Massimino v. Fidelity Workplace Services LLC

Filing 26

-CLERK TO FOLLOW UP- DECISION AND ORDER granting 9 Defendant's Motion to Dismiss for Failure to State a Claim and dismissing the Complaint. (Clerk to close case.) Copy of Decision and Order sent by first class mail to Plaintiff. Signed by Hon. Michael A. Telesca on 11/23/16. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ERIC C. MASSIMINO,
No. 1:15-cv-01046(MAT)
DECISION AND ORDER

Plaintiff,
-vsFIDELITY WORKPLACE SERVICES, LLC,
Defendant.

INTRODUCTION
Proceeding pro se, Eric C. Massimino (“Plaintiff”) instituted
this action against Fidelity Workplace Services, LLC (“Defendant”),
“seeking monetary damages and restitution” based on Defendant’s
“breach of contract” and “illegal, unfair and unconscionable method
of allowing a non-beneficiary, non-involved group of individuals to
change the workplace beneficiary designation of twenty-seven year
veteran employee Charles Wesley Pascoe [(“Decedent”)] of Dun and
Bradstreet in the months after his death.” (Complaint (“Comp.”)
(Dkt #1) ¶ 1). Plaintiff asserts that Decedent, a resident of Texas
at the time of his death on January 8, 2007, intended Plaintiff to
be

the

beneficiary

of

unspecified

“workplace

benefits”

plans

administered by Defendant, and that Defendant improperly honored a
fraudulent

change-of-beneficiary

form

submitted

by

one

Andrea

Johnson, whom Plaintiff asserts was the executor of Decedent’s
estate.
Presently before the Court is Defendant’s Motion to Dismiss
(Dkt #9) the Complaint pursuant to Rule 12(b)(3) and Rule 12(b)(6)

of the Federal Rules of Civil Procedure (“F.R.C.P.”). Defendant
chiefly argues that Plaintiff’s state-law claims are untimely and
preempted by the Employee Retirement Income Security Act of 1974,
as amended, 29 U.S.C. § 1001, et seq. (“ERISA”); that the Complaint
fails to state any claims upon which relief may be granted; that
Plaintiff does not have standing to raise a claim under ERISA; that
any claim under ERISA is barred by the statute of limitations; and
that venue is improper in the Western District of New York.
Plaintiff filed various Responses attaching documentary evidence
(Dkt ##12, 15, 20, 21, & 23).
For the reasons discussed below, Defendant’s Motion to Dismiss
the Complaint is granted.
STANDARD OF REVIEW
In

evaluating

12(b)(6),

a

court

a

motion

“must

to

view

dismiss

all

pursuant

allegations

to

raised

F.R.C.P.
in

the

complaint in the light most favorable to the non-moving party . .
.

and

‘must

accept

as

true

all

factual

allegations

in

the

complaint.”’ Newman & Schwartz v. Asplundh Tree Expert Co., Inc.,
102 F.3d 660, 662 (2d Cir. 1996) (quoting Leatherman v. Tarrant
County Narcotics Unit, 507 U.S. 163 (1993); internal citation
omitted). The court is called upon “not to weigh the evidence that
might be presented at a trial but merely to determine whether the
complaint itself is legally sufficient.” Goldman v. Belden, 754
F.2d 1059, 1067 (2d Cir. 1985) (citation omitted). In so doing, the

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court’s

consideration

is

limited

to

the

complaint’s

factual

allegations, which are accepted as true; to any documents attached
to the complaint as exhibits or incorporated by reference therein,
to any documents either in the plaintiff’s possession or of which
he had knowledge and relied on in bringing suit, and to matters of
which judicial notice may be taken. Brass v. American Film Techs.,
Inc., 987 F.2d 142, 150 (2d Cir. 1993) (citing Cortec Indus., Inc.
v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991)).
DISCUSSION
I.

Preemption of Plaintiff’s State Law Claims by ERISA
ERISA contains an express preemption clause, Section 514(a),

that states in relevant part as follows:
Except as provided in subsection (b) of this section, the
provisions of this subchapter and subchapter III of this
chapter shall supersede any and all State laws insofar as
they may now or hereafter relate to any employee benefit
plan. . . .”
29

U.S.C.

§

1144(a).

