UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DOUGLAS W. STOCKWELL and 

INTERNATIONAL UNION OF OPERATING 

ENGINEERS LOCAL 324, 

 

Plaintiffs, Civil Case No. 15-11609 

 Honorable Linda V. Parker 

v. 

 

JOHN M. HAMILTON and WILLIAM B. ROUGH, 

Defendants. 

________________________________/ 

OPINION AND ORDER DENYING DEFENDANT JOHN M. HAMILTON’S 

MOTION TO DISMISS PLAINTIFFS’ COMPLAINT AND GRANTING 

PLAINTIFFS’ MOTION FOR LEAVE TO FILE FIRST AMENDED 

COMPLAINT

 On May 5, 2015, Plaintiffs Douglas Stockwell and the International Union of 

Operating Engineers Local 324 (“Union”) (collectively “Plaintiffs”) initiated this 

action against Defendants John Hamilton and William Rough.1

 Stockwell is a Trustee 

and participant in the ERISA-regulated Union Pension Fund (“Pension Fund”). He 

also is the Union’s Business Manager and Chief Financial Officer. Hamilton served 

as the Union’s Business Manager and as a Trustee of the Pension Fund until Fall 

 

1 The United States moved to intervene in the lawsuit in order to seek a limited stay 

of certain discovery, which the United States claims may seriously comprise 

pending criminal proceedings. On May 29, 2015, the Court granted the motion 

and stayed certain discovery until November 29, 2015. (ECF No. 16.) The United 

States recently moved to extend the stay for an additional six months. (ECF No. 

42.) 

4:15-cv-11609-LVP-MJH Doc # 50 Filed 02/16/16 Pg 1 of 15 Pg ID 476
2 

2012. Rough is a former employee of the Union’s fringe benefits funds, including the 

Pension Fund. In their Complaint, Plaintiffs allege that Defendants breached their 

fiduciary duties while acting as officers and employees of the Union and the Pension 

Fund, in violation of Sections 404 and 406 of ERISA, 29 U.S.C. §§ 1104, 1106. 

 Presently before the Court are Hamilton’s Motion to Dismiss Plaintiffs’ 

Complaint, filed pursuant to Federal Rule of Civil Procedure 12(b)(6) on July 29, 

2015 (ECF No. 20), and Plaintiffs’ Motion for Leave to File First Amended 

Complaint, filed pursuant to Federal Rule of Civil Procedure 15 on September 30, 

2015. (ECF No. 31.) In his motion to dismiss, Hamilton argues that Plaintiffs’ claims 

are time-barred under ERISA’s statute of limitations, 29 U.S.C. § 1113. Hamilton 

also argues that the Union lacks standing to sue under ERISA, 29 U.S.C. § 1132(a). 

In their response to Hamilton’s motion, filed September 30, 2015, Plaintiffs argue that 

their claims are timely-filed and the Union has standing. (ECF No. 30.) Plaintiffs 

further sought leave to file an amended complaint in response to Hamilton’s motion in 

order to allege those facts necessary to establish the timeliness of their claims. (ECF 

No. 31.) In a response to Plaintiffs’ motion filed October 21, 2015, Hamilton argues 

that Plaintiffs’ proposed amendment is futile and, therefore, Plaintiffs’ request for 

leave to file their amended pleading should be denied. (ECF No. 35.) Because the 

Court finds the facts and legal arguments sufficiently presented in the parties’ 

pleadings, it is dispensing with oral argument with respect to the pending motions 

pursuant to Eastern District of Michigan Local Rule 7.1(f) For the reasons that 

4:15-cv-11609-LVP-MJH Doc # 50 Filed 02/16/16 Pg 2 of 15 Pg ID 477
3 

follow, the Court denies Hamilton’s motion to dismiss and grants Plaintiffs’ motion 

for leave to file their proposed First Amended Complaint. 

Applicable Standards

 A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the 

complaint. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th 

Cir. 1996). Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a 

“short and plain statement of the claim showing that the pleader is entitled to relief.” 

To survive a motion to dismiss, a complaint need not contain “detailed factual 

allegations,” but it must contain more than “labels and conclusions” or “a formulaic 

recitation of the elements of a cause of action . . .” Bell Atlantic Corp. v. Twombly, 

550 U.S. 544, 555 (2007). A complaint does not “suffice if it tenders ‘naked 

assertions’ devoid of ‘further factual enhancement.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 

678 (2009) (quoting Twombly, 550 U.S. at 557). 

