Van Gent v. Saint Louis Country Club et al

Filing 91

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the Motion To Dismiss Count IXof Plaintiffs Second Amended Complaint (Docket No. 81) is granted as provided herein. IT IS FURTHER ORDERED that Count IX of Plaintiffs SecondAmended Complaint is dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.granting 81 Motion to Dismiss Signed by Magistrate Judge Frederick R. Buckles on 10/12/11. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
HUBERT VAN GENT,
Plaintiff,
v.
SAINT LOUIS COUNTRY CLUB,
et al,,
Defendants.

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Case No. 4:08CV959 FRB

MEMORANDUM AND ORDER
Presently before the Court is the Motion To Dismiss Count
IX Of Plaintiff’s Second Amended Complaint (Docket No. 81) filed by
defendants J. Rodney Bryan, Lucien R. Fouke, John R. Roberts,
Timothy N. Ewing, Frederick O. Hanser, Spencer B. Burke, Joseph F.
Imbs, and James L. Mather (herein “Individual Defendants”).

All

matters are pending before the undersigned United States Magistrate
Judge, with consent of the parties, pursuant to 28 U.S.C. § 636(c).
In the instant Motion, the Individual Defendants seek
dismissal of Count IX of Plaintiff’s Second Amended Complaint
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
and Local Rule 4.1(A), arguing that Plaintiff’s claim in Count IX
is related to Employee Benefit Plans that are undisputedly governed
by the Employee Retirement Income Security Act of 1974, 20 U.S.C.
§ 1001 et seq. (“ERISA”), and is therefore preempted.

In Count IX,

Plaintiff alleges that the Individual Defendants engaged in a
fraudulent conspiracy with regard to the administration of the

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deferred compensation portion of the Employment Agreement, and the
Deferred Compensation Plan, both of which Plaintiff agrees are
governed by ERISA.

Plaintiff alleges that, as a result of the

Individual Defendants’ fraudulent conspiracy, Plaintiff did not
receive

the

full

funds

to

which

he

was

entitled

upon

his

retirement.
Plaintiff responded to the instant Motion, stating that
although he believed that the Individual Defendants’ arguments were
“faulty,” he wished to withdraw Count IX of his Second Amended
Complaint.

(Docket No. 85 at page 2).

Plaintiff also stated that

he intended to move for leave of Court to file a Third Amended
Complaint, but offered no further explanation.

In reply, the

Individual Defendants objected to Plaintiff’s stated intention to
move for leave of court to file yet another amended pleading,
noting that this case has been pending for over two years due to
the fact that Plaintiff has repeatedly amended his Complaint,
resulting in a waste of time and resources of both the defense and
this Court. The Individual Defendants asked this Court to deny any
future leave to amend, and to order Plaintiff and his attorney to
show cause why their conduct did not violate Rule 11 of the Federal
Rules of Civil Procedure. In a footnote, the Individual Defendants
indicated that they stipulated to the dismissal of Count IX.
This Court subsequently ordered Plaintiff to respond to
the Individual Defendants’ substantive arguments.
87).

(Docket No.

Plaintiff filed a supplemental response in which he stated

that although he had withdrawn Count IX, he did not do so because
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Count IX was preempted by ERISA, stating that the claims therein
were only tangentially related to the administration of the Plans
at issue, and the actions claimed caused harm separate from the
claims alleged in the ERISA counts.

Plaintiff indicated that he

opposed the Individual Defendants’ request for attorney’s fees, and
also asked that this Court “hold in abeyance the possibility that
Plaintiff be permitted to file a Third Amended Complaint at the
appropriate time.”

(Docket No. 89 at page 10).

In response, the

Individual Defendants again argued that Count IX was subject to
dismissal because it was preempted by ERISA, and requested that
this Court deny Plaintiff’s request to amend his Complaint in the
future; award them attorney’s fees and costs; and dismiss Count IX
with prejudice.

(Docket No. 90).

Given the current posture of this case, Plaintiff may
voluntarily dismiss Count IX without a Court order by filing the
proper stipulation of dismissal as required by Rule 41(a)(1)(A)(ii)
of

the

Federal

Rules

of

Civil

Procedure.

However,

neither

Plaintiff nor the Individual Defendants have filed, or indicated an
intent to file, a stipulation of dismissal that complies with that
Rule.

Moreover, while Plaintiff has stated that he wishes to

“withdraw”

Count

IX,

he

does

not

cite

Rule

41

or

use

the

terminology therefrom, nor does he indicate that such “withdrawal”
should be with or without prejudice, leaving the Court uncertain of
Plaintiff’s actual intention.
parties’

failure

undersigned

to

declines

comply
to

Due to this confusion and the
with

dismiss
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Rule
Count

41(a)(1)(A)(ii),
IX

pursuant

to

the
Rule

41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure.
Rule 41(a)(2) of the Federal Rules of Civil Procedure
allows an action to be dismissed at a plaintiff’s request only by
court order, on terms that the court considers proper.

