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Ramnaraine v. Merrill Lynch & Co., Inc.

United States District Court, S.D. New York

September 5, 2014



GREGORY H. WOODS, District Judge.

Ramnand Ramnaraine brings this action against Merrill Lynch & Co., Inc. ("Merrill Lynch"), Merrill Lynch, Pierce, Fenner, & Smith ("MLPFS"), and Bank of America, Corp. ("BOA") (collectively, "Defendants") for a breach of fiduciary duty under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001 et seq. Defendants move for summary judgment, primarily on the ground that Ramnaraine's claim is untimely. For the reasons that follow, Defendants' motion for summary judgment is granted.


Pursuant to ERISA Sections 502(a)(2) and 409, 29 U.S.C. §§ 1132(a)(2), 1109, Ramnaraine brings this civil action alleging that Defendants breached their fiduciary duty owed to him under ERISA Sections 404 and 405, 29 U.S.C. §§ 1104, 1105 by failing to comply with his instruction to sell all of his shares of Merrill Lynch stock held in three ERISA plans. Compl. ¶¶ 22, 34-43. The following facts are not disputed. Ramnaraine worked for MLPFS as a computer technician from 1986 to 2002. Ramnaraine Dep.[1] 24-27. MLPFS was a wholly-owned subsidiary of Merrill Lynch until 2009, when BOA acquired Merrill Lynch. Answer ¶ 11. Ramnaraine had accounts in three plans, all subject to ERISA: a Merrill Lynch 401(k) Savings & Investment Plan ("401(k) Plan"), a Retirement Accumulation Plan ("RAP"), and an Employee Stock Ownership Plan ("ESOP"). Affidavit of Freda White (Dkt. No. 31) ¶¶ 2-3; Ramnaraine Dep. 33-35. During his employment with MLPFS, Ramnaraine contributed to the 401(k) Plan and Merrill Lynch made contributions to the RAP and ESOP. Ramnaraine Dep. 33-35.

On February 13, 2006 Ramnaraine made a call to the 401(k) Plan Contact Center. Ramnaraine Dep. 43; Jan. 24, 2014 Affidavit of Talmadge Blackmon (Dkt. No. 32-8) ¶¶ 2-3. This call forms the basis of Ramnaraine's claim, and the parties very much dispute what happened on that call. Due to a technical malfunction, the February 13, 2006 call was not recorded.[2] Blackmon Aff. ¶¶ 2-10. Ramnaraine contends that he instructed the representative to sell all of his shares of Merrill Lynch stock related to all three plans and to "leave it as cash" in his 401(k) account. Ramnaraine Dep. 42-45. Defendants deny that Ramnaraine made such an instruction and point to a variety of circumstantial evidence that they say shows that Ramnaraine could not have successfully sold his shares as he claims, including that the call was relatively short, that a supervisor would have been required to be on the line but was not, that shares cannot be held as cash in the accounts at issue, and that no trade confirmations were sent to Ramnaraine. 56.1 Statement of Material Facts[3] (Dkt. No. 44) ("56.1 Statement") ¶¶ 39-61.

It is not disputed that Ramnaraine placed calls to the 401(k) Plan Contact Center in September 2007 and April 2008. Ramnaraine Dep. 54-55. In support of their moving brief, Defendants submitted an affidavit from Steven Chiang, a client services manager for MLPFS, that described two calls from Ramnaraine during those time periods as well as a third call made by a representative from the 401(k) Plan Contact Center to Ramnaraine in response to one of those calls. Affidavit of Steven Chiang (Dkt. No. 30) ¶¶ 1, 6. This affidavit stated that Chiang had listened to recordings of these three calls and that in both September 2007 and April 2008, Ramnaraine both asked for and was informed of his share balances as of those times. Id. ¶ 6. Ramnaraine denied these facts, stating that the call recordings or transcripts had not been produced and that Ramnaraine's deposition testimony placed these facts in dispute. 56.1 Statement ¶¶ 79-88. Indeed, Ramnaraine testified, for example, that "[a]fter 2006, every call that I made to that number was regarding class action lawsuits. I was inquiring how many shares I had between 1999 and 2002, " Ramnaraine Dep. 41, and that "I did not ask for my share balance in those accounts... because in 2006 I asked for the shares to be sold, " id. at 55. Ramnaraine also testified, however, that he was uncertain about precisely what transpired on these calls. He testified that "after 2006, I probably called the 401(k) number just to inquire how many shares I had between 1999 and 2002 for the class action lawsuits." Id. at 53 (emphasis added). When asked if he recalled what he said during the 2007 call, Ramnaraine said "no." Id. at 41. He further testified that he did not "think" that he was told his share balance as of 2007 during the September 2007 call. Id. at 42; see also id. at 55 ("Q: Were you told your Merrill Lynch shares on that call? A: I don't remember, ma'am."). Ramnaraine also included in his 56.1 Statement that he "has not listened to a recording of any telephone call he made to Merrill Lynch, " 56.1 Statement ¶ 129, though his testimony on point was that he did not "recall" having a recording played to him. Ramnaraine Dep. 41-42.

