Marmol v. Division 1181 A.T.U.- New York Employees Pension Fund and Plan
Filing
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ORDER: For the reasons explained in the attached Memorandum and Order, the defendant's 10 Motion to Dismiss is granted, but the applications for attorney's fees and a litigation injunction are denied. The Clerk is respectfully directed to enter judgment for the defendant and to close the case. Ordered by Judge John Gleeson on 1/14/2014. (Herling, Adam)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
FOR ONLINE PUBLICATION ONLY
JOSE MARMOL,
Plaintiff,
- versus -
ORDER
13-CV-3017
DIVISION 1181 A.T.U. - NEW YORK
EMPLOYEES PENSION FUND & PLAN,
Defendant.
A P P E A R A N C E S:
By:
By:
JOSE MARMOL
901 Drew Street, Apt. 135
Brooklyn, NY 11208
Plaintiff Pro Se
SLEVIN & HART, P.C.
1625 Massachusetts Avenue, NW, Suite 450
Washington, DC 20036
Jeffrey S. Swyers
Attorneys for Defendant
JOHN GLEESON, United States District Judge:
On May 20, 2013, Jose Marmol filed a complaint and a motion to proceed in
forma pauperis against defendant Division 1181 A.T.Y.- New York Employees Pension Fund
(the “Fund”) alleging violations of Section 3(1) and Section 502(c) of the Employee Retirement
Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. Defendant moves to dismiss
for failure to state a claim on the ground of res judicata. I heard oral argument on August 26,
2013. After oral argument I held the motion in abeyance and appointed counsel to assist
Marmol, but appointed counsel promptly moved to be relieved, a motion I have granted. For the
reasons set forth below, defendant’s motion to dismiss is now granted.
BACKGROUND
A. Procedural History
1. The Prior Case
In 2012, Marmol brought suit against the Fund for disability benefits under the
Fund’s employee benefit plan (the “Plan”). He alleged that he became totally disabled in 2006,
but that he was denied disability benefits under the Plan. The Fund moved for summary
judgment.
After oral argument, I granted the Fund’s motion for summary judgment on two
grounds. First, I found that Marmol did not qualify for disability benefits under the express
terms of the Plan because he was not 45 years old at the time he applied, he did not have ten
years of consecutive service, and he had never filed an application for disability. Marmol v. Div.
1181 A.T.U. New York Emps. Pension Fund & Plan, No. 12-cv-1861, 2012 WL 3238113, at *2-3
(E.D.N.Y. Aug. 7, 2012), aff’d No. 12-cv-3584 (2d Cir. May 3, 2013). Second, I held that he
was further ineligible for benefits because he had failed to first exhaust administrative claims
procedures before seeking relief in federal court. See id. *5 (“Marmol failed to exhaust his
administrative remedies and, in any event, is ineligible to receive disability benefits under the
Plan.”). Marmol appealed to the Second Circuit, and the decision granting summary judgment
was affirmed.
2. The Instant Case
On May 20, 2013, Marmol brought another suit. He raises two issues. First, he
alleges that he requested a form to apply for disability benefits in March 2007, but that the Plan
administrators refused to provide him the forms, in violation of ERISA § 502(c), 29 U.S.C. §
1132(c)(1)(B). Compl. ¶¶ 8-9. This statute provides, in relevant part:
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Any administrator . . . who fails or refuses to comply with a request
for any information which such administrator is required by this
subchapter to furnish to a participant or beneficiary (unless such
failure or refusal results from matters reasonably beyond the control
of the administrator) . . . may in the court’s discretion be personally
liable to such participant or beneficiary in the amount of up to $100
a day from the date of such failure or refusal, and the court may in
its discretion order such other relief as it deems proper.
