FRESOLONE v. FISERV, INC.

Filing 18

OPINION. Signed by Judge Joseph E. Irenas on 1/9/2013. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOSEPH FRESOLONE,
Plaintiff,

v.
FISERV, INC.,
Defendant.

:
:
HONORABLE JOSEPH E. IRENAS
: CIV. ACTION NO. 12-3312(JEI/AMD)
:
:
OPINION
:
:
:
:
:

APPEARANCES:
LAW OFFICES OF MARK S. NATHAN
By: Mark S. Nathan, Esq.
416A Black Horse Pike
Glendora, New Jersey 08029
Counsel for Plaintiff
KLEHR HARRISON HAVEY BRANZBURG LLP
By: Carianne Torrissi, Esq.
457 Haddonfield Road, Suite 510
Cherry Hill, New Jersey 08002
Counsel for Defendant

IRENAS, Senior District Judge:
Plaintiff Joseph Fresolone brings this ERISA suit1 against
his former employer, Fiserv, Inc., alleging that Fiserv
wrongfully terminated him for cause, and therefore wrongfully
denied him severance benefits and earned bonus pay.

Fiserv

moves to dismiss Fresolone’s bonus pay claim as preempted by

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The Court exercises federal question subject matter
jurisdiction pursuant to 28 U.S.C. § 1331.

ERISA.

Fresolone opposes the Motion and cross-moves to amend his

Complaint to add an ERISA claim relating to the bonus pay.

For

the reasons stated herein, Fiserv’s Motion to Dismiss will be
denied and Fresolone’s Motion to Amend will be granted.

I.
The Complaint alleges the following facts relevant to the
present motion.

Plaintiff Fresolone was a “Network

Director/Engineer” with Fiserv.

On November 12, 2010, Fiserv

terminated Fresolone after more than 15 years of employment.
Fiserv terminated Fresolone for cause because it “alleged that
[Fresolone] had improperly used a shared company computer to
access prohibited internet sites.”

(Compl. ¶ 8)2

Fresolone

asserts that such allegations are false, and further alleges that
he provided Fiserv “records demonstrating that he was not present
at work when the alleged improper conduct occurred.”

(Compl. ¶

11(a))
Fresolone asserts that if he had been terminated for any
reason other than for cause, he would have received: (1)
“severance pay pursuant to the ERISA Qualified Severance Pay
Plan;” and (2) “bonus funds under the Defendant’s 2010 Annual
Cash Incentive Program (“ACIP”).”

2

(Compl. ¶ 9)

He argues that

Fiserv alleges in its moving brief that Fresolone accessed
pornographic websites.
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because no cause actually existed to terminate him, Fiserv
wrongfully denied him severance and bonus pay.

Accordingly, the

Complaint asserts two claims: one claim for severance pay; and
one claim for bonus pay.

The parties apparently do not dispute

that the claim for severance pay is a claim pursuant to ERISA and
that the bonus pay claim is a breach of contract claim pursuant
to state law.3
Fiserv moves to dismiss only the bonus pay claim, asserting
that it is preempted by ERISA.

Fresolone cross-moves to amend

his Complaint to add an ERISA claim for bonus pay.

II.
Federal Rule of Civil Procedure 12(b)(6) provides that a
court may dismiss a complaint “for failure to state a claim upon
which relief can be granted.”

In order to survive a motion to

dismiss, a complaint must allege facts that raise a right to
relief above the speculative level.

Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007); see also Fed. R. Civ. P.
8(a)(2).

While a court must accept as true all allegations in

the plaintiff’s complaint, and view them in the light most
favorable to the plaintiff, Phillips v. County of Allegheny, 515

3

Neither Count I nor Count II of the Complaint states what
law provides the basis for the claim. However, the parties’
briefs both assume that Count I is pursuant to ERISA and Count II
is pursuant to state law.
3

F.3d 224, 231 (3d Cir. 2008), a court is not required to accept
sweeping legal conclusions cast in the form of factual
allegations, unwarranted inferences, or unsupported conclusions.
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.
1997).

The complaint must state sufficient facts to show that

the legal allegations are not simply possible, but plausible.
Phillips, 515 F.3d at 234.

“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 misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009).
Federal Rule of Civil Procedure 15(a)(2) provides, in
relevant part, “a party may amend its pleading only with the
opposing party’s written consent or with the court’s leave.

The

court should freely give leave when justice so requires.”

III.
The Court first addresses the Motion to Dismiss, then the
Motion to Amend.

A.
The question presented by the instant Motion is whether the
Fiserv 2010 Annual Cash Incentive Program (“ACIP”) is an ERISAqualifying plan.

In support of its argument that the ACIP is
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governed by ERISA, Fresolone submits a document entitled “Fiserv,
Inc. 2007 Omnibus Incentive Plan” which it asserts, without any
evidential support, is the plan that creates the ACIP.

Relying

on the terms of the 2007 Omnibus Incentive Plan, Fiserv concludes
that the plan is governed by ERISA.