ERISA

also

contains

a

saving

clause,

Section 514(a), 29 U.S.C. § 1144(b)(2)(A); and a “deemer clause,”
Section 514(b)(2)(A), 29 U.S.C. § 1144(b)(2)(A). The Supreme Court
has “summarize[d] the pure mechanics of the[se] provisions[,]”
Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45 (1987) (“Dedeaux”),
as follows:
If a state law ‘relate[s] to . . . employee benefit
plan[s],’ it is pre-empted. § 514(a). The saving clause
excepts from the pre-emption clause laws that ‘regulat[e]
insurance.’ § 514(b)(2)(A). The deemer clause makes clear
that a state law that ‘purport[s] to regulate insurance’

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cannot deem an employee benefit plan to be an insurance
company. § 514(b)(2)(B).
Id. (brackets and ellipsis in original).
The Supreme Court repeatedly has “noted the expansive sweep of
the pre-emption clause[,]” Dedeaux, 481 U.S. at 47–48 (citations
omitted),

and

has

given

the

phrase

“relate

to”

“its

broad

common-sense meaning, such that a state law ‘relate[s] to’ a
benefit plan ‘in the normal sense of the phrase, if it has a
connection with or reference to such a plan.’” Id. (quotations
omitted).
Throughout
Decedent’s

the

Complaint,

“workplace

Plaintiff

benefits,”

and

makes

reference

specifically

to

mentions

Decedent’s “life insurance, 401-K, stocks and pension plan.” (Comp.
¶¶ 1, 18-20, 24, 27, 29-30, 34, 36-38). Pursuant to an order issued
by the Court (Arcara, D.J.), Defendant submitted copies of the
three employee benefit plans issued to Decedent as an employee of
Dun & Bradstreet, and under which Plaintiff claims entitlement to
benefits, namely, the Dun & Bradstreet Corporation Welfare Benefit
Plan, dated June 2004, which provided employees with life insurance
benefits (“the Life Insurance Plan”) through a group policy issued
by Metropolitan Life Insurance Company; the Profit Participation
Plan of the Dun & Bradstreet Corporation dated December 6, 2006
(“the

Profit

Corporation

Participation
Retirement

Plan”);

Account

and
(“the

the

Dun

&

Bradstreet

Retirement

Plan”)

(collectively, “the Plans”) (See Dkt #19-1 through Dkt #19-4).
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Giving the allegations in Plaintiff’s pro se Complaint a
generous interpretation, the Court finds that he is attempting to
assert common law claims under New York law based on breach of
contract, fraud, and breach of fiduciary duty. “As to state common
law claims, ERISA preempts those that seek ‘to rectify a wrongful
denial of benefits promised under ERISA-regulated plans, and do not
attempt to remedy any violation of a legal duty independent of
ERISA.’” Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 114
(2d Cir. 2008) (quoting Aetna Health Inc. v. Davila, 542 U.S. 200,
214 (2004); citation omitted). All of Plaintiff’s purported state
law claims are premised on the wrongful denial of benefits under
one or more of the Plans administered by Defendant, and each would
require reference to the particular plan in the calculation of any
recovery.
“relates

Consequently,
to”

a

covered

each

of

plan

and

Plaintiff’s
is

state

preempted

by

law

claims

ERISA.

See

Paneccasio, 532 F.3d at 114 (finding that ERISA preempted early
retiree’s

state-law

claims

against

employer

arising

from

post-retirement termination of “top hat” deferred compensation
plan, including breach of contract, bad faith, violation of state
unfair trade practices statute, reckless misrepresentation, and
tortious

interference

with

contract;

each

claim

“related

to”

deferred compensation plan, since each was premised on plan’s
termination and resulting denial of benefits, each made explicit
reference to plan, and each would require reference to plan in

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calculating any recovery); see also Dedeaux, 481 U.S. at 48 (“The
common law causes of action raised in Dedeaux’s complaint, each
based on alleged improper processing of a claim for benefits under
an

employee

benefit

plan,

undoubtedly

meet

the

criteria

for

pre-emption under § 514(a).”).
Unless Plaintiff’s common law causes of action fall under an
exception to § 514(a), they are expressly pre-empted. Dedeaux, 481
U.S. at 48. The Court therefore must determine whether the causes
of

action

are

within

the

scope

of

ERISA’s

saving

clause,

§ 514(b)(2)(A), which “excepts from the pre-emption clause laws
that

“‘regulat[e]

insurance.’”

Id.

(quoting

29

U.S.C.

