Pharmacia Corporation Supplemental Pension Plan et al v. Weldon, M.D.

Filing 63

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that defendant's motion to dismiss [# 9 ] is GRANTED as to Counts 1, 2, 5, 6, 7, and 8 of plaintiff's complaint and DENIED as to Counts 3 and 4 of plaintiff's complaint. I T IS FURTHER ORDERED that defendants motion for summary judgment [# 54 ] is DENIED. By separate order this case is set for a Rule 16 scheduling conference. The parties should modify their proposed plan as appropriate based on the discovery already completed, and should provide dates only for those things necessary to prepare this case for final resolution. Signed by District Judge Catherine D. Perry on 8/24/2015. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PHARMACIA CORPORATION
SUPPLEMENTAL PENSION PLAN,
BY AND THROUGH ITS PLAN
ADMINISTRATOR, and PFIZER INC.,
Plaintiff,
vs.
VIRGINIA V. WELDON, M.D.,
Defendant.

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Case No. 4:14CV1498 CDP

MEMORANDUM AND ORDER
Plaintiffs Pharmacia Corporation Supplemental Pension Plan and Pfizer, Inc.
allege that defendant Virginia V. Weldon should be required to reimburse them for
more than $1.3 million in pension distributions that they mistakenly paid to her.
When Weldon retired she elected to receive her pension benefits in set monthly
payments over a period of three years. In 2006, after the plan benefits had been
fully paid over the specified three years, the monthly payments continued to arrive.
Weldon and her financial advisor brought the payments to the attention of a
company the Plan had contracted with to address, among other things, customer
questions about pension payments. A representative for that company assured
them that the ongoing payments were correct and that Weldon was entitled to the

money. The Plan ultimately stopped making the mistaken payments in 2009. The
Plan and Pfizer brought this suit almost five years later, in 2014, asserting a variety
of claims under ERISA and state law.
Weldon has filed a motion to dismiss and a motion for summary judgment,
both of which seek to dismiss all of plaintiffs’ claims. In her motion to dismiss,
Weldon argues that plaintiffs’ ERISA claims fail because they seek legal, not
equitable, relief, and that the state-law claims are preempted by ERISA. In her
summary judgment motion, Weldon asserts that plaintiffs failed to file their lawsuit
within the applicable statutes of limitation and that the affirmative defense of
laches should apply to bar their claims. I conclude that the Plan’s ERISA claims
for restitution and unjust enrichment (Counts 3 and 4) survive to the extent they
seek to recover specifically identifiable funds (or the traceable proceeds of such
funds) in Weldon’s possession and control. I will dismiss all other claims brought
by the Plan and all claims brought by Pfizer because they seek relief not allowed
by ERISA or they assert state-law claims that are preempted by ERISA. I will
deny the summary judgment motion because genuine disputes of material fact
remain as to when the cause of action accrued, and whether plaintiffs’ delay in
bringing their claims was unreasonable.

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I.

Background

The Plan is an employee benefit plan that the parties agree is governed
exclusively by the Employee Retirement Income Security Act of 1974, 29 U.S.C. §
1001 et seq. Pfizer is the current plan sponsor. Weldon is a retired medical doctor
who joined Monsanto Company in 1989. As a Monsanto executive she
participated in two pension plans. One was the Monsanto Company Supplemental
Retirement Plan. The other plan, whose benefits are at issue in this lawsuit, was
the Monsanto Company ERISA Parity Pension Plan (Parity Plan). Through a
series of corporate changes, Weldon’s Monsanto business unit ultimately became a
part of Pfizer, Inc., and her two pension plans merged with each other and one or
more other plans to become the Plan that is a plaintiff in this lawsuit.
In 2004, Pfizer entered into an “Outsourcing Services Agreement” with
Fidelity Employer Services Company, LLC. Under this agreement, Fidelity was
charged with providing “ministerial recordkeeping and administration services” for
various Pfizer-sponsored retirement and health and welfare plans, including the
Plan. The agreement states that Pfizer is the Plan sponsor and Pfizer, or a
committee as provided for in each plan document, is the Plan administrator.

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The Agreement1 indicates Fidelity was to act as the “checkwriter” for
pension payroll payments, was responsible for informing participants of
overpayments and requesting repayment, and was responsible for supporting direct
deposit of periodic and lump sum payments and answering questions regarding
pension check disbursement. (Plf. Ex. A-2, Doc #60-2, at 24, 26). Fidelity was to
perform its services “within the framework of Plan provisions, guidelines and
interpretations” as conveyed by Pfizer to Fidelity. (Plf. Ex. A-1, Doc. #60-1, at 6).
The agreement states Fidelity would have “no discretionary authority or power to
make any decisions as to plan policy, interpretations, practices or procedures….”
(Id.). However, the “manner and means of performing the Services” were to be
within Fidelity’s exclusive control. The agreement states that the parties expressly
deny, and that the agreement is not intended to create, a relationship of principal
and agent between Pfizer and Fidelity. (Id. at 7).
According to the Agreement, Fidelity was to conduct audits to prevent
duplicate payments/overpayments. (Id. at 26). It agreed to utilize “hrSource
benefits specialists” as its “[b]randing” and would respond to customer telephone
calls at the number 1-866-4SOURCE (4768723). (Id. at 96). All data transferred

1

In Schedule E to the outsourcing agreement, the Pharmacia Corporation Supplemental Pension
Plan is listed as a Defined Benefit Plan. Therefore, most of the provisions discussed here are
taken from sections of the agreement specifically related to Defined Benefit Plans or from
sections that were generally applicable to all plans.