(See Moving Brief, p. 2-3)

Fresolone apparently does not dispute that if the 2007
Omnibus Incentive Plan is the operative plan that governs the
2010 ACIP, then ERISA governs and its state law claim for bonus
pay is preempted.

However, Fresolone asserts that Fiserv has not

adequately demonstrated that the Omnibus Incentive Plan applies
to his claim.

The Court agrees.

The record contains two documents-- both submitted by
Fiserv-- which do not, on their face, have any apparent
connection.

The first is the 2007 Omnibus Incentive Plan (Ex. A

to Defense Counsel’s Certification) and the second is a one-page
document entitled “2010 Annual Cash Incentive Statement” for
Joseph Fresolone (Ex. 1 to Defendant’s Reply Brief).
According to Fiserv, the statement (Ex. 1) is the
application of specific Omnibus Incentive Plan (Ex. A) terms to
Joseph Fresolone.

Fiserv further reasons that the Omnibus

Incentive Plan must be the applicable plan because it “is the
only employee incentive or bonus pay plan offered by Fiserve.”
(Reply Brief, p. 4) However, Fiserv does not submit a
certification from an appropriate corporate representative

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establishing those assertions as fact.

Rather, Fiserv submits

the Omnibus Incentive Plan as an attachment to a certification of
defense counsel which merely reads, “[a] true and correct copy of
the Fiserv, Inc. Omnibus Incentive Plan, a/k/a Fiserv Annual Cash
Incentive Plan (ACIP) is attached hereto as Exhibit ‘A’.”
Moreover, the Court is faced with what is-- at least
superficially-- a contradiction in dates: the incentive plan is
entitled “2007 Omnibus Incentive Plan” yet Fresolone asserts a
claim for bonus pay in 2010.

As Fresolone observes, this

apparent contradiction is not resolved by reading the Omnibus
Incentive Plan because both the effective date and the
termination date are not established with precision in the
document.

The Plan merely provides that it “will become

effective . . . on and after the date that the Plan is approved
by the Company’s shareholders”

(Ex. A, ¶1(b)); and “terminate

when all Shares reserved for issuance have been issued.”
¶15(a)).

(Ex. A,

Thus, nothing in the current record establishes that

the “2007 Omnibus Incentive Plan” is the plan applicable to
Fresolone’s bonus pay claim.
Fresolone has raised legitimate questions as to whether the
Omnibus Incentive Plan is the plan that applies to his claim for
bonus pay, and Fiserv has not met its burden of production on
this issue.

The Court cannot determine whether ERISA applies to

Fresolone’s bonus pay claim because the operative documents are

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not adequately identified.4

Accordingly, the Court cannot hold

that ERISA preempts Fresolone’s state law claim for bonus
payments, and Fiserv’s Motion to Dismiss must be denied.

B.
Fresolone moves to amend his Complaint to assert an ERISA
claim for bonus pay against the “Administration Committee for the
Fiserv Severance Plan” and the “Compensation Committee of the
Board.”

His proposed Amended Complaint specifically states that

the new count (Proposed Count III) is asserted “as an alternative
to the claim/cause of action set forth in Count II.”

(Proposed

Amended Complaint, ¶ 26)5
While Fiserv generally asserts that the Motion to Amend

4

Citing Miller v. American Airlines, Inc., 632 F.3d 837 (3d
Cir. 2011), Fiserv asserts that its Motion to Dismiss should be
granted because discovery in ERISA cases should be “limited to
allegations of bias in the decision-maker or procedural
regularities.” (Reply Brief, p. 6) Miller is distinguishable
because the ERISA claim in that case was based on the termination
of long-term disability benefits, not a claim for bonus pay.
Moreover, Fiserv’s argument puts the cart before the horse. The
claim alleged in the Complaint is a common law breach of contract
claim; Fiserv merely argues that the claim is actually an ERISA
claim. As stated above, the record at this time is not
sufficiently developed to allow this Court to make an ERISA
preemption ruling. Discovery is warranted as to that issue.
5

A heading in Fresolone’s brief states that he seeks leave
to add a wrongful termination claim. It appears that the heading
is merely an error, however. The argument below the heading
concerns adding an ERISA bonus pay claim, not a wrongful
termination claim, and the Proposed Amended Complaint contains no
wrongful termination claim.
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should be denied, it makes no argument against adding the
proposed ERISA claim.

Moreover, as Fresolone correctly observes,

the Motion to Amend was filed prior to the deadline for filing
such a motion established in Magistrate Judge Donio’s scheduling
order.
Fresolone’s Motion to Amend will be granted.

IV.
For the reasons set forth above, Fiserv’s Motion to Dismiss
will be denied and Fresolone’s Motion to Amend will be granted.
An appropriate Order accompanies this Opinion.

January 9, 2013

s/ Joseph E. Irenas
JOSEPH E. IRENAS, S.U.S.D.J.

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