UNITED STATES DISTRICT COURT 


NORTHERN DISTRICT OF ILLINOIS 


Thomas Kuznar, as administrator ofthe "Estate of 

Emilia Piastowska Kuznar (11 P 6624), Deceased", 

Plaintiff, 

v. Case No.1: 11-cv-09229 

HON. JOAN HUMPHREY LEFKOW 

Anna Kuznar, 

Defendant. 

ANNA KUZNAR'S MOTION TO DISMISS PLAINTIFF'S INITIAL PLEADING 

PURSUANT TO FRCP 12(b)(6), 12(b)4), 12(b)(2) AND 12(b)(7) 

NOW COMES Anna Kuznar by and through her attorneys, and for her Motion To 

Dismiss Plaintiff's Initial Pleading Pursuant To FRCP 12(b)( 6), 12(b)( 4), 12(b )(2) and 12(b )(7) 

states: 

1. Anna Kuznar asserts that the initial pleading filed on behalf ofthe newly opened Estate 

ofthe deceased Emilia Piastowska requesting a judgment against Anna Kuznar is defective as a 

pleading and thus fails to state a claim upon which relief can be granted in ways which include, 

but are not necessarily limited to, the following: 

a. The initial pleading by this newly opened Estate with regard to an ERISA· 

governed pension plan and benefits, was erroneously filed as a motion for summary judgment 

when it should have been initiated as a new complaint. The Estate ofthe foreign decedent, 

Emilia Piastowska, was allowed to be opened in the Cook County Circuit Court in December 

2011 (herein sometimes "Emilia's Estate"). (See paragraph 9 ofPlaintiff's initial pleading.) This 

Estate is a newly-created entity. Like any other person or entity, Emilia's Estate must comply 

1 20121R&MChenlSlSmolakIPlcadmplUS District Cow1-lUinoIslFRCP 12(b)(6) mooofufoc 

Case: 1:11-cv-09229 Document #: 12 Filed: 01/09/12 Page 1 of 19 PageID #:45
with applicable statutes and court rules. However, when Emilia's Estate chose to file a request 

for reliefin Illinois, instead of filing a complaint as required pursuant to 735 ILCS 5/2-201(a) 

(which provides that "[e]very action, unless expressly provided by statute, shall be commenced 

by the filing of a complaint. The clerk shall issue summons upon request ofthe plaintiff . . .") 

the Estate inexplicably filed a '"motion for summary judgment" as its initial pleading without any 

complaint first being filed. 

b. In addition, instead ofbeing filed as a new complaint with its own caption and 

case number, the "motion for summary judgment" was erroneously filed under the case number 

and case caption ofthe estate of another deceased individual, Mitchell Kuznar an estate 

proceeding in which the Estate ofthe foreign decedent Emilia is not a party. Moreover, the relief 

being sought in this initial pleading by Emilia's Estate involves ERISA proceeds which are not a 

probate asset of Mitchell Kuznar who died in 1995. The "motion for summary judgment" by 

Emilia's Estate only requests relief against Anna Kuznar and does not request any relief against 

or on behalf ofMitchell's Estate or allege that the "motion" involves any probate asset of 

Mitchell's Estate. 

c. The initial "motion" pleading by Emilia's Estate fails to adequately set forth a 

cognizable legal claim or facts sufficient to support a legal claim. The "motion" makes a 

conclusory allegation about "federal ERISA laws" (see paragraph 6 ofPlaintiffs initial pleading) 

but fails to allege what provisions offederal law Emilia's Estate is relying on for its request for 

relief. In addition, the "motion" fails to allege facts sufficient to support any legal claim against 

Anna Kuznar. 

d. In addition, the initial "motion" filed on behalf of Emilia's Estate is incorrect in 

its form and fails to comply with the requirements ofFRCP 3, 8(a) and 10. 

2 2012lR&MClientsiSmolakiPleadtngs'US Di5ln<:t Coun -lllinoisIFRCP 12(b)(6) motion.doc 

Case: 1:11-cv-09229 Document #: 12 Filed: 01/09/12 Page 2 of 19 PageID #:46
2. The initial pleading by Emilia's Estate ("motion for summary judgment") requesting a 

judgment against Anna Kuznar is also defective because no summons was ever sought or issued. 

Pursuant to FRCP 4( c) a summons must be served with a copy ofthe complaint. (See also 735 

ILCS 5/2-20l(a) cited in paragraph lea) above). Here, where there was no summons and hence 

no "process" issued at all it is clear that there was "insufficient process" under FRCP l2(b)(4), 

thus requiring dismissaL J 

3. Because ofthe defects described above, including but not limited to, the failure to name 

Anna Kuznar as a Defendant even in the caption of the defective "motion" pleading initially filed 

by Plaintiff and the failure to have a summons issued against her, this court lacks personal 

jurisdiction over Anna Kuznar, requiring dismissal ofthe Plaintiffs "motion for summary 

judgment" under FRCP 12(b)(2). 

4. Plaintiffs initial pleading requesting a judgment against Anna Kuznar is also defective for 

failing to join a necessary party under FRCP 19 in that the request for relief against Anna Kuznar 

alleges apparently that certain ERISA pension plan proceeds were wrongly distributed to Anna 

Kuznar but fails to join as a defendant the party which made those payments, the administrator of 

the 401(k) plan (the Kraft Plan), and in that it asks the court to interpret the terms ofthe ERISA 

401 (k) pension plan without joining as a defendant the administrator ofthat plan. 

