ERHART et al v. PLASTERERS LOCAL 8 ANNUITY FUND et al
OPINION FILED. Signed by Judge Robert B. Kugler on 3/12/18. (js)
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
WILLIAM ERHART, et al.,
Civil No. 17-3016 (RBK/JS)
PLASTERERS LOCAL 8 ANNUITY
FUND, et al.,
KUGLER, United States District Judge:
THIS MATTER having come before the Court upon defendants Plasterers Local 8
Annuity Fund and Joseph Diehl’s (“Defendants”) motion to dismiss plaintiffs William Erhart,
Colleen Erhart, Thomas Cox, Arthur Crandell, Jason Derby, Patrick Jones, Carl E. Montgomery,
Charles Parks, John F. Pearcy, Mark Riess, Matthew J. Schwegel, Cynthia Scipione, and Jorge
Vasquez’s (“Plaintiffs”) complaint. For the reasons discussed below, the motion is GRANTED
and Plaintiffs’ complaint is dismissed without prejudice.
Plaintiffs allege that Defendants wrongfully denied them employment benefits. (See
Compl. at 2). Plaintiffs are all New Jersey residents and participants in Plasterers Local 8
On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must “accept
all factual allegations as true and construe the complaint in the light most favorable to the
Plaintiff.” Phillips v. Cty. Of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). Accordingly, for
purposes of this motion, the Court adopts and accepts as true the facts as pled in the Complaint.
(“Local 8”) Annuity Fund (“Fund”), currently administered by Cement Masons & Plasterers
Local Union No. 592 of Eastern Pennsylvania (“Local 592”). (Id. at 3-4). Defendant Fund is an
employee benefit fund and plan for the purposes of the Employee Retirement Income Security
Act of 1974 (“ERISA”) Section 404(c).2 (Id. at 4); 29 CFR § 2550.404c-1(b)(1). Defendant
Joseph Diehl (“Diehl”) is the fund administrator.3 (Compl. at 4). This Court has jurisdiction of
this case pursuant to Section 502(e)(1) of ERISA, 29 U.S.C. § 1132(e)(1). (See also 28 U.S.C. §
1331). Venue is appropriate in this District pursuant to Section 502(e)(2) of ERISA, 29 U.S.C.
§ 1132(e)(2), because the breach allegedly occurred here.
Plaintiffs are, or were,4 employees of Jersey Panel Corporation/Baruffi (“Baruffi”).
(Compl. at 5). Baruffi was a party to a Collective Bargaining Agreement (“CBA”) with Local 8.
(Id.). Local 8 negotiated the CBA that covered Baruffi employees and the CBA was renewed
every three years. (Id.). In 2015, Local 8 merged with Local 592. (Id.). Local 592 took over as
the administrator of the Fund. (Compl. at 5-6). Baruffi and Local 592 did not come to an
agreement after the existing CBA expired. (Id. at 6). Baruffi then signed a new contract with
Local 5 of Bricklayers and Allied Craftworkers (“Local 5”) in 2016. (Id.). This agreement has
different benefits and contribution levels and is administered by a different plan administrator.
(Id.). Plaintiffs subsequently left Local 8 and became members of Local 5. (Id.).
The terms of the Local 8 Fund Plan Document (“Plan Document”) provide that if no
contributions are made for twelve months or more, a participant in the Fund is free to request a
Local 592 is currently administered at 2843 Snyder Avenue, Philadelphia, PA 19145. (Compl.
Diehl’s offices are also located at 2843 Snyder Avenue, Philadelphia, PA 19145 (Id.).
This is unclear from the Complaint. The only Plaintiffs mentioned are William Erhart and
“Mrs. Erhart” (presumably Colleen Erhart).
distribution. (Compl. at 6). None of the Plaintiffs have made contributions to the Fund for over
twelve months. (Id.). In a letter dated December 29, 2014, prior to the merger of Local 8 and
Local 592, BPI5 informed Mr. Erhart of the forms he needed to fill out in order to make a claim
for benefits. (Id.).
On or about December 20, 2016, Mr. Erhart telephoned Diehl and requested that Diehl
provide him with instructions on how to withdraw his Fund balance and requested that Diehl
send him the required forms. (Compl. at 7). Diehl told him that he could not take out his account
balance. (Id.). Mr. Erhart told Diehl that he wanted his money out and that he did not want to pay
the $40 administrative fee. (Id.). Diehl told Mr. Erhart that he could get Mr. Erhart’s money if
Mr. Erhart returned to Local 8 (now Local 592). (Id.). Mr. Erhart was not provided with the plan
documents, forms, or any other communications from Diehl. (Id. at 6-7). Mr. Erhart did not
contact Diehl again. The other Plaintiffs never contacted Defendants.
Plaintiffs now bring four claims: “wrongful denial of benefits pursuant to ERISA Section
502(a)(1)(B)” (Count One); “wrongful violation of the terms of the plan and the provisions of
ERISA pursuant to ERISA Section 503, 29 U.S.C. [§] 1133” (Count Two); “claim for statutory
penalties against Joseph Diehl for failure to provide requested information pursuant to ERISA §
502(a)(1)(A), 29 U.S.C. [§] 1132(a)(1)(A) and § 502(c)(1), 29 U.S.C. § 1132(c)(1)”
(Count Three); and “claim against Joseph Diehl for interference pursuant to ERISA § 510 and 29
U.S.C. [§] 1140” (Count Four).
