IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Douglas Willard,

Plaintiff,

v. Case No. 2:12-cv-266

The Ohio Operating Engineers

Pension Plan, et al.,

Defendants.

OPINION AND ORDER

This is an action filed pursuant to the Employee Retirement

Income Security Act of 1974 (“ERISA”), 29 U.S.C. §1001, et seq. 

Plaintiff Douglas Willard, a former employee of the Ohio Operating

Engineers, asserts claims against the Ohio Operating Engineers

Pension Plan (“the Pension Plan”) and its Board of Trustees, and

against the Ohio Operating Engineers Health and Welfare Plan (“the

Welfare Plan”) and its Board of Trustees. This matter is before

the court on defendants’ motion pursuant to Fed.R.Civ.P. 12(c) for

partial judgment on the pleadings.

I. Rule 12(c) Standards

Courts apply the same analysis to motions for judgment on the

pleadings under Rule 12(c) as they apply to motions to dismiss

under Fed.R.Civ.P. 12(b)(6). See Warrior Sports, Inc. v. National

Collegiate Athletic Ass’n, 623 F.3d 281, 284 (6th Cir. 2010). “For

purposes of a motion for judgment on the pleadings, all wellpleaded material allegations of the pleadings of the opposing party

must be taken as true, and the motion may be granted only if the

moving party is nevertheless clearly entitled to judgment.” 

JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 582 (6th Cir.

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2007)(internal citation and quotation marks omitted). However, the

court need not accept as true legal conclusions or unwarranted

factual inferences. Id. (citing Mixon v. Ohio, 193 F.3d 389, 400

(6th Cir. 1999)).

To withstand a Rule 12(c) motion for judgment on the

pleadings, “a complaint must contain direct or inferential

allegations respecting all the material elements under some viable

legal theory.” Commercial Money Ctr., Inc. v. Illinois Union Ins.

Co., 508 F.3d 327, 336 (6th Cir. 2007). “The factual allegations

in the complaint need to be sufficient to give notice to the

defendant as to what claims are alleged, and the plaintiff must

plead ‘sufficient factual matter’ to render the legal claim

plausible, i.e., more than merely possible.” Fritz v. Charter

Township of Comstock, 592 F.3d 718, 722 (6th Cir. 2010)(quoting

Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-50 (2009)). 

A “legal conclusion couched as a factual allegation” need not be

accepted as true, nor are recitations of the elements of a cause of

action sufficient. Hensley Mfg. v. ProPride, Inc., 579 F.3d 603,

609 (6th Cir. 2009)(quoting Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555 (2007)).

In considering a motion for judgment on the pleadings, the

court considers the pleadings, which consist of the complaint, the

answer, and any written instruments attached as exhibits.

Fed.R.Civ.P. 12(c); Fed.R.Civ.P. 7(a) (defining “pleadings” to

include both the complaint and the answer); Housing Authority Risk

Retention Group, Inc. v. Chicago Housing Auth., 378 F.3d 596, 600

(7th Cir. 2004). While the allegations in the complaint are the

primary focus in assessing a Rule 12(c) motion, “matters of public

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record, orders, items appearing in the record of the case, and

exhibits attached to the complaint[] also may be taken into

account.” Barany-Snyder v. Weiner, 539 F.3d 327, 332 (6th Cir.

2008)(quoting Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir.

2001)). The court may also consider exhibits attached to

defendant’s motion so long as they are referred to in the complaint

and are central to the claims contained therein. Bassett v.

National Collegiate Athletic Ass’n 528 F.3d 426, 430 (6th Cir.

2008); see also Nixon v. Wilmington Trust Co., 543 F.3d 354, 357

(6th Cir. 2008)(a court may consider a document not formally

incorporated by reference in a complaint when the complaint refers

to the document and the document is central to the claims).

II. Plaintiff’s Claims

Plaintiff alleges in his complaint filed on March 28, 2012,

that he was employed with the Ohio Operating Engineers in 1992 as

a heavy crane operator, and was a participant in the Welfare and

Pension Plans. Complaint, ¶¶ 5, 17. After being diagnosed with

non-Hodgkin’s lymphoma in 2005, he was awarded pension disability

benefits under the Pension Plan effective April 1, 2006, and under

the Welfare Plan effective May 26, 2006. Complaint, ¶¶ 23-24. On

March 18, 2011, plaintiff received a letter from Ray Orrand,

Administrator of the Pension Plan, requesting that plaintiff

provide his tax records to verify that he was not working as an

operating engineer in excess of forty hours per month. Complaint,

¶ 25. Plaintiff provided his 2010 W-2 form. Complaint, ¶ 26. 