5. Anna Kuznar incorporates by reference herein the Brief filed in support ofthis Motion. 

WHEREFORE, Anna Kuznar respectfully requests that this Honorable Court grant the 

following relief: 

1 A summons sets forth a time frame and procedure for a defendant to respond and raise any answer, 

affirmative defenses and counterclaims that the defendant may have. If a Court allowed a Plaintiff to 

bypass the normal process due to a party against whom a judgment is sought by filing a motion under 

some other party's preexisting case number (as the plaintiff did in this case) rather than a complaint and 

summons, thus eliminating a defendant's ability to file and adjudicate defenses or counterclaims he/she 

may have, it would constitute a violation of due process guarantees under the U.S. Constitution. 

3 2012!R&MClicruslSmolakJPleadingsfUS Dis.trkt Court ~ IUinoisIFRCP 12(b)(6) mooOlnioc 

Case: 1:11-cv-09229 Document #: 12 Filed: 01/09/12 Page 3 of 19 PageID #:47
A. Issue an order dismissing Plaintiff's initial pleading ("motion for summary 

jUdgment") because it is defective and fails to state a claim upon which relief can be granted 

under FRCP 12 (b)(6), because there was no process issued and hence process was insufficient 

under FRCP 12(b)(4), because the Court lacks personal jurisdiction ofAnna Kuznar under FRCP 

12(b)(2), and/or because it fails to join a necessary party under FRCP(b)(7). 

B. Award costs and attorney fees to Anna Kuznar. 

C. Award such other and further relief to Anna Kuznar as the Court deems 

warranted. 

Dated: January 9, 2012 

Respectfully submitted, 

RENTROP & M9RRIS,..O!#?' ," ,

By: ; "t YVi7' /A17,:.r:; if...P / d t-/~vrA,-.'l,_ fIJ.~ }'Gary R. Rentrop (P19367) 

Susan E. Morrison (P30834) 

Attorneys Pro Hac Vice 

for Anna Kuznar 

40950 Woodward Ave., Suite 300 

Bloomfield Hills, MI 48304 

(248) 644-6970 ~ 

" 1_ 1 

' ,,' II it. h'~ J / / ,/lj[L(,f~ ~ 

Adam J. Augustynski J 

Attorney for Anna Kuznar 

5850 W. Bryn Mawr A venue 

/~',-c;",41 Yt-<JIL(,. v c. Iv 

/,-4. L· 'OK IChicago, IL 60646; 773-0044; Attorney 

Number 27556 

4 20l2lR&MCHe:ms/SmOlaklPleadingslL'S District Coon -lUinoi&IFRCP 12(b)(6) motion,doc 

Case: 1:11-cv-09229 Document #: 12 Filed: 01/09/12 Page 4 of 19 PageID #:48
UNITED STATES DISTRICT COURT 


NORTHERN DISTRICT OF ILLINOIS 


Thomas Kuznar, as administrator ofthe "Estate of 

Emilia Piastowska Kuznar (11 P 6624), Deceased", 

Plaintiff, 

v. Case No. 1:11-cv-09229 

HON. JOAN HUMPHREY LEFKOW 

Anna Kuznar, 

Defendant. 

BRIEF IN SUPPORT OF ANNA KUZNAR'S MOTION TO DISMISS 


UNDER FRCP 12(b)(6), 12(b)(4), 12(b)(2) AND 12(b)(7) 


Background 

The estate ofthe foreign decedent, Emilia Piastowska, was allowed to be opened in the 

Cook County Circuit Court in December of20l1 (see paragraph 9 of Plaintiffs initial pleading 

filled as a "motion for summary judgment"). This newly-created entity ("Emilia's Estate") 

through its appointed administrator inexplicably filed this "motion for summary judgment" 

seeking a judgment in the amount of$207,504.79 against Anna Kuznar as its initial pleading 

without any complaint being first filed or any summons issued. 

Anna Kuznar (now 77 years old), despite being married to Mitchell Kuznar in Illinois for 

over 24 years, and caring for him until his death in 1995, was nonetheless deemed to be the 

putative spouse (rather than legal spouse) ofthe deceased Mitchell Kuznar by the Illinois 

appellate court in 2004. However, a putative spouse under Illinois law acquires "the rights 

conferred upon a legal spouse," and where there is a legal spouse and a putative spouse the 

"court shall apportion property, maintenance and support rights among the claimants as 

appropriate in the circumstances and in the interests ofjustice." 750 ILCS 5/305 [emphasis 

1 20 121R&M ClicnlSlSmolaklPIeadittgsIUS District Court - IUinoisJBnef in Support ofMolion to Dismiss.doc 

Case: 1:11-cv-09229 Document #: 12 Filed: 01/09/12 Page 5 of 19 PageID #:49
I 

added] 1. The significant rights ofputative spouses were recognized in a prior decision from the 

Northern District of Illinois, Central States Pension Fund v. Susie Bell Washington Gray and 

Gwendolyn Bernice Gray, 2003 WL 22339272 (U.s. District Court, N.D. Ill, Case No. 02 C 

8381, Oct. 10,2003) (unpublished, attached hereto as Exhibit A) - a case which also involved 

the analysis of how surviving spouse benefits should be distributed under an ERISA pension plan 

in a situation where there was a legal spouse and a putative spouse. To date, no putative spouse 

apportionment hearing has ever been held by any court to detennine what apportionment is 

appropriate as between Emilia Piastowska and Anna Kuznar. 

Argument 

A. 	 Plaintiff's Initial Pleading Should be Dismissed Under Rule 12(b)(6), (b)(4) and (b)(2) of 

the Federal Rules ofCivil Procedure. 