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to Fidelity or generated by Fidelity in the course of performing services for Pfizer
remained the property of Pfizer. (Plf. Ex. A-1, Doc #60-1, at 14).
Weldon retired from Monsanto in 1999 and elected to defer payment of her
pension benefits until 2003. Her benefit election form, which was executed in
1999, indicates that she opted to be paid for a term certain of three years following
her deferral period. Her monthly benefits payments began as expected in January
2003. From 2003 to the end of 2005, Weldon received two monthly payments, one
for each of the original two pension plans she participated in (despite those two
plans supposedly merging in 2005). Although both payments were supposed to
stop after December 2005, the payments on Weldon’s Parity Plan continued
through September 2009. After tax withholding, the net amount of each monthly
payment for the Parity Plan was $20,141. Although the monthly payments were
directly deposited into Weldon’s account, each month she received a direct deposit
written confirmation statement reflecting that month’s payment.
After receiving the payments in January and February 2006, Weldon and her
financial advisor, Diane Compardo, called the telephone number provided on the
monthly direct deposit confirmations and spoke with a representative named Patty
McGuire. McGuire was an employee of Fidelity, and the number Weldon reached
her at was the same customer service telephone number provided in the
outsourcing services agreement between Pfizer and Fidelity. The call was
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recorded by Fidelity, so there is no dispute about exactly what was said. McGuire
asked Weldon to confirm which plan she was calling about by stating the amount
of the most recent monthly payment. Weldon then asked how many more
payments she could expect on that plan. McGuire put Weldon and Compardo on
hold while she went to review the plan documents in order to answer Weldon’s
question. When McGuire returned to the phone, she stated “I just wanted to verify
that it is the Key Executive Pension that we’re talking about. The Non-Qualified
Pension that you had with Pharmacia?” Weldon and Compardo responded
affirmatively. McGuire then told Weldon she had taken out a Single Life Annuity
and that payments would “go for the remainder of [her] life.” In reliance on
McGuire’s representation that she would continue to receive monthly payments,
Weldon made “even larger” contributions to charitable institutions in the following
years. Since January 1, 2006, Weldon has contributed $2,228,576 to charitable
institutions and institutions of higher education.
More than three years after the phone call between Weldon and McGuire, in
September 2009, Fidelity was working on a reconciliation project between its
historical records system and its disbursement system. During the course of this
project Fidelity discovered that Weldon’s benefit payments had mistakenly been
paid to her since January 2006. Fidelity notified Pfizer employee Lisa Marie

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Misertino. Misertino instructed Fidelity to stop all future benefit payments to
Weldon.
In the same month, and soon after Fidelity’s discovery, Weldon received a
letter from hrSource regarding the “Pharmacia Supplemental Pension Plan, ‘the
Supplemental Plan,’” notifying her that payments on this plan should have been
stopped in December 2005. The letter stated she would be contacted soon about
the amount and recovery of the overpayment. In late October 2009, Weldon
received a letter from Cathy A. Wilkins of hrSource regarding “Pharmacia Supp.
Pension Plan plus CB, ‘the Non-Qualified Plan.’” This letter notified her that she
had received an overpayment of $1,329,455.70 that needed to be returned to Pfizer.
In December 2009 Weldon received another letter from Wilkins regarding
“Pharmacia Supp. Pension Plan plus CB, ‘the Non-Qualified Plan’” informing her
that the letter would serve as her final notification that she must return the
overpayment to Pfizer. Additional letters regarding the overpayments were
exchanged between Fidelity representatives and Weldon’s attorney in 2010 and
2011. There was no communication between the parties in 2012. In early 2013,
additional letters were exchanged between Weldon’s counsel and Pfizer’s counsel.
This lawsuit was filed in August 2014.
II.

Legal Standards
A.

Motion to Dismiss
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The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal
sufficiency of the complaint. When considering a 12(b)(6) motion, the court
assumes the factual allegations of a complaint are true and construes them in favor
of the plaintiff. Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).
Rule 8(a)(2), Fed. R. Civ. P., provides that a complaint must contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.” In
Bell Atlantic Corp. v. Twombly, the Supreme Court clarified that Rule 8(a)(2)
requires complaints to contain “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action.” 550 U.S. 544, 555 (2007); accord
Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). Specifically, to survive a motion
to dismiss, a complaint must contain enough factual allegations, accepted as true,
to state a claim for relief “that is plausible on its face.” Twombly, 550 U.S. at 570.
The issue in considering such a motion is not whether the plaintiff will ultimately
prevail, but whether the plaintiff is entitled to present evidence in support of the
claim. See Neitzke, 490 U.S. at 327.
B.

Summary Judgment

“Summary judgment is proper where the evidence, when viewed in a light
most favorable to the non-moving party, indicates that no genuine issue of material
fact exists and that the moving party is entitled to judgment as a matter of law.”
Davison v. City of Minneapolis, Minn., 490 F.3d 648, 654 (8th Cir. 2007); see Fed.
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R. Civ. P. 56(a). Summary judgment is not appropriate if there are factual disputes
that may affect the outcome of the case under the applicable substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material
fact is genuine if the evidence would allow a reasonable jury to return a verdict for
the non-moving party. Id. “The basic inquiry is whether it is so one-sided that one
party must prevail as a matter of law.” Diesel Machinery, Inc. v. B.R. Lee
Industries, Inc., 418 F.3d 820, 832 (8th Cir. 2005) (internal quotation marks and
citation omitted). The moving party has the initial burden of demonstrating the
absence of a genuine issue of material fact. Torgerson v. City of Rochester, 643
F.3d 1031, 1042 (8th Cir. 2011) (citation omitted). If the movant does so, “[t]he
nonmovant must do more than simply show that there is some metaphysical doubt
as to the material facts, and must come forward with specific facts showing that
there is a genuine issue for trial.” Id. (internal quotation marks and citation
omitted).
III.