1144(b)(2)(A), ERISA § 514(b)(2)(A)). In making this determination,
the Supreme Court has instructed reviewing courts to rely on “‘the
common-sense

understanding

of

the

saving

clause,

the

McCarran–Ferguson Act factors defining the business of insurance,
and, most importantly, the clear expression of congressional intent
that ERISA’s civil enforcement scheme be exclusive. . . .’” Aetna
Health Inc. v. Davila, 542 U.S. 200, 217 (2004) (quoting Dedeax,
481 U.S. at 57; emphasis in Davila). The Court finds that none of
the state

common

law claims

suggested by

the

allegations

in

Plaintiff’s Complaint can be said to “regulate insurance,” based on
a common-sense understanding of the phrase “regulates insurance”
and on the expansive remedial scope that Congress intended ERISA to
have. See, e.g., Star Multi Care Servs., Inc. v. Empire Blue Cross

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Blue Shield, 6 F. Supp.3d 275, 291 (E.D.N.Y. 2014) (plaintiff’s
state breach-of-contract claim is not saved from ERISA preemption)
(citing Dedeaux, 481 U.S. at 56; Ky. Ass’n of Health Plans, Inc. v.
Miller, 538 U.S. 329, 334 (2003) (“It is well established in our
case law that a state law must be “specifically directed toward”
the insurance industry in order to fall under ERISA’s saving
clause; laws of general application that have some bearing on
insurers do not qualify.”) (citations omitted)). Accordingly, the
Court

finds

that

Plaintiff’s

state

law

claims

are

expressly

preempted by ERISA and must be dismissed.
II.

Plaintiff Lacks Standing to Sue under ERISA
As relevant here, ERISA § 502(a)(1)(B) affords a private right

of action to a “participant or beneficiary”

“to recover benefits

due to him under the terms of his plan, to enforce his rights under
the terms of the plan, or to clarify his rights to future benefits
under the terms of the plan. . . .” 29 U.S.C. § 1132(a)(1)B).
ERISA § 502(a)(3) also provides a private right of action, but it
is “a ‘catch-all’ provision which normally is invoked only when
relief is not available under § 502(a)(1)(B),” Wilkins v. Mason
Tenders Dist. Council Pension Fund, 445 F.3d 572, 578-79 (2d Cir.
2006). To sue under Section 502(a)(3), the litigant must be “a
participant, beneficiary, or fiduciary.” 29 U.S.C. § 1132(a)(2). “A
party other than the Secretary of Labor who is not among those
three enumerated categories in Section 502(a) lacks ‘statutory

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standing’ to bring an ERISA action.” Bilello v. JPMorgan Chase Ret.
Plan, 592 F. Supp.2d 654, 662 (S.D.N.Y. 2009).
As an initial matter, there is no suggestion that Plaintiff is
a “fiduciary” with regard to any of the “workplace benefit” plans
issued to Decedent. Nor does Plaintiff make any such allegation.
ERISA defines “participant” as any employee or former employee
of an employer, or any member or former member of an employee
organization. 29 U.S.C. § 1002(7). Plaintiff does not allege that
he is or was an employee of Dun & Bradstreet, and he clearly is not
a

“participant”

Caltagirone

v.

in
N.Y.

any

of

Cmty.

the

plans

Bancorp.,

at

414

F.

issue.

See,

Supp.2d

e.g.,

188, 192

(E.D.N.Y. 2006) (“In light of the definition of participant set
forth in the statute and interpreted by the Second Circuit and the
Supreme Court, the court must hold that Caltagirone is not an ERISA
participant and therefore lacks standing to pursue this matter.
Caltagirone was never employed by NYCB. He therefore can neither be
characterized as an employee in, or reasonably expected to be in,
covered employment, nor as a former employees with any claim for
benefits.”), aff’d, 257 F. App’x 470 (2d Cir. 2007).
With regard to “beneficiary,” ERISA defines this term as a
person designated by a participant, or by the terms of an employee
benefit plan, who is, or may become, entitled to a benefit under
the plan. 29 U.S.C. § 1002(8). When the Court looks beyond the
Complaint to certain documents that are properly considered in

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ruling a F.R.C.P. 12(b)(6) motion, it is compelled to conclude that
Plaintiff

cannot

plausibly

allege

he

is

a

“beneficiary”

for

purposes of having standing to sue under ERISA.
First, the Court notes that Plaintiff submitted two letters
sent to him by Defendant; these are attached to the Complaint as
Exhibit Q. See, e.g., Kalyanaram v. Am. Ass’n of Univ. Professors
at N.Y. Inst. of Tech., Inc., 742 F.3d 42, 44 n.1 (2d Cir.) (“In
ruling on a 12(b)(6) motion, . . . a court may consider the
complaint

as well

as

any

written

instrument

attached

to

the

complaint as an exhibit or any statements or documents incorporated
in it by reference.”) (alteration and internal quotation marks
omitted)), cert. denied, 135 S. Ct. 677 (2014).

