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Richard Gannon, On His Own Behalf and On Behalf of All Others v. Nysa-Ila Pension Trust Fund and Plan

March 11, 2011

RICHARD GANNON, ON HIS OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED PLAINTIFF,
v.
NYSA-ILA PENSION TRUST FUND AND PLAN, FRANK M. MCDONOUGH,
ANTHONY PETRIZZO, MAURICE C. BYAN,
JOSEPH CURTO, JOHN BOWERS,
ALBERT CERNADAS, AND STEPHEN KNOTT, PERSONALLY AND IN THEIR CAPACITY AS MEMBERS OF THE BOARD OF TRUSTEES OF THE NYSA-ILA PENSION TRUST FUND AND PLAN DEFENDANTS.



The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.:

MEMORANDUM OPINION & ORDER

In this putative class action brought under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001, et seq., Plaintiff Richard Gannon alleges that Defendants NYSA-ILA Pension Trust Fund and Plan ("Plan") and its Board of Trustees wrongfully denied pension benefits to Plaintiff and other similarly situated Plan participants. The Complaint pleads four claims for relief:

1. that in failing to credit Plaintiff for five years of service, Defendants failed to properly apply the terms of the Plan, in violation of Section 502(a)(1)(B) of ERISA;

2. that in failing to provide an updated summary plan description to Plan participants, Defendants violated Sections 502(a)(1)(A) and 502(c)(1)(B) of ERISA;

3. that Plaintiff is entitled to injunctive relief as against the individual defendants, pursuant to Section 502(a)(3) of ERISA, because they breached their fiduciary duties in allegedly failing to amend the Plan to bring it into compliance with McDonald v. NYSA-ILA Pension Plan, No. 99-cv-9054 (PKC), 2004 WL 2050166, at *6 (S.D.N.Y. Aug. 4, 2004), aff'd, 450 F.3d 91, 95 (2d Cir. 2006) ("McDonald II"); and

4. that because the individual defendants breached their fiduciary duty to ensure that the Plan was amended to comply with McDonald II, they are liable -- under Section 409(a) of ERISA -- "to make good to such plan any losses to the plan resulting for each such breach."

(Cmplt. ¶¶ 27-51)

Pending before the Court are Defendants' motion to dismiss the third and fourth claims for relief, and motion to stay this action and remand the matter to the Board of Trustees. For the reasons stated below, Defendants' motion to dismiss the Complaint's third and fourth claims will be GRANTED, and the motion to stay the action and remand the matter to the Board of Trustees will be DENIED.

BACKGROUND

I.PLAINTIFF'S INITIAL CLAIM FOR PENSION BENEFITS

Plaintiff is a participant in the NYSA-ILA Pension Trust Fund and Plan, an ERISA-governed employee welfare benefit plan administered by Defendants. (Cmplt. ¶ 1) The Plan is a multi-employer joint labor-management trust fund organized and existing under § 302(c)(5) of the Taft-Hartley Act, 29 U.S.C. § 186(c)(5). (Affidavit of Charles Ward in Support of Defendants' Motion to Dismiss ("Ward Aff.") ¶ 2) Plaintiff worked continuously for the New York Shipping Association ("NYSA") between 1969 and 2009, except for a five-year period between 1974 and 1978. (Affirmation of Edward Pauk on Behalf of Plaintiff's Opposition to Defendants' Motion to Stay/Dismiss ("Pauk Aff."), Ex. 1; Cmplt. ¶ 10)

In May 2009, Plaintiff sent a letter to the Plan requesting his "non-forfeitable accrued benefit statement." (Supplemental Affidavit of Charles Ward ("Ward Supp. Aff."), Ex. F) On June 9, 2009, the Plan's Executive Director sent a letter to Plaintiff informing him that he had "a total of 31 years of accrued, credited service" and "a vested right to receive this pension." (Ward Supp. Aff., Ex. G) On June 30, 2009, Plaintiff submitted an application for pension benefits to the Plan. (Pauk Aff., Ex. 2) As part of his application, Plaintiff acknowledged that he was entitled to a gross monthly benefit of $3,720, correlating with 31 years of service. (Id. at 10)After a reduction for a survivor annuity benefit, Plaintiff further acknowledged that he was entitled to net monthly compensation of $2,957.40. (Id.)

On July 13, 2009, the Plan's Executive Director sent a letter to Plaintiff informing him that his pension was approved "at the rate gross of $3,720.00 per month and a net of $2,957.40 per month." (Pauk Aff., Ex. 3 (emphasis in original)) Defendants did not credit Plaintiff for the five years of service he accrued before his break in service in 1974. (Cmplt. ¶ 11)

II.PLAINTIFF'S APPEAL AND THE PLAN'S DETERMINATION

On August 18, 2009, Plaintiff's counsel sent a letter to the Plan challenging the benefit determination.*fn1 The letter, ...


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