Plaintiff was notified by letter dated April 18, 2011, that his

benefits under the Pension Plan would be terminated effective May

1, 2011, on the grounds that plaintiff had been working as a farm

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hand and driver and was no longer qualified to receive disability

pension benefits. Complaint, ¶¶ 27-28. Plaintiff appealed this

determination through a letter from his attorney dated May 12,

2011, and plaintiff’s benefits were reinstated for the month of

June, 2011. Complaint, ¶¶ 34-36, 38-39.

Plaintiff further alleges that on July 20, 2011, he submitted

to a physical examination by Doctor Shadel pursuant to the terms of

the Welfare Plan. Complaint, ¶¶40-41. By letter dated August 8,

2011, signed by Ray Orrand as Administrator of the Welfare Plan,

plaintiff was notified that his benefits under the Welfare Plan

were being terminated on the grounds that Dr. Shadel did not find

any permanent total disability from working as a heavy equipment

operator because plaintiff’s non-Hodgkin’s lymphoma was in

remission. Complaint, ¶¶ 42-43.

By letter dated August 15, 2011, signed by Ray Orrand as

Administrator of the Pension Plan, plaintiff was notified that his

benefits under the Pension Plan were terminated because plaintiff

was working as a dump truck driver and had a current commercial

driver’s license. Complaint, ¶¶ 42, 44. Plaintiff alleges that

the statement in this letter that plaintiff had admitted to Dr.

Shadel that he worked as an operating engineer after 2005 was

false. Complaint, ¶ 46. By letter of plaintiff’s counsel dated

October 14, 2011, plaintiff appealed this determination to the

Pension Plan Board. Complaint, ¶ 47. By letter dated February 3,

2012, plaintiff was notified by the Board of the Pension Plan that

his appeal was denied. Complaint, ¶ 52. Plaintiff alleges that

the Board made false statements in this decision regarding

plaintiff’s employment. Complaint, ¶ 54.

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In Count One of the complaint, plaintiff asserts a claim under

29 U.S.C. §1132(a)(1)(B), which authorizes actions to recover

benefits due under the Plans, to enforce rights under the Plans,

and to clarify rights to future benefits under the terms of the

Plans. In Count Two of the Complaint, plaintiff asserts a claim

under 29 U.S.C. § 1132(a)(3) for breach of fiduciary duty against

the Board of the Pension Plan, alleging that the Board breached its

fiduciary duty by fabricating facts as the basis for its denial of

plaintiff’s pension disability benefits.

Attached to defendants’ motion are certain provisions of the

Pension and Welfare Plans at issue in the complaint, Doc. 7, Exs.

1-3; the letter of August 8, 2011, regarding the termination of

plaintiff’s membership in the Welfare Plan, Doc. 7, Ex. 4; the

letter of August 15, 2011, regarding the termination of plaintiff’s

Pension Plan benefits, Doc. 7, Ex. 5; the appeal letter of October

14, 2011, Doc. 7, Ex. 6; and the February 3, 2012, letter regarding

the decision of the Pension Plan Board, Doc. 7, Ex. 7. Because the

Plans and the letters were referred to in plaintiff’s complaint and

are central to plaintiff’s claims, these documents may be

considered in ruling on defendants’ motion.

The letter of August 8, 2011, noted that plaintiff was

examined on July 20, 2011, by Dr. Shadel, who opined that

plaintiff’s non-Hodgkin’s lymphoma was successfully treated and in

remission, and that there was no evidence of current disability

related to that condition. The letter notified plaintiff that his

Class 6 Membership in the Welfare Plan would be terminated as of

September 1, 2011. The letter also informed plaintiff concerning

his right to appeal the determination to discontinue his membership

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in the Welfare Plan, and advised him that failure to file an appeal

within 180 days “may bar any review of the matter by the Trustees

or a court of law.” See Ex. 4. The letter was signed by Ray

Orrand as Plan Administrator.

The text of Section IX, ¶ I of the Welfare Plan accompanied

the letter. That section describes the appeal process for

eligibility determinations where the claimant is not making a claim

for benefits but wants to appeal the Plan Administrator’s

determination that he is not an eligible member. Section IX, ¶

I.1. In particular, Section IX provides:

If the Plan Administrator determines that a claimant is

not eligible as a Member or Eligible Dependent under

Section II, the claimant may request that the Trustees

review that determination. The request must be made in

writing, must include the reasons for requesting the

review, and must be submitted to the Plan Administrator

within 180 days after the date that the determination is

made. The claimant may submit additional evidence of

eligibility. Plan documents and other materials

pertaining to the claimant’s status will be available for

the claimant’s review.

