Czeremcha v. Delta Airlines, Inc. et al
Filing
26
ORDER granting 17 Motion to Dismiss Signed by Judge Jay A Garcia-Gregory on 10/30/2012. (RJC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
PETER CZEREMCHA,
Plaintiff
v.
CIVIL NO. 12-1123(JAG)
DELTA AIRLINES INC., et al.,
Defendants.
OPINION & ORDER
Garcia-Gregory, D.J.
On
February
22,
2012,
Plaintiff
Peter
Czeremcha
(“Plaintiff”) filed, pro se, a “Request for Entry of Default”
against Defendants Delta Airlines Inc. (“Delta”) and Richard H.
Anderson, Delta’s CEO (collectively “Defendants”). (Docket No.
1).
Therein,
Plaintiff
attached
an
affidavit
in
which
he
outlined the reasons for which he believes default should be
entered against Defendants. (Id.).
Defendants then moved the Court to order Plaintiff to file
a more definite statement of his claim. (Docket No. 8). The
Court
granted
this
request,
(Docket
No.
11),
and
Plaintiff
complied with the Court’s order, (Docket No. 14). Defendants
then moved to dismiss under FED. R. CIV. P. 12(b)(1) and (6),
(Docket
No.
17);
Plaintiff
responded,
(Docket
No.
19);
and
2
CIVIL NO. 12-1123(JAG)
Defendants
replied,
(Docket
No.
21).
For
the
reasons
that
follow, the Court DENIES Defendants’ Rule 12(b)(6) motion, and
GRANTS their request for dismissal under Rule 12(b)(1).
DISCUSSION
Request for Entry of Default
Before addressing the pending Motion to Dismiss, the Court
will
first
consider
Plaintiff’s
request
for
default
entry.
Although Plaintiff is accorded some latitude given his pro se
status,
he
is
not
excused
from
compliance
with
relevant
procedural and substantive rules. Eagle Eye Fishing Corp. v.
U.S. Dep't of Commerce, 20 F.3d 503, 506 (1st Cir. 1994); see
also
McKaskle
v.
Wiggins,
465
U.S.
168,
183-184
(1984)(explaining that courts need not “take over chores for a
pro se defendant that would normally be attended to by trained
counsel as a matter of course”).
The Court finds that Plaintiff’s motion for default entry
fails because it does not comply with the Rules that “govern the
procedure
in
all
civil
actions
and
proceedings”
in
district
courts. FED. R. CIV. P. 1. Plaintiff’s opening move in this case
was his “Request for Entry of Default” under FED. R. CIV. P.
55(a). Rule 55(a) states that “[w]hen a party against whom a
judgment for affirmative relief is sought has failed to plead or
3
CIVIL NO. 12-1123(JAG)
otherwise defend, and that failure is shown by affidavit or
otherwise,
the
clerk
must
enter
the
party’s
default.”
Id.
Plaintiff avers that Defendants failed to respond to several
documents he sent regarding a debt Defendants allegedly owe to
Plaintiff.1 But the Rules do not allow a plaintiff to request
entry
of
default
on
the
basis
of
what
amounts
to
an
extrajudicial claim of debt.
The Rules of Civil Procedure contemplate only “one form of
action – the civil action.” FED. R. CIV. P. 2. Pursuant to FED. R.
CIV. P. 3, a “civil action is commenced by filing a complaint with
the
court.” Only
after
filing
the
complaint
may
summons
be
issued. See FED. R. CIV. P. 4(b). Rule 55(a), on which Plaintiff
grounds his request for default, presumes that a civil action is
pending before the Court, that the defendant in said action has
been properly served with the complaint, and that the defendant
has “failed to plead or otherwise defend” against that request
for affirmative relief. But no such complaint had been filed
1
Specifically, Plaintiff “relies upon the record, APPOSTILE NO.
30833; Certificate of Assent; Affidavit no. 45983 in support of
Default with the Sum Certain amount of $121,475.84 […] and
Perfected Security Agreement no. RE776507012US, Declaration by
Affidavit, in Support, no. 45912 (herein: Contract) herein filed
in this case….” (Docket No. 1 ¶ 2, copied verbatim). No matter
how much legalese Plaintiff has managed to conjure up in these
documents, the fact remains that these do not represent a proper
complaint filed before this Court.
4
CIVIL NO. 12-1123(JAG)
prior to the request for default entry. Accordingly, Plaintiff’s
request for entry of default is premature and therefore DENIED.
The Motion to Dismiss
Pursuant
to
this
Court’s
order,
Plaintiff
filed
a
more
definite statement of his claim, which the Court will construe
as his first actual complaint. There, Plaintiff stated that he
was a Delta employee for 16 years, and he retired in November of
1988.
