13

‐ 392 (L)

Silverman v. Teamsters Local 210 Affiliated Health and Insurance Fund

UNITED STATES COURT OF APPEALS 1

2

FOR THE SECOND CIRCUIT 3

4

August Term, 2013 5

6

(Argued: February 6, 2014 Decided: August 1, 2014) 7

8

Docket Nos. 13

‐ 392

‐ cv(L), 13

‐ 1175

‐ cv(XAP) 9

10

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x 11

12

Leon Silverman, Trustee of the Union Mutual Medical 13

Fund, 14

15

Plaintiff

‐ Appellee

‐ Cross

‐ 16

Appellant

, 17

18

James Crowley, Trustee of the Union Mutual Medical 19

Fund, Janet Sachs, Trustee of the Union Mutual Medical 20

Fund, Herbert Pobiner, Trustee of the Union Mutual 21

Medical Fund, Louis Flacks, Trustee of the Union 22

Mutual Medical Fund, Paul Berkman, Trustee of the 23

Union Mutual Medical Fund, Union Mutual Medical 24

Fund, 25

26

Plaintiffs

‐ Counter

‐ 27

Defendants

‐ Appellees

‐ Cross

‐ 28

Appellants

, 29

30

Arthur Fishbein, Trustee of the Union Mutual Medical 31

Fund, 32

33

Plaintiff

‐ Counter

‐ 34

Defendant, 35‐ v.

‐ 1

2

Teamsters Local 210 Affiliated Health and Insurance 3

Fund, George Miranda, in his capacity as Trustee of the 4

Allied Welfare Fund and in his capacity as Trustee of 5

Teamsters Local 210 Affiliated Health and Insurance, 6

Robert Bellach, in his capacity as Trustee of Teamsters 7

Local 210 Affiliated Health and Insurance Fund, 8

Anthony Cerbone, in his capacity as Trustee of 9

Teamsters Local 210 Affiliated Health and Insurance 10

Fund, 11

12

Defendants

‐ Appellants

‐ 13

Cross

‐ Appellees

, 14

15

Crossroads Healthcare Management, LLC, 16

17

Defendant

‐ Counter

‐ Claimant

, 18

19

Allied Welfare Fund, Charles Hall, Sr., in his capacity as 20

Trustee of the Allied Welfare Fund, Martin Keane, in his 21

capacity as Trustee of the Allied Welfare Fund, Thomas 22

Mackell, Jr., in his capacity as Trustee of the Allied 23

Welfare Fund, Martin Sheer, in his capacity as Trustee 24

of the Allied Welfare Fund and in his capacity as 25

Trustee of Teamsters Local 210 Affiliated Health and 26

Insurance Fund, John Does 1

‐ 6 in their capacities as 27

Trustees of Teamsters Local 210 Affiliated Health and 28

Insurance Fund and Crossroads Healthcare 29

Management, LLC, 30

31

Defendants

. * 32

33

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x 34

* The Clerk of Court is directed to amend the caption to conform with the

above.

2Before: JACOBS, CALABRESI, and POOLER, Circuit Judges

. 1

2

The Teamsters Local 210 Affiliated Health and Insurance Fund (“210 3

Fund”) and its trustees appeal from a final judgment of the United States District 4

Court for the Southern District of New York (Jones, J. ), awarding approximately 5

$2.5 million to the Union Mutual Medical Fund (“UMM Fund”) for unpaid 6

ERISA plan contributions. Because the 210 Fund was not obligated to contribute 7

funds to the UMM Fund under the terms of an ERISA plan, the district court 8

lacked subject matter jurisdiction under ERISA over the claims on which the 9

UMM Fund prevailed. However, because these claims can be construed as state 10

law breach

‐ of

‐ contract claims, we vacate and remand for the district court to 11

decide, in the first instance, whether to exercise supplemental jurisdiction and 12