As the Supreme Court provided in Iqbal and Twombly, “[t]o survive a motion 

to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 

‘state a claim to relief that is plausible on its face.’ ” Id. (quoting Twombly, 550 U.S. 

at 570). “A claim has facial plausibility when the plaintiff pleads factual content that 

allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The plausibility standard 

“does not impose a probability requirement at the pleading stage; it simply calls for 

4:15-cv-11609-LVP-MJH Doc # 50 Filed 02/16/16 Pg 3 of 15 Pg ID 478
4 

enough facts to raise a reasonable expectation that discovery will reveal evidence of 

illegal [conduct].” Twombly, 550 U.S. at 556. 

Federal Rule of Civil Procedure 15(a) instructs the courts to “freely grant[]” 

leave to amend “where justice so requires.” This is because, as the Supreme Court 

has advised, “[i]f the underlying facts or circumstances relied upon by a plaintiff may 

be a proper subject of relief, he ought to be afforded an opportunity to test his claim 

on the merits.” Foman v. Davis, 371 U.S. 178, 182 (1962). However, a motion to 

amend a complaint should be denied if the amendment is brought in bad faith or for 

dilatory purposes, results in undue delay or prejudice to the opposing party, or would 

be futile. Id. An amendment is futile when the proposed amendment fails to state a 

claim upon which relief can be granted and thus is subject to dismissal pursuant to 

Rule 12(b)(6). Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 

2000). 

Statute of Limitations

 ERISA bars actions for breach of fiduciary duty “after the earlier of (1) six 

years after . . . the date of the last action which constituted a part of the breach or 

violation, . . . or (2) three years after the earliest date on which the plaintiff had actual 

knowledge of the breach or violation.” 29 U.S.C. § 1113 (emphasis added).2

 

 

2 The statute reads in full: 

4:15-cv-11609-LVP-MJH Doc # 50 Filed 02/16/16 Pg 4 of 15 Pg ID 479
5 

In his motion to dismiss, Hamilton argues that the shorter three-year limitations 

period applies to Plaintiffs’ action because the allegations in their Complaint establish 

that the Pension Fund Trustees and counsel for the Board of Trustees and Pension 

Fund had actual knowledge of the purportedly wrongful conduct more than three 

years before this lawsuit was filed. 3 (See ECF No. 20-1 at Pg ID 112.) Because 

Plaintiffs are seeking recovery for the Pension Plan, Hamilton contends that the actual 

knowledge of other Pension Plan Trustees must be imputed to Plaintiffs to render their 

 

No action may be commenced under this subchapter with respect to a 

fiduciary’s breach of any responsibility, duty, or obligation under this 

part, or with respect to a violation of this part, after the earlier of‒

(1) six years after (A) the date of the last action which 

constituted a part of the breach or violation, or (B) in the case of 

an omission the latest date on which the fiduciary could have 

cured the breach or violation, or 

(2) three years after the earliest date on which the plaintiff had 

actual knowledge of the breach or violation; except that in the 

case of fraud or concealment, such action may be commenced 

not later than six years after the date of discovery of such 

breach or violation. 

29 U.S.C. § 1113. The fraud or concealment exception is not at issue in the 

present case. In his motion, Hamilton argues that any asserted acts of fraud or 

concealment occurred after “Plaintiffs” already knew about the conduct 

constituting Defendants’ alleged breaches of their fiduciary duties.” (ECF No. 20-

1 at Pg ID 116-119.) Plaintiffs’ response, however, focuses on when they became 

aware of the conduct, rather than any acts of fraud or concealment. 3 Hamilton also argues in his motion to dismiss that Plaintiffs’ Complaint raises 

claims based on conduct that ceased more than six years before this lawsuit was 

initiated. In response, Plaintiffs clarify that their lawsuit is not premised on that 

earlier conduct. 