Given the nature of Ramnaraine's denial - that he had not listened to the recordings or seen the transcripts of these calls - the Court held a conference on August 14, 2014 regarding whether the recordings referenced by Chiang were available for submission to the Court. In their reply, Defendants have now included a recording and transcript of the September 25, 2007 call from Ramnaraine and a recording of the April 25, 2008 call to Ramnaraine. Declaration of Paulette Morgan (Dkt. No. 41) Exs. A-B, E. To rebut Plaintiff's assertion that he had not listened to recordings of any telephone calls between himself and Merrill Lynch, Defendants further submitted a recording and transcript of a heretofore unmentioned January 9, 2009 call from Ramnaraine, during which Chiang plays for Ramnaraine both a recording of a April 24, 2008 call from Ramnaraine and the April 25, 2008 call to Ramnaraine. Morgan Decl. Ex. C-D.

During the September 25, 2007 call, Ramnaraine stated he was "checking on my shares" and needed to reset his PIN. Sept. 2007 Tr. at 2-3. The representative asked, "[Y]ou are checking on how your account is doing?... The balances?" to which Ramnaraine replied, "Yes.... Balances and the, you know, what the shares are right now." Id. at 3. The representative then informed Ramnaraine of the balances of all three plans. Id. Ramnaraine then specifically asked, "[W]hat is the total amount of shares?" to which the representative begins to answer by telling Ramnaraine that his 401(k) had 3, 063 shares. Id. at 4. Ramnaraine replied, "3, 063, okay, " and then asked whether the representative could give him the total number of shares in all of the accounts. Id. The representative eventually adds up all the accounts and tells Ramnaraine that his total number of shares is 4, 496 shares. Id. at 6. Ramnaraine repeats, "4, 496 shares, right?" to which the representative responds in the affirmative. Id. At no point during the call does Ramnaraine state that he had sold his shares or that the amount of shares was incorrect.

For the reasons stated below, the September 25, 2007 call is dispositive, but the same result would be reached as a result of the April 25, 2008 call. That call from the representative to Ramnaraine was prompted by his request for share information from 1999 to 2002. Jan. 9, 2009 Tr.[4] at 15-17. After being provided this information, Ramnaraine asked, "[M]y total shares are how many now?" Id. at 18. The representative confirmed that Ramnaraine meant currently, and that he "just want[ed] the shares of stock." Id. The representative then, as before, gave Ramnaraine each of his share balances per account, in the amounts of 3, 104 in the 401(k), 1, 001 in the ESOP, and 451 in the RAP. Id. at 19. At no point during the call does Ramnaraine state that he had sold his shares or that the amount of shares was incorrect.[5]

Ramnaraine first brought the instant claim in the Eastern District of New York on June 6, 2011. See Ramnaraine v. Merrill Lynch & Co, Inc. et al., No. 11 Civ. 2714 (E.D.N.Y. 2011). That case was dismissed without prejudice on September 13, 2011 pursuant to a stipulation between the parties in order for Ramnaraine to exhaust administrative remedies prior to the filing of the complaint. Id. Dkt. No. 16; 56.1 Statement ¶ 105. The instant complaint was filed November 6, 2013. Dkt. No. 1.


A. Standard of Review

Defendants are entitled to summary judgment if they can show that "there is no genuine dispute as to any material fact and that [defendants are] entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed.R.Civ.P. 56(c)). "The same standard applies whether summary judgment is granted on the merits or on an affirmative defense such as the statute of limitations." Giordano v. Market America, Inc., 599 F.3d 87, 93 (2d Cir. 2010). "Although summary judgment may, of course, be an appropriate means for disposing of an action that is barred by the statute of limitations, it may not be granted if there is a genuine issue of fact as to when the limitations period began or expired and that fact is material to the question of whether the statute has run." Id.

A dispute is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party, " while a fact is material if it "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To defeat a motion for summary judgment, the non-movant "must come forward with specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)). "Mere speculation or conjecture as to the true nature of the facts" will not suffice, Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (quotations omitted), nor will wholly implausible alleged facts or bald assertions that are unsupported by evidence. See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Argus Inc. v. Eastman Kodak Co., 801 F.2d 38, 45 (2d Cir. 1986) (citing Matsushita, 475 U.S. at 585-86). In determining whether a genuine dispute as to a ...

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