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Barnum v. Mosca

April 13, 2009

LAWRENCE BARNUM, PLAINTIFF,
v.
PHILIP J. MOSCA, TONY PIACENTE, MANUEL VALENTE, ROSS PEPE, JAMES BODRATO, INDIVIDUALLY AND AS FIDUCIARIES OF THE BRICKLAYERS AND ALLIED CRAFTWORKERS LOCAL 5 NEW YORK PENSION PLAN; THE BOARD OF TRUSTEES OF THE BRICKLAYERS AND ALLIED CRAFTWORKERS LOCAL 5 NEW YORK PENSION FUND, DEFENDANTS.



MEMORANDUM-DECISION AND ORDER

Plaintiff Lawrence Barnum commenced this action against Defendants for alleged violations of the Employee Retirement Income Security Act of 1974 as amended ("ERISA"), 28 U.S.C. § 1132. Am. Compl. (Dkt. No. 4). Presently before the Court is Defendants' Motion to dismiss for improper venue pursuant to Fed. R. Civ. P. 12(b)(3) and 29 U.S.C. §1132(e)(2), or in the alternative for transfer of the case to the Southern District of New York, White Plains Division, for the convenience of the parties and witnesses and in the interest of justice pursuant to 28 U.S.C. §1404(a). Mot. (Dkt. No. 20). For the reasons set forth below, Defendants' Motion is denied.

I. BACKGROUND

Plaintiff brings this action to appeal the denial of benefits under the Bricklayers and Allied Craftsworkers Local 5 New York Pension Plan ("the Plan"), "to enforce Plaintiff's rights under the terms of the Plan, and to clarify Plaintiff's rights to future benefits under the terms of the Plan." Am. Compl. ¶ 1. Plaintiff further alleges that Defendants violated ERISA by, inter alia, failing to provide required documents and breaching their fiduciary duty. Id.

Plaintiff is a resident of Greene County, New York, which lies within this District. Am. Compl. ¶ 7. Since June of 2008, the Plan maintains an office in Newburgh, New York. Decl. of Stephen E. Ehlers ¶ 7 (Dkt. No. 28, Attach. 1). The individually named Defendants are residents of Westchester, Rockland, and Orange counties, all outside the bounds of the Northern District of New York. Id. ¶¶ 2-5.

II. DISCUSSION

A. Venue Under 29 U.S.C. § 1132(e)(2)

On a Rule 12(b)(3) motion to dismiss for improper venue, the plaintiff bears the burden of showing that venue is proper in the chosen district. United States E.P.A. ex rel. McKeown v. Port Authority, 162 F. Supp. 2d 173, 183 (S.D.N.Y. 2001). "If the court chooses to rely on the pleadings and affidavits, the plaintiff need only make a prima facie showing of [venue]." Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 355 (2d Cir. 2005) (quoting CutCo Indus. v. Naughton, 806 F.2d 361, 364-65 (2d Cir. 1986)).

An ERISA action "may be brought in the district where the plan is administered, where the breach took place, or where a defendant resides or may be found . . . ." 29 U.S.C. § 1132(e)(2). Plaintiff concedes that none of the Defendants reside in the Northern District of New York and that the Plan is not administered in the Northern District. See Mem. in Opp'n at 6-12 (Dkt. No. 23). Thus, if Plaintiff cannot make a prima facie showing that the breach occurred in this District or that the Defendants "may be found" within this District, the Court must either dismiss the case or transfer the case to an appropriate venue where the action may have otherwise been brought. Fed. R. Civ. P. 12(b)(3); 28 U.S.C. § 1404(a).

1. Establishing Venue Through "Place of Breach"

Plaintiff alleges that a breach of the Plan occurred at his home where he has received benefits from the Plan and that the denial of these benefits within the Northern District of New York therefore gives rise to proper venue within this District. Conversely, Defendants argue that the breach, if any, occurred in the Southern District of New York, where the Plan is physically located and managed.

Neither the Northern District nor the Second Circuit have addressed where a breach takes place for the purpose of establishing venue pursuant to 29 U.S.C. § 1132(e)(2). However, other district courts within New York have examined the issue. See Roshinsky v. Reynolds, No. 06-6340, 2008 U.S. Dist. LEXIS 56185, at *10-*12 (W.D.N.Y. July 21, 2008); Seitz v. Board of Trustees of the Pension Plan of the New York State Teamsters Conference Pension & Retirement Fund., 953 F. Supp. 100, 102 (S.D.N.Y. 1997).

Plaintiff relies on Roshinsky for the principle that the place of breach is where the benefits are received, i.e., at the beneficiary's home. Mem. in Opp'n at 7-9. The Roshinsky court went to great lengths to survey the law from courts around the country on the issue of the location of a breach for the purposes of establishing venue for an ERISA claim. See 2008 U.S. Dist. LEXIS 56185, at *10-*12 (collecting cases). Ultimately the court held that "venue . . . [for ERISA purposes] is appropriate . . . where the alleged breach took place, inasmuch as [it] is the situs at which Plaintiff has historically received the benefits that he now claims are being denied him." Id. at *12.

Several district courts have treated the issue similarly to the Roshinsky court. See, e.g., Cross v. Fleet Reserve Ass'n Pension Plan, 383 F. Supp. 2d 852, 856 (D. Md. 2005); Coulter v. Office and Prof'l Employees Intern. Union, No. 03-111, 2003 U.S. Dist. LEXIS 13958, at *13 (E.D. Tenn. April 10, 2003); Schrader v. Trucking Employees of North Jersey Welfare Fund, Inc., 232 F. Supp. 2d 560, 573 (M.D.N.C. 2002); Cole v. Central States Southeast and Southwest Areas Health and Welfare Fund, 225 F. Supp. 2d 96, 98 (D. Mass. 2002); Keating v. Whitmore Mfg. Co., 981 F. Supp. 890, 893 (E.D. Pa. 1997); Brown Schools, Inc. v. Florida Power Corp., 806 F. Supp. 146, 149 (W.D. Tex. 1992) ("Generally, the place of breach of an ERISA plan under 29 U.S.C. §1132 is where the recipient of benefits 'actually acquires his due,' i.e., receives payment of benefits, or where the decision to deny benefits is made.") (internal citations omitted); McFarland v. Yegen, 699 F. Supp. 10, 13 (D.N.H. 1988); Palka v. Theodore M. Hylwa, M.D., Inc., No. 85-2480, 1986 U.S. Dist. LEXIS 20854, at *4 (D. Kan. Sept. 3, 1986).

On the other hand, Defendants rely on Seitz in support of their contention that the alleged breach did not occur in the Northern District. While the Seitz court's venue analysis was focused upon whether the defendant could be found in the Southern District, the court noted that "the alleged breach 'took ...


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