The

district court may permit such dismissal in its own discretion,
Great Rivers Coop. of Se. Iowa v. Farmland Indus., Inc., 198 F.3d
685, 689 (8th Cir. 1999), but in exercising such discretion, should
consider the following: (1) whether the plaintiff has properly
explained its desire to dismiss; (2) whether dismissal would result
in a waste of judicial time and effort; (3) whether the defendant
would suffer prejudice by dismissal; and (4) whether the dismissal
is sought to avoid an adverse decision or seek a more favorable
forum. Hamm v. Rhone-Poulenc Rorer Pharm., Inc., 187 F.3d 941, 950
(8th Cir. 1999) (internal citations omitted).
All four of the above factors suggest that this Court
should

not

exercise

its

discretion

voluntarily dismiss Count IX.

to

allow

Plaintiff

to

First, however, the undersigned

notes that Plaintiff offered no explanation for why he wishes to
“withdraw” Count IX and, as stated above, does not cite Rule 41 or
use the terminology therefrom, leaving the undersigned unsure of
whether Plaintiff is even asking for dismissal pursuant thereto.
Nevertheless, turning to the factors enumerated above, the fact
that Plaintiff expressed his desire to withdraw Count IX after the
Individual Defendants filed the instant Motion indicates that
Plaintiff is doing so because he anticipates an unfavorable ruling.
In addition, given the Individual Defendants’ pending motion, the
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lack of any clear explanation from Plaintiff regarding how he may
amend his Complaint, and considering the manner in which Plaintiff
has prosecuted his case thus far, it would appear that allowing
Plaintiff to dismiss Count IX would result in a waste of judicial
resources.

Plaintiff has repeatedly amended his Complaint, adding

and removing defendants and making repeated attempts to assert
state law claims apparently without considering whether they are
preempted by ERISA.

It is also quite apparent that allowing

Plaintiff to dismiss Count IX and amend his Complaint in some
unknown manner at a later date would prejudice the Individual
Defendants, inasmuch as they have already devoted significant
efforts in filing the instant motion and memorandum in support, and
pleadings in reply to Plaintiff’s responses.
For

all

of

the

foregoing

reasons,

although

the

undersigned recognizes that Plaintiff has requested to “withdraw”
Count IX, the undersigned declines to dismiss Count IX pursuant to
Rule 41 of the Federal Rules of Civil Procedure, and will now
consider the instant Motion To Dismiss.
When reviewing a motion to dismiss for failure to state
a claim under Fed. R. Civ. P. 12(b)(6), the Court must accept as
true all factual allegations contained in the Complaint, and review
the Complaint to determine whether its allegations show that the
pleader is entitled to relief. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555-56 (2007).

The purpose of a motion to dismiss for

failure to state a claim is to test the legal sufficiency of the
challenged claim. A claim must be dismissed under Rule 12(b)(6) if
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it does not plead “enough facts to state a claim to relief that is
plausible on its face.”

Twombly, 550 U.S.

at 570 (abrogating the

“no set of facts” standard set forth in Conley v. Gibson, 355 U.S.
41, 45-46 (1957)).

“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

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

misconduct alleged.”

(2009) (citing Twombly, 550 U.S. at 570).

While the Complaint need

not provide specific facts in support of the claims contained
therein, Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam),
it “must include sufficient factual information to provide the
‘grounds’ on which the claim rests, and to raise a right to relief
above a speculative level.”

Schaaf v. Residential Funding Corp.,

517 F.3d 544, 549 (8th Cir. 2008) (citing Twombly, 550 U.S. at 55556 & n. 3).
As the Individual Defendants correctly assert, Count IX
is preempted by ERISA.

As this Court has already held in this

case, ERISA preempts state law claims that are related to ERISAgoverned Plans.

Shaw v. Delta Airlines, Inc., 463 U.S. 85, 98-99

(1983); see also Estes v. Fed. Express Corp., 417 F.3d 870, 872
(8th Cir. 2005).

The Supreme Court of the United States has held

that a law “relates to” an ERISA-governed employee benefit plan for
purposes of the preemption clause “if it has connection with or
reference to such a plan.”

Shaw v. Delta Air Lines, Inc., 463 U.S.

85,

undersigned

96-97

(1983).

The

recognizes,

asserts, that ERISA preemption is not unlimited.
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as

Plaintiff

Id. at 100 (some

state actions may affect an ERISA-governed Plan in a too remote,
tenuous or peripheral manner to warrant a finding that the law
“relates to” the Plan.)