Discussion
A.

Motion to Dismiss

Plaintiffs have asserted eight counts in their complaint. Count 1, brought by
both plaintiffs, asks the Court to preliminarily enjoin Weldon from taking any
action with regard to the funds at issue in this case. Counts 2-5 are asserted only
by the Plan. Count 2 is asserted under ERISA and asks for enforcement of the
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terms of the plan; Count 3 is for conversion, accounting and restitution; Count 4 is
for unjust enrichment; and Count 5 is for recoupment/money had and received.
Counts 3-5 are asserted under both ERISA and Missouri common law. Counts 6-8
of the complaint are the same as Counts 3-5 but are alleged by Pfizer under
Missouri common law only.
Plaintiffs’ complaint asserts that the Plan is “governed exclusively by
ERISA” and that their lawsuit is brought pursuant to ERISA. The parties do not
dispute that the ERISA provision governing plaintiffs’ claims is § 502(a)(3), 29
U.S.C. § 1132(a)(3). This section provides:
(a)

A civil action may be brought – […]
(3) by a participant, beneficiary, or fiduciary
(A) to enjoin any act or practice which violates any provision
of this subchapter or the terms of the plan, or
(B) to obtain other appropriate equitable relief
(i) to redress such violations or
(ii) to enforce any provisions of this subchapter or the
terms of the plan.

The Supreme Court has construed 29 U.S.C. § 1132(a)(3) to authorize only
“those categories of relief that were typically available in equity.” Sereboff v. Mid
Atlantic Medical Services, Inc., 547 U.S. 356, 361 (2006). Specifically, the Court
has held that the equitable relief available under this section is narrowly defined as
equitable relief that would have been available in “the days of the divided bench.”
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Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 212 (2002). In
Knudson, the Court noted that for purposes of restitution in equity (as opposed to at
law) a plaintiff could seek to impose a constructive trust or equitable lien on
money or property identified as belonging in “good conscience” to the plaintiff and
that could be clearly traced to particular funds or property in the defendant’s
possession. A court of equity would then order a defendant to transfer title or give
a security interest in the property to the plaintiff, who was considered the true
owner. However “where the property sought to be recovered or its proceeds have
been dissipated so that no product remains, the plaintiff’s claim is only that of a
general creditor” and no equitable lien or constructive trust can be imposed.
Knudson, 534 U.S. at 213. “Thus, for restitution in equity, the action generally
must seek not to impose personal liability on the defendant, but to restore to the
plaintiff particular funds or property in the defendant’s possession.” Id.
The Eighth Circuit has similarly upheld application of this legal/equitable
distinction to a claim under ERISA for unjust enrichment. In North American
Coal Corp. Retirement Savings Plan v. Roth, No. A4-03-124, 2004 WL 434150
(D.N.D. Mar. 5, 2004), an ERISA plan and its administrator asserted a claim for
unjust enrichment against former employee Roth after the Plan mistakenly paid
Roth 401K benefits that undisputedly belonged to his former spouse. The District
court granted plaintiffs’ motion for summary judgment, holding that plaintiffs were
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entitled to recover the overpayment money. On appeal, the Eighth Circuit vacated
the portions of the district court order that found Roth personally liable and that
ordered him to make restitution of a sum certain, noting that these constituted legal
remedies not authorized by § 1132(a)(3). North American Coal Corp. v. Roth, 395
F.3d 916, 917 (8th Cir. 2005).
With this foundation, I will address each of Weldon’s arguments in turn.
Count 1 – Injunctive Relief
In their first count, plaintiffs ask for Weldon to be temporarily and
preliminarily enjoined from taking any action related to the accounts holding the
funds at issue. Weldon argues this count must fail because it seeks to compel the
payment of money. In addition to Count 1, plaintiffs filed a motion for preliminary
injunction but withdrew it before the scheduled injunction hearing.
Because Count 1 seeks only preliminary relief and because plaintiffs, in
withdrawing their motion, have indicated their disinterest in pursuing injunctive
relief, I will dismiss this Count. If plaintiffs determine it is necessary to pursue a
preliminary injunction at a later time, they may do so via motion.
Count 2 – Enforcement of the Terms of the Plan
In the second cause of action, the Plan asserts that by accepting and refusing
to repay benefits in excess of what she was due under the terms of the plan,
Weldon has violated the plan terms and is obligated to reimburse the Plan in the
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amount of her overpayments. Weldon argues that this count must be dismissed
because it fails to articulate any identifiable cause of action and because there is no
specific “repayment” clause in the plan that Weldon violated. I agree.
This count rings very much like a breach of contract claim, but the Plan has
not identified a plan provision that requires repayment by Weldon of any benefit
overpayments. Although the terms of the plan may be referenced to show that
Weldon was overpaid and to determine the amount of the overpayment, without a
specific provision requiring repayment, it cannot be alleged that Weldon is
violating a plan term. Without this, it is unclear to me, and the Plan has not
elucidated, exactly how it would prove an “enforcement of the terms of the plan”
count. Additionally, I conclude that the relief requested in this claim is essentially
redundant of the relief requested in Counts 3 and 4, which I am not dismissing.
Count 3 – Conversion, Accounting and Restitution
In Count 3, the Plan asserts an ERISA claim for restitution for the
overpayment Weldon received. In its prayer for relief, the Plan asks the court to
award it “appropriate equitable relief pursuant to 29 U.S.C. § 1132(a)(3)”
including “requiring Weldon to provide an accounting of all uses and expenditures
of the overpayment” and ordering restitution to the Plan in the “amount of all Plan
benefits that Weldon received in excess of $1,329,455.70.” Weldon argues this
claim must fail because it seeks to recover a “sum certain from the general assets
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of Weldon,” which is legal, not equitable, relief and is therefore not allowed by §
1132(a)(3). Weldon also argues that the Plan’s claims for restitution and an
accounting should be dismissed because plaintiffs have failed to identify any
specific fund or property to which the Plan is entitled.
The Eighth Circuit has held that to determine whether a claim for restitution
under ERISA is “equitable” or “compensatory” (legal) a court must look to the
origin of the relief sought. Knieriem v. Grp. Health Plan, Inc., 434 F.3d 1058,
1061 (8th Cir. 2006). Equitable restitution “seeks to punish the wrongdoer by
taking his ill-gotten gains” whereas legal restitution “seek(s) to recover in money
the value of the harm done” to the plaintiff. Id. As already discussed, the Supreme
Court has held that for a restitution claim in equity, a plaintiff may only recover,
typically through a constructive trust or equitable lien, the specifically identifiable
funds or property (or proceeds thereof) in defendant’s possession that belong in
good conscience to plaintiff. See Knudson, 534 U.S. at 213. Here, the Plan’s
claim would have been more proper if, as relief, it had requested a constructive
trust or equitable lien on identifiable funds, property, or proceeds still in Weldon’s
possession, but I conclude that the claim survives despite this. In accordance with
Knieriem, the relief prayed for is framed as the benefit to Weldon, not the harm
done to plaintiffs. While the Plan has failed to properly limit its requested relief, it
has asked for “appropriate equitable relief” under ERISA. Therefore, instead of
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dismissing this count, I conclude that if the Plan is successful on this claim, its
relief will be limited to recovery of specifically identifiable overpaid funds (or the
identifiable proceeds thereof) still in Weldon’s possession and control.
As for Weldon’s assertion that the Plan’s claim must be dismissed because it
has failed to identify the location of the specific funds sought, I conclude that
identification of the location of the funds is not necessary at the pleading stage.
See Int’l Foodservice Mfr. Assoc. v. Rustigan, No. 11 CV 5154, 2012 WL 787613,
at *3 (N.D. Ill. Mar. 6, 2012); J.J. Crewe & Son, Inc. Profit Sharing Plan v. Talbot,
No. CIV.A. ELH-11-2871, 2012 WL 1994778 (D. Md. June 1, 2012); Chesemore
v. Alliance Holdings, Inc., 770 F. Supp. 2d 950, 979 (W.D. Wis. 2011).
Count 4 – Unjust Enrichment
Weldon has argued that the Plan’s unjust enrichment claim fails because
common law unjust enrichment claims are not permitted in the Eighth Circuit for
the recovery of overpaid ERISA benefits. In their opposition, plaintiffs point out
that in Roth, 2004 WL 434150, the plaintiffs (a retirement plan and its
administrator) sought to recover an overpayment of benefits from the defendantbeneficiary through a claim for unjust enrichment. The district court granted
summary judgment for plaintiff. Id. On appeal, the Eighth Circuit held that
plaintiffs’ complaint stated a claim under ERISA. Roth, 395 F.3d at 917. It