Section IX, ¶ I.2. Section IX further states: “No lawsuit can be

brought to recover under the Plan unless the claimant has complied

with the applicable appeal procedures and completed the appeal

process.” Section IX, ¶ I.3.

The letter of August 15, 2011, notified plaintiff that his

benefits from the Pension Plan were being suspended effective

September 1, 2011, under Article 6, Section 6.06 of the Pension

Plan. That section requires a participant to “notify the Fund

Administrator of certain details of any employment after such

benefits have commenced.” Section 6.06(f). That section also

requires the Plan Administrator to suspend pension benefits upon

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learning of subsequent potential service of 41 hours or more in a

one-month period for an employer within the jurisdiction of the

Union. The letter noted that the Pension Plan had received

information that plaintiff told Dr. Shadel during his recent

disability examination that he had worked as an operating engineer

after 2005. The letter also referred to documents indicating that

plaintiff worked as a dump truck driver hauling gravel in 2010 and

had a current commercial driver’s license. The letter stated that

“it appears that you are in violation of the Plan’s suspension of

benefits provision” and informed plaintiff that his benefits were

being suspended pursuant to Section 6.06(f) of the Pension Plan. 

The letter advised plaintiff that he could pursue an appeal of the

decision to suspend his benefits, and that the decision would be

reviewed by the Board of Trustees. The letter was signed by Ray

Orrand as Plan Administrator. See Ex. 5.

The record also includes the October 14, 2011, appeal letter

sent by plaintiff’s counsel to Ray Orrand. This document referred

to the Pension Plan’s letter of August 15, 2011, suspending

plaintiff’s benefits under the Pension Plan, and stated that “this

letter serves as a timely written appeal to the suspension of

benefits as set forth in your August 15, 2011 letter.” Counsel’s

letter makes no reference to the Welfare Plan’s letter of August 8,

2011, relating to the discontinuation of plaintiff’s membership in

the Welfare Plan. See Ex. 6.

By letter dated February 3, 2012, plaintiff was notified of

the Pension Plan Board of Trustees’ decision to uphold the

suspension of his pension benefits. The letter cites Article 6,

Section 6.06(a) of the Pension Plan, which provides that any

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benefit otherwise payable under the Plan “shall be permanently

forfeited for any month in which a Participant or former

Participant is credited with 41 or more hours of service in that

month” within the geographical location of the union which employed

the participant. See Ex. 7. Under Section 6.06(a) of the Pension

Plan, the Administrator of the Plan must suspend pension benefits

“upon learning of subsequent potential service of 41 Hours of

Service or more for an employer within the jurisdiction of the

Union unless it is unreasonable under the circumstances for the

Fund Administrator to presume that the Participant was engaged in

such service.” See Ex. 7.

The February 3, 2012, letter also referred to evidence

obtained by the Plan as constituting support for the Pension Plan’s

presumption that plaintiff was working more than 41 hours as an

operating engineer, including a statement allegedly made by

plaintiff to Dr. Shadel about working as an operating engineer

after 2005, photographs of plaintiff operating a front loader, a

2011 video of plaintiff hauling gravel, and an advertisement from

2010 and 2011 for Willard Gravel, listing plaintiff’s address,

which offered driveway, bank run, top soil, fill material, and

other services. The letter concluded by stating that “the Board

has decided to affirm the Plan’s initial decision to suspend your

benefits.” See Ex. 7. The letter was signed by Ray Orrand as the

Fund Administrator.

III. Exhaustion of Administrative Remedies

Defendants have moved to dismiss Count One of the complaint

insofar as it is asserted against the Welfare Plan and the Board of

the Welfare Plan on the ground that plaintiff failed to exhaust the

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administrative remedies afforded by the Welfare Plan. “The

administrative scheme of ERISA requires a participant to exhaust

his or her administrative remedies prior to commencing suit in

federal court.” Miller v. Metropolitan Life Ins. Co., 925 F.2d

979, 986 (6th Cir. 1991); see also Coomer v. Bethesda Hospital,

Inc., 370 F.2d 499, 504 (6th Cir. 2004). The exhaustion

requirement enables plan fiduciaries to efficiently manage their

funds, correct their errors, interpret plan provisions, and

assemble a factual record which will assist the court in reviewing

the fiduciaries’ actions. Weiner v. Klais & Co., Inc., 108 F.3d

86, 90 (6th Cir. 1997).