In the letters,

Defendant informed Plaintiff that because he was not “the account
holder, designated beneficiary, or estate representative,” he could
not be provided with any information regarding Decedent’s accounts
with Defendant. (Comp., Ex. Q, pp. 52-53).
Second, as noted above, Defendant has submitted copies of the
Plans themselves, as well as copies of the change-of-beneficiarydesignation forms connected with the Plans. (Dkt #19). The Court
properly may consider these documents, which are essential to
Plaintiff’s
No.

claims.

See

13-CV-8223(KMK),

2016

Guo
WL

v.

IBM

4991666,

at

401(k)
*1

n.

Plus
1

Plan,

(S.D.N.Y.

Sept. 15, 2016) (“Because the Plan document, the beneficiary
designation form, and the various letters between [p]laintiff’s

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counsel and the Plan Fiduciaries are also incorporated by reference
and are essential to [p]laintiff’s claims, the [c]ourt properly
considers these documents as well.”) (citing Kalyanaram, 742 F.3d
at 44 n.1; Winfield v. Citibank, N.A., 842 F. Supp.2d 560, 568 n.3
(S.D.N.Y. 2012) (explaining that “[t]he [c]ourt [could] properly
consider the [p]lan and the [s]ummary [p]lan [d]escription on [the]
motion to dismiss because they [were] essential to the plaintiffs’
ERISA claims and incorporated by reference into their complaint”);
DeSilva v. N. Shore-Long Is. Jewish Health Sys., Inc., 770 F. Supp.
2d 497, 545 n.22 (E.D.N.Y. 2011) (stating that “the [c]ourt may
consider the plan documentation submitted by [the] defendants . .
. because the plaintiffs’ claims [were] based upon the ERISA plans
and the plan documents plainly [were] integral to [the] plaintiffs’
complaint”)).

Following

a

search

of

its

records,

Defendant

submitted a Declaration (Dkt #19) attaching copies of the relevant
ERISA-governed employee benefit plans (“the Plans”) issued to
Decedent (Dkt #19-1 to 19-7). Defendant’s records custodian avers
that there only two beneficiary designation forms relative to the
benefits plans issued to Decedent, and both forms indicate that
Decedent was not married. Plaintiff, on the other hand, alleges
that Decedent was married to his first cousin, Leslie Pascoe, who
predeceased him, and that Andrea Johnson, the alleged executory of
Decedent’s estate, was related to Leslie Pascoe. (Comp. ¶ 6).

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The most recent form, dated December 22, 2006, designated the
“Estate of Charles W. Pascoe” as the primary beneficiary of all
benefits

available

under

the

Plans.

The

earlier

form,

dated

March 8, 1998, named “JoNell Sughrue” as his primary beneficiary
for all benefits available under the Plans. (See Dkt #19-6). In
other words, there is no indication that Plaintiff ever was named
as a beneficiary of any death benefits payable under any of the
Plans issued to Decedent.
Moreover, even if Plaintiff is correct that the change-ofbeneficiary form designating Decedent’s estate is, indeed, invalid,
Plaintiff is not in the category of individuals to whom death
benefits under any of the Plans are payable in the event there is
no designated beneficiary.
“[i]f

there

is

no

First, under the Life Insurance Plan,

Beneficiary

designation

or

no

surviving

Beneficiary,” the beneficiary is determined “according to the
following order: 1. [The employee’s] Spouse, if alive; 2. [The
employee’s]

child(ren), if there is no surviving Spouse; 3. [The

employee’s]

parent(s), if there is no surviving Child; 4. [The

employee’s]

sibling(s), if there is no surviving Parent; or 5.

[The employee’s] estate, if there is no surviving sibling. . . .”
(Dkt #19-2, p. 68). Plaintiff is not a spouse, child, parent, or
sibling of Decedent; nor does he allege that he has ever been a
representative of Decedent’s estate.