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reversed the lower court’s decision only as to the monetary award of a sum certain
and to the extent it found personal liability as to the defendant. Id. at 917-18.
Here, in its unjust enrichment claim, the Plan prays for a judgment:
declaring its rightful ownership of any accounts in an amount equal to the amount
of the overpayment; declaring that it has an equitable lien against Weldon for the
full amount of the overpayment; declaring that a constructive trust exists in its
favor in the amount of the overpayment or the identifiable proceeds of that money;
directing Weldon to reimburse the Plan for the full amount of the overpayment or
turn over any proceeds of the overpayment; and enjoining Weldon from disposing
of the overpayment. Some of this relief is clearly legal and some of it is arguably
equitable. Because, for purposes of a motion to dismiss, we are to construe the
complaint in a light most favorable to the plaintiff, I conclude that the Plan’s unjust
enrichment claim can reasonably be read as asking for permissible equitable relief.
Weldon’s motion to dismiss Count 4 is denied except to the extent that if the Plan
is successful on this claim its relief will be limited to recovery of any specifically
identifiable overpaid funds (or the identifiable proceeds thereof) still in Weldon’s
possession and control. See Roth, 395 F.3d at 917.
Count 5 – Recoupment/Money Had and Received
As an initial matter, a claim for recoupment, whether an equitable or legal
claim, applies in situations where a party seeks to obtain money owed to it by
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deducting or offsetting the amounts owed from money it otherwise owes to the
other party. See, e.g., Reiter v. Cooper, 507 U.S. 258, 264 (1993). The doctrine is
not applicable here because there is no allegation that the Plan owes Weldon
money from which the alleged overpayments could be deducted.
As to the Plan’s claim for money had and received, Weldon argues that this
is a historically legal claim under common law and therefore not a permissible
claim for equitable relief under ¶1132(a)(3).
As state above, the Supreme Court has made clear that the only relief
permitted under §1132(a)(3) is relief that was available in equity “in the days of
the divided bench.” US Airways, Inc. v. McCutchen, 133 S. Ct. 1537, 1544,
(2013). See also Mertens v. Hewitt Associates, 508 U.S. 248, 256-57 (1993);
Sereboff, 547 U.S. at 363. An action for money had and received, while governed
by equitable principles, is an action at law. Champ Spring Co. v. United States, 47
F.2d 1, 3 (8th Cir. 1931). As such, it is inappropriate here, and Weldon’s motion
to dismiss Count 5 will be granted.
State-Law Claims – Counts 3-8
In Counts 3-5, the Plan asserts claims under Missouri common law as an
alternative theory to its ERISA claims. In Counts 6-8 Pfizer asserts the same statelaw claims. I conclude that all of the plaintiffs’ state-law claims are preempted.

