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Cohen v. Local 338-RWDSU/UFCW

August 12, 2010

COHEN, PLAINTIFF,
v.
LOCAL 338-RWDSU/UFCW ET AL, DEFENDANTS.



MEMORANDUM OPINION AND ORDER

Pro se plaintiff, Charles Cohen, was a supermarket employee and later a union organizer with Local 338, RWDSU/UFCW ("Local 338" or "the Union"), before he was terminated from his employment with Local 338 in 1979 for embezzling funds. He now brings this action under the Employee Retirement Security Act ("ERISA") against a number of defendants seeking sums he alleges are due to him under certain retirement and pension plans with hs former employers. Defendants have moved to dismiss plaintiff's claims on various grounds. For the reasons stated below, the motion to dismiss filed by Stuart Applebaum and the Retail, Wholesale and Department Store Union ("RWDSU") [25] is granted; and the motion to dismiss filed by the Trustees and Fiduciaries of the Local 338 Retiremend Fund (the "Retirement Fund"), the Retirement Plan for Employees of Local 338 and Affiliated Funds (the "Staff Plan"), Local 338, and the law firm of Friedman & Wolf [27] is granted in part and denied in part.

I. BACKGROUND*fn1

Local 338 is a labor organization representing employees in the supermarket and other industries in the New York City metropolitan area. In 1960, plaintiff began working for Associated Foods, a supermarket in the Bronx which had a collective bargaining contract with Local 338. When he worked at Associated Foods, plaintiff was a member of the Retirement Fund, an employee benefit plan which covered employees in the supermarket industry for which contributions were made to the plan by industry employers pursuant to a collective bargaining agreement. (See Cohen v. Local 338 et al, No. 84 Civ. 3035 (PNL) (S.D.N.Y. Apr. 9, 1985) (Memorandum and Order) ("Leval Decision") at 3.)

In July 1972, plaintiff left his job with Associated Foods to work directly for Local 338 as a union organizer. When he began working for the Union, plaintiff became a member of the Staff Plan, which was for Union employees.(Id. at 3-4.)The Union contributed to plaintiff's Staff Plan account while plaintiff worked for the Union. (See id.) It is not clear whether the Union also made contributions to plaintiff's Retirement Fund account while plaintiff was a Union employee.*fn2 In May 1979, the Union fired plaintiff, claiming that he was stealing money from the Union and affiliated employee benefit plans. In 1980, plaintiff was convicted of embezzlement in violation of 18 U.S.C. § 664.

In 1984, plaintiff brought a lawsuit against Local 338 and the trustees of the Staff Plan, but not against the Retirement Fund, relating to his entitlement to benefits under the Staff Plan.*fn3

(See Leval Decision at 1, 2 & n.2.) The lawsuit was assigned to Judge Leval, who was then a district judge. Plaintiff, who was then represented by counsel, alleged that he did not receive all the benefits to which he was entitled under the Staff Plan when he was terminated from his position as a union organizer in 1979. Among other things, plaintiff's complaint in the 1984 action requested an "accounting... of all contributions made and/or which should have been made by the defendant[s] [under the Staff Plan]" and a "judgment against defendant[s] for such value." (See Case No. 84 Civ. 3035, Dkt. No. 7 ("Moss Affidavit"), Ex. G (Verified Complaint) at 9-10.) Plaintiff also raised claims for unpaid vacation pay. (Id. ¶¶ 30-33.)

In the 1984 lawsuit, it was undisputed that plaintiff had been paid 20% of his credit balance under the Staff Plan when he was discharged from the Union in 1979. That amount was based on the Staff Plan's calculation that plaintiff had served as an employee of the Union for just under seven years, from July 1972 to May 1979. However, plaintiff argued that the years he had worked for Associated Foods should be added to the almost seven years that he had worked for the Union when calculating his entitlement to benefits under the Staff Plan, which would give him over ten years of service and make him eligible to receive 100% of his credit balance under the terms of the Staff Plan. (See Leval Decision at 3.) Judge Leval rejected plaintiff's argument in an opinion dated April 9, 1985. (Id. at 3-5.) Judge Leval explained that plaintiff had been part of two separate and distinct employee benefit programs during the course of his relationship with Local 338: (1) the Local 338 Retirement Fund (i.e., the Retirement Fund)*fn4, an employee benefit plan which covered employees in the supermarket industry for which contributions were made to the plan by industry employers pursuant to a collective bargaining agreement; and (2) the Retirement Plan for Employees of Local 338 and of Affiliated Funds (i.e., the Staff Plan)*fn5, which was for employees of the Union.(Id. at 3-4.) Judge Leval held that since plaintiff had worked as an employee of the Union for less than seven years, pursuant to the terms of the Staff Plan he was only entitled to 20% of his credit balance under the Staff Plan upon his termination. (Id. at 3-5.) Therefore, Judge Leval granted summary judgment to the Staff Plan dismissing plaintiff's claim for 100% of his credit balance under the Staff Plan. The following day, on April 10, 1985, Judge Leval dismissed plaintiff's complaint in its entirety. (See Case No. 84 Civ. 3035, Dkt. No. 14.) After Judge Leval dismissed plaintiff's complaint, the case was restored to Judge Leval's active docket by order dated May 13, 1985, possibly because plaintiff had raised other claims (e.g., for vacation pay) and the Staff Plan had raised counterclaims that were not directly addressed by Judge Leval's April 9, 1985 opinion. (See Case No.84 Civ. 3035, Dkt. No. 15.) However, on July 7, 1986, the parties agreed to dismiss all of plaintiff's claims and the Staff Plan's counterclaims with prejudice pursuant to Federal Rule of Civil Procedure 41. (See Case No. 84 Civ. 3035, Dkt. No. 16.)