(See
Docket
No.
14,
¶
4).
Plaintiff
claims
he
was
a
beneficiary to a pension plan which was supposed to pay $183.56
per month, starting on September 1, 1998. (Id.; see also Id. at
¶
24).
payments
grievance
Plaintiff,
until
is
however,
July
that
1,
did
2003.
Delta’s
not
start
(Id.).
retirement
receiving
In
short,
plan
owes
those
Plaintiff’s
Plaintiff
58
months of benefit payments that have not been paid.
In an attempt to resolve his dispute, Plaintiff sent Delta
various notices, creatively titled,2 requiring Delta to answer
his claims and counter them with “material fact of evidence that
said
pension
plaintiff’s
checks
mail
were
location.”
actually
issued
(Id.
¶
at
4,
and
copied
mailed
to
verbatim).
Defendants, however, did not respond. As a result, Plaintiff
2
E.g., “Notice of Dispute and conditional acceptance for Value”;
“Notice of Fault and Default”; “Opportunity to Cure Default”;
“self-executing Implied Contract”; “Security Agreement”; etc.
(Docket No. 14, ¶ 4, copied verbatim).
5
CIVIL NO. 12-1123(JAG)
contends
that
Defendants
have,
“by
tacit
agreement,”
fully
acquiesced to pay $181,210.71 in damages and interest accrued
(at a rate of 25% per year) for the alleged failure to satisfy
the $10,646.48 in outstanding pension payments. (Docket No. 18
at p. 1, n.1).
Based on the above, Plaintiff brings two causes of action;
one
for
negligence
and
the
other
for
breach
of
contract.
However, Plaintiff fails to specify under which federal or state
law those claims are brought. Defendants argue that Plaintiff’s
claims should be dismissed because they relate to an ERISA plan.
As such, Defendants posit that 1) any possible state-law claims
are pre-empted; and 2) Plaintiff has not pled that he exhausted
administrative remedies as required by that statute. The Court
agrees.
From the pleadings, it is clear that Plaintiff’s claims
revolve around his dispute with Delta regarding his retirement
benefits;
more
specifically,
the
monthly
“pension
payments”
under Delta’s retirement plan. (See Docket No. 14 at ¶ 24). This
is
corroborated
by
a
“Plan”)
submitted
by
Dismiss.
(Docket
No.
copy
of
Defendants
17,
Delta’s
along
attachments
Retirement
with
their
2-4).3
As
Plan
(the
Motion
to
stated
by
3
Normally, materials outside the pleadings are not to be
considered in assessing a motion to dismiss. Citing Gargano v.
6
CIVIL NO. 12-1123(JAG)
Plaintiff, his failure to receive those pension checks is the
“[o]rigin of the subject matter for this complaint.” (Docket No.
14 at ¶ 4). The Plan submitted by Defendants contains, as one of
the
payment
options,
a
“single
life
annuity
option”
that
entitles beneficiaries to “monthly payments.” (See Docket No.
17-4
at
p.
12).
The
basic
benefit
formula
describes
the
resulting payments from the Plan as a “monthly pension.” (Id. at
p.
7).
Therefore,
it
is
clear
that
Plaintiff’s
claims
are
grounded on Delta’s Retirement Plan.4
Liberty Intern. Underwriters, Inc., 572 F.3d 45 (1st Cir. 2009),
Defendants argue that since the documents attached “are
referenced generally in the Complaint,” they may be considered
at this stage. (Docket No. 17 at n.4). Upon comparison of the
complaint with the documents submitted by Co-Defendants, the
Court finds that the complaint indeed makes substantial and
general reference to Delta’s retirement plans; moreover, the
documents submitted are also arguably “central to [P]laintiff’s
claim.” Gargano, 572 F.3d at 48 n. 1. Thus, the Court is
satisfied that these may be considered at this juncture.
4
Plaintiff denies that his claims are brought under Delta’s
retirement plans. (See Docket No. 18, p. 2 at n. 2). Instead,
Plaintiff asserts he is owed the pension amounts under a
“Security Agreement/Contract” created by Defendants’ failure to
respond to his demands. (Id.). This is absurd. As Defendants
correctly note: “[n]othing in ERISA permits a party to ‘create’
a ‘Security Agreement’ by sending demands for pension benefits,
interest and penalties and then ‘asserting’ that the failure to
expressly respond to that creates a ‘contract by silence.’”