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Before addressing the claims themselves, I note that in their opposition, both
plaintiffs aver they have pled state common law claims in alternative to ERISA
claims. They state that “[t]o the extent the Court may conclude Plaintiffs have
legal remedies available to them under ERISA or the federal common law,
Plaintiffs agree their state-law claims are preempted by ERISA.” And “to the
extent the Court concludes ERISA does not provide a cause of action for Pfizer to
recover overpaid benefits from Dr. Weldon, Plaintiffs contend ERISA does not
preempt the availability of state-law relief for Pfizer.” These statements seem to
imply that Pfizer—like the Plan—has asserted claims for the recovery of benefits
under ERISA, but I do not see where it is has done so. With the exception of
Count 1, none of the claims alleged by Pfizer references § 1132(a)(3). Instead,
Pfizer claims to be bringing Counts 6-8 as “alternative claims” under Missouri
common law. This is in contrast to the Plan’s Counts 3-5, which are alleged both
“pursuant to 29 U.S.C. § 1132(a)(3), and alternatively under Missouri state law to
the extent not preempted by ERISA.” Additionally, the complaint fails to assert,
and the plaintiffs carefully avoid conceding in their briefing, whether or not Pfizer
is a fiduciary for purposes of § 1132(a)(3).
It is not the Court’s role to fashion plaintiffs’ claims for them. For the
reasons discussed below, I am dismissing Counts 6-8 because they are alleged only

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as state-law claims and are preempted. I have made no determination as to
whether Pfizer is a fiduciary because that has been neither alleged nor disputed.
“There are two types of preemption under ERISA: ‘complete preemption’
under ERISA § 502, 29 U.S.C. § 1132, and ‘express preemption’ under ERISA §
514, 29 U.S.C. § 1144.” Prudential Ins. Co. of Am. v. Nat’l Park Med. Ctr., Inc.,
413 F.3d 897, 907 (8th Cir. 2005). “Complete preemption occurs whenever
Congress ‘so completely [preempts] a particular area that any civil complaint
raising this select group of claims is necessarily federal in character.’” Id. (quoting
Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64(1987)). The comprehensive
civil remedies in § 502(a) of ERISA completely preempt state-law remedies.
Aetna Health, Inc. v. Davila, 542 U.S. 200, 209 (2004) (“[A]ny state-law cause of
action that duplicates, supplements, or supplants ERISA's civil enforcement
remedy conflicts with clear congressional intent to make that remedy exclusive,
and is therefore preempted.”); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 52-56
(1987). “Claims arising under the civil enforcement provision of Section 502(a) of
ERISA, 29 U.S.C. § 1132(a), including a claim to recover benefits or enforce
rights under the terms of an ERISA plan, implicate…complete preemption.”
Neumann v. AT&T Commc’ns, Inc., 376 F.3d 773, 779 (8th Cir.2004).
In contrast, ERISA's express preemption clause preempts any state law that
“relate[s] to any employee benefit plan.” 29 U.S.C. § 1144(a). “Although express
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preemption does not allow for automatic removal to federal court, it does provide
an affirmative defense against claims not completely preempted under ERISA §
502.” Prudential, 413 F.3d at 907. A state law “relates to” an employee benefit
plan “in the normal sense of the phrase, if it has a connection with or reference to
such a plan.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97 (1983).
If the Plan and Pfizer are fiduciaries, then, as they have acknowledged in
their opposition brief (Doc. #15, at 22), their state-law claims are completely
preempted by § 1132(a) because they would duplicate, supplement or supplant the
ERISA civil enforcement remedy. See Davila, 542 U.S. at 209; see also Travelers
Cas. and Sur. Co. of America v. IADA Servs., Inc. 497 F.3d 862, 867-68 (8th Cir.
2007) (state-law claims for indemnification, contribution, and restitution brought
by party standing in shoes of plan fiduciary were preempted by ERISA).
To the extent Pfizer and the Plan are not plan fiduciaries, their state-law
claims are still expressly preempted under § 1144(a) because they relate to an
ERISA plan. This express preemption provision “is conspicuous for its breadth.”
Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138 (1990). Its expansive
language “was designed to establish pension plan regulation as exclusively a
federal concern.” Id. (internal quotation marks and citation omitted). And it is not
limited to “state laws specifically designed to affect employee benefit plans.”
Dedeaux, 481 U.S. at 47-48. A state law relates to an ERISA plan for purposes of
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§ 1144(a) “if it [1] has a connection with or [2] reference to such a plan.”
California Div. of Labor Standards Enforcement v. Dillingham Const., N.A., Inc.,
519 U.S. 316, 324 (1997) (internal citation omitted); see also Estes v. Federal
Express Corp., 417 F.3d 870, 872 (8th Cir. 2005) (a state-law claim is preempted
where it “premises a cause of action on the existence of an ERISA plan”).
The Missouri common laws under which plaintiffs assert claims are of
“general application,” and “[do] not actually or implicitly refer to ERISA plans.”
See Gray v. Fedex Ground Package Sys., Inc., No. 4:06-CV-00422 JAR, 2014 WL
4386741, at *2 (E.D. Mo. Sept. 5, 2014). Therefore, the issue here is whether the
state-law claims have a “connection with” an ERISA plan.
The Eighth Circuit has defined several factors to be considered in
determining whether a state law has a connection with an ERISA plan. They
include whether the state law: (1) negates an ERISA plan provision; (2) affects
relations between primary ERISA entities; (3) impacts the structure of ERISA
plans; (4) impacts the administration of ERISA plans; (5) has an economic impact
on ERISA plans; (6) is consistent with other ERISA provisions; and (7) is an
exercise of traditional state power. Arkansas Blue Cross and Blue Shield v. St.
Mary's Hosp., Inc., 947 F.2d 1341, 1344–45 (8th Cir.1991); Gray, 2014 WL
4386741, at *2. Courts must look at the totality of the state law's impact on the