4:15-cv-11609-LVP-MJH Doc # 50 Filed 02/16/16 Pg 5 of 15 Pg ID 480
6 

claims time-barred. Plaintiffs argue in response that, as their First Amended 

Complaint would allege, Stockwell only became a Pension Fund Trustee and the 

Union’s Business Manager in September 2012, and he and the Union lacked 

knowledge of the purported wrongful conduct prior to Stockwell assuming those 

positions. (See ECF No. 30 at Pg ID 204-05; see also ECF No. 31, Ex. A ¶¶ 2, 15, 95-

100.) In reply, Hamilton “reiterates” that where a majority of a plan’s trustees were 

aware of the facts supporting the alleged fiduciary breach, that knowledge is imputed 

to a trustee seeking recovery for the plan. (ECF No. 34 at Pg ID 270.) In support, 

Hamilton cites New Orleans Employers International Longshoremen’s Association, 

AFL-CIO Fund v. Mercer Investment Consultants, 635 F. Supp. 2d 1351, 1378 (N.D. 

Ga. 2009) (“Mercer”). 

“Courts have construed the ‘actual knowledge’ requirement [of § 1113(2)] 

strictly; constructive knowledge is inadequate[.]” Mercer, 635 F. Supp. 2d at 1378

(citing Martin v. Consultants & Adm’rs, Inc., 966 F.2d 1078, 1086 (7th Cir. 1992)); 

see also Gluck v. Unisys Corp., 960 F.2d 1168, 1176 (3d Cir. 1992) (describing the 

“actual knowledge” requirement as a “stringent requirement”). Quoting “[a] leading 

case on the actual knowledge exception[,]” the Sixth Circuit Court of Appeals has 

stated that “ ‘[t]o charge [the plaintiff] with actual knowledge of an ERISA violation, 

it is not enough that he had notice that something was awry; he must have had specific 

knowledge of the actual breach of duty upon which he sues.’ ” Rogers v. Millan, No. 

89-3707, 1990 WL 61120, at *4 (6th Cir. 1990) (quoting Brock v. Nellis, 809 F.2d 

4:15-cv-11609-LVP-MJH Doc # 50 Filed 02/16/16 Pg 6 of 15 Pg ID 481
7 

753, 755 (11th Cir. 1987)). As some courts have observed, “ ‘Section 1113 sets a 

high standard for barring claims against fiduciaries prior to the expiration of the 

section’s six-year limitations period.’ ” Reich v. Lancaster, 55 F.3d 1034, 1057 (5th 

Cir. 1995) (quoting Gluck, 960 F.2d at 1176); Montrose Med. Grp. Participating 

Savings Plan v. Bulger, 243 F.3d 773, 787 (3d Cir. 2001). Courts have found that 

“ ‘Congress evidently did not desire that those who violate [ERISA fiduciary] trust 

could easily find refuge in a time bar.’ ” Rogers, 1990 WL 61120, at *4 (quoting 

Brock, 809 F.2d at 754) (bracketed language added here). 

In Mercer, the District Court for the Northern District of Georgia addressed the 

issue of whether the actual knowledge of trustees other than the trustee named as the 

plaintiff should be imputed to the plaintiff, resulting in his action being barred under 

ERISA’s three-year limitations period. 635 F. Supp. 2d at 1379. The plaintiff in 

Mercer, like Hamilton, became a trustee and learned of the defendants’ alleged 

breaches of fiduciary duties less than three years before filing suit. Id. Although 

finding that no circuit court had addressed whether the three-year statute of limitations 

bars an action in such a case and that the few district courts confronting similar 

situations, with one exception, declined to find the three-year limitations period 

applicable, the court held that the actual knowledge of the other trustees should be 

imputed to the plaintiff and concluded that the three-year limitations period therefore 

barred the lawsuit. Id. at 1379-80. The court reasoned that a contrary result would 

enable plaintiffs “to avoid the three-year actual knowledge statute of limitations 

4:15-cv-11609-LVP-MJH Doc # 50 Filed 02/16/16 Pg 7 of 15 Pg ID 482
8 

through careful selection of the named plaintiffs.” Id. at 1380. According to the 

court, “this is an impermissible manipulation of the statute of limitations.” Id. 

As the Mercer court recognized, however, the majority of courts considering 

the issue reached a contrary decision and held that only the actual knowledge of the 

named plaintiffs determines when ERISA’s three-year limitations period begins to 

run. Id. at 1380 (citing Landwehr v. DuPress, 72 F.3d 726, 732-33 (9th Cir. 1995); 

Mason Tenders Dist. Council Pension Fund v. Messera, 958 F. Supp. 869, 882-83 

(S.D.N.Y. 1997); and Useden v. Acker, 734 F. Supp. 978, 980 (S.D. Fla. 1989)). In 

other words, the decision in Mercer is an outlier‒a point that Hamilton fails to share 

with this Court. For example, in Useden, the District Court for the Southern District 

of Florida refused to attribute the knowledge of one trustee to the successor trustee 

who was the named plaintiff. 734 F. Supp. at 980. Similarly in Messera, the District 

Court for the Southern District of New York held that “[a]ctual knowledge is 

measured from the standpoint of the trustees who commenced the lawsuit and cannot 

be attributed to them by the knowledge of prior trustees or other current trustees.” 