However, a state law cause of action is

expressly preempted by ERISA where a plaintiff must, as in this
case, prove the existence of, or specific terms of, an ERISA plan
in order to prevail.

Ingersoll-Rand Co. v. McClendon, 498 U.S.

133, 142 (1990).
The undersigned is not persuaded by Plaintiff’s argument
that his claim in Count IX may not be preempted because it is “only
tangentially” related to the administration of the Plans at issue,
and that the actions caused harm separate from that alleged in his
ERISA counts.

For his state law civil conspiracy claim in Count

IX, Plaintiff alleges that the Individual Defendants engaged in
wrongdoing that was related to transactions, administration, and
funding that was contrary to the terms of the Plans, caused
diminution in value of the Plans, and adversely affected the amount
of money Plaintiff should have received pursuant to those Plans.
Plaintiff’s claim in Count IX is based upon the ERISA-governed
Plans themselves, the proper administration thereof, whether they
were in fact administered properly, and the manner in which such
administration affected Plaintiff’s entitlement to receive benefits
pursuant to the Plans.

A finding that Count IX is not preempted by

ERISA would “undercut the goal of uniform national regulation in
the manner that section 514(a) seeks to prevent.”

Christopher v.

Mobil Oil Corp., 950 F.2d 1209, 1219 (5th Cir. 1992) (finding that
a state law civil conspiracy claim, when related to an ERISA plan,
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was preempted by ERISA).
Plaintiff suggests that Count IX is not preempted because
the Individual Defendants did not themselves administer the Plans
and their actions only related to the Count I through Count VIII
defendants.
Defendants

This suggestion is unavailing.
note,

however

artfully

Plaintiff

As the Individual
may

attempt

to

characterize his claim does not change the fact that Count IX
alleges

that

the

Individual

Defendants

engaged

in

wrongdoing

related to the administration and funding of the ERISA-governed
Plans and which diminished the value thereof and adversely affected
Plaintiff’s ability to receive Plan benefits pursuant to Plan
terms.

Declining to find Count IX preempted would allow Plaintiff

to circumvent the preemption provision of ERISA and threaten the
objective of ERISA to provide uniform regulation of employee
benefit plans. Similarly unavailing is Plaintiff’s suggestion that
the Individual Defendants caused separate harm above and beyond the
harm alleged in Counts I through VIII.

The assets allegedly

affected were funds from ERISA-governed Plans, and Plaintiff’s
claim arises solely from the Plans.

“That ERISA does not provide

the full range of remedies available under state law in no way
undermines ERISA preemption.”

Tolton v. Am. Biodyne, 48 F.3d 937,

943 (6th Cir. 1995).
ERISA’s express preemption provision is “deliberately
expansive, and designed to establish plan regulation as exclusively
a federal concern.”
54 (1987).

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41,

Plaintiff’s claim in Count IX is preempted by ERISA and
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should be dismissed.

Furthermore, due to Plaintiff’s repeatedly

expressed desire to “withdraw” Count IX instead of prosecute it,
the undersigned finds it unnecessary to conduct further analysis.
Plaintiff asks that this Court “hold in abeyance the
possibility that Plaintiff be permitted to file a Third Amended
Complaint at the appropriate time.”

(Docket No. 89 at page 10).

Plaintiff is no longer able to amend his Complaint as a matter of
course, Fed. R. Civ. P. 15(a)(1), and he has not filed a motion
seeking

leave

of

court

to

amend,

Fed.

R.

Civ.

P.

15(a)(2).

Furthermore, Plaintiff has indicated only that he intends to seek
leave to amend in the future, (Docket No. 85), and asked that this
Court “hold in abeyance the possibility that [he] be permitted to
file” a Third Amended Complaint at the appropriate time.”
No.

89

at

page

10).

The

undersigned

declines

to

(Docket
construe

Plaintiff’s statements as a motion for leave to amend and, as such,
there is nothing for this Court to “hold in abeyance,” and this
Court declines Plaintiff’s request to do so.

To be clear, at

present, Plaintiff does not have leave of Court to file an amended
Complaint, nor does this Court consider that there is a motion for
leave

to

amend

currently

pending.

Finally,

the

Individual

Defendants’ request for an award of attorney’s fees will be denied
at this time.

Therefore, for all of the foregoing reasons,
IT IS HEREBY ORDERED that the Motion To Dismiss Count IX
of Plaintiff’s Second Amended Complaint (Docket No. 81) is granted
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as provided herein.
IT IS FURTHER ORDERED that Count IX of Plaintiff’s Second
Amended Complaint is dismissed pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure.

_______________________________
Frederick R. Buckles
UNITED STATES MAGISTRATE JUDGE
Dated this 12th day of October, 2011.

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