Since 1986, plaintiff has continued, albeit somewhat sporadically, to attempt to recover pension benefits he believes he is owed based on his employment with Associated Supermarkets and/or Local 338 from 1960 to 1979. Over the years, plaintiff has written numerous letters to administrators of various pension plans, and has also contacted the U.S. Department of Labor Pension and Welfare Benefits Administration a number of times. (See, e.g., Attachments to Amended Complaint (hereinafter "Attachments") at 10-11, 73-74, 78-79, 83-88.)

On September 25, 2007, the court's Pro Se Office received a three page complaint from plaintiff which named the following defendants: Local 338-RWDSU/UFCW AFLI-CIO CLC;*fn6 John D. Durso, President; and the Board of Trustees of Local 338 Retirement Plan and Fund Affiliated Unions. The document was framed as a "Request to proceed to re-open Case #84 Civ. 3035"-i.e., the lawsuit that plaintiff had filed before Judge Leval. By Order dated February 5, 2008, Judge Wood dismissed plaintiff's complaint, with leave to amend, on the ground that it was confusing and ambiguous and failed to provide the defendants with fair notice of plaintiff's claims and the grounds upon which they rest. See Cohen v. Local 338-RWDSU/UFCW AFL-CIO CLC et al, 08 Civ. 1151 (KMW) (S.D.N.Y. Feb. 8, 2008) (Order).

Plaintiff then filed an amended complaint on April 3, 2008 (the "Amended Complaint"). The caption of the Amended Complaint named the same defendants as his initial complaint, but the text also identified two other defendants: "Stuat Appelbaun" [sic] and "Friedman Wolf, Attorney at Law." (See Amended Complaint.) Judge Wood dismissed the Amended Complaint sua sponte on res judicata grounds, holding that plaintiff was attempting to relitigate claims that were raised and adjudicated on the merits in the 1984 action. Cohen v. Local 338-RWDSUUFCW AFL-CIO CLC, No. 08 Civ. 1151 (KMW) (S.D.N.Y. June 24, 2008) (Order). However, the Second Circuit vacated Judge Wood's dismissal and remanded the case for further proceedings, citing Scherer v. Equitable Life Assurance Soc'y of U.S., 347 F.3d 394, 398 n.4 (2d Cir. 2003) ("[T]he sua sponte application of res judicata is not always desirable, given the variety of legal and equitable considerations involved and the difficulties that may be associated with determining its applicability when the parties have not briefed the issue."). Cohen v. Local 338-RWDSU-UFCW AFL CIO CLC, No. 08 Civ. 3919 (Order) (2d Cir. Dec. 23, 2008). The case was then reassigned to the undersigned.

The Amended Complaint is submitted on a form complaint for cases in the Southern District of New York. In the "Statement of Claim" section, plaintiff states that the events giving rise to the claim occurred in May 1984. (Amended Complaint at 3.) In the section entitled "Facts," plaintiff states "See Attachment." (Id.) Plaintiff attaches ninety-nine pages of documents, which include, inter alia, various documents from the 1984 action before Judge Leval, various letters from 1980 to 2004 relating to plaintiff's requests for benefits, and excerpts from the bylaws of certain pension plans at issue. In the "Relief" section of the Amended Complaint, plaintiff states that he is seeking "to recover retirement benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan or to clarify his right to future benefit under the term of the plan." (Id. at 4.) It appears that plaintiff seeks to bring his claims under § 502 of ERISA, 29 U.S.C. § 1132.*fn7

II. DISCUSSION

A. Documents Considered in Ruling Upon Defendants' Rule 12(b)(6) Motions

Under Rule 12(b), a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007); see Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (Rule 12(b) calls for "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.") (citation omitted). In resolving a motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief may be granted, "a court may consider 'documents attached to the complaint as an exhibit or incorporated in it by reference,... matters of which judicial notice may be taken, or... documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit.'" Chambers v. Time-Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (quoting Brass v. American Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993)). Here, the Court has considered the Amended Complaint, the ninety-nine pages of attachments thereto, and the filings from plaintiff's 1984 lawsuit in ruling upon the pending motions to dismiss.

B. Summary of Plaintiff's Claims

Rule 8 of the Federal Rules of Civil Procedure requires that a complaint include "a short and plain statement of the claim showing that the pleader is entitled to relief" sufficient to give the defendants fair notice of plaintiff's claims and the grounds upon which they rest. Fed. R. Civ. P. 8(a); see Conley v. Gibson, 355 U.S. 41, 47 (1957), abrogated in part on other grounds by Twombly, 550 U.S. 544. Pro se complaints should be "construed liberally in favor of the pro se litigant." Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999) (per curiam). Thus, the Court should "'interpret [pro se Complaints] to raise the strongest arguments that they suggest.'" Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Although the Amended Complaint is not a model of clarity, granting it the liberal construction to which it is due, the Court understands plaintiff to be raising the following claims:

(1) a claim against the law firm of Friedman & Wolf for certain unidentified conduct; (2) a claim for 100% of his credit balance under the Staff Plan; (3) a claim for benefits under a plan known as the RWDSU Deferred Compensation Plan; (4) a claim for unpaid employer contributions to plaintiff's Staff Plan and/or ...


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