decide the claims under this alternative theory. 13

Judge Calabresi concurs in part and dissents in part in a separate opinion. 14

15

THOMAS A. THOMPSON, Law Offices of 16

Thomas A. Thompson, Yarmouth, Maine 17

(Roland Acevedo, Scoppetta Seiff Kretz & 18

Abercrombie, New York, New York, on the 19

brief ), for Defendants

‐ Appellants

‐ Cross

‐ 20

Appellees

. 21

22

23

3ROBERT J. KIPNEES (Ryan J. Cooper, on 1

the brief ), Lowenstein Sandler LLP, 2

Roseland, New Jersey, for Plaintiffs

‐ 3

Counter

‐ Defendants

‐ Appellees

‐ Cross

‐ 4

Appellants

. 5

6

7

DENNIS JACOBS, Circuit Judge : 8

Under collective bargaining agreements (“CBAs”) entered into by multiple 9

employers with Teamsters Local Union No. 210 (the “Union”), the employers 10

promised to contribute to the Teamsters Local 210 Affiliated Health and 11

Insurance Fund (“210 Fund”), and the 210 Fund would, in turn, 12

“unconditionally and irrevocably” transfer approximately 14 percent of the 13

payments to another fund, the Union Mutual Medical Fund (“UMM Fund”), 14

which provided medical benefits primarily to retired union members. Both the 15

210 Fund and the UMM Fund are group health plans governed by the Employee 16

Retirement Income Security Act of 1974 (“ERISA”). 17

In 2006, after some years in which the 210 Fund duly paid the UMM Fund 18

in accordance with the CBAs, the 210 Fund established a new medical plan for 19

the retirees and, no longer in need of the UMM Fund, amended the CBAs

‐‐ with 20

consent of the employers but not the UMM Fund

‐‐ to reduce payments to the 21

4UMM Fund by 98 percent. The UMM Fund (and its trustees) brought this action 1

in the United States District Court for the Southern District of New York (Jones, 2

J. ), against the 210 Fund and its trustees (collectively, “Defendants”) to contest 3

the amendment of the CBAs without its consent, to demand an accounting of all 4

amounts received by the 210 Fund under the CBAs, and to collect the payments 5

abated by the amendment. 6

The UMM Fund’s Amended Complaint asserts three claims against the 7

210 Fund. The first two claims, which plead entitlement to money, an 8

accounting and payment, do not indicate whether the one or both claims arise 9

under state contract law, under a federal or state statute, or under some 10

combination of these. The third claim asserts a violation of ERISA. 11

The district court construed all three claims as pleading causes of action 12

under section 502 of ERISA, which provides a federal civil cause of action to an 13

ERISA plan fiduciary to obtain equitable relief for harms resulting from 14

violations of (i) “the terms of” an ERISA “plan,” and (ii) ERISA. ERISA 15

§ 502(a)(3)(B), 29 U.S.C. § 1132(a)(3)(B). The district court construed the first two 16

claims to allege that, by failing to remit the amounts owed to the UMM Fund 17

under each CBA, the 210 Fund violated “the terms of” an ERISA “plan,” and 18

5proceeded to identify the CBA as constituting the terms of an ERISA plan

. The 1

court construed the third claim as asserting a violation of ERISA, but not 2

violation of an ERISA plan term: i.e.

, that the 210 Fund’s reduced payments to 3

the UMM Fund violated section 515 of ERISA, which requires an employer, or an 4

entity acting in the interest of an employer, to fulfill its CBA plan contribution 5

obligations (the “Section 515 claim”). 6

The district court dismissed the Section 515 claim on the ground that the 7

210 Fund was neither an “employer” nor an entity acting “in the interest of an 8

employer.” Fishbein v. Miranda

, 670 F. Supp. 2d 264, 277

‐ 78 (S.D.N.Y. 2009) 9

(“Miranda I ”). Two years later, the district court granted summary judgment in 10

favor of the UMM Fund on its first two claims, concluding that each CBA 11

“established” an ERISA “plan,” and that the 210 Fund violated a plan term by 12

reducing payments to the UMM Fund. Fishbein v. Miranda

, 785 F. Supp. 2d 375, 13

384

‐ 85 (S.D.N.Y. 2011) (“Miranda II ”). The court awarded the UMM Fund 14

approximately $2.5 million (plus interest) in damages and fees. The 210 Fund 15

appeals from the award, and the UMM Fund cross

‐ appeals the dismissal of the 16

Section 515 claim. 17

18

6The Section 515 claim was properly dismissed because, as the district court 1

explained, the 210 Fund is not an employer, and the 210 Fund’s payments to the 2

UMM Fund were not made in the interest of an employer. See Miranda I

, 670 F. 3

Supp. 2d at 277

‐ 78. Absent some type of agency or ownership relationship, or 4

direct assumption of an employer’s obligations, an entity is not considered to be 5

acting “in the interest of” an employer for purposes of section 515. Greenblatt v. 6

Delta Plumbing & Heating Corp.

