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July 12, 1991


The opinion of the court was delivered by: Larimer, District Judge.


This is an action under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq., and § 302 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 186. Defendants have moved in the alternative to dismiss the complaint for failure to state a claim, Fed.R.Civ.P. 12(b)(6), or for summary judgment pursuant to Fed.R.Civ.P. 56.


The facts as viewed in the light most favorable to plaintiff, the non-moving party, are as follows. Oscar J. Swanson ("Swanson") was born in 1917, and has been a pipefitter and welder for some fifty years. He is a participant in U.A. Local 13 Pension Plan ("the Plan"). In April 1986 he went to the office of defendant Gary Romano ("Romano"), the plan administrator, in order to talk about Swanson's "employment options." Swanson claimed that at the time of his visit he was upset and agitated because he had just had an argument with one of his supervisors.

Romano explained to Swanson that he could retire and either receive full benefits for himself in a monthly payment or receive a reduced monthly benefit, with a death benefit for a designated beneficiary.

According to Swanson, Romano "encouraged" him to sign the retirement papers at that first meeting. Swanson has never specified precisely how Romano did so in either the complaint or by affidavit in opposition to the summary judgment motion.

There is no suggestion that Swanson asked for information from Romano and received erroneous information.

Swanson claims that Romano never volunteered information that once he retired, his benefit formula would be calculated according to the rate in effect as of the date of retirement and that Romano never told him that he could not reconsider his decision to retire once the Trustees of the Plan had approved his application. Swanson's own allegations are unclear concerning exactly what forms he signed, or when he signed them. According to Romano, on April 10, the same day he talked to Swanson, he mailed Swanson a cover letter together with two forms: a Request for Pension Benefit Data Form, and a Benefit Election Form. Romano states that Swanson returned them to his office signed and completed on April 14.

The form entitled "U.A. LOCAL PENSION PLAN — FORM OF BENEFIT ELECTION" stated that Swanson's "Requested Date of Retirement" was May 1, 1986. The form also stated:

  I understand that once my retirement application is approved by
  the Trustees, the Form of Retirement I have selected can
  never be changed. [Emphasis in original.]
  I also understand that the Form of Retirement that I have
  originally selected will remain the same in the event I return
  to work and re-retire in the future. I further understand that
  I cannot work at this industry and receive a monthly pension
  check if the work is performed in the same trade, craft, or
  geographical location.

Over two months later, on June 19, 1986, the Board of Trustees approved Swanson's application for benefits.

Although retired, Swanson could perform some work in the industry and still receive his full pension benefits. Under the Plan, Swanson could receive his full monthly benefit check unless he worked more than 40 hours per month in the industry.

From April 1986 to January 1987, Swanson never worked more than 40 hours in any single month. Swanson did not work at all in April or May 1986. He worked 24 hours in June, 39.75 hours in July, 25.25 hours in August and 8 hours in September, 1986. Swanson did not work any hours in October or November 1986, but in December and in January 1987 he worked 39.75 hours, the maximum amount allowable under the Plan so as not to jeopardize his monthly benefit payment.

At some point, after the Trustees had approved Swanson's retirement application, Swanson claims that he notified defendants that he no longer wished to be considered retired. Neither the complaint nor Swanson's papers in opposition to the summary judgment motion state precisely when this occurred.

The office manager in Romano's office states in an affidavit that Swanson appeared in the office in either December 1986 or January 1987 complaining that he was not told certain information and at that time Swanson ripped up several of his retirement checks.

It is not disputed that Swanson's first written notification to the trustees of the Plan that he intended to return to work full time was contained in a letter dated January 22, 1987 which Swanson signed in Romano's office. That letter stated that he would "return to work at the plumbing trade Feb[ruary] and will therefore not be entitled to receive pension checks."

On March 3, 1988, after noticing that Swanson had not worked for a number of months, Romano wrote to him to inform him that if Swanson had in fact ceased working, he was required to reapply for benefits in order to begin resumption of his pension checks. Swanson did not do so, but in April 1990, he began receiving retirement benefits from the Plan as required by the Internal Revenue Code because he had reached age 70 1/2. These checks were required to be issued regardless of whether Swanson was working.

Because Swanson's benefits were calculated based on a 1986 retirement date, he receives $43 per month for each year of credited service ($875 total per month), instead of the $65 per month for each year of service that he would get if he retired now ($1500 per month total).

Swanson does receive some credit for his years of employment subsequent to his signing the retirement papers. When Swanson re-retires, his benefits for that second period of employment will be calculated at the rate which is in effect when he re-retires. However, because of Plan rules concerning re-employment following retirement, only his benefits for post-1986 employment will be calculated at that higher rate. His benefits for his employment up until his first retirement in May 1986 will continue to be calculated at the rate which was in effect in 1986.

The Complaint

The complaint contains seven counts. Count I is based on defendants' alleged breach of their duty under 29 U.S.C. § 1022 to provide Swanson with an adequate summary plan description, thereby causing him to sign the retirement papers without understanding the consequences of his act.

Count II alleges defendants' breach of their fiduciary duty to Swanson as a Plan participant, which duty Swanson claims was particularly high in his case because he allegedly suffers from a hearing loss. In Count III, plaintiff alleges that defendants breached a "higher duty of care" which they voluntarily assumed by going beyond their role as advisors and improperly encouraging him to retire on account of his age.

In Count IV, Swanson requests benefits under the Plan as he interprets it. Specifically, plaintiff claims that he does not meet the Plan's definition of a retiree, because he did not "withdraw completely from the industry." Count V alleges defendants' violation of 29 U.S.C. § 1140, which prohibits discrimination against a plan participant for the purpose of interfering with his attainment of rights under the Plan.

Count VI requests attorney's fees and costs. Count VII alleges defendants' violation of their duty under LMRA to use the Plan solely for the benefit of employees.

Premised on these claims, Swanson seeks the following relief: rescission of his 1986 "retirement"; a declaration that his benefits are to be calculated as of date he "actually" retires (probably in 1991 or 1992); an award of past benefits under the Plan, "as properly calculated"; $355,000 damages for pain and suffering resulting from Swanson's distress over his loss of benefits; and attorney's fees and costs.

In support of their motion, defendants contend that Swanson did in fact retire in 1986, and that he has gotten all the benefits to which he is entitled. Defendants also raise specific arguments with respect to each count, which will be discussed in detail below.

Defendants have also moved to strike plaintiff's demand for a jury trial. Defendants argue that, assuming their motion to dismiss Count VII is granted, Swanson has no basis for seeking a jury trial, since ERISA claims are equitable in nature. Finally, defendants contend that the claims against the individual Plan trustees should be dismissed because there are no allegations against those defendants.


1. The Legal Standard

Defendants have moved in the alternative to dismiss or for summary judgment. Fed.R.Civ.P. 12(b)(6), 56. Because the parties have submitted matters outside the pleadings, I will treat the motion as one for summary judgment. Nat'l Ass'n ...

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