lilly
was a fiduciary of the Employment Agreement Plan and the Deferred
Compensation Plan, and breached his fiduciary duties in various
ways.

In Count VII, plaintiff alleges that Lilly interfered with

plaintiff’s protected ERISA rights by withholding benefits and
information, and by constructively discharging him from SLCC.
In

January

of

2012,

plaintiff

filed

a

motion

for

permission to obtain discovery which, following stipulation between
the parties, was granted as to the following issues: whether the
plans

were

plaintiff’s

top

hat

plans

employment

under

ERISA,

relationship

with

the
SLCC

manner
ended,

in

which

and

the

transfer of funds between certain accounts related to the two plans
at issue. In its previously-filed Memorandum and Order, this Court

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determined that both plans were top hat plans under ERISA.2
In support of the instant motion for summary judgment,
Lilly argues that he is entitled to summary judgment as a matter of
law on all of the counts asserted against him because he was not a
member of SLCC management until February of 2009, before the
alleged conduct forming the basis for Counts III through VII
occurred. Regarding Counts III through VI (alleging various claims
of breach of fiduciary duty), Lilly also argues that plaintiff’s
claims fail as a matter of law because both plans are top hat plans
under ERISA and are therefore exempted from ERISA’s fiduciary duty
provisions.

Lilly alternately argues that he was not a fiduciary

of either plan.
not

have

been

Regarding Count VII, Lilly argues that he could
part

of

the

alleged

discrimination/retaliation

because he was not involved in SLCC governance until 2009, two
years after plaintiff resigned.
no

involvement

employment.”

whatsoever

in

The parties agree that “Lilly had
[plaintiff’s]

resignation

of

(Docket No. 166 at 6).

In response to Lilly’s motion for summary judgment,
plaintiff focuses exclusively on Count III, and offers no response
to Lilly’s motion for summary judgment as it pertains to Counts IV
through VII.

2

A top hat plan is a plan that is unfunded, used by
employers to provide “deferred compensation for a select group of
management or highly compensated employees,” and exempted from
certain ERISA requirements that are relevant to plaintiff’s
claims in the case at bar. 29 U.S.C. §§ 1051(2), 1081(a)(3),
1101(a); see also Emenegger v. Bull Moose Tube Co., 197 F.3d 929,
932 n. 6 (8th Cir. 1999)(internal citations omitted).
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Regarding Count III, plaintiff argues that the crux of
his claim is that the funds from the plans had been commingled
since 2005 and were still commingled; that Lilly has knowingly and
continuously attempted to distribute commingled funds to plaintiff;
that Lilly is the present trustee of Fidelity Account 827; and was
acting as such when there was an unexplained removal of funds
therefrom.

Plaintiff concludes that Lilly’s “Motion for Summary

Judgment as to Count III of Plaintiff’s Second Amended Complaint
should be denied.”

(Docket No. 165 at 4).

Pursuant to Fed. R. Civ. P. 56(c), a court may grant
summary judgment if the information before it shows that there are
no material issues of fact in dispute, and that the moving party is
entitled to judgment as a matter of law.
Lobby, Inc., 477 U.S. 242, 247 (1986).

Anderson v. Liberty

The moving party bears the

burden of proof to set forth the basis of its motion, Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986), and the court must view all
facts and inferences in the light most favorable to the non-moving
party, Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574,
587 (1986).
Once the moving party shows there are no material issues
of fact in dispute, the burden shifts to the adverse party to set
forth facts showing there is a genuine issue for trial.

Id.

The

non-moving party may not rest upon his pleadings, but must come
forward with affidavits or other admissible evidence to rebut the
motion.

Celotex, 477 U.S. at 324.

Summary judgment is a harsh

remedy and should not be granted unless the movant “has established
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[its] right to judgment with such clarity as to leave no room for
controversy.”

New England Mutual Life Ins. Co. v. Null, 554 F.2d

896, 901 (8th Cir. 1977).
In Counts III through VI, plaintiff alleges that Lilly
breached various fiduciary duties of ERISA.

However, as explained

fully in this Court’s Memorandum and Order partially granting
Defendants’ Motion For Summary Judgment, both plans at issue are
top hat plans under ERISA, and are therefore almost completely
exempt from ERISA’s substantive requirements, including fiduciary
responsibility.

29 U.S.C. § 1101(a)(1); Emenegger v. Bull Moose

Tube Co., 197 F.3d 929, 932 n. 6 (8th Cir. 1999)(“Top hat plans are
almost completely exempt from ‘ERISA’s substantive requirements’”
including fiduciary duty); Simpson v. Mead Corp., 187 Fed.Appx.
481, 483-84 (6th Cir. 2006) (quoting Senior Executive Benefit Plan
Participants v. New Valley Corp. (In re New Valley Corp.), 89 F.3d
143, 148 (3rd Cir. 1996)).
action against Lilly.

Plaintiff can have no other cause of

See Smith v. Provident Bank, 170 F.3d 609,

615 (6th Cir. 1999) (even if the facts of a given case make “an
ERISA
relief

action

[unavailable]

provided

by

ERISA

against
is

the

particular
only

defendants,

relief

the

available.”)

Plaintiff’s claims against Lilly in Counts III through VI therefore
fail as a matter of law.
In Count VII, plaintiff alleges that Lilly (and other
defendants) interfered with his protected ERISA rights, inasmuch as
they, inter alia, denied benefits and information, and ultimately
constructively discharged him from his position at SLCC. Plaintiff
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alleges that the malfeasance occurred from 2004 through 2007.

In

the instant motion, Lilly alleges, and plaintiff agrees, that Lilly
first joined SLCC management in 2009, and that Lilly had no
involvement in plaintiff’s resignation from SLCC.

In addition,

plaintiff offers no response to Lilly’s arguments concerning Count
VII.

As noted above, plaintiff was required to come forward with

affidavits or other admissible evidence to rebut Lilly’s motion.
Celotex, 477 U.S. at 324. Because Lilly has established that there
are no material facts in dispute and that he is entitled to
judgment as a matter of law, and because plaintiff has failed to
even attempt to demonstrate that there remain genuine issues for
trial, the undersigned concludes that Lilly is entitled to summary
judgment in his favor on Count VII.
Therefore, for all of the foregoing reasons,
IT IS HEREBY ORDERED that Defendant Stephen D. Lilly’s
Motion For Summary Judgment (Docket No. 140) is granted.
IT IS FURTHER ORDERED that judgment shall be entered in
favor of defendant Stephen D. Lilly and against plaintiff on Counts
III through VII of the Second Amended Complaint.

UNITED STATES MAGISTRATE JUDGE

Dated this 27th day of November, 2013.
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