(Docket No. 21, p. 3). Simply put, Plaintiff may not circumvent
the claims procedure provided by ERISA, see 29 U.S.C. § 1133 and
29 CFR § 2560.503-1, by inventing his own.
7
CIVIL NO. 12-1123(JAG)
Defendants
contend
that
the
Plan
is
subject
to
the
provisions of the Employment Retirement Income Security Act of
1974, 29 U.S.C. §§ 1001, et seq. (“ERISA”). Plaintiff does not
raise any objection to this characterization.5 After assessing
the pleadings, as well as the documents submitted by Defendants,
the Court finds that the Plan in question is subject to the
provisions of ERISA.
The Supreme Court has clarified that an ERISA plan exists
only if an employer has “some minimal, ongoing ‘administrative’
scheme or practice.” See District of Columbia v. Greater Wash.
Bd. of Trade, 506 U.S. 125, 130 n. 2 (1992) (citing Fort Halifax
Packing Co. v. Coyne, 482 U.S. 1, 12 (1987)); see also O'Connor
v.
Commonwealth
Gas
Co.,
251
F.3d
262
(1st
Cir.
2001)(illustrating factors applicable to the inquiry whether a
given
program
falls
under
ERISA).
We
find
the
applicable
standard easily met here. The Plan itself expressly mentions
ERISA,
and
provides
participants
with
a
“summary
plan
description” of the important features of the retirement plan,
5
Indeed, Plaintiff appears to be under the impression that CoDefendant’s Motion to Dismiss is a faulty responsive pleading
under FED. R. CIV. P. 12(f) and 8(b). (See Docket No. 18).
Plaintiff is mistaken. While Plaintiff’s misconstruction of the
applicable rules is no doubt due to his pro se status, the Court
points again to Eagle Eye Fishing, 20 F.3d 503, and related
cases, for the proposition that while pro se plaintiffs are
given certain leeway with their filings, they are not excused
from compliance with the procedural rules of this Court.
8
CIVIL NO. 12-1123(JAG)
as required by that statute. The Plan is a complex document
consisting of seventeen articles spread across 113 pages. Six of
these pages are dedicated to a section titled “Administration.”
(See Docket No. 17, attachments 2-4). Thus, and in the absence
of any meaningful opposition from Plaintiff, the Court finds
that Delta’s Plan has enough substance to engage the provisions
of ERISA.
In the context of employee benefit plans, ERISA’s civil
enforcement provision completely preempts state laws that do not
regulate
insurance,
banking,
or
securities.
See
29
U.S.C.
§
1144; Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 62-63
and 66-67 (1987). The Supreme Court has stated that ERISA’s
“pre-emptive force is so powerful as to displace entirely any
state cause of action.” Rodriguez v. MCS Life Ins. Co., 283 F.
Supp. 2d 459, 467 (D.P.R. 2003)(citing Franchise Tax Bd. v.
Construction Laborers Vac. Trust, 463 U.S. 1, 23 (1983)). Thus,
any potential state-law claims embedded in the complaint are
completely pre-empted by ERISA. Plaintiff does not oppose this
conclusion. See Footnote 4, supra.
Plaintiff’s federal claims under ERISA, if any, also fail
because he has failed to plead that he exhausted the Plan’s
dispute
resolution
procedures
prior
to
filing
suit
in
this
Court. ERISA requires employee benefit plans to “provide any
9
CIVIL NO. 12-1123(JAG)
participant
opportunity
whose
for
claim
review
by
for
benefits
the
fiduciary
is
denied
denying
with
the
an
claim.”
Drinkwater v. Metropolitan Life Ins. Co., 846 F.2d 821, 825 (1st
Cir. 1988) (citing 29 U.S.C. § 1133(2)). Exhaustion “is required
for claims which are purely contractual,” such as Plaintiff’s
claim for past-due benefits. Id. (emphasis added). Since the
complaint does not plead that Plaintiff exhausted any dispute
resolution procedure at all,6 this Court is without jurisdiction
to hear his claims.
CONCLUSION
In
light
of
the
above,
the
Court
GRANTS
Co-Defendant’s
Motion to Dismiss. Judgment shall be entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 30th day of October, 2012.
s/ Jay A. Garcia-Gregory
JAY A. GARCIA-GREGORY
United States District Judge
6
See e.g. Docket No. 17-3 at p. 27-29, corresponding to the
Plan’s “Claims Procedure.” The Court notes that the plan itself
expressly states that the remedies described in that section
“must be exhausted before any legal action on a claim is filed.”
Id. at p. 29. That section also provides that “[n]o action at
law […] to recover under this Plan shall be commenced later than
one year from the date of the Administrative Committee’s
decision…” (Id.).
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