958 F. Supp. at 882. 

The Messera court relied on two decisions reaching the same result (notably 

cases not identified by the District Court for the Northern District of Georgia in 

Mercer): Crimi v. PAS Industries, Inc., No. 93 Civ. 6394, 1995 WL 272580 (S.D.N.Y. 

May 9, 1995) and New York State Teamsters Council Health & Hospital Fund v. 

Estate of DePerno, 816 F. Supp. 138 (N.D.N.Y. 1993). In Crimi, the court concluded 

4:15-cv-11609-LVP-MJH Doc # 50 Filed 02/16/16 Pg 8 of 15 Pg ID 483
9 

that ERISA’s shorter limitations period did not bar the action filed by trustees of a 

pension fund even though another trustee (not named as a plaintiff) was aware of the 

alleged ERISA violations more than three years before the lawsuit was initiated. 1995 

WL 272580, at *3. The court reasoned: 

Most consonant with the language of the statute and the purposes 

of ERISA is the interpretation that any trustee who sues as plaintiff and 

does not have actual knowledge of the relevant facts sufficient to make 

an ERISA claim may avail himself of the six year limitations period. In 

the context of what constitutes actual knowledge, courts have construed 

the “actual knowledge” provision narrowly. See Gluck v. Unisys Corp., 

960 F.2d 1168, 1176 (3d Cir. 1992). In light of Congress’s clear purpose 

to protect plan assets, a narrow construction of limitations of actions 

brought by plan trustees is preferable. . . . where one or more trustees 

have failed to pursue an ERISA claim (whether or not such failure 

amounts to a fiduciary violation), another trustee who has no actual 

knowledge of the underlying facts‒ even a successor‒ should not be 

unduly restricted from pursuing claims to protect the integrity of plan 

assets. Indeed, section 413(b) [29 U.S.C. § 1113(2)] itself addresses a 

“plaintiff” with actual knowledge. Since each trustee has an obligation to 

protect the plan assets, each has an obligation to seek enforcement and to 

be such a plaintiff where necessary. Because the enforcement statute 

allows any fiduciary to sue, it would be inconsistent to provide a shorter 

limitations period for a plaintiff trustee due to the actual knowledge of 

another trustee, whether or not a co-plaintiff. 

Crimi, 1995 WL 272580, at *3. The District Court for the Southern District of New 

York relied on this reasoning in Messera, as did the Bankruptcy Court for the Eastern 

District of Michigan in In re Trans-Industries, Inc., 538 B.R. 323, 351 (2015) This 

Court likewise finds this reasoning persuasive. Moreover, § 1113 expressly states 

that the three year limitations period begins to run “after the earliest date on which the

plaintiff had actual knowledge.” 29 U.S.C. § 1113(2) (emphasis added). The plain 

4:15-cv-11609-LVP-MJH Doc # 50 Filed 02/16/16 Pg 9 of 15 Pg ID 484
10 

language of the statute clearly reflects that Congress did not intend the limitations 

period to run from the actual knowledge of anyone other than the person bringing suit. 

 In short, Plaintiffs allege in their proposed First Amended Complaint that they 

had actual knowledge of the claimed breaches or violations of Defendants’ fiduciary 

duties less than three years before filing this lawsuit. The Court holds that only the 

actual knowledge of Plaintiffs is relevant to determine when ERISA’s statute of 

limitations begins to run. As such, Plaintiffs’ lawsuit is not time-barred. Moreover, 

for the same reasons, the Court concludes that it would not be futile for Plaintiffs to 

amend their complaint.

4:15-cv-11609-LVP-MJH Doc # 50 Filed 02/16/16 Pg 10 of 15 Pg ID 485
Union’s Standing

 In his motion to dismiss, Hamilton also argues that the Union lacks standing to 

bring this ERISA action. Hamilton contends that Plaintiffs’ proposed First Amended 

Complaint does not cure this defect. 

