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ORDER DENYING DEFENDANT’S

MOTION TO DISMISS

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

_______________________________________)

DAVE MENDELSOHN, ) No. C06-0190RSL

)

Plaintiffs, ) 

v. )

) ORDER DENYING DEFENDANT’S

INTALCO ALUMINUM CORPORATION, ) MOTION TO DISMISS

)

Defendant. )

_______________________________________)

This matter comes before the Court on “Defendant Intalco’s Motion to Dismiss

and Brief.” Dkt. # 3. Defendant seeks a determination that plaintiff’s claims are barred by the

applicable statute of limitations and because he failed to exhaust his administrative remedies as

required by the Employee Retirement Income Security Act (“ERISA”). 

In the context of a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court’s

review is generally limited to the contents of the complaint. Campanelli v. Bockrath, 100 F.3d

1476, 1479 (9th Cir. 1996). Nevertheless, the Court may consider documents referenced

extensively in the complaint, documents that form the basis of plaintiff’s claim, and matters of

judicial notice when determining whether the allegations of the complaint state a claim upon

which relief can be granted. United States v. Ritchie, 342 F.3d 903, 908-09 (9th Cir. 2003). 

The January 25, 1996, letter submitted by defendant does not fall into any of these categories. 

Case 2:06-cv-00190-RSL Document 13 Filed 04/21/06 Page 1 of 3
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ORDER DENYING DEFENDANT’S

MOTION TO DISMISS -2-

Having provided matters outside the pleadings for the Court’s consideration, defendant’s motion

shall be treated as one for summary judgment pursuant to Fed. R. Civ. P. 12(c) and Fed. R. Civ.

P. 56. Defendant can therefore prevail only if plaintiff “fails to offer evidence from which a

reasonable jury could return a verdict in its favor.” Triton Energy Corp. v. Square D Co., 68

F.3d 1216, 1221 (9th Cir. 1995).

Taking the evidence presented in the light most favorable to plaintiff, the Court

finds as follows:

(1) Plaintiff asserts that he did not realize that defendant had misrepresented his future

retirement benefits until September 2003, less than three years before he filed this complaint. 

Whether plaintiff should have understood the January 25, 1996, letter as a repudiation of

defendant’s prior representations or merely as additional information regarding later payoff

options is an issue of fact for the jury. Regardless of which statute of limitation applies, plaintiff

has raised a genuine issue of fact regarding when he discovered the basis for his claims.

(2) Defendant argues that plaintiff’s misrepresentation and negligence claims must be

dismissed because he failed to allege that he exhausted the administrative remedies provided by

the Salaried Employees Retirement Plan. This argument presumes that the plan at issue is an

“employee welfare benefits plan” under ERISA. The burden of establishing the existence of an

ERISA plan is on defendant. Kanne v. Connecticut Gen. Life Ins. Co., 867 F.2d 489, 492 n.4

(9th Cir. 1988). Defendant has provided no information or evidence regarding the employer’s

role in establishing or maintaining the retirement plan (Zavora v. Paul Revere Life Ins. Co., 145

F.3d 1118, 1120 (9th Cir. 1998)), or “the surrounding circumstances from the point of view of a

reasonable person” (Credit Managers Ass’n v. Kennesaw Life & Acc. Ins. Co., 809 F.2d 617,

625 (9th Cir. 1987)). The Court is unable to determine whether ERISA applies or whether the

administrative exhaustion requirement governs plaintiff’s state law claims of misrepresentation

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ORDER DENYING DEFENDANT’S

MOTION TO DISMISS -3-

and negligence. 

For all of the foregoing reasons, defendant’s motion for dismissal or, in the

alternative, summary judgment, is DENIED.

DATED this 21st day of April, 2006.

A

Robert S. Lasnik

United States District Judge

Case 2:06-cv-00190-RSL Document 13 Filed 04/21/06 Page 3 of 3