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ERISA plan, and no one factor is determinative of the pre-emption issue. Arkansas
Blue Cross, 947 F.2d at 1345.
Here, it is most persuasive that plaintiffs’ full recovery of overpaid benefits
from Weldon’s general assets would be inconsistent with ERISA provisions that
place great emphasis on equitable remedies in claims against beneficiaries to
enforce plan terms. Additionally, permitting plaintiffs’ to bring state-law claims
against a beneficiary to recover overpaid benefits would have serious implications
for the relationship between primary ERISA entities (the employer/sponsor, the
plan, and the beneficiary). Resolution of these claims, whatever that resolution
might look like, will also have an economic impact on the Plan. Cf. American
Cleaners and Laundry Co., Inc. v. Textile Processors, et al., 482 F. Supp. 2d 1103,
1115 (E.D. Mo. 2007) (employer’s unjust enrichment claim against two pension
funds to recover mistakenly paid benefits was expressly preempted by § 1144(a)).
In light of all of this, I conclude that even if they are not fiduciaries, the Plan
and Pfizer’s state-law claims are expressly preempted by ERISA, and Weldon’s
motion to dismiss these claims will be granted.
Count 7 – Unjust Enrichment as a Federal Common Law Claim
Pfizer has also argued that it is bringing Count 7 as a claim under federal
common law. While Pfizer is correct that the Eighth Circuit has permitted
employers to bring federal common law claims against ERISA plans, it has pointed
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to no instance in which the Circuit has permitted employers to bring such claims
against beneficiaries. I decline to expand the law here.
In Young America v. Union Cent. Life Ins. Co., 101 F.3d 546 (8th Cir. 1996),
the Eighth Circuit recognized that an employer has a federal common law action
for restitution of mistakenly made payments to an ERISA plan. Although the
Eighth Circuit provided no reasoning for its decision, the first case the Court cited
as support provides a more thorough explanation of why such an action is
permissible. See UIU Severance Pay Trust Fund v. Local Union No. 18-U, United
Steelworkers of Am., 998 F.2d 509, 512 (7th Cir. 1993)
In UIU Severance Pay, the Seventh Circuit first recognized that the Supreme
Court has noted that “‘[t]he six carefully integrated civil enforcement provisions
found in [§ 1132 of ERISA] provide strong evidence that Congress did not intend
to authorize other remedies that it simply forgot to incorporate separately.’” Id.
quoting Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 146 (1985).
However, the Seventh Circuit went on to hold:
ERISA permits plan trustees to return to employers payments made to
a plan which are the result of a mistake of law or fact, 29 U.S.C. §
1103(c)(2)(A)(i) & (ii), but it does not establish a cause of action by
which employers may seek to compel such a refund. Absent a
judicially-crafted cause of action, employers are left to the mercy of
plan trustees who have no financial incentive to return mistaken
payments.

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Id. at 512-13 (internal citation omitted). As the Seventh Circuit noted, a federal
common law action that provides for the return of overpayments made by an
employer to a plan simply helps employers enforce an existing ERISA provision
that provides for the return of employer overpayments by plans (29 U.S.C. §
1103(c)(2)(A)(i) & (ii)), and which would otherwise be unenforceable by
employers. See also Greater St. Louis Const. Laborers Welfare Fund v. ParkMark, Inc., 700 F.3d 1130, 1135 (8th Cir. 2012) (citing the same ERISA section
while acknowledging its recognition of a federal common law cause of action for
an employer to recover overpayments to a plan).
There is no such comparable provision providing for the return of
overpayments made to beneficiaries. I conclude Pfizer does not have a federal
common law unjust enrichment claim against Weldon.
B.

Motion for Summary Judgment
Statute of Limitations

Because all of Pfizer’s and many of the Plan’s claims are dismissed, I will
discuss Weldon’s motion for summary judgment only as it relates to the Plan’s
remaining ERISA claims. The parties do not dispute that a five year statute of
limitations applies to the ERISA claims,2 but they disagree about when plaintiffs’

2

“Because ERISA does not contain a statute of limitations, the court borrows the most analogous
state statute of limitations.” Administrative Committee of Wal-Mart Stores, Inc. v. Soles, 336
F.3d 780, 785 (8th Cir. 2003). Here, plaintiffs’ claims are most analogous to a claim of unjust