 ERISA’s civil enforcement provision empowers a limited category of plaintiffs 

to prosecute claims under the statute. 29 U.S.C. § 1132. Specifically, as it relates to 

Plaintiffs’ claims, the statute provides: 

A civil action may be brought‒

. . . 

(2) by the Secretary, or by a participant, beneficiary or fiduciary for 

appropriate relief under section 1109 of this title;[4] 

(3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or 

practice which violates any provision of this subchapter or the terms of 

 

4

Section 1109 reads: 

a) Any person who is a fiduciary with respect to a plan who breaches 

any of the responsibilities, obligations, or duties imposed upon 

fiduciaries by this subchapter shall be personally liable to make good 

to such plan any losses to the plan resulting from each such breach, 

and to restore to such plan any profits of such fiduciary which have 

been made through use of assets of the plan by the fiduciary, and shall 

be subject to such other equitable or remedial relief as the court may 

deem appropriate, including removal of such fiduciary. A fiduciary 

may also be removed for a violation of section 1111 of this title. 

(b) No fiduciary shall be liable with respect to a breach of fiduciary 

duty under this subchapter if such breach was committed before he 

became a fiduciary or after he ceased to be a fiduciary. 

29 U.S.C. § 1109. 

4:15-cv-11609-LVP-MJH Doc # 50 Filed 02/16/16 Pg 11 of 15 Pg ID 486
12 

the plan, or (B) to obtain other appropriate equitable relief (i) to redress 

such violations or (ii) to enforce any provisions of this subchapter or the 

terms of the plan[.] 

29 U.S.C. § 1132. The list of entities empowered by § 1132 is exclusive. Local 6-

0682 Int’l Union of Paper v. Nat’l Indus. Grp. Pension Plan, 342 F.3d 606, 609 n.1 

(6th Cir. 2003) (citing Whitworth Bros. Storage Co. v. Cent. States, Southeast & 

Southwest Areas Pension Fund, 794 F.2d 221, 228 (6th Cir. 1986)). Unions are 

neither participants nor beneficiaries. New Jersey State AFL-CIO v. New Jersey, 747 

F.2d 891, 893 (3d Cir. 1984). The question here is whether the Union is a fiduciary to 

the extent it brings this lawsuit. 

Under ERISA, a person “is a fiduciary with respect to [an ERISA] plan to the 

extent . . . he exercises any discretionary authority or discretionary control respecting 

management of such plan or . . . has any discretionary authority or discretionary 

responsibility in the administration of such plan.” 29 U.S.C. § 1002(21)(A). 

“Importantly, ‘the same entity may function as an ERISA fiduciary in some contexts 

but not in others.’ ” Sonoco Prods. Co. v. Physicians Health Plan, Inc., 338 F.3d 366, 

373 (4th Cir. 2003) (quoting Darcangelo v. Verizon Commc’ns, Inc., 292 F.3d 181, 

192 (4th Cir. 2002)). A fiduciary only has standing under ERISA’s civil enforcement 

provision to the extent he is pursuing an action “ ‘related to the fiduciary 

responsibilities [he] possesses.’ ” Id. at 372 (quoting Coyne & Delany Co. v. Selman, 

98 F.3d 1457, 1465 (4th Cir. 1996)). In other words, “[a] fiduciary’s standing is not 

for any and all purposes; rather a fiduciary has standing to bring actions related to the 

4:15-cv-11609-LVP-MJH Doc # 50 Filed 02/16/16 Pg 12 of 15 Pg ID 487
13 

fiduciary responsibilities it possesses.” Id. The fiduciary’s claims must relate to an 

injury to the plan or the plan’s participants or beneficiaries, rather than to its own 

injuries. Id. at 373. 

Although acknowledging that a union may be considered a fiduciary capable of 

filing suit under § 1132, Hamilton contends that “the circumstances pled in the 

Complaint do not affect or impede Local 324’s very limited function as a [sic] an 

appointing fiduciary . . ..” (ECF No. 20-1 at Pg ID 124.) Plaintiffs argue in response 

that the Union is suing in its fiduciary capacity consistent with its duties to appoint 

and remove trustees, as well as its duty to monitor the conduct of its appointed 

trustees. (ECF No. 30 at Pg ID 207.) To this end, Plaintiffs allege in their initial 

Complaint and Proposed First Amended Complaint that the Union “has the authority 

to appoint and remove trustees.” (ECF No. 1 ¶ 3; ECF No. 31, Ex. A ¶ 3.) 

