KARCHER v. DEPIERRO et al

Filing 60

MEMORANDUM ORDER GRANTING 58 Motion for Summary Judgment: A supplemental order providing amounts for Plaintiffs awards will be entered at a later date.. Signed by Judge Anne E. Thompson on 11/18/2014. (kas, )

RECEIVED

NOT FOR PUBLICATION

NOV 1 9 201~
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

AT 8:30
WILLIAM T. WALSH
CLERK

BRIAN J. KARCHER
Plaintiff,
Civ. No. 11-2911

v.
MEMORANDUM ORDER
RICHARD DEPIERRO, TODD
HENDERSON, EXECUTIVE FURNITURE
SERVICES, INC. 40l(K) PLAN,
EXECUTIVE FURNITURE SERVICES,
INC., and RED BANK PENSION
SERVICES, INC.,
Defendants.

THOMPSON, U.S.D.J.
/

...

/

On October 17, 2014, Plaintiff Brian J. Karcherfiled a Motion for Summary Judgment on
claims stated in his Amended Complaint pursuant to Federal Rule of Civil Procedure 56.
(Docket No. 58). The Motion is unopposed. On November 13, 2014, the Court sent a letter to
all counsel advising them that Plaintiffs Motion would be granted as unopposed. (Docket No.
59). Defendants have not responded to the Court's letter.
Federal Rule of Procedure 56(a) states that-"The court shall grant summary judgment if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." It is undisputed that Plaintiff was a participant in the .
Executive Furniture Services, Inc. 401(K) Plan (the "Plan") (Doc. No. 58, Ex. 22 at~ 1); that
Defendants Richard DePierro and Todd Henderson were the sole trustees and administrators for
the Plan, and the only persons with authority to take money out of the Plan (id.

at~~

5-7, 51);

M

that Plaintiff made regular contributions to the Plan and, as of March 31, 2005 was informed that
the balance in his share of the pooled Plan was $60,958.94 (id. at~~ 10, 12); that when Plaintiff,
who was the only employee left with money in the Plan, received his disbursement of his share
of the Plan in March 2011, he only received $2,632.03 after taxes (id. at~~ 10, 16); that Plaintiff
had requested documents and information concerning the Plan from Defendants, which
. Defendants did not give him; (id. at~ 14); that Defendant DePierro received a letter from the
third-party administrator of the Plan discussing improper transactions concerning the Plan and
asking Defendants to redeposit certain funds back into the Plan (id

at~

34); that Defendants

DePierro and Henderson took all of their own money out of the Plan (id. at ~ 60); that Defendant
DePierro did not send Plaintiff annual reports, Form 5500s or other documents which reflected
the total balance of the Plan assets (id.

at~~

33, 39-40); that Plaintiffs share of the Plan as of

March 31,2005 would be worth between $109,608.79-$110,695.00 as of May 29,2014 (id.

at~

66); and that Plaintiff is owed $3,600 in back wa
Accordingly, IT IS, on this~ day ofNovember, 2014, ORDERED that Plaintiffs
Motion for Summary Judgment as to his claims in Counts One and Two of the Amended
Complaint against Defendants DePierro and Henderson for the losses Plaintiff experienced to
Plaintiffs share of the Plan under 29 U.S.C. §§ 1109, 1132 (Docket No. 27

at~~

44, 50-51) are

GRANTED; and it is further
ORDERED that Plaintiffs Motion for Summary Judgment as to his claim in Count Three
of the Amended Complaint against Defendants DePierro and Henderson for noncompliance with
the requirements of29 U.S.C. § 1132(c)(l)(B) (Docket No. 27 at~ 58) is GRANTED; and it is
further

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ORDERED that Plaintiffs Motion for Summary Judgment as to his claim in Count Six of
the Amended Complaint against Defendants DePierro and Henderson for back wages is (Docket
No. 27 at~ 2) is GRANTED.
A supplemental order providing amounts for Plaintiffs awards will be entered at a later
date.

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