Emberton v. Board of Trustees of Plumbers and Pipefitters Local 572 Pension Fund et al

Filing 15

MEMORANDUM & ORDER: For the foregoing reasons, Southern's Motion to Dismiss (Doc. No. 12 ) is hereby DENIED. The initial case management conference is RESET for August 29, 2022 at 2:30 p.m. Signed by District Judge Aleta A. Trauger on 8/1/2022. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ln)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
BILLY JOE EMBERTON,
Plaintiff,
v.
BOARD OF TRUSTEES OF PLUMBERS
AND PIPEFITTERS LOCAL 572
PENSION FUND and SOUTHERN
BENEFIT ADMINISTRATORS, INC.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

Case No. 3:21-cv-00757
Judge Aleta A. Trauger

MEMORANDUM & ORDER
Southern Benefit Administrators, Inc. (“Southern”) has filed a Motion to Dismiss (Doc.
No. 12), to which Billy Joe Emberton has filed a Response (Doc. No. 14). For the reasons set out
herein, the motion will be denied.
I. BACKGROUND 1
Emberton is a longtime member of the Plumbers and Pipefitters Local 572. (Doc. No. 1 ¶¶
6–7.) In June of 2016, Emberton accepted a pipefitting job at National Aerospace Solutions
(“NAS”). (Id. ¶ 13.) According to Emberton, NAS does not have a collective bargaining agreement
with Local 572, opting instead to work with the Metal Trades Department of the AFL-CIO.
Emberton argues that, because he is no longer employed by an entity that does business with Local
572, he is, for the purposes of Local 572’s benefits plans, “retired.” (Id. ¶¶ 16–19, 37.)
On November 24, 2018, Emberton filed an application for an early retirement benefit
through the Plumbers & Pipefitters Local 572 Pension Fund, based on his belief that he would

1

The facts herein are from the Complaint and are taken as true for the purposes of Rule 12(b)(6).

Case 3:21-cv-00757 Document 15 Filed 08/01/22 Page 1 of 8 PageID #: 100

become eligible for those benefits upon reaching early retirement age on January 15, 2019. (Doc.
No. 1 ¶ 21.) On December 4, 2018, Emberton received a letter from a plan administrator seeming
to confirm his eligibility. (Id. ¶ 22.) On December 17, 2018, however, Emberton received a second
letter stating that, after the final review of his file, it was determined that he was not eligible to
receive benefits because he was not yet retired. (Id. ¶ 23.) Emberton appealed that decision
unsuccessfully. (Id. ¶ 24.)
The motion currently pending, however, is not about whether Emberton is entitled to
benefits. Rather, it is about whom Emberton can sue to seek vindication of his position. On October
1, 2021, Emberton sued (1) the Pension Fund itself and (2) Southern, pursuant to the Employee
Retirement Income Security Act (“ERISA”), seeking “[a]n award of damages for non-payment of
early retirement benefits totaling $1,789.00 per month for the time period from February 2019 to
present, plus interest” as well as declaratory relief clarifying his rights under the plan. (Id. at 7.)
Not long thereafter, Southern filed a Motion to Dismiss, arguing that only the Fund should have
been sued. (Doc. No. 12.)
The written text of the Complaint discusses Southern’s role in the pension plan minimally,
if at all. Emberton has, however, included a number of exhibits with the Complaint, and “a ‘copy
of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”
Jones v. City of Cincinnati, 521 F.3d 555, 561 (6th Cir. 2008) (quoting Fed. R. Civ. P. 10(c)). For
example, Emberton has attached the Summary Plan Description, which provides more detail
regarding how the plan functioned, and he is permitted to rely on that exhibit for the purpose of
opposing the Motion to Dismiss. (Doc. No. 1-1.)
The Summary Plan Description does not mention Southern by name, but, in Southern’s
briefing, it explains that that is because Southern “took over as Third Party Administrative