In addressing the defective initial pleading filed by the Plaintiff without any summons 

being sought or issued, several ofthe FRCP 12(b) defenses are intertwined. FRCP 12(b)(6) sets 

750 ILCS 5/305 provides in full: 


"§ 305. Putative spouse. Any person, having gone through a marriage 


ceremony, who has cohabited with another to whom he is not legally married in 


the good faith belief that he was married to that person is a putative spouse until 


knowledge ofthe fact that he is not legally married terminates his status and 


prevents acquisition offurther rights. A putative spouse acquires the rights 


conferred upon a legal spouse, including the right to maintenance following 


termination of his status, whether or not the marriage is prohibited, under Section 


212, or declared invalid, under Section 301. If there is a legal spouse or other 


putative spouse, rights acquired by a putative spouse do not supersede the rights 


ofthe legal spouse or those acquired by other putative spouses, but the court 


shall apportion property, maintenance and support rights among the claimants as 


appropriate in the circumstances and in the interests of justice. This Section shall 


not apply to common law marriages contracted in the State after June 30, 1905." 


[emphasis added] 


Cases discussing this statute include the following: Daniels v. Retirement Board ofthe 

Policeman's Annuity and Benefit Fund, 106111.App.3d 412,62 IIl.Dec. 304, 435 N.E. 2d 

(l sl Dist.1982); and In Re Marriage of Flores, 96 Ill.App3d 279, 51 IlI.Dec. 885,421 

N.E.2d 393,395 (PI District 1981). 

2 20 l2/R&M ClienWSmolaklPl~'US District Court -lUinoi&IBnef in Support orMation to Dismiss.do<: 

Case: 1:11-cv-09229 Document #: 12 Filed: 01/09/12 Page 6 of 19 PageID #:50
forth the defense of "failure to state a claim upon which relief can be granted" as a defense that 

may be asserted by motion before a responsive pleading. FRCP 12(b)(4) and 12(b)(2) set forth, 

respectively, the defenses of "insufficient process" and "lack of personal jurisdiction" that may 

be asserted by motion before a responsive pleading. 

In examining Plaintiff's initial pleading, multiple defects are apparent on its face. FRCP 3 

provides that a "civil action is commenced by filing a complaint with the court." Illinois law 

similarly provides at 735 ILCS 5/2-201 that "[e]very action, unless otherwise expressly provided 

by statute, shall be commenced by the filing of a complaint. The clerk shall issue summons upon 

request ofthe plaintiff ..." FRCP 10 provides, in pertinent part as follows with regard to the 

form of pleadings: 

(a) Caption; Names of Parties. Every pleading must have a caption with the 

court's name, a title, a file number, and a Rule 7(a) designation. The title of the 

complaint must name all the parties. . . . 

(b) Paragraphs; Separate Statement. A party must state its claims or defenses 

in numbered paragraphs, each limited as far as practicable to a single set of 

circumstances.... 

FRCP 8 provides in pertinent part: 

(a) Claim for Relief. A pleading that states a claim for relief must contain: 

* * * * 

(2) a short and plain statement of the claim showing that the pleader is entitled to 

relief; and 

(3) a demand for the relief sought, which may include relief in the alternative or 

different types ofrelief. 

FRCP 4(a) further provides what is required in the contents of a summons which must be signed 

by the court clerk, and FRCP 4(c) requires that "[a] summons must be served with a copy ofthe 

complaint." 

Plaintiff's initial pleading is defective because it not only fails to name in the caption the 

party against whom it requests a judgment - Anna Kuznar but erroneously includes in the 

3 20121R&M ClienlSlSmolaklPleadingsIUS District Coun - flHnoislBriet' in Support ofMotion to Dismis$.doc 

Case: 1:11-cv-09229 Document #: 12 Filed: 01/09/12 Page 7 of 19 PageID #:51
caption the name and case number of the deceased Estate of Mitchell Kuznar even though the 

request for relief asks for no relief against (or on behalf of) Mitchell's Estate nor does it involve 

any probate asset of Mitchell Kuznar. 

Plaintiff's initial pleading also is defective and fails to state a claim because it does not 

adequately set forth a cognizable legal claim or facts sufficient to support a legal claim against 

Anna Kuznar. Conclusory allegations by the Plaintiff regarding "federal ERISA laws" (in 

paragraph 6 of Plaintiff s initial pleading) with no statutory citations at all or any allegations as 

to the material elements of any claim, are too vague to comply with the minimum requirement 

under FRCP 8(a)(2) of showing how the Plaintiff is entitled to the relief requested. Further, the 

allegations of Plaintiff appear to relate to distribution of pension benefits, which are actions of 

the plan administrator as opposed to Anna Kuznar. As stated by the Court in Pleva v. Norquist, 

195 F.3d 905,911 (7th Cir.1999): 

A complaint is properly dismissed under 12(b)(6) if looking only at the pleadings, 

taking all the facts alleged by the plaintiff to be true, and construing all inferences 

in favor ofthe plaintiff, the plaintiff fails to state a claim upon which relief can be 

granted. 

See also, Stevens v. Umsted, 921 F.Supp. 530, 532 (C.D.IlI. 1996) ("Although a complaint is 

not required to contain a detailed outline ofthe claim's basis, it nevertheless 'must contain either 

direct or inferential allegations respecting all the material elements necessary to sustain a 

recovery under some viable legal theory."') 

Plaintiff's initial pleading is also defective because Plaintiff failed to obtain a summons 

as required when a suit is initiated under either federal or Illinois law. This lack of a summons 

means there has been insufficient process under FRCP 12(b)(4). This fundamental defect should 

result in dismissal ofPlaintiff's initial pleading. 

