ASKEW v. R.L. REPPERT, INC. et al

Filing 133

ORDER THAT PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT IS GRANTED IN PART AND DENIED IN PART. IT IS FURTHER ORDERED THAT PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT IS GRANTED REGARDING LIABILITY (BUT NOT DAMAGES) FOR THE PART OF CO UNTY ONE OF PLAINTIFF'S CLASS ACTION COMPLAINT ALLEGING DEFENDANT R.L. REPPERT, INC.'S FAILURE TO PROVIDE PLAN DOCUMENTS FOR THE R.L. REPPERT, INC. EMPLOYEES PROFIT SHARING 401(K) PLAN IN A TIMELY MANNER AND FOR THAT PART OF COUNT ONE ALLEG ING DEFENDANT R.L. REPPERT, INC.S FAILURE TO PRODUCE THE CUSTODIAL AGREEMENT WITH NATIONWIDE TRUST COMPANY, FSB.IT IS FURTHER ORDERED THAT PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT IS DENIED IN ALL OTHER RESPECTS.IT IS FURTHER ORDERED THAT DEFEN DANTS MOTION FOR SUMMARY JUDGMENT IS GRANTED IN PART AND DENIED IN PART.IT IS FURTHER ORDERED THAT DEFENDANTS MOTION FOR SUMMARY JUDGMENT IS GRANTED REGARDING THAT PART OF COUNT ONE OF PLAINTIFFS CLASS ACTION COMPLAINT ALLEGING R.L. REPPERT, INC.S FA ILURE TO PROVIDE PLAN DOCUMENTS FOR THE R.L. REPPERT, INC. MONEY PURCHASE PLAN (DAVIS BACON PLAN) AND THAT PART OF COUNT ONE ALLEGING R.L. REPPERT, INC.S FAILURE TO PRODUCE TRUST AGREEMENTS, PERIODIC BENEFITS STATEMENTS, NOTICE OF VESTED DEFERRED BEN EFITS, DISCLOSURE OF FINANCIAL REPORTS, SECTION 404(C) DISCLOSURES, NOTICE OF QUALIFIED DEFAULT INVESTMENT, NOTICE OF AVAILABILITY OF INVESTMENT ADVICE AND DEPOSITORY DOCUMENTS FOR THE R.L. REPPERT, INC. EMPLOYEES PROFIT SHARING 401(K) PLAN. IT IS FU RTHER ORDERED THAT DEFENDANTS MOTION FOR SUMMARY JUDGMENT IS GRANTED REGARDING THAT PART OF COUNT FOUR OF PLAINTIFFS CLASS ACTION COMPLAINT ALLEGING R.L. REPPERT, INC.S FAILURE TO CONDUCT AUDITS OF THE R.L. REPPERT, INC. MONEY PURCHASE PLAN (DAVIS BA CON PLAN). IT IS FURTHER ORDERED THAT DEFENDANTS MOTION FOR SUMMARY JUDGMENT IS GRANTED ON COUNTS TWO, THREE, FIVE AND SIX OF PLAINTIFFS CLASS ACTION COMPLAINT. IT IS FURTHER ORDERED THAT DEFENDANTS MOTION FOR SUMMARY JUDGMENT IS DENIED REGARDING THA T PART OF COUNT ONE OF PLAINTIFFS CLASS ACTION COMPLAINT ALLEGING R.L. REPPERT, INC.S FAILURE TO PROVIDE PLAN DOCUMENTS FOR THE R.L. REPPERT, INC. EMPLOYEES PROFIT SHARING 401(K) PLAN IN A TIMELY MANNER AND THAT PART OF COUNT ONE OF PLAINTIFFS CLASS ACTION COMPLAINT ALLEGING R.L. REPPERT, INC.S FAILURE TO PROVIDE CUSTODIAL AGREEMENTS RELATING TO THE R.L. REPPERT, INC. EMPLOYEES PROFIT SHARING 401(K) PLAN. IT IS FURTHER ORDERED THAT DEFENDANTS MOTION FOR SUMMARY JUDGMENT IS DENIED REGARDING THAT PART OF COUNT FOUR OF PLAINTIFFS CLASS ACTION COMPLAINT ALLEGING R.L. REPPERT, INC.S FAILURE TO CONDUCT AUDITS OF THE R.L. REPPERT, INC. EMPLOYEES PROFIT SHARING 401(K) PLAN. IT IS FURTHER ORDERED THAT JUDGMENT IS ENTERED IN FAVOR OF DEFENDANTS, R.L. REPPERT, INC., RICHARD L. REPPERT, THE R.L. REPPERT, INC. EMPLOYEES PROFIT SHARING 401(K) PLAN, AND THE R.L. REPPERT, INC. MONEY PURCHASE PLAN (DAVIS BACON PLAN), AND AGAINST PLAINTIFF, DERRICK ASKEW, ON COUNTS ONE AND FOUR OF PLAINTIFFS CLASS ACTIO N COMPLAINT, WITH RESPECT TO THE R.L. REPPERT, INC. MONEY PURCHASE PLAN (DAVIS BACON PLAN). IT IS FURTHER ORDERED THAT JUDGMENT IS ENTERED IN FAVOR OF DEFENDANTS, R.L. REPPERT, INC., RICHARD L. REPPERT, THE R.L. REPPERT, INC. EMPLOYEES PROFIT SHARING 401(K) PLAN, AND THE R.L. REPPERT, INC. MONEY PURCHASE PLAN (DAVIS BACON PLAN), AND AGAINST PLAINTIFF, DERRICK ASKEW, ON COUNTS TWO, THREE, FIVE AND SIX OF PLAINTIFFS CLASS ACTION COMPLAINT.. SIGNED BY HONORABLE JAMES KNOLL GARDNER ON 2/4/2016. 2/5/2016 ENTERED AND COPIES E-MAILED.(lbs, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DERRICK ASKEW,