29 U.S.C. § 1132(c)(1)(B).
Second, Marmol alleges that the eligibility rules requiring a person to be age 45 to
qualify for benefits were eliminated in 1999. Compl. ¶¶ 12-16. He contends that the Fund has
failed to modify its eligibility requirements as required by the Tax Reform Act of 1986 and the
Small Business Job Protection Act of 1996. Id. ¶ 26.
DISCUSSION
A. Res Judicata
The doctrine of res judicata provides that “a final judgment on the merits of an
action precludes the parties or their privies from relitigating issues that were or could have been
raised in that action.” Monahan v. N.Y.C. Dep’t of Corr., 214 F.3d. 275, 284-85 (2d Cir. 2000)
(internal quotation marks omitted). Res judicata challenges may properly be raised via a motion
to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Thompson
v. Cnty. of Franklin, 15 F.3d 245, 253 (2d Cir. 1994). The purpose of res judicata is to “protect[]
litigants from the burden of relitigating an identical issue with the same party or his privy and . . .
promoting judicial economy by preventing needless litigation.” Parklane Hosiery Co., Inc. v.
Shore, 439 U.S. 322, 326 (1979); see also Arizona v. California, 530 U.S. 392, 412 (2000) (“[res
judicata] is not based solely on the defendant’s interest in avoiding the burdens of twice
defending a suit, but is also based on the avoidance of unnecessary judicial waste.”) (internal
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quotation marks omitted). “To prove the affirmative defense a party must show that (1) the
previous action involved an adjudication on the merits; (2) the previous action involved the
plaintiffs or those in privity with them; [and] (3) the claims asserted in the subsequent action
were, or could have been, raised in the prior action.” Monahan, 214 F.3d. at 285.
Read liberally, Marmol’s complaint may be understood to assert that (1) the Court
should impose penalties pursuant to ERISA 502(c) and (2) that he is eligible for disability
benefits under the express terms of the Plan. 1
I conclude that this Court’s 2012 decision has preclusive effect because each of
the three prongs identified in Monahan is easily met. First, the Court’s decision denying
Marmol’s claims was a final judgment on the merits. Second, there is “privity,” as Marmol is the
plaintiff and the Fund is the defendant in both suits. Third, the claims asserted were raised in the
prior proceedings and, to the extent they were not, they could have been. Accordingly, Marmol
had a fair and adequate opportunity to litigate all his claims, and therefore this action is barred by
the doctrine of res judicata.
B. Awarding of Attorney’s Fees and a Litigation Injunction
Defendant seeks attorney’s fees and a litigation injunction. These applications are
denied. To award fees, there must be “a finding of conduct constituting or akin to bad faith.” 60
E. 80th St. Equities, Inc. v. Sapir, 218 F.3d 109, 115 (2d Cir. 2000) (internal quotation marks
omitted). An award of fees under 28 U.S.C. § 1927 is not warranted, as I find no bad faith. A
litigation injunction is also not warranted. See Iwachiw v. N.Y. State Dep’t of Motor Vehicles,
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In reviewing Marmol’s complaint, I am mindful that “a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (internal quotation marks omitted). “The policy of liberally construing pro se submissions is
driven by the understanding that ‘implicit in the right to self-representation is an obligation on the part of the court
to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of
their lack of legal training.’” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (quoting Traguth v. Zuck, 710 F.2d
90, 95 (2d Cir. 1983) (alteration omitted)).
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396 F.3d 525, 529 (2d Cir. 2005) (setting forth the “unequivocal rule in this circuit . . . that the
district court may not impose a filing injunction on a litigant sua sponte without providing the
litigant with notice and an opportunity to be heard.”) (internal quotation marks omitted).
However, Marmol is on notice that further litigation on this topic may be evidence of bad faith.
CONCLUSION
The defendant’s motion to dismiss is granted. The applications for attorney’s fees
and a litigation injunction are denied. The Clerk is respectfully directed to enter judgment for
the defendants and to close the case.
So ordered.
John Gleeson, U.S.D.J.
Dated: January 14, 2014
Brooklyn, New York
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