4 2012/R&M Clicnts/SmQJaklPleadings/US Dislrict Court- liIinoisIBrief in Support of Motion to Dismi55-do¢ 

Case: 1:11-cv-09229 Document #: 12 Filed: 01/09/12 Page 8 of 19 PageID #:52
Because ofthe defects either under FRCP 12(b)(6) or 12(b)(4) described above, there is 

also no personal jurisdiction over Anna Kuznar and this Court should order dismissal of 

Plaintiffs initial pleading under FRCP 12(b)(2). See, for example, Robinson v. Turner, 886 F. 

Supp. 1460, 1461- 1462 (S. D. Ind. 1995) and cases cited therein ("Some courts do not make a 

distinction between the two motions [FRCP 12(b)(5) and 12(b)(2)] because, where there has 

been insufficient service of process, the court does not have personal jurisdiction over the 

individual.") 

B. 	 Plaintiffs Initial Pleading Should be Dismissed Under Rule 12(b)(7) ofthe Federal rules 

ofCivil Procedure. 

FRCP 12(b )(7) sets forth the defense of "failure to join a party under Rule 19" as a 

defense that may be asserted by motion before a responsive pleading. FRCP 19( a)(I) provides as 

follows: 

"(1) 	Required Party. A person who is subject to service of 

process and whose joinder will not deprive the court of 

subject-matter jurisdiction must be joined as a party if: 

(A) in that person's absence, the court cannot accord 

complete relief among existing parties; or 

(B) that person claims an interest relating to the subject of 

the action and is so situated that disposing ofthe action 

in the person's absence may: 

(i) 	as a practical matter impair or impede the person's 

ability to protect the interest; or 

(ii) leave an existing party subject to a substantial risk of 

incurring double, multiple, or otherwise inconsistent 

obligations because ofthe interest." 

The Plaintiffs initial pleading is based on a pension plan governed by ERISA and the 

Plaintiff makes certain allegations (in paragraph 6 ofthe initial pleading) about required 

"distribution." The party who makes distributions under an ERISA pension plan is the plan 

administrator. Since the Plaintiff is asking the Court to interpret the terms of the pension plan 

and to rule on whether or not certain distributions by the administrator were lawful, the court 

5 lOl2!R&M Clie:n.WSmotakJPleadingsillS District Court - Tllinois/Bnef in Support of Motion to Disrnl$!t,doc 

Case: 1:11-cv-09229 Document #: 12 Filed: 01/09/12 Page 9 of 19 PageID #:53
should dismiss the initial pleading of Plaintiff for failing to join that plan administrator as a 

necessary party. Clearly when there is apparently an allegation of unlawful conduct by the plan 

administrator (distributions which violate ERISA), that person should have the opportunity to 

defend against such an allegation. Failure to join the 401(k) plan administrator will "impair or 

impede" the pension plan's ability to protect its interests and hence it is a necessary party under 

FRCP 19(a)(l). See,~, Lester v. Framatome, ANP, Inc., 2006 WL 28500012 (W.D.Va. 2006) 

(unpublished, attached as Exhibit B ) (court ordered ERISA pension plan joined as a necessary 

party); and General Houses v. Reconstruction Finance Corporation, 81 F. Supp. 202 (N.D. Ill. 

1948) (court sua sponte dismissed an amended complaint for failure to join an indispensable 

party). 

CONCLUSION 

For the reasons set forth above and in the motion filed herewith, Anna Kuznar 

respectfully requests that this Honorable Court grant the relief requested in her Motion to 

Dismiss Under FRCP12(b)(6), 12(b)(4), 12(b)(2) and 12(b)(7). 

Respectfully submitted, 

RENTROP & M~iJUUSONC:~~'/. , 

Dated: January 9, 2012 By: :;:!D&lJ_tl.LA-tl--?i--~ , Gary R. Rentrop (P19367) 

Susan E. Morrison (P30834) 

Attorneys Pro Hac Vice 

for Anna Kuznar 

40950 Woodward Ave., Suite 300 

Bloomfield Hills, MI 48304 

(248) 644-6970 

/zt~, "" f41 " "~ ".5ZI+L 

Adam J. Au tynskl (I-.R.-<.. c~ 

Attorney for Anna Kuznar 

5850 W. Bryn Mawr Avenue 

Chicago, IL 60646; 773-0044; Attorney 

Number 27556 

6 2012!R&M ChcmslSmo!ak/Pleadmgs/I:S DiSlnct Court - UbnoisIBrief m Suppon orMation 10 Dismiss.doc 

Case: 1:11-cv-09229 Document #: 12 Filed: 01/09/12 Page 10 of 19 PageID #:54
EXHIBIT A 


Case: 1:11-cv-09229 Document #: 12 Filed: 01/09/12 Page 11 of 19 PageID #:55
C 

Westlaw. 


Page 1 

Not Reported in F.Supp.2d, 2003 WL 22339272 (N.D.Ill.), 3 I Employee Benefits Cas. 1748, Pens. Plan Guide 

(CCH) P 23985T 

(Cite as: 2003 WL 22339272 (N.D.IIl.)) 

United States District Court, 


N.D. Illinois, Eastern Division. 


CENTRAL STATES, Southeast and Southwest 


Areas Pension Fund, and Howard McDougall, trust­


ee, Plaintiff, 


v. 


Susie Bell Washington GRAY and Gwendolyn Ber­


nice Gray, Defendants. 


No. 02 C 8381. 


Oct. 10,2003. 


MEMORANDUM OPINION AND ORDER 


PLUNKETT, Senior J. 

