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WIESNER v. ROMO PAPER PRODS. CORP. EMPLES. RETIREM

May 6, 1981

Charles WIESNER, Plaintiff,
v.
ROMO PAPER PRODUCTS CORPORATION EMPLOYEES' RETIREMENT PLAN, Romo Paper Products Corporation, R & R Realty Co., and Samuel Roth, Defendants



The opinion of the court was delivered by: NEAHER

MEMORANDUM ORDER

Plaintiff Charles Wiesner brought this action against Romo Paper Products Corporation ("Romo"), Romo's Employees' Retirement Plan ("Plan"), R & R Realty Co., and Samuel Roth, the managing trustee of the Plan and majority stockholder and president of both Romo and R & R Realty. Plaintiff sues pursuant to an assignment from his father, Alexander Wiesner, which assigned any causes of action the father might have against the defendants. This action is one of several plaintiff has brought in the federal and State courts *fn1" alleging the defrauding of his father's rights to receive pension benefits under the Plan, and a fair price for his Romo stock upon retiring from the family business at age 79 in March 1974 and selling out his 49% interest to the 51% owner, his son-in-law, defendant Roth. Jurisdiction over this suit is assertedly based upon the Employees' Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132. Defendants have moved to dismiss plaintiff's pro se complaint for want of subject matter jurisdiction, or to stay the action pending the outcome of State litigation involving the same issues. Plaintiff has submitted a motion to amend the complaint.

 The complaint alleges that the Plan was established pursuant to provisions of federal law and is currently subject to ERISA; that plaintiff's father contributed $ 26,928 to the Plan's Auxiliary Fund between 1967 and 1972 and that premium payments totaling $ 19,290.72 were deducted from his salary to purchase a life insurance policy; that the Plan owns the policy and has made Roth the primary beneficiary; and that Wiesner has never received from the Plan either the $ 26,928 he paid in or the promised life insurance policy or their equivalent, as provided in the Plan. It is further alleged that Roth, as the Plan's "managing trustee" from 1969 to date, has "invested" over 95% of the Plan's assets, including plaintiff's father's contributions, by making interest free loans without due date to Romo and R & R Realty.

 ERISA § 502(f), 29 U.S.C. § 1132(f), vests jurisdiction in the federal courts "without respect to amount in controversy or the citizenship of the parties, to grant the relief provided for in subsection (a)" of § 1132. That subsection provides in pertinent part that:

 
"A civil action may be brought
 
(1) by a participant or beneficiary
 
(B) 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;
 
(2) by the Secretary, or by a participant, beneficiary or fiduciary for appropriate relief under section 1109 of this title;
 
(3) by a participant, beneficiary, or fiduciary
 
(A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan."

 Section 1109(a) provides that:

 
"Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this subchapter shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary and shall be subject to such other equitable or remedial relief as the court may deem appropriate including removal of such fiduciary."

 Defendants base their motion to dismiss upon the following provision of ERISA:

 
"(a) Except as provided in subsection (b) of this section, the provisions of this subchapter ... shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this and not exempt under section ...

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