The record indicates that plaintiff’s appeal letter of October

14, 2011, only addressed the August 15, 2011, decision of the

Pension Plan, and made no reference to the August 8, 2011, decision

of the Welfare Plan. Plaintiff now argues that the Welfare Plan

only requires administrative exhaustion of claims for benefits, and

that the exhaustion requirement does not apply to decisions such as

the August 8, 2011, decision which terminated his membership in the

Welfare Plan. In his response, he quotes language from an

unidentified paragraph of Section IX of the Welfare Plan which

describes the appeals procedure for submitting a request for review

of a denied claim for benefits. See Doc. 10, p. 5. However,

plaintiff ignores the Welfare Plan provisions in Section IX, ¶ I.1-

.3, attached to the decision letter of August 8, 2011, which

describe the procedure for appeals of determinations regarding

eligibility for membership in the Welfare Plan. Those provisions

clearly mandate exhaustion of administrative remedies in cases such

as this one where the Plan Administrator determined that plaintiff

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was not eligible to be a member of the Welfare Plan.

Plaintiff also argues that exhaustion of administrative

remedies would have been futile in this case. The failure to

exhaust administrative remedies is excused where resorting to the

plan’s administrative procedure would simply be futile or the

remedy inadequate. Coomer, 370 F.3d at 505 (citing Fallick v.

Nationwide Mutual Ins. Co., 162 F.3d 410, 419 (6th Cir. 1998)). 

“The standard for adjudging the futility of resorting to the

administrative remedies provided by a plan is whether a clear and

positive indication of futility can be made.” Fallick, 162 F.3d at

419. A plaintiff must show that it is certain that his claim will

be denied on appeal, not merely that he doubts that an appeal will

result in a different decision. Id.

The administrative futility doctrine has been applied in cases

where the plaintiff’s action is directed to the legality of the

plan, not to a mere interpretation of it, see Constantino v. TRW,

Inc., 13 F.3d 969, 975 (6th Cir. 1994), and when the defendant

lacks the authority to institute the decision sought by plaintiff,

see Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d 710, 719

(6th Cir. 2005). Futility has also been recognized where multiple

claims are so similar that the denial of one claim which was

exhausted forecloses eligibility for relief on the other, or

demonstrates with certainty that the unexhausted claim will also be

denied. See Dozier v. Sun Life Assurance Co. of Canada, 466 F.3d

532, 535-36 (6th Cir. 2006).

This is not a case in which plaintiff has attacked the

legality of the plan, nor is there any indication that the Welfare

Plan Board would have been unable to reverse the Welfare Plan

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Administrator’s decision if plaintiff had appealed. Rather,

plaintiff argues that his Welfare Plan claim was so similar to his

Pension Plan claim that the denial of his Pension Plan appeal

foreclosed any remedy on his Welfare Plan claim. Plaintiff argues

that an appeal from the Welfare Plan’s decision would have been

unsuccessful because the definition of “disability” is the same in

both plans.

The decision letters do not support plaintiff’s argument. The

issue before the Welfare Plan Administrator was whether plaintiff

continued to be permanently and totally disabled under §II.F.1.(a)

of the Welfare Plan, based on the opinion of Dr. Shadel. In

contrast, the issue before the Pension Plan Board on appeal was

whether the Pension Plan Administrator could reasonably presume

that plaintiff had worked over 41 hours in a month as an operating

engineer within the jurisdiction of the Union and failed to provide

notice to the Fund Administrator as required under Section 6.06(f)

of the Pension Plan. Although plaintiff attempted to argue on

appeal before the Pension Plan Board that he was disabled and

incapable of working as an operating engineer, the decision letter

of February 3, 2012, specifically states that “[t]he issue before

the Board, however, was not whether you are still disabled, but

rather whether it was reasonable for the Plan to presume you were

working more than 41 hours a month as an operating engineer.” Ex.

7. Thus, this is not a case where the issues before the Plans were

so similar that an adverse decision in one appeal would necessarily

result in an adverse decision in the other.