*1 This interpleader action comes before us on the 

cross-motions of defendant Susie Bell Washington 

Gray ("Susie") and defendant Gwendolyn Bernice 

Gray ("Gwendolyn") for summary judgment. For 

the following reasons, Susie's motion is denied and 

Gwendolyn's motion is granted. We tmd that 

Gwendolyn is John's "surviving spouse" and is entitled to the fifty percent surviving spouse benefit. 

Facts 

The facts in this case are undisputed. John Henry 

Gray ("John") married Susie in December 1965 in 

Louisiana. They separated in 1970, and a formal 

judgment of separation was entered by the First Judicial District Court of Caddo Parish, Louisiana on 

August 18, 1971. No divorce decree was ever obtained. Undeterred, Susie then married Milton Lee 

("Milton") in August 1973 in Louisiana and John 

married Patricia Gray ("Patricia") in October 1984, 

even though Susie and John's marriage was never 

legally terminated John divorced Patricia in June 

1997 and married Gwendolyn in Texas in February 

2000. John remained married to Gwendolyn until 

his death in May 2001. Susie is still married to 

Milton. 

John was covered by the Central States, Southeast 

and Southwest Areas Pension Fund (the· "Fund"). 

The Fund administers the Central States, Southeast 

and Southwest Areas Pension Plan, an employee 

pension benefit plan covered by ERISA FNI (the 

"Plan"). The Plan provides, among other benefits, a 

fifty percent Joint and Surviving Spouse lifetime 

benefit ("JSS Benefit") to the surviving spouse of a 

deceased Plan participant. The amount of the JSS 

Benefit varies with each recipient, depending upon 

the Plan participanfs covered service, as defined in 

the Plan documents, and the age ofthe recipient. 

FNI. ERISA is the Employee Retirement 

Income Security Act of 1974, as amended, 

29 U.S.c. § 1001, et seq. 

Upon John's death, Gwendolyn applied for the JSS 

Benefit and the Fund paid her $305.97 FN2 each 

month from June 2001 through November 200l. 

Susie applied for the JSS Benefit in March 2002, 

stating that she was the surviving spouse of John. 

Uncertain as to who is John's surviving spouse, the 

Fund suspended payments to Gwendolyn and 

brought this interpleader action. The Fund has deposited $5,738.43 in an account with the Court for 

past due pension benefits and will make future JSS 

Benefit payments to whomever is determined to be 

John's surviving spouse. 

FN2. The Fund has since determined that 

Gwendolyn's JSS Benefit, should it be determined that she is the proper recipient, is 

$302.97 per month for life rather than 

$305.97. If Susie is the rightful recipient of 

the JSS Benefit, her monthly payment 

would be $314.05. (CompL'II1 6, 31.) 

On June 23, 2003, Susie moved for summary judgment, claiming that she was still legally married to 

John at the time of his death and that the JSS Benefit should be paid to her. She submitted a support­

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. 

EXHIBIT A 

Case: 1:11-cv-09229 Document #: 12 Filed: 01/09/12 Page 12 of 19 PageID #:56
· Page 2 

Not Reported m F.Supp.2d, 2003 WL 22339272 (N.D.Ill.), 31 Employee Benefits Cas. 1748, Pens. Plan Guide 

(CCH) P 23985T 


(Cite as: 2003 WL 22339272 (N.D.IU.» 


ing affidavit in which she states she was married to 

John on December 6, ] 965 in Caddo Parish, Louisiana. She also states that she and John had one child, 

Kenneth, born in December 1966, that she and John 

separated in January 1970 but that they never divorced, and that she was still married to John at the 

time of his death in May 2001. (Susie Gray Mot. 

Summ. J. Ex. A.) She also submitted a copy of her 

and John's marriage license and a copy of the judgment of separation from a Louisiana court. (Id Exs. 

B, C.) In addition, Susie has attached an opinion 

letter from Billy R. Casey, an attorney in Shreveport, Louisiana. Casey opined that, under Louisiana 

Jaw, Susie and John were still legally married to 

each other at the time of John's death, but the community property between Susie and John ended on 

the date the legal separation was filed. Casey also 

opined that Susie was entitled to one-half of any 

401K pension earned from the date of their marriage to the filing date of the legal separation and 

that under Louisiana law, Kenneth was entitled to 

the remainder ofthe 401K pension. (ld Ex. D.) 

*2 Gwendolyn also filed a motion for summary 

judgment asserting her right to receive the JSS Benefit. In support, Gwendolyn submitted an affidavit 

which states that she was married to John in February 2000 and remained married to him until his 

death in May 2001 (Gwendolyn Gray Mot. Summ. 

J. Ex. 6.) Gwendolyn also submitted copies of 

Susie's petition for separation and custody, filed in 

Caddo Parish, Louisiana in June 1971, and judgment of separation, rendered in August 1971. (ld 

Ex. 2.) Also submitted with her motion was a copy 

of Milton's affidavit for a marriage license, which 

indicates that Susie had no prior marriage, and a 

copy of her and John's marriage license, issued in 

Texas. (Id Exs. 3, 5.) 

Discussion 

This motion presents the foUowing issue: who is 

John's "surviving spouse" and thus, the rightful recipient of the JSS Benefit-Susie, who married John, 

legally separated from him but never divorced him 

and then subsequently married another, or Gwendolyn. who participated in a marriage ceremony 

with John in 2000 and remained married to him until the time ofhis death? 

We :first look to the words of the Plan itself for 

guidance but find precious little there to help; we 

find a dermition of "dependent child" but no dermition of "spouse" or "'surviving spouse." Because 

there is no federal domestic relations law and marriage and divorce are traditional subjects of state 

regulation, we must look to state law to determine 

who (Susie or Gwendolyn) is the "surviving 

spouse" under the Plan. Croskey v. Ford Motor 

Company-UA~ 2002 WL 974827, at *4 (May 6, 

2002 S.D.N.Y.). Three states' laws are potentially 

applicable in this case: Illinois, where the Plan is 

administered; Louisiana, where Susie and John 

were married and where Susie continues to reside; 

and Texas, where Gwendolyn and John were married and lived at the time ofJohn's death. 