2
Case 3:21-cv-00757 Document 15 Filed 08/01/22 Page 2 of 8 PageID #: 101

Manager following issuance of the revised [Summary Plan Description] in 2015.” (Doc. No. 12-1
at 4 n.1.) The Summary Plan Description does discuss the role of the Third Party Administrative
Manager, albeit briefly. The Administrative Manager is mentioned in the context of the plan’s
review procedures, which include the provision that, “[i]f you do not wish to make a personal
appearance before the Board of Trustees, the Administrative Manager will present all written
statements and other pertinent information on your behalf.” (Doc. No. 1-1 at 7.) The
Administrative Manager comes up again in the context of plan interpretation:
THE TRUSTEES INTERPRET THE PLAN
Any interpretation of the Plan’s provisions rests with the Board of Trustees.
However, the Board of Trustees has authorized the Fund Office staff to handle
routine requests from Participants regarding eligibility, benefits, and application
procedures. But, if there are any questions involving interpretation of any Plan
provisions, the Administrative Manager will secure from the Board of Trustees a
final determination for you. No person other than a Trustee or member of the Fund
Office staff, or one of the Trustees’ professional advisors, acting with the consent
of the full Board of Trustees, may provide interpretation of Plan provisions.
(Id. at 54.) This mention, like the first, discusses the Administrative Manager as a go-between
connecting the beneficiary to the Board of Trustees.
The Complaint’s other exhibits provide a few other clues regarding Southern’s role. The
correspondence that Emberton received from the plan administrator came on letterhead including
the following text:
PLUMBERS AND PIPEFITTERS LOCAL NO. 572
PENSION FUND
Administered by Southern Benefit Administrators, Incorporated
(Doc. No. 1-3 at 1; Doc. No. 1-4 at 1; Doc. No. 1-5 at 1.) The denial letter includes discussion that
bears on the respective responsibilities of Southern and the Board of Trustees, but its use of the
passive voice results in some ambiguity in that regard:

3
Case 3:21-cv-00757 Document 15 Filed 08/01/22 Page 3 of 8 PageID #: 102

This letter is regarding your recently received application for Early Retirement
benefits through the Plumbers & Pipefitters Local 572 Pension Fund. Upon receipt,
your application, along with all supporting fund documents, was reviewed in
accordance with the rules and procedures which govern this plan, with the
following eligibility determination being made. . . .
After a final review of your file, it was found that you are currently involved in
employment that disqualifies you from meeting the criteria of being Retired, as
defined above. Due to an oversight prior to this final approval, paperwork was sent
to you suggesting you were eligible to begin receiving a benefit beginning February
1, 2019. However, upon the discovery of your current employment activity, this
office has no choice but to deny your application for benefit. . . .
If you choose to make a written appeal, the plan administrator will present all
documents [on] your behalf for the Board of Trustees to review at their next
scheduled board meeting with a letter notifying you of their decision.
(Doc. No. 1-4 at 1.) While this language does describe aspects of the intermediary role assigned to
the administrative manager, it also appears consistent, at least potentially, with a greater role for
the “plan administrator,” more akin to the handling of “routine requests” that the plan suggests
may be handled by the “Fund Office.” (Doc. No. 1-1 at 31.) The letter informing Emberton that
his appeal was unsuccessful, however, does attribute that initial decision to the “fund office.” (Doc.
No. 1-5 at 1.)
II. LEGAL STANDARD
In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court
will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as
true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d
471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). The Federal
Rules of Civil Procedure require only that a plaintiff provide “a short and plain statement of the
claim that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon
which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). The court must determine only whether
“the claimant is entitled to offer evidence to support the claims,” not whether the plaintiff can
4
Case 3:21-cv-00757 Document 15 Filed 08/01/22 Page 4 of 8 PageID #: 103

ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (quoting
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
The complaint’s allegations, however, “must be enough to raise a right to relief above the
speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To establish the
“facial plausibility” required to “unlock the doors of discovery,” the plaintiff cannot rely on “legal
conclusions” or “[t]hreadbare recitals of the elements of a cause of action,” but, instead, the
plaintiff must plead “factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
“[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at
679; Twombly, 550 U.S. at 556.
III. ANALYSIS
ERISA creates a cause of action for benefits due, 29 U.S.C. § 1132(a)(1)(B), but it does
not expressly state, in the relevant subsection, whom such a claim should be filed against. More
broadly, however, ERISA imposes potential liability on “[a]ny person who is a fiduciary with
respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon
fiduciaries” by the statute, 29 U.S.C. § 1109(a). As a practical matter, then, “[f]iduciary status is
the key to unlocking ERISA’s civil-enforcement scheme,” Briscoe v. Fine, 444 F.3d 478, 486 (6th
Cir. 2006), at least insofar as the plaintiff wishes to name any defendant other than the plan itself.
A person is a fiduciary for an ERISA plan “to the extent (i) he exercises any discretionary
control respecting management of such plan or exercises any authority or control respecting
management or disposition of its assets, (ii) he renders investment advice for a fee or other
compensation, direct or indirect, with respect to any moneys or other property of such plan, or has
any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary

5
Case 3:21-cv-00757 Document 15 Filed 08/01/22 Page 5 of 8 PageID #: 104

responsibility in the administration of such plan.” 29 U.S.C. § 1002(21)(A); see Pegram v.
Herdrich, 530 U.S. 211, 223 (2000). “ERISA . . . defines a ‘person’ to include a corporation.”
Hamilton v. Carell, 243 F.3d 992, 998 (6th Cir. 2001).
ERISA defines “fiduciary” “not in terms of formal trusteeship, but in functional terms of
control and authority over the plan.” Mertens v. Hewitt Assocs., 508 U.S. 248, 262 (1993)
(emphasis and internal citation omitted); see also Smith v. Provident Bank, 170 F.3d 609, 613 (6th
Cir.1999) (“[T]he definition of a fiduciary under ERISA is a functional one, is intended to be
broader than the common law definition, and does not turn on formal designations such as who is
the trustee.”); Briscoe, 444 F.3d at 486 (“This court employs a functional test to determine
fiduciary status.”) (citation omitted). Accordingly, the definition of “fiduciary” includes “not only
the persons named as fiduciaries by a benefit plan, but also anyone else who exercises discretionary
control or authority over the plan’s management, administration, or assets.” Mertens, 508 U.S. at
262 (citations omitted).
Emberton does not appear to dispute the aforementioned general principles of law. Rather,
Emberton argues that the exhibits to the Complaint suggest that Southern “acted as a third party
administrator of the Plan and advisor to the Pension Plan” and, as such, “did not have a passive
role in the Plaintiff’s application and appeal process.” (Doc. No. 14 at 4.) Sixth Circuit caselaw
confirms that “the proper defendant in an ERISA action concerning benefits”—or at least one
proper defendant—“is the plan administrator.” Riverview Health Inst. LLC v. Med. Mut. of Ohio,
601 F.3d 505, 522 (6th Cir. 2010) (citing Daniel v. Eaton Corp., 839 F.2d 263, 266 (6th Cir.
1988)); see also LifeCare Mgmt. Servs. LLC v. Ins. Mgmt. Adm’rs Inc., 703 F.3d 835, 843 (5th
Cir. 2013) (discussing caselaw of other circuits involving proper defendants in ERISA benefits
cases). Moreover, while the plan documents do largely reserve ultimate discretion to the trustees,

6
Case 3:21-cv-00757 Document 15 Filed 08/01/22 Page 6 of 8 PageID #: 105

they explicitly acknowledge that the trustees may delegate some of that power to “professional
advisors,” which is consistent with Emberton’s theory of the case. (Doc. No. 1-1 at 54.)
“Fiduciary status is a fact-intensive inquiry,” such that resolution of the issue is often
“inappropriate for a motion to dismiss.’” Wallace v. Int’l Paper Co., 509 F. Supp. 3d 1045, 1052
(W.D. Tenn. 2020) (quoting In re Regions Morgan Keegan ERISA Litig., 692 F. Supp. 2d 944
(W.D. Tenn. 2010)). Of course, if all of the facts necessary for resolving the issue are set out in
the Complaint, the court can consider them. As a practical matter, however, the division of
responsibilities between “possible decision makers” involved in running a plan can be “something
of a black box” until after a complaint is filed. Rankin v. Rots, 278 F. Supp. 2d 853, 879 (E.D.
Mich. 2003). Neither the pension fund nor Southern itself appears to have done much to give
Emberton a glimpse into that black box; rather, the correspondence that Emberton received spoke
vaguely of how his application “was reviewed” until it “was found” that he had prior employment
that someone determined disqualified him from benefits, despite the fact that he had already been
told, mere days earlier, that he was eligible. In the face of that ambiguous language, and in light
of the fact that third-party administrators are at least sometimes permissible defendants in ERISA
benefits cases in this circuit, Emberton’s including Southern as a defendant was appropriate.
It may well be that the division of responsibilities between entities involved in the plan was
exactly what Southern says it was. Under Rule 12(b)(6), however, the court can only consider what
was alleged in the Complaint, including through the Complaint’s exhibits. Because those exhibits
support a plausible inference that Southern exercised discretion with regard to the denial of
Emberton’s benefits, the court accordingly will deny the pending motion.

7
Case 3:21-cv-00757 Document 15 Filed 08/01/22 Page 7 of 8 PageID #: 106

IV. CONCLUSION
For the foregoing reasons, Southern’s Motion to Dismiss (Doc. No. 12) is hereby
DENIED. The initial case management conference is RESET for August 29, 2022 at 2:30 p.m.
It is so ORDERED.

______________________________
ALETA A. TRAUGER
United States District Judge

8
Case 3:21-cv-00757 Document 15 Filed 08/01/22 Page 8 of 8 PageID #: 107