, 68 F.3d 561, 575

‐ 76 (2d Cir. 1995). 7

However, the district court erred in granting summary judgment in favor 8

of the UMM Fund on its first two claims, because the terms of each CBA were 9

not terms of an ERISA plan. The terms of an ERISA plan, and the benefits it 10

agrees to provide, are not set forth in a CBA; they are by definition set out in a 11

governing trust document and the summary plan description. 12

Although the UMM Fund has failed to state a claim under ERISA, the first 13

two claims in the Amended Complaint can be construed as state law 14

breach

‐ of

‐ contract claims. We therefore (i) affirm the dismissal of the Section 515 15

claim; and (ii) vacate the grant of summary judgment in favor of the UMM Fund 16

on the first two claims, and remand for the district court to decide in the first 17

instance whether to exercise supplemental jurisdiction over them. 18

7BACKGROUND 1

Plaintiff UMM Fund is an employee health plan established in 1978 to 2

obtain and provide medical and insurance benefits to its participants and 3

beneficiaries, primarily retired Union members and their spouses. The purposes 4

and obligations of the UMM Fund are enumerated in a September 6, 1978 Trust 5

Indenture (“UMM Fund Trust Indenture”) entered into between the predecessor 6

to the Union and a corporation that represents the interests of the retirees. The 7

UMM Fund is an employee welfare benefit plan governed by ERISA. See 29 8

U.S.C. § 1002. The named plaintiffs are trustees of the UMM Fund. 9

Defendant 210 Fund is likewise an employee welfare benefit plan under 10

ERISA. It was established to provide health insurance for Union members and 11

their spouses, and is funded by contributions from employers who are party to 12

CBAs with the Union. In April 2006, the 210 Fund assumed all the liabilities (and 13

80 percent of the assets) of another ERISA plan, the Allied Welfare Fund (“Allied 14

Fund”), and began to receive contributions pursuant to a number of CBAs under 15

which employers had previously been contributing to the Allied Fund. 2 16

2 The Allied Fund was initially a named defendant in this case but was

voluntarily dismissed. The administrator and manager of the 210 Fund,

Crossroads Healthcare Management, LLC (“Crossroads”), was also initially

named as a defendant but was voluntarily dismissed.

8The UMM Fund receives the bulk of its funding from employer 1

contributions pursuant to CBAs with the Union. But employers pay nothing to 2

the UMM Fund directly. The CBAs (in nearly identical language) direct the 3

employers to contribute funds to the Allied Fund

‐‐ now the 210 Fund

‐‐ and then, 4

in turn, direct the 210 Fund to pass a portion of the contribution along to the 5

UMM Fund: 6

It is hereby agreed

. . . the Employer shall pay to the 7

Allied Welfare Fund the sum of Fifty

‐ Nine ($59.00) 8

Dollars, each and every week for each employee who is 9

employed within the bargaining unit[.]

. . . 10

11

From and out of the contributions made to the Allied 12

Welfare Fund as specified above, Eight Dollars per 13

employee per week shall be unconditionally and 14

irrevocably allocated and paid to the Union Mutual 15

Medical Fund

. . . for the benefit of retired employees of 16

the Employer and retired employees of all other 17

employers similarly situated and their families. 18

In January 2006, the Allied Fund and the Union began persuading 19

employers to amend their CBAs and reduce the amount remitted to UMM Fund. 20

The motive for the Union’s initiative is in dispute: The UMM Fund alleges that it 21

was retaliation for a failed merger between the UMM Fund and the Allied Fund, 22

whereas the 210 Fund cites the Union’s unhappiness with certain fees and 23

9practices of the UMM Fund (leading the Union to create a replacement medical 1

plan). Whatever the motivation, the CBAs were amended in March or April 2

2006, without the UMM Fund’s consent. Under the amended CBAs, the amount 3

the 210 Fund remitted to the UMM Fund per employee per week was reduced 4

from eight dollars to ten cents. 5

In the first quarter of 2006, the UMM Fund received between $59,000 and 6

$74,000 pursuant to the CBAs. After the CBA amendments became effective in 7

April, the UMM Fund’s receipts dwindled to a few hundred dollars per month. 8

At the same time the Allied Fund and the Union were persuading 9

employers to amend their CBAs, the trustees of the Allied Fund were in 10

settlement negotiations with Duane Reade, an employer that had allegedly failed 11

to make required CBA payments years earlier. The parties settled their dispute 12

in March 2006 for $825,000. The 210 Fund concedes that these funds were 13

received by the Allied Fund in satisfaction of Duane Reade’s obligation to pay 14

contributions to the Allied Fund under its CBA, and that the UMM Fund got 15

nothing from the settlement, but denies that the 210 Fund received all the 16

settlement proceeds when it became successor in interest to the Allied Fund one 17

month later. Miranda II

, 785 F. Supp. 2d at 379

‐ 80. 18

10The UMM Fund filed suit in November 2006, and filed an Amended 1

Complaint in June 2008 asserting three claims against the 210 Fund. 3 The first 2