Gwendolyn argues that Illinois law should govern. 

In support of that position, she refers us to a section 

of the Plan which states: "All questions pertaining 

to the validity of construction of this Pension Plan 

shall be detennined in accordance with the laws of 

the State of I1linois and, to the extent of preemption with the laws and regulations of the United 

States." (Compl. Ex. A § 7.11.) Gwendolyn argues 

that under llIinois law, Susie should be equitably 

estopped from claiming to be John's lawful spouse. 

Susie intended to end her marriage to John. as evidenced by the legal separation, and presumably believed, in fact, that the marriage was legally tenninated, as evidenced by Susie's subsequent marriage 

to Milton. According to Gwendolyn, it would be inequitable and unfair to now allow Susie to reap the 

benefits of being John's spouse when Susie took advantage ofthe end ofthe marital relationship. 

Gwendolyn argues that even if Illinois law does not 

apply, under Louisiana law, the result is the same. 

In Louisiana, even if a marriage is null due to some 

impediment, such as one party's prior undissolved 

marriage, civil effects still flow from that null mar­

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Worlcs. 

Case: 1:11-cv-09229 Document #: 12 Filed: 01/09/12 Page 13 of 19 PageID #:57
Page 3 

Not Reported in F.Supp.2d, 2003 WL 22339272 (N.D.I1L), 31 Employee Benefits Cas. 1748, Pens. Plan Guide 

(CCH) P 23985T 

(Cite as: 2003 WL 22339272 (N.D.IJI.)) 

riage in favor of the party who contracted the marriage in good faith, that party being known as a 

"putative spouse." Gwendolyn argues that she contracted the marriage with John under a reasonable 

and honest belief that the marriage was valid and 

with no knowledge of the legal impediment. As a 

putative spouse, she claims she is entitled to the 

JSS Benefits. 

*3 Susie argues against the application of Illinois 

law, stating that this issue is not a matter of pension 

plan construction and that Illinois has no nexus 

with the issue involved. She argues instead for the 

application of Louisiana law and relies on Casey's 

legal opinion in support of her right to receive the 

JSS Benefits. 

We do not find Louisiana law applicable; the only 

connection that state has with the parties is that it is 

where Susie currently lives, and where she and 

John were married and obtained their legal separation. Although neither Gwendolyn nor Susie addressed the applicability of Texas law, we find that 

law to be applicable here. The question before us 

concerns who is John's "surviving spouse," and it 

seems that the law of John's domicile at death 

provides the proper reference. See Croskey, 2002 

WL 974827, at *5 (looking to law of insured's domicile at death to determine who is lawful widower in 

ERISA case because insured's domicile is state 

most interested in questions of insured's marital 

status). 

Looking to Texas law, we find that Gwendolyn is 

the rightful recipient of the JSS Benefits. Like 

Louisiana, Texas has the concept of "putative 

spouse" and "putative marriage". "A putative marriage is one that was entered into in good faith by at 

least one of the parties, but which is invalid by 

reason of an existing impediment on the part of one 

or both of the parties." Garduno v. Garduno, 760 

S.W.2d 735, 738 (Tex.App.1988). Where a putative 

marriage exists, a putative spouse acting in good 

faith has the same right in property acquired during 

the marital relationship as if she were a lawful 

spouse. ld at 739. We find that Gwendolyn and 

John's marital situation fits these circumstances. 

Good faith on the part of Gwendolyn is presumed; 

we have no reason to believe that she was aware 

that John's prior marriage to Susie was not dissolved. See id at 740. 

In addition, Texas courts have applied an acceptance-of-the-benefits doctrine to prevent one from 

collaterally attacking a divorce decree when one 

has previously accepted the benefits of the decree. 

See Hawkins v. Hawkins, 999 S.W.2d 171, 178 

(TexApp.l999). The doctrine is based on the equitable principle of estoppel and precludes a litigant 

from accepting the benefits of a judgment and then 

subsequently challenging that portion of the judgment affording him those benefits. See Carle v. 

Carle, 234 S.W.2d 1002, 1004 (Tex.1950). Although Susie and John never divorced, we find the 

principles expressed by this doctrine applicable 

here. Susie has accepted the benefit of the termination of her marital relationship with John for the 

past thirty years as she married Milton in 1973 and 

remains married to him.FN3 See Hawkins, 999 

S.W.2d at 178 (remarriage by a party to a divorce 

estops that party from attacking the marriage dissolution). 

FN3. We think it significant that Susie 

omitted certain relevant facts from her motion for summary judgment, namely that 

she married Milton in 1973 and remains 

married to him. We draw no conclusion, 

however, from the fact that Susie's prior 

-. 	 marriage to John was omitted from 

Milton's marriage license application. 

(Gwendolyn Gray Mot. Summ. J. Ex. 3.) 

Gwendolyn states that Susie committed 

fraud by failing to include her prior marriage on the application. Susie correctly 

points out, however, that the affidavit application was made by Milton. 

Our analysis of Texas law leads us to conclude that 

Gwendolyn is John's putative spouse, thus John~s 

surviving spouse under the Plan and the proper recipient of the JSS Benefits. Moreover, this conclu­

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. 