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claims accrued. Because disputed issues of material fact remain as to the time of
accrual, Weldon’s motion for summary judgment based on the statute of
limitations is denied.
In a federal question case, absent a contrary mandate from Congress, the
“discovery rule” is used to determine when a cause of action accrues. Comcast of
Illinois X v. Multi-Vision Elec., Inc., 491 F.3d 938, 944 (8th Cir. 2007); Union Pac.
R. Co. v. Beckham, 138 F.3d 325, 330 (8th Cir. 1998). Under the discovery rule, a
cause of action accrues when the plaintiff “discovers, or with due diligence should
have discovered, the injury that is the basis of the litigation.” Admin. Comm. of the
Wal-Mart Stores, Inc. v. Soles, 336 F.3d 780, 786 (8th Cir. 2003).
Based on the factual record currently before me, it appears that plaintiffs
obtained actual knowledge of their injury no later than September 2009, less than
five years before they filed this case. Weldon, however, argues that plaintiffs’
federal law claims are barred because, with the exercise of due diligence, plaintiffs
should have discovered the overpayments much earlier.3

enrichment or money had and received, which are each governed by a five-year statute of
limitations. See Carpenter v. Countrywide home Loans, Inc., 250 S.W.3d 697, 703 n.5 (Mo.
2008)(money had and received); Royal Forest Condominium Owners’ Ass’n v. Kilgore, 416
S.w.3d 370, 373 (Mo. Ct. App. 2013) (unjust enrichment); Pitman v. City of Columbia, 309
S.W.3d 395, 405 (Mo. Ct. App. 2010) (both).
3

Plaintiffs have argued that Weldon’s motion should fail automatically because due diligence is
a question of fact for a jury. They are correct that generally, “in a statute of limitations context
… a plaintiff's due diligence [is a question] of fact unsuited for summary judgment.” Hines v.
A.O. Smith Harvestore Products, Inc., 880 F.2d 995, 999 (8th Cir. 1989) (applying Missouri

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First, Weldon contends it is plaintiffs’ burden to prove that even with the
exercise of reasonable diligence, they should not have known of their injury before
the date of actual discovery in 2009. In support of this, she relies primarily on
Cathedral of Joy Baptist Church v. Village of Hazel Crest, 22 F.3d 713, 717 (7th
Cir. 1994). In Cathedral of Joy, the Seventh Circuit, ruling on opposing motions
for summary judgment, determined that the federal discovery rule is an exception
to the standard accrual rule and used this as the basis for allocating the burden of
proof to plaintiff. Id. at 717. In this way, the Seventh Circuit essentially treated
the discovery rule as a means for tolling the “standard” accrual rule.
None of the parties here have cited, and I have been unable to discover, a
case in which the Eighth Circuit explicitly states which party has the burden of
proof on a motion for summary judgment brought by a defendant who is asserting
a statute of limitations defense using the discovery rule. But it is notable that the
Eighth Circuit treats the discovery rule not as an exception to the standard accrual
rule (akin to tolling), but rather as the primary accrual rule in federal question
cases. See, e.g., Comcast of Illinois X, 491 F.3d at 944; Union Pac. R. Co., 138
F.3d at 330. Furthermore, in a summary judgment motion, the moving party has
the initial burden of demonstrating the absence of a genuine issue of material fact.
discovery rule). However, “[w]here the evidence leaves no room for reasonable minds to differ
on the issue…the court may properly resolve the issue as a matter of law.” Klehr v. A.O. Smith
Corp., 87 F.3d 231, 235 (8th Cir. 1996) (applying Minnesota state discovery rule) citing Miles v.
A.O. Smith Harvestore Products, Inc., 992 F.2d 813, 817 (8th Cir. 1993) (same).

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Torgerson, 643 F.3d at 1042. In light of this, I conclude that it is Weldon’s burden
to show that there was no material dispute of fact as to when plaintiffs’ should
have discovered their claims, and she has failed to carry this burden.
Weldon asserts that the plaintiffs’ overpayment mistake should have been
discovered when the first overpayment was made. In support of this she cites
Verizon Employee Benefits Committee v. Heinlein, Civil No. WDQ-06-3022 (D.
Maryland Apr. 2, 2007), in which the District of Maryland held, under Maryland’s
discovery rule, that if a party has “the information necessary to determine the
overpayment at the time the overpayment was made” then the statute of limitations
begins to accrue on that date. Id. The factual circumstances of Heinlein, and the
extent to which the plaintiff in that case possessed the “necessary” information
were not included in the Court’s opinion. As a result, I cannot compare that case
with the facts of this case. However, I conclude that here, although plaintiffs may
have been authorized to access information regarding the overpayments, there
remains a disputed issue of fact as to whether “due diligence” on plaintiffs’ part
would have led to discovery of the overpayments. This is particularly so because,
based on the terms of the Outsourcing Services Agreement, the “necessary”
information was in Fidelity’s, not plaintiffs’, day-to-day control.
Next, Weldon argues that the overpayment mistakes should have been
discovered when she called the help line in February 2006 to inquire about her
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ongoing payments or when Fidelity conducted internal audits it was contracted to
perform in 2006, 2007, and/or 2008.4 She asserts that the knowledge held by
Fidelity as a result of the phone call and the hypothetical audits can be imputed to
plaintiffs because at all times Fidelity was acting as plaintiffs’ agent. Weldon is
correct that “[f]or purposes of determining a principal's legal relations with a third
party, notice of a fact that an agent knows or has reason to know is imputed to the
principal if knowledge of the fact is material to the agent's duties to the principal.”
Restatement (Third) Of Agency § 5.03 (2006).5 However, whether Fidelity was
actually plaintiffs’ agent remains a disputed issue of fact.
“Agency is the fiduciary relationship that arises when one person (a
‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act
on the principal's behalf and subject to the principal's control, and the agent
manifests assent or otherwise consents so to act.” Restatement (Third) Of Agency
4

There is no evidence that Fidelity actually performed these audits. Even though it is six years
since plaintiffs became aware of the overpayments, they have been unable to track down audit
files.
5