Plaintiff also notes that the letters he received were all

signed by Ray Orrand as Plan Administrator. However, the Plan

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Administrator does not review his own decisions on appeal. Rather,

the Plan provisions in the record indicate that appeals under both

Plans are decided by the respective Boards of Trustees of those

Plans. The Welfare Plan has its own Board of Trustees, as does the

Pension Plan. These two Boards have been named as separate

defendants in the complaint. In signing the February 3, 2012,

letter as Plan Administrator, Ray Orrand was simply performing the

administerial function of reducing the decision of the Pension Plan

Board to writing and relaying that decision to plaintiff. The fact

that the Pension Plan Board denied plaintiff’s appeal from the

Pension Plan’s decision rendered on August 15, 2011, does not mean

that the Welfare Plan Board, a separate entity, would certainly

have denied plaintiff’s appeal from the Welfare Plan’s decision

rendered on August 8, 2011, which involved a distinct issue.

The record demonstrates that plaintiff failed to exhaust his

administrative remedies in regard to his claim against the Welfare

Plan and the Welfare Plan Board, and it has not been shown that

exhaustion of that claim would have been futile. Count One insofar

as it is asserted against the Welfare Plan and the Welfare Plan

Board will be dismissed without prejudice as to those defendants

due to the nonexhaustion of administrative remedies. See

Ravencraft v. UNUM Life Ins. Co. of America, 212 F.3d 341, 344 (6th

Cir. 2000).

IV. Breach of Fiduciary Duty Claim

The defendant Pension Plan and the Board of the Pension Plan

also seek dismissal of Count Two of the complaint, which charges

them with a breach of fiduciary duty. Plaintiff alleges in Count

Two that the Board “breached its fiduciary duty by fabricating

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facts as a basis for its denial of Plaintiff’s disability

benefits.” Complaint, ¶ 85. Plaintiff alleges that the statement

made by Ray Orrand in his August 15, 2011, letter that plaintiff

admitted to the medical examiner that he worked as an operating

engineer after 2005 was false. Complaint, ¶ 46. Plaintiff further

alleges that in its decision letter of February 3, 2012, the Board

made false claims regarding Plaintiff’s state of employment. 

Complaint, ¶ 54. Plaintiff then alleges that his employment as a

dump truck driver did not amount to performance as an operating

engineer. Complaint, ¶ 56.

Defendants argue that plaintiff’s breach of fiduciary claim is

nothing more than a restatement of the §1132(a)(1)(B) claim

asserted in Count One, and therefore, relief is not available under

§1132(a)(3). In Varity Corp. v. Howe, 516 U.S. 489, 512 (1996),

the Supreme Court noted that “ERISA specifically provides a remedy

for breaches of fiduciary duty with respect to interpretation of

plan documents and the payment of claims” through a cause of action

under §1132(a)(1)(B). The remedy for “other breaches of other

sorts of fiduciary obligation” may be sought under the “catchall”

provision in §1132(a)(3). Id. The Supreme Court concluded that

“where Congress elsewhere provided adequate relief for a

beneficiary’s injury, there will likely be no need for further

equitable relief, in which case such relief would normally not be

appropriate.” Id. at 515.

The Sixth Circuit in Wilkins v. Baptist Healthcare Sys. Inc.,

150 F.3d 609, 615 (6th Cir. 1998), interpreted Varity Corp. as

limiting “the applicability of §1132(a)(3) to beneficiaries who may

not avail themselves of §1132's other remedies.” See also Tackett

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v. M & G Polymers, USA, LLC, 561 F.3d 478, 491 (6th Cir.

2009)(relief under §1132(a)(3) not appropriate where plaintiff

merely “repackages” a §1132(a)(1)(B) benefits claim); Marks v.

Newcourt Credit Group, Inc., 342 F.3d 444, 454 (6th Cir.

2003)(affirming dismissal of plaintiff’s claim for breach of

fiduciary duty because §1132(a)(1)(B) provided him with a remedy

for the alleged injury of denial of benefits and permitted him to

bring a lawsuit to challenge the denial of benefits). In

considering whether to dismiss a §1132(a)(3) claim, the court is

not required to wait and see if plaintiff prevails on his

§1132(a)(1)(B) claim, as the “deciding factor ... is not whether a

plaintiff has recovered under §1132(a)(1)(B), but rather, whether

a plaintiff may recover.” Moss v. Unum Life Ins. Co., No. 11-6017

(unreported), 2012 WL 3553497 at *5 (6th Cir. Aug. 17, 2012). 