Case: 1:11-cv-09229 Document #: 12 Filed: 01/09/12 Page 14 of 19 PageID #:58
Page 4 

Not Reported in F.Supp.2d, 2003 WL 22339272 (N.D.Jll.), 31 Employee Benefits Cas. 1748, Pens. Plan Guide 

(CCH) P 23985T 


(Cite as: 2003 WL 22339272 (N.D.m.» 


sion is consistent with Congress's goal of protecting 

the economic security of surviving spouses when it 

modified the survivor annuity provisions of ERISA 

in 1984 to make them more protective of surviving 

spouses. See Boggs v. Boggs 520 U.S. 833, 843-844 

(1997). Nothing submitted to us leads us to reasonably conclude that Susie has economically relied on 

Jo1m since their separation or that she anticipated 

receiving a monetary benefit upon John's death because she was his spouse. See Butler v. Bolinger, 

133 So. 778 (La.Ct.App.193I ) (a separation <La 

mensa et thoro" in Louisiana tem1inates the legal 

regime of community property). 

*4 Even if Illinois law applied, we would [md the 

same result. First of all, we note that for certain domestic matters, Illinois relies on the principles contained in the Restatement (Second) of Conflicts (the 

"Restatement") to resolve conflict-of-laws questions. in re Marriage of Adams. 551 N.E.2d 635, 

639 (1ll.1990). Section 283 of the Restatement says: 

"The validity of a marriage will be determined by 

the local law of the state which, with respect to the 

particular issue, has the most significant relationship to the spouses and the marriage .... " Restatement (Second) of Conflict of Laws § 283 (1971). 

This brings us back into the realm of Texas law, 

which we have already discussed. 

Under Illinois substantive law, Gwendolyn is a putative spouse. The Illinois Marriage and Dissolution 

ofMarriage Act says: 

Any person, having gone through a marriage ceremony, who has cohabited with another to 

whom he is not legally married in the good faith 

belief that he was married to that person is a putative spouse.... A putative spouse acquires the 

rights conferred upon a legal spouse ... whether 

or not the marriage is prohibited, under Section 

212, or declared invalid, under Section 301. If 

there is a legal spouse or other putative spouse, 

rights acquired by the putative spouse do not supercede the rights of the legal spouse or those acquired by other putative spouses, but the court 

shall apportion property, maintenance and support rights among the claimants as appropriate in 

the circumstances and in the interests ofjustice. 

750 lLCS 5/305 (1999). The state recognizes that 

Gwendolyn has certain rights as a putative spouse 

but also recognizes that Susie has certain rights. 

However, the statute demands that we apportion 

property and rights "as appropriate in the circumstances and in the interests of justice." Under this 

framewoIX. we conclude that the JSS Benefits 

should be paid to Gwendolyn. 

We come to this conclusion applying the same 

equitable principles discussed above. Illinois courts 

have applied the rule of estoppel in family law 

cases. "The rule of estoppel [is] founded upon the 

public policy of protecting the marital status and 

good character of innocent third persons .... " Forest 

v. Forest, 291 N.E.2d 880, 882 (IIl.App.Ct.1973) 

(action to set aside divorce decree). We f'md the application of the rule of estoppel appropriate in this 

case. By accepting the benefits of a terminated marital relationship (by way of a judgment of legal separation) with John, it would be contrary to public 

policy to allow Susie to now reject the termination 

of the relationship and receive insurance benefits as 

a surviving spouse.FN4 See Goodman v. Goodman, 

260 N.E.2d 257, 260 (Ill.App.Ct.l970) (defendant's 

challenge to validity of divorce decree was barred 

by estoppel where defendant received substantial 

property from divorce). 

FN4. In addition, we note that the vast majority of the benefits at issue were earned 

by John after the judgment of separation 

was f'mal and during the time Susie was 

married to Milton. 

The facts here lead us to only one conclusion: 

equity mandates that Gwendolyn, who married John 

in good faith and lived with him as his wife until 

his death, is John's surviving spouse under the Plan 

and the proper recipient of the JSS Benefits. Accordingly, defendant Gwendolyn Gray's motion for 

summary judgment is granted; defendant Susie 

Gray's motion for summary judgment is denied. 

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. 

Case: 1:11-cv-09229 Document #: 12 Filed: 01/09/12 Page 15 of 19 PageID #:59
Page 5 

Not Reported in F.8upp.2d, 2003 WL 22339272 (N.D.!I!.), 3] Employee Benefits Cas. ] 748, Pens. Plan Guide 

(CCH) P 23985T 

(Cite as: 2003 WL 22339272 (N.D.IlI.» 

Conclusion 

*5 For the reasons stated above, we grant defendant 

Gwendolyn Gray's motion for summary judgment 

and deny defendant Susie Gray's motion for summary judgment. This is a final and appealable or- der. 

N.D.1l1.,2003. 

Central States v. Gray 

Not Reported in F.Supp.2d, 2003 WL 22339272 

(N.D.IlL), 31 Employee Benefits Cas. 1748, Pens. 

Plan Guide (CCH) P 23985T 

END OF DOCUMENT 

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. 

Case: 1:11-cv-09229 Document #: 12 Filed: 01/09/12 Page 16 of 19 PageID #:60
EXHIBITB 


Case: 1:11-cv-09229 Document #: 12 Filed: 01/09/12 Page 17 of 19 PageID #:61
Not Reported in F.Supp.2d, 2006 WL 2850012 (W.D.Va.) 

(Cite as: 2006 WL 2850012 (W.D.Va.» 

N 

Only the Westlaw citation is currently available. 

United States District Court, 

W.D. Virginia. 

Samuel Robert LESTER, Plaintiff, 

v. 

FRAMATOME, ANP, INC. Defendant. 

No. Civ. 6:06CVOOOI5. 