Neither party discussed whether federal common law or Missouri common law applies for
purposes of determining whether Fidelity was plaintiffs’ agent, but I will apply federal common
law of agency as the circuit courts have held this to be proper in the ERISA context. See, e.g.,
Anderson v. Int'l Union, United Plant Guard Workers of Am., 150 F.3d 590, 592-93 (6th Cir.
1998) (addressing an agency issue under ERISA and holding that “we are guided by the law of
agency as developed and interpreted as a matter of federal common law”); Taylor v. Peoples
Natural Gas Co., 49 F.3d 982, 988 (3d Cir. 1995); Moriarty v. Glueckert Funeral Home, Ltd.,
155 F.3d 859, 866 n.15 (7th Cir. 1998) (applying federal law of agency in ERISA context and
noting other courts that have done same). Federal common law generally relies on the
Restatement of Agency. See Golan v. Veritas Entm't, LLC, No. 4:14CV00069 ERW, 2014 WL
1347283, at *4 (E.D. Mo. Apr. 4, 2014); Moriarty, 155 F.3d at 866 n.15.

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§ 1.01 (2006); see also S. Pac. Transp. Co. v. Cont’l Shippers Ass’n, Inc., 642 F.2d
236, 238 (8th Cir. 1981) (“[a]gency is a legal concept that depends upon the
existence of certain factual elements: (1) the manifestation by the principal that the
agent shall act for him; (2) the agent’s acceptance of the undertaking; and (3) the
understanding of the parties that the principal is to be in control of the
undertaking”).
In arguing that Fidelity was plaintiffs’ agent, Weldon notes only that Fidelity
was contracted to perform various tasks pursuant to the Outsourcing Services
Agreement and asserts that therefore it “undisputedly had actual and apparent
authority to carry out virtually every aspect of the Plan’s administration.” These
conclusory statements are not enough to establish that Fidelity was plaintiffs’
agent. The Agreement states that Fidelity would perform its services “within the
framework of Plan provisions, guidelines and interpretations” as conveyed by
Pfizer to Fidelity. It states Fidelity would have “no discretionary authority or
power to make any decisions as to plan policy, interpretations, practices or
procedures….” However, it also mandates that the “manner and means of
performing the Services” would be within Fidelity’s exclusive control. It states
that the parties expressly deny, and that the agreement is not intended to create, a
relationship of principal and agent between Pfizer and Fidelity.

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The characterization of a relationship as agency (or not agency) in an
agreement between parties is not controlling. Restatement (Third) Of Agency §
1.02. Rather, whether an agency relationship exists depends on “an assessment of
the facts of the relationship and the application of the law of agency to those facts.”
Id. at cmt. a. Here, there remain disputed issues of fact as to whether the parties
“manifested assent” to an agency relationship and to what degree Pfizer exercised
control over Fidelity’s services. These are indispensable elements of an agency
relationship. As a result, I find that Weldon has failed to carry her burden on this
record to prove the existence of a principal/agent relationship between plaintiffs
and Fidelity.
In light of the above, Weldon’s motion for summary judgment based on the
statute of limitations as to plaintiffs federal law claims is denied.
Laches
Finally, Weldon argues that plaintiffs’ claims should be dismissed because
they are barred by the doctrine of laches. The equitable defense of laches applies
when a plaintiff's unreasonable delay in bringing an action prejudices a defendant.
Strawn v. Missouri State Bd. of Educ., 210 F.3d 954, 956 n. 3 (8th Cir.2000).
“There are two kinds of prejudice which might support a defense of laches: (1) the
delay has resulted in the loss of evidence which would support defendant's
position; or (2) the defendant has changed his position in a way that would not
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have occurred if plaintiff had not delayed.” Goodman v. McDonnell Douglas
Corp., 606 F.2d 800, 809 n. 17 (8th Cir.1979); Baker v. Veneman, 256 F. Supp. 2d
999, 1007 (E.D. Mo. 2003). Mere passage of time, without inexcusable delay and
injury, is insufficient to constitute laches. Gilbert/Robinson, Inc. v. Carrie
Beverage–Missouri, Inc., 758 F.Supp. 512, 525 (E.D. Mo.1991). “[W]hen
applying laches to an equitable claim, courts apply a presumption that the action is
not barred if brought within the statute of limitations period for ‘analogous’ actions
at law. Ashley v. Boyle's Famous Corned Beef Co., 66 F.3d 164, 169 (8th Cir.
1995); see also Jackson v. United States, No. 1:07CV00034 ERW, 2008 WL
2952501, at *3 (E.D. Mo. July 29, 2008).
As discussed above, there is a dispute of fact with regard to the relationship
between plaintiffs and Fidelity and whether Fidelity’s knowledge may be imputed
to plaintiffs. As a result, there remains a disputed issue of material fact as to when
plaintiffs should have discovered their claims and the reasonableness of their delay
in bringing this lawsuit. Because a disputed issue of fact remains on this point,
Weldon’s motion for summary judgment on the basis of laches is denied.
Accordingly,

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IT IS HEREBY ORDERED that defendant’s motion to dismiss [#9] is
GRANTED as to Counts 1, 2, 5, 6, 7, and 8 of plaintiff’s complaint and DENIED
as to Counts 3 and 4 of plaintiff’s complaint.
IT IS FURTHER ORDERED that defendant’s motion for summary
judgment [#54] is DENIED.
By separate order this case is set for a Rule 16 scheduling conference. The
parties should modify their proposed plan as appropriate based on the discovery
already completed, and should provide dates only for those things necessary to
prepare this case for final resolution.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 24th day of August, 2015.

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