Under circumstances not found in the present case, the Sixth

Circuit has held that an action under §1132(a)(3) is available. In

Hill, 409 F.3d at 718, the Sixth Circuit recognized that there are

some circumstances under which an ERISA plaintiff may

simultaneously bring claims under both §1132(a)(1)(B) and

§1132(a)(3). The court held that where an award of individual

benefits pursuant to §1132(a)(1)(B) could not provide an adequate

remedy for the alleged injury to the plaintiffs caused by the

plan’s alleged improper methodology for handling all emergencymedical-treatment claims for which plaintiffs sought injunctive

relief, outright dismissal of the plaintiffs’ §1132(a)(3) claims

was in error. Id.; see also Thornton v. Graphic Communications

Conference of Int’l Brotherhood of Teamsters Supplemental

Retirement and Disability Fund, 566 F.3d 597, 617 (6th Cir.

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2009)(§1132(a)(3) claim appropriate where plaintiff sought planwide injunctive relief prohibiting board from amending plan to

eliminate post-retirement benefits increases).

In Gore v. El Paso Energy Corp. Long Term Disability Plan, 477

F.3d 833, 840-842 (6th Cir. 2007), the Sixth Circuit concluded that

plaintiff had alleged two separate and distinct injuries: an

erroneous interpretation of plan language by the claims

administrator, resulting in a wrongful denial of long-term

disability benefits subject to redress under §1132(a)(1)(b); and a

breach of fiduciary duty by the employer, which had no involvement

in claims administration, based on the employer’s alleged

misrepresentation concerning the duration of benefits, a claim that

could only be addressed under §1132(a)(3). The court noted that if

plaintiff had alleged that the claims administrator breached its

fiduciary duty by wrongfully denying benefits, that claim would be

duplicative of his denial of benefits claim. Id. at 841.

Here, plaintiff has alleged that Ray Orrand and the Pension

Plan Board relied on false information in terminating his pension

benefits. He makes conclusory allegations that the Board

fabricated evidence in denying his pension benefits. These

allegations do no more than express plaintiff’s disagreement with

the quality of the evidence supporting the Pension Board’s decision

to discontinue his pension benefits. Count Two is, in essence, a

reiteration of the §1132(a)(1)(B) claim for benefits in Count One

viewed from the perspective of whether the Pension Board’s decision

was supported by sufficient evidence, or was arbitrary and

capricious. Unlike the plaintiffs in Hill and Thornton, plaintiff

has alleged no facts showing a plan-wide policy or practice of

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violating ERISA which can be rectified only by injunctive relief. 

Plaintiff has not alleged facts showing that the Pension Plan Board

engaged in a general practice of routinely fabricating evidence or

knowingly considering false evidence in ruling on appeals. Unlike

the situation in Gore, where the plaintiff could not obtain relief

for his employer’s misrepresentations by way of a §1132(a)(1)(B)

benefits claim, plaintiff here may obtain redress for the Pension

Plan Board’s alleged reliance on false information in denying

pension benefits by advancing that argument in pursuing his

benefits claim under §1132(a)(1)(B). See Bagsby v. Central States,

Southeast & Southwest Areas Pension Fund, 162 F.3d 424, 430 (6th

Cir. 1998)(noting that an alleged breach of fiduciary duty may be

relevant to a §1132(a)(1)(B) claim asserting that plan

administrators acted arbitrarily and capriciously in denying

benefits); Johns v. Blue Cross Blue Shield of Michigan, No. 2:08-

CV-12272, 2009 WL 646636 at *7 (E.D.Mich. Mar. 10, 2009)(“The

proper remedy for breaches of fiduciary duty that take the form of

denials of plan benefits is ... a suit under §1132(a)(1)(B).”).

The court concludes that plaintiff’s breach of fiduciary duty

claim against the Pension Plan and the Board of the Pension Plan is

a claim for which relief may be sought as part of his Count One

benefits claim under §1132(a)(1)(B). The Count Two §1132(a)(3)

claim will be dismissed.

V. Conclusion

In accordance with the foregoing, defendants’ motion for

partial judgment on the pleadings (Doc. 7) is granted to the extent

that: 1) the claims against the Ohio Operating Engineers Health and

Welfare Plan and the Ohio Operating Engineers Health and Welfare

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Plan Board of Trustees are dismissed without prejudice for failure

to exhaust administrative remedies; and 2) Count Two of the

complaint is dismissed. This case remains pending as to the Count

One claims against the Ohio Operating Engineers Pension Plan and

the Ohio Operating Engineers Pension Plan Board of Trustees.

Date: January 30, 2013 s/James L. Graham 

 James L. Graham

 United States District Judge 

 

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