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Plaintiff
v.
R.L. REPPERT, INC.;
RICHARD L. REPPERT;
R.L. REPPERT, INC. EMPLOYEES
PROFIT SHARING 401(k) PLAN; and
R.L. REPPERT, INC. MONEY
PURCHASE PLAN (DAVIS BACON PLAN),
Defendants
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R.L. REPPERT, INC.;
RICHARD L. REPPERT;
R.L. REPPERT, INC. EMPLOYEES
PROFIT SHARING 401(k) PLAN; and
R.L. REPPERT, INC. MONEY
PURCHASE PLAN (DAVIS BACON PLAN),
Third-Party Plaintiffs
v.
CALIFORNIA PENSION ADMINISTRATORS &
CONSULTANTS, INC.,
Third-Party Defendants

Civil Action
No. 11-cv-04003

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O R D E R
NOW, this 4th day of February, 2016, upon
consideration of the following documents:
(1)

Plaintiff’s Motion for Partial Summary Judgment
(Counts I, IV – Reppert Pension Plans) and
Dismissal (Reppert Health Plans), which motion

was filed on April 10, 2015 (Document 73),
together with
Memorandum of Law in Support of Plaintiffs’
[sic] Motion for Partial Summary Judgment
and Dismissal (Document 73-1);
(2)

Response to Motion for Partial Summary Judgment,
which response was filed by defendants on
April 24, 2015 (Document 78);

(3)

Plaintiffs’ [sic] Reply Memorandum of Law in
Support of Plaintiff’s Motion for Partial Summary
Judgment and Dismissal, which reply was filed on
June 19, 2015 (Document 87);

(4)

Defendants and Third Party Plaintiffs R.L.
Reppert, Inc. et al.’s Motion for Summary
Judgment Against Plaintiff Derrick Askew, which
motion was filed on July 31, 2015 (Document 90),
together with
Defendants and Third Party Plaintiffs R.L.
Reppert Inc., et al.’s Memorandum of Law in
Support of Their Motion for Summary Judgment
Against Plaintiff, Derrick Askew; and

(5)