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Second, under the Profit Participation Plan, if there are no
beneficiaries designated by the Plan account holder, the amount
payable “shall be paid . . . to the legal representative of the
[account holder]’s estate.” (Dkt #19-3, p. 28). Again, as noted
above,

Plaintiff

does

not

allege

that

he

has

ever

been

a

representative of Decedent’s estate.
Third, the Retirement Plan provides that if the employee has
not made a “valid” beneficiary designation election at the time of
his or her death,
then the benefits shall be paid as a single life annuity
to the person with the shortest life expectance[sic] in
the class consisting of such person or persons to whom
the personal administrator of the [employee] . . . would
be required to distribute the estate of the [employee] .
. . if such [employee] . . . had died intestate, as
determined under applicable state law.
(Dkt #19-4, § 6.2).
The Complaint alleges that Decedent was a resident of Texas
when he died on January 8, 2007. Under Texas intestacy law as in
effect at the time of Decedent’s death, if an individual dies
“intestate, leaving no husband or wife,” the individual’s property
“shall descend and pass in parcenary to his kindred, male and
female, in the following course:
1. To his children and their descendants.
2. If there be no children nor their descendants, then to
his father and mother, in equal portions. But if only the
father or mother survive the intestate, then his estate
shall be divided into two equal portions, one of which
shall pass to such survivor, and the other half shall
pass to the brothers and sisters of the deceased, and to
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their descendants; but if there be none such, then the
whole estate shall be inherited by the surviving father
or mother.
3. If there be neither father nor mother, then the whole
of such estate shall pass to the brothers and sisters of
the intestate, and to their descendants.
4. If there be none of the kindred aforesaid, then the
inheritance shall be divided into two moieties, one of
which shall go to the paternal and the other to the
maternal kindred, in the following course: To the
grandfather and grandmother in equal portions, but if
only one of these be living, then the estate shall be
divided into two equal parts, one of which shall go to
such survivor, and the other shall go to the descendant
or
descendants
of
such
deceased
grandfather
or
grandmother. If there be no such descendants, then the
whole estate shall be inherited by the surviving
grandfather or grandmother. If there be no surviving
grandfather or grandmother, then the whole of such estate
shall go to their descendants, and so on without end,
passing in like manner to the nearest lineal ancestors
and their descendants.
Tex. Prob. Code Ann. § 38(a) (West) (eff. until Dec. 31, 2013);
repealed by Acts 2009, 81st Leg., ch. 680, § 10(a) (eff. January 1,
2014).

The law of intestacy in Texas thus demands a “kindred”

(i.e., blood) relationship to a decedent in as a prerequisite to
granting a right of inheritance. See id.; see also Tex. Prob. Code
Ann. § 41(a) (West) (eff. until Aug. 31, 2007) (“No right of
inheritance shall accrue to any persons other than to children or
lineal descendants of the intestate, unless they are in being and
capable in law to take as heirs at the time of the death of the
intestate.”);

id.

§

41(b)

(eff.

until

Aug.

31,

2007)

(“In

situations where the inheritance passes to the collateral kindred
of the intestate, if part of such collateral be of the whole blood,
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and the other part be of the half blood only, of the intestate,
each of those of half blood shall inherit only half so much as each
of those of the whole blood; but if all be of the half blood, they
shall have whole portions.”). In other words, an alleged in-law,
such

as

Plaintiff,

has

no

right

of

inheritance

under

Texas

intestacy law.
“Courts have consistently read [29 U.S.C.] § 1132(a)(3) as
strictly limiting ‘the universe of plaintiffs who may bring certain
civil

actions.’”

Connecticut

v.

Physicians

Health

Servs.

of

Connecticut, Inc., 287 F.3d 110, 121 (2d Cir. 2002) (quotation
omitted).

Moreover,

a

court

“cannot

expand

the

congressionally-created statutory list of those who may bring a
cause of action [under ERISA] by importing third-party prudential
considerations.” Am. Psychiatric Ass’n v. Anthem Health Plans,
Inc., 821 F.3d 352, 360 (2d Cir. 2016). “ERISA carefully enumerates
the parties entitled to seek relief under [§ 502(a)(3)]; it does
not provide anyone other than participants, beneficiaries, or
fiduciaries with an express cause of action. . . .” Franchise Tax
Bd. of the State of Calif. v. Constr. Laborers Vacation Tr., 463
U.S. 1, 27 (1983). Because Plaintiff is neither a “participant,”
nor a “fiduciary,” nor a “beneficiary,” he lacks statutory standing
to bring an ERISA action. See id.

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CONCLUSION
For the reasons discussed above, Defendant’s Motion to Dismiss
(Dkt #9) is granted, and the Complaint (Dkt #1) is dismissed. The
Clerk of Court is directed to close this case.
SO ORDERED.
S/Michael A. Telesca

HON. MICHAEL A. TELESCA
United States District Judge
Dated:

November 23, 2016
Rochester, New York.

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