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Labombard v. Winterbottom

United States District Court, N.D. New York

November 25, 2014

BELINDA A. WINTERBOTTOM, Plan Administrator of the Laborers' Pension Fund of Local Union No. 186; LABORERS' PENSION FUND OF LOCAL UNION NO. 186; LOCAL UNION 186, Defendants.

ROEMER WALLENS GOLD & MINEAUX, MATTHEW J. KELLY, ESQ., Albany, New York, Attorneys for Plaintiff.

SLEVIN & HART, P.C. PAUL E. KNUPP, III, ESQ., Washington, D.C., Attorneys for Defendants-Laborers' Pension Fund of Local Union No. 186 and Belinda A. Winterbottom.

BLITMAN & KING, BRIAN J. LACLAIR, ESQ., MICHAEL DAUM, ESQ., Franklin Center, Syracuse, New York, Attorneys for Defendants-Local Union No. 186.


MAE A. D'AGOSTINO, District Judge.


Christopher G. LaBombard ("Plaintiff") brought this action pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001 et seq., to recover pension benefits allegedly due to him. Plaintiff's complaint alleges that Defendants Belinda A. Winterbottom, plan administrator of the Laborers' Pension Fund of Local Union No. 186 ("Pension Fund"), the Pension Fund, and the Local Union No. 186 ("Local 186") improperly denied his application for disability pension benefits from the Pension Fund following an automobile accident. See Dkt. No. 1 at 1-3. Plaintiff seeks an order confirming his entitlement to disability pension benefits starting from the date of his disability, $1, 000, 000 in pension benefits, costs, and attorney's fees. Id. at 2-3. Presently before the Court are Local 186's motion to dismiss Plaintiff's complaint pursuant to Rules 12(b)(5) and 12(b)(6) of the Federal Rules of Civil Procedure and motion for attorney's fees. Dkt. No. 18. Plaintiff opposes Local 186's motions and cross moves to amend his complaint. See Dkt. No. 25; Dkt. No. 26 at 6.


In November 2012, Plaintiff suffered injuries as a result of an automobile accident. Dkt. No. 1 at 1. On or about February 18, 2013, Plaintiff filed an application with the Pension Fund for disability pension benefits based on said injuries. Id. At the time, Plaintiff was a duly-enrolled, dues-paying member of Local 186. Id. On or about April 17, 2013, the Pension Fund denied Plaintiff's application for disability pension benefits. Id. The basis for the denial was that "[a] participant must be employed or actively seeking employment that would earn Pension or Vesting Service when the incident or illness that causes the disability occurs." Id. at 1-2. The denial also indicated that according to the Pension Fund's records, Plaintiff "last worked in covered employment in 2008 and [his] Social Security Award does not start until May 2013." Dkt. No. 1-2 at 2.

Plaintiff filed an appeal of the denial with the Pension Fund Board of Trustees on May 9, 2013. Dkt. No. 1 at 2. The Board of Trustees denied his appeal on or about August 6, 2013, "based on the absence of any evidence that [Plaintiff] was actively seeking work during the period between his last date of covered employment in 2008 and the date he became disabled." Dkt. No. 1-4 at 2. The denial of Plaintiff's appeal further provided that "[i]t [was] the Trustees' understanding that [Plaintiff] was working as an operating engineer during this time and that [Plaintiff] was not on [Local 186]'s out of work list when his disability began." Id.

On August 29, 2013, Plaintiff demanded via letter that the Pension Fund provide him with the specific records underlying its determination that he was not actively seeking employment during the relevant time period. Dkt. No. 1 at 2. The Pension Fund did not respond to this letter. Id. On September 9, 2013, Local 186 sent Plaintiff a pin commemorating his twenty-five years of membership in the union. Dkt. No. 1-7. Later that month, Local 186 mailed Plaintiff a schedule of training courses offered for its members from September 1, 2013 through December 31, 2013. Dkt. No. 1-8. In a second letter to the Pension Fund dated October 29, 2013, Plaintiff again requested the records underlying the Pension Fund's benefits determination. Dkt. No. 1-6. The Pension Fund did not provide Plaintiff with the requested records. See Dkt. No. 25 at 2.

Plaintiff commenced this action against Defendants on January 22, 2014. See Dkt. No. 1. Confirmation of service for all Defendants was submitted to the Court on February 10, 2014. See Dkt. No. 4; Dkt. No. 5; Dkt. No. 6. The affidavit for service of summons for Local 186 read, in relevant part, "I served the summons on Belinda Winterbottom, Pension Fund Administrator, who is designated by law to accept service of process on behalf of... Local Union No. 186 on Feb. 4, 2014; 11:50 am." Dkt. No. 4 at 2.

Currently pending before the Court is Local 186's motion to dismiss Plaintiff's complaint in its entirety as against Local 186. Local 186 argues that the complaint must be dismissed against it pursuant to Rules 12(b)(5) and 12(b)(6) of the Federal Rules of Civil Procedure because it was not properly served and because the complaint fails to state a claim upon which relief can be granted. Plaintiff opposes Local 186's motion and cross moves to amend his complaint.


A. Insufficient Service of Process

1. Legal Standards

When a defendant moves to dismiss a complaint under Rules 12(b)(5) and 12(b)(6), the court must address the arguments concerning proper service of process before the arguments as to the alleged failure to state a claim. Norwood v. Salvatore, No. 3:12-CV-1025, 2013 WL 1499599, *2 (N.D.N.Y. Apr. 10, 2013). "Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). The purpose of the service requirements is "to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); see also Durant v. Traditional Invs., Ltd., No. 88 CIV. 9048, 1990 WL 33611, *3 (S.D.N.Y. Mar. 22, 1990) ("[W]hen a defendant receives actual notice of a lawsuit brought against him, technical imperfections with service will rarely invalidate the service").

"On a Rule 12(b)(5) motion to dismiss, the plaintiff bears the burden of establishing that service was sufficient." Khan v. Khan, 360 Fed.Appx. 202, 203 (2d Cir. 2010) (citing Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir. 2005)). If the court determines that service was insufficient, "the court may, but is not required to, dismiss the action. Alternatively, the court may grant leave to allow the plaintiff to cure the insufficiency." Sajimi v. City of New York, No. 07-CV-3252, 2011 WL 135004, *3 (E.D.N.Y. Jan. 13, 2011) (internal citations omitted).

Pursuant to Rule 4(h) of the Federal Rules of Civil Procedure, an unincorporated association must be served by following state law for serving a summons in the state where the district court is located or where service is made, or by

delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and - if the agent is one authorized by statute and the statute so requires - by also mailing a copy of each to the defendant.

Fed. R. Civ. P. 4(h). Section 13 of the New York General Associations Law states that service upon "the president, vice president, treasurer, assistant treasurer, secretary, assistant secretary, or business agent, in his capacity as such, shall constitute service upon a labor organization." N.Y. Gen. Ass'ns Law § 13. Section 13 "is to be construed strictly, and a plaintiff's decision to attempt service on a person not listed in that section is inadequate." Heavy Constr. Lumber, ...

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