Plaintiff’s Response to Defendant Reppert’s
Motion for Summary Judgment, which response was
filed on August 14, 2015 (Document 92);

upon consideration of the pleadings, exhibits, affidavits,
deposition and record papers, and for the reasons expressed in
the accompanying Opinion,
IT IS ORDERED that plaintiff’s motion for partial
summary judgment is granted in part and denied in part.
IT IS FURTHER ORDERED that plaintiff’s motion for
partial summary judgment is granted regarding liability (but not
damages) for that part of Count One of plaintiff’s Class Action
Complaint alleging defendant R.L. Reppert, Inc.’s failure to
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provide plan documents for the R.L. Reppert, Inc. Employees
Profit Sharing 401(k) Plan in a timely manner and for that part
of Count One alleging defendant R.L. Reppert, Inc.’s failure to
produce the custodial agreement with Nationwide Trust Company,
FSB.
IT IS FURTHER ORDERED that plaintiff’s motion for
partial summary judgment is denied in all other respects.
IT IS FURTHER ORDERED that defendants’ motion for
summary judgment is granted in part and denied in part.
IT IS FURTHER ORDERED that defendants’ motion for
summary judgment is granted regarding that part of Count One of
plaintiff’s Class Action Complaint alleging R.L. Reppert, Inc.’s
failure to provide plan documents for the R.L. Reppert, Inc.
Money Purchase Plan (Davis Bacon Plan) and that part of
Count One alleging R.L. Reppert, Inc.’s failure to produce trust
agreements, periodic benefits statements, notice of vested
deferred benefits, disclosure of financial reports,
Section 404(c) disclosures, notice of qualified default
investment, notice of availability of investment advice and
depository documents for the R.L. Reppert, Inc. Employees Profit
Sharing 401(k) Plan. 1

1

In Counts One and Two of his Class Action Complaint, plaintiff
claims that he is entitled to these documents or categories of documents. I
refer to them by the titles and terms that plaintiff himself uses.

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IT IS FURTHER ORDERED that defendants’ motion for
summary judgment is granted regarding that part of Count Four of
plaintiff’s Class Action Complaint alleging R.L. Reppert, Inc.’s
failure to conduct audits of the R.L. Reppert, Inc. Money
Purchase Plan (Davis Bacon Plan).
IT IS FURTHER ORDERED that defendants’ motion for
summary judgment is granted on Counts Two, Three, Five and Six
of plaintiff’s Class Action Complaint.
IT IS FURTHER ORDERED that defendant’s motion for
summary judgment is denied regarding that part of Count One of
plaintiff’s Class Action Complaint alleging R.L. Reppert, Inc.’s
failure to provide plan documents for the R.L. Reppert, Inc.
Employees Profit Sharing 401(k) Plan in a timely manner and that
part of Count One of plaintiff’s Class Action Complaint alleging
R.L. Reppert, Inc.’s failure to provide custodial agreements
relating to the R.L. Reppert, Inc. Employees Profit Sharing
401(k) Plan.
IT IS FURTHER ORDERED that defendant’s motion for
summary judgment is denied regarding that part of Count Four of
plaintiff’s Class Action Complaint alleging R.L. Reppert, Inc.’s
failure to conduct audits of the R.L. Reppert, Inc. Employees
Profit Sharing 401(k) Plan.
IT IS FURTHER ORDERED that judgment is entered in
favor of defendants, R.L. Reppert, Inc., Richard L. Reppert, the
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R.L. Reppert, Inc. Employees Profit Sharing 401(k) Plan, and the
R.L. Reppert, Inc. Money Purchase Plan (Davis Bacon Plan), and
against plaintiff, Derrick Askew, on Counts One and Four of
plaintiff’s Class Action Complaint, with respect to the R.L.
Reppert, Inc. Money Purchase Plan (Davis Bacon Plan).
IT IS FURTHER ORDERED that judgment is entered in
favor of defendants, R.L. Reppert, Inc., Richard L. Reppert, the
R.L. Reppert, Inc. Employees Profit Sharing 401(k) Plan, and the
R.L. Reppert, Inc. Money Purchase Plan (Davis Bacon Plan), and
against plaintiff, Derrick Askew, on Counts Two, Three, Five and
Six of plaintiff’s Class Action Complaint.

BY THE COURT:
/s/ JAMES KNOLL GARDNER
James Knoll Gardner
United States District Judge

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