“BPI" is a mystery to this Court. It is mentioned on page 6 of the Complaint with no context or
explanation of any kind.
The Fund Plan Document
The Plan Document in dispute in this case was made effective on May 1, 2014. Some of
the operative terms and requirements will be paraphrased below.
Section 3.5 provides that a Fund participant who has performed no services for a
qualifying employer for at least twelve months can withdraw his or her accumulated share upon
application for benefits.
Section 7.1 states that all claims “shall be made in writing on the appropriate form
furnished to the applicant by the Fund Office.” Each claim made to the Claims Coordinator will
be approved or disapproved within 90 days. Section 7.2 sets out the requirements for notice to
the Claimant upon such a request and how a Claimant may appeal a decision by the Claims
Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss an action for failure to
state a claim upon which relief can be granted. When evaluating a motion to dismiss, “courts
accept all factual allegations as true, construe the complaint in the light most favorable to the
plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff
may be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)
(quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). In other words, a
complaint survives a motion to dismiss if it contains sufficient factual matter, accepted as true, to
“state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
To make this determination, a court conducts a three-part analysis. Santiago v.
Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, the court must “tak[e] note of the
elements a plaintiff must plead to state a claim.” Id. (quoting Iqbal, 556 U.S. at 675). Second,
the court should identify allegations that, “because they are no more than conclusions, are not
entitled to the assumption of truth.” Id. at 131 (quoting Iqbal, 556 U.S. at 680). Finally, “where
there are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement for relief.” Id. (quoting Iqbal, 556
U.S. at 680). This plausibility determination is a “context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at
679. A complaint cannot survive where a court can only infer that a claim is merely possible
rather than plausible. Id.
As a general matter, a district court ruling on a motion to dismiss may not consider
matters extraneous to the pleadings. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,
1426 (3d Cir. 1997). This rule rests on the concern that considering documents outside the
complaint would prejudice the plaintiff, who would lack notice to challenge them. Id. However,
a “document integral to or explicitly relied upon in the complaint may be considered without
converting the motion [to dismiss] into one for summary judgment.” Id. (citations and quotations
omitted). “Where plaintiff has actual notice . . . and has relied upon these documents in framing
the complaint,” it removes the risk of prejudice. Id. (citing Watterson v. Page, 987 F.2d 1, 3-4
(1st Cir. 1993)). This exceptions seeks to prevent “the situation in which a plaintiff is able to
maintain a claim of fraud by extracting an isolated statement from a document and placing it in
the complaint, even though if the statement were examined in the full context of the document, it
would be clear that the statement was not fraudulent.” Id.
Thirteen Plaintiffs brought this case because Diehl allegedly did not provide one of them,
Mr. Erhart, with the forms necessary to request a distribution when Mr. Erhart requested these
forms over the phone. In the Third Circuit, any plaintiff in any ERISA case must first at least
attempt to use the available administrative remedies under the particular ERISA plan. Harding v.
Provident Life & Accident In. Co., 809 F.Supp.2d 403, 420 (W.D. Pa 2011) (citing D’Amico v.
CBS Corp., 297 F.3d 287, 291 (3d Cir. 2002); Harrow v. Prudential Ins. Co. of Am., 279 F.3d
244, 249 (3d. Cir. 2002); Weldon v. Kraft, Inc., 896 F.2d 793, 800 (3d Cir. 1990)). “Courts
require exhaustion of administrative remedies to ‘help reduce the number of frivolous lawsuits
under ERISA; to promote the consistent treatment of claims for benefits; to provide a
nonadversarial method of claims settlement; and to minimize the costs of claims settlement for
all concerned.” Harrow, 279 F.3d at 249 (citing Amato v. Bernard, 618 F.2d 559, 567 (9th Cir.
Plaintiffs never made any sort of written request to Defendants for the forms or a written
application for benefits. (Compl.). Instead, Mr. Erhard asked about these forms and the benefits
one time over the phone. Mr. Erhart—and the other Plaintiffs—then decided to sue.
Defendants are correct when they characterize this case as a rush to the Courthouse. (Def.
Br. at 9). Plaintiffs claim that Defendants “denied them access” by refusing to furnish Mr. Erhart
with the forms. (Pl. Br. at 24). This is a creative way of saying that Mr. Erhart was the only
Plaintiff alleged to have ever even discussed the matter with Defendants.6 (Compl.). This is
exactly the sort of case which Harrow and Amato cautioned against. 279 F.3d at 249; 618 F.2d at
Raising questions about the other Defendants’ standing in this case.
Put simply, this Court cannot entertain the ERISA claims presented in this case because
Plaintiffs failed to exhaust—or even formally pursue—the remedies admittedly available under
the plan. Weldon, 896 F.2d at 800. Because all of Plaintiffs claims are ERISA claims, they must
all be dismissed for the same reason.
For the foregoing reasons, Defendants’ motion to dismiss Plaintiffs’ Complaint is
_s/Robert B. Kugler __
ROBERT B. KUGLER
United States District Judge
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