“It is . . . well-established that the power to appoint plan trustees confers 

fiduciary status.” Liss v. Smith, 991 F. Supp. 278, 310 (S.D.N.Y. 1998) (citing cases); 

see also Licensed Div. Dist. No. 1 MEBA/NMU, AFL-CIO v. Defries, 943 F.2d 474, 

477-78 (4th Cir. 1991). Thus in Defries, the Fourth Circuit concluded that the union 

had standing in its ERISA claim seeking a declaration that it, not the parent union, had 

the authority to appoint union trustees of a benefits plan. Id. Here, however, 

Plaintiffs’ claims do not relate to any act or practice which pertains to the appointing 

and replacing of trustees. 

4:15-cv-11609-LVP-MJH Doc # 50 Filed 02/16/16 Pg 13 of 15 Pg ID 488
14 

Nevertheless, “[t]he power to appoint and remove trustees carries with it the 

concomitant duty to monitor those trustees’ performance.” Liss, 991 F. Supp. at 311; 

see also Coyne, 98 F.3d at 1465 (citing cases and finding that the duty of appointment 

“carries with it a duty ‘to monitor appropriately’ those subject to removal.”) Further, 

“[t]he duty to monitor carries with it . . . the duty to take action upon discovery that 

the appointed fiduciaries are not performing properly.” Liss, 991 F. Supp at 311; 

accord Leigh v. Engle, 727 F.2d 113, 134-35 (7th Cir. 1984); Utility Audit Grp. v. 

Capital One, N.A., No. 2015 WL 1439622, at *9 (E.D.N.Y. Mar. 26, 2015); Int’l Bhd. 

of Elec. Workers, Local 90 v. Nat’l Elec. Contractors Ass’n, No. 3:06cv2, 2008 WL 

918481, at *7 (D. Conn. Mar. 31, 2008); In re Bausch & Lomb Inc. ERISA Litig., No. 

06-cv-6297, 2008 WL 5234281, at *10 (W.D.N.Y. Dec. 12, 2008). The Court 

acknowledges that in the cases cited, the courts were tasked with deciding whether a 

defendant with appointment and removal responsibilities could be held liable as an 

ERISA fiduciary for failing to monitor the trustees they appointed. Yet this Court 

believes that the principles stated in those cases apply equally to deciding whether an 

entity with appointing authority has standing as a fiduciary to bring an ERISA claim 

as one method of fulfilling the duty to take action upon discovery that an appointed 

fiduciary failed to perform properly.5

 In other words, if an entity is a fiduciary when 

 

5 In none of the cases Hamilton cites in his pleadings or which this Court otherwise 

reviewed was the court tasked with deciding whether a union, possessing the duty 

to appoint and remove trustees, has standing to sue a trustee who breaches his or 

her fiduciary duties in violation of ERISA. 

4:15-cv-11609-LVP-MJH Doc # 50 Filed 02/16/16 Pg 14 of 15 Pg ID 489
15 

named as a defendant for failing to fulfill its duties to monitor appointed trustees and 

to take action upon discovery that an appointed trustee is not performing properly, the 

same entity is a fiduciary to the extent it is bringing an ERISA claim alleging 

improper performance by an appointed trustee. 

 For these reasons, the Court concludes that the Union has ERISA standing. 

 Accordingly, 

IT IS ORDERED that Defendant John M. Hamilton’s Motion to Dismiss 

Plaintiffs’ Complaint is DENIED; 

IT IS FURTHER ORDERED that Plaintiffs’ Motion for Leave to File First 

Amended Complaint is GRANTED and Plaintiffs shall file their proposed First 

Amended Complaint within seven (7) days of this Opinion and Order. 

 s/ Linda V. Parker 

 LINDA V. PARKER 

 U.S. DISTRICT JUDGE 

Dated: February 16, 2016 

I hereby certify that a copy of the foregoing document was mailed to counsel of 

record and/or pro se parties on this date, February 16, 2016, by electronic and/or U.S. 

First Class mail. 

 s/ Richard Loury 

 Case Manager 

4:15-cv-11609-LVP-MJH Doc # 50 Filed 02/16/16 Pg 15 of 15 Pg ID 490