Sept. 29, 2006. 

Samuel Robert Lester, Lynchburg, V A, pro se. 

David E. Constine, Ill, Andrew Philip Sherrod, 

Troutman Sanders LLP, Richmond, V A, for Defendant. 

ORDER and OPINION 

MOON,J. 

"'1 This matter is before the Court on Defendant's 

unopposed Motion to Dismiss for failure to name a 

necessary party, filed by Framatome, ANP, Inc. 

("Framatome") on August 14, 2006 (docket no. 7). 

For the following reasons, the Court hereby 

GRANTS in part and DENIES in part Defendant's 

motion. Pursuant to Rules 12( b)( 7) and ~~-"-"" 

Federal Rules of Civil Procedure, the Court hereby 

ORDERS that the "Employee Retirement Plan of 

Framatome ANP, Inc. and Participating Subsidiary 

and Affiliated Companies" be ADDED as a defendant in this action. 

I. Background 

Plaintiff is seeking benefits from Defendant under the Employee Retirement Income Security Act of 

1974 ("ERISA"), 29 U.S.c. §§ 1001-1461 (2000). 

(See Compl. para. 17) ("I am asking the court to require Framatome ... to pay me monthly early retirement benefits .... ") 

As Defendant has pointed out, assuming without 

deciding that Plaintiff is entitled to such benefits, the 

liability for paying those benefits would lie not with 

Framatome but instead with Framatome's employee 

retirement plan. (Br. in SUpp. of Framatome ANP's 

Mot. to Dismiss for Failure to Name a Necessary 

Page I 

Party I) That plan is known as the Employee Retirement Plan of Framatome ANP, Inc. and Participating 

Subsidiary and Affiliated Companies ("Framatome 

Plan"). (Br. in SUpp. I) 

II. Standard of Review 

Rule 12( b)( 7) of the Federal Rules of Civil Procedure allows a Court to dismiss an action for failure 

to join a party in accordance with Rule 19. See, e.g., 

RPR & Assocs. v. O'Brien/Atkins Assocs.. 921 

F.Supp. 1457, 1463 (M.D.N.C.1995); 5C Charles 

Alan Wright & Arthur R. Miller, Federal Practice 

and Procedure § 1359 (3d ed. 2004) ("Rule 12( b)( 

11 permits a motion to dismiss when there is an absent person without whom complete relief cannot be 

granted .... "). On a Rule 12( b)( 7) motion, the Court 

initially determines if the absent party should be 

joined as a party in accordance with the criteria set 

forth in Rule 19(a)(I). See RPR, 921 F.Supp. at 1463. 

Rule 19(a)(l) requires a party to be joined to an action if three criteria are met: (1) the party is subject to 

service of process; (2) the joinder will not deprive the 

court of subject matter jurisdiction; and (3) in the 

party's absence, complete relief cannot be accorded 

among those already parties. See Fed.R.Civ.P. 

19(a)(l). If the court determines that all three criteria 

are met, the party will be ordered to join the action 

and dismissal of the action is not required. See RPR. 

921 F.Supp. at 1463. 

III. Discussion 

Here, Plaintiff apparently seeks relief under 29 

U.S.C. § 1132(a)(I)(B), which allows participants or 

beneficiaries to bring a civil action to recover benefits due him under terms of an employee welfare 

benefit plan. 29 U.S.C. § 1132(a)(I)(B) (2000). As 

Plaintiff is seeking early retirement benefits from the 

Framatome Plan, that entity appears to be a necessary 

party. More specifically, Rule 19(a)(l) requires joinder of the Framatome Plan if (I) it is subject to service of process; (2) joinder of the Framatome Plan 

would not deprive the Court of subject matter jurisdiction; and (3) in the absence of the Framatome Plan 

from this action, Plaintiff could not be accorded 

complete relief. 

"'2 Defendant points out in its brief that the 

Framatome Plan meets all three criteria. The FramaEXHIBITB 


© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 

Case: 1:11-cv-09229 Document #: 12 Filed: 01/09/12 Page 18 of 19 PageID #:62
Page 2 

Not Reported in F.Supp.2d, 2006 WL 2850012 (W.D.Va.) 

(Cite as: 2006 WL 2850012 (W.n.Va.» 

tome Plan is subject to service of process (Br. in 

Supp. 6), joinder of the Framatome Plan would not 

destroy subject matter jurisdiction (Br. in Supp. 6) 

("[A]s this matter is undisputedly one involving a 

federal question arising under ERISA, its presence 

would not affect the Court's jurisdiction over this 

matter."), and Plaintiff here cannot be accorded complete relief if the Framatome Plan were not added 

(Br. in SUpp. 4-5) ("[T]he relief sought by Plaintiff ... 

would come from the assets of the Framatome Plan, 

and not from Framatome itself. Thus, in the absence 

of the Framatome Plan, complete relief cannot be 

accorded."). 

This Court finds, therefore, that the Framatome 

Plan is a necessary party under Rule 19(a)(1) and 

should be joined in this action. The Court hereby 

ORDERS that the "Employee Retirement Plan of 

Framatome ANP, Inc. and Participating Subsidiary 

and Affiliated Companies" be ADDED as a defendant in this action. 

The Clerk of the Court is hereby directed to send 

a certified copy ofthis Order to all counsel of record. 

W.D.Va.,2006. 


Lester v. Framatome, ANP, Inc. 


Not Reported in F.Supp.2d, 2006 WL 2850012 


(W.D.Va.) 


END OF DOCUMENT 

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 

Case: 1:11-cv-09229 Document #: 12 Filed: 01/09/12 Page 19 of 19 PageID #:63