claim alleged that the Allied Fund received “at least [$825,000] from Duane 3

Reade by way of settlement of the [Allied Fund]’s claim for unpaid 4

contributions,” and that “[t]he [UMM Fund] is entitled” to eight dollars for every 5

fifty

‐ nine dollars of the settlement proceeds received. Am. Compl. ¶¶ 44

‐ 46. The 6

requested relief was, principally, an accounting of the funds received in the 7

settlement and remittance of the portion claimed by the UMM Fund (plus 8

interest). Id. at ¶ 46. 9

The second claim alleged that payments to the UMM Fund “dropped 10

precipitously since the end of March 2006,” and sought an accounting of all 11

monies received by the Allied Fund and the 210 Fund “for the period January 1, 12

2005, to the date of judgment.” Id. at ¶¶ 48

‐ 50. A prospective order was sought, 13

requiring the Local 210 Trustees “to remit to the [UMM Fund] Trustees, within 14

five (5) days of receipt

. . . , that portion properly payable to the [UMM Fund] out 15

of all monies received by way of contributions by employers pursuant to 16

3 The Amended Complaint also asserted three causes of action against

Crossroads, which were all voluntarily dismissed and are not at issue in this

appeal.

11[CBAs].” Id. at ¶ 50. 1

The UMM Fund’s third claim, the Section 515 claim, asserted that “failure 2

by the [Allied Fund] and the [210 Fund] to remit contributions constitutes a 3

violation of section 515 of ERISA, 29 U.S.C. § 1145.” Id. at ¶ 53. The UMM Fund 4

asked the court to “[o]rder[] the [Allied Fund] and the [210 Fund] to remit to the 5

[UMM Fund] all employer contributions received by them which were properly 6

payable to the [UMM Fund] pursuant to the terms of the collective bargaining 7

agreement.” Id. The Section 515 claim also asks for liquidated damages 8

available for a section 515 violation, see 29 U.S.C. 1132(g), plus interest and 9

attorney’s fees. 10

Absent from the first two claims in the Amended Complaint is mention of 11

their legal basis. The pleading is unclear as to whether the duty of the 210 Fund 12

to remit funds and provide an accounting was premised on state contract law, a 13

federal or state statute, or something else. Only the Section 515 claim indicates 14

the legal basis for monetary relief: a violation of the ERISA provision mandating 15

that an employer (or an entity acting in the interest of an employer) comply with 16

its plan contribution obligations under a CBA. Such an ERISA violation is 17

actionable under section 502(a) of the statute. See 29 U.S.C. § 1132(a). 18

12The 210 Fund (jointly with the other defendants) filed a motion to dismiss 1

all three claims for lack of jurisdiction and failure to state a claim under Federal 2

Rules of Civil Procedure 12(b)(1) and 12(b)(6). On November 16, 2009, the 3

district court dismissed the Section 515 claim with prejudice, holding that the 4

Allied Fund and the 210 Fund were not “employers” and were not acting in the 5

interest of any employers. The court held that, within the meaning of ERISA, an 6

entity can act “in the interest of” an employer only if it is empowered to 7

negotiate benefits on behalf of the employer. Miranda I

, 670 F. Supp. 2d at 278. 8

Since the Allied Fund and the 210 Fund were no more than “intermediaries 9

between the Contributing Employers and Plaintiffs” and were not authorized to 10

negotiate on behalf of the contributing employers, Section 515 liability was 11

precluded. Id. 12

The district court, however, preserved the first two claims in the Amended 13

Complaint. The court began by considering the legal basis for the claims, 14

omitting that the complaint itself failed to offer one: 15

I. Claims for “Appropriate Equitable Relief” Under ERISA § 502(a)(3)(B) 16

17

Under ERISA § 502(a)(3)(B), 29 U.S.C. § 1132(a)(3)(B), a “participant, 18

beneficiary, or fiduciary” of an employee benefit plan may bring a 19

civil suit “to obtain other appropriate equitable relief (i) to redress

. . . 20

13violations or (ii) to enforce

. . . the terms of the plan.” Plaintiffs make 1

claims for equitable relief under this section, demanding an 2

accounting of all monies received from Duane Reade pursuant to the 3

Duane Reade Settlement and a judgment ordering Defendants 4

[Allied Fund] and Local 210 Fund to remit to Plaintiff [UMM Fund] 5

the same percentage of the Duane Reade Settlement monies as would 6

be owed to Plaintiff [UMM Fund] under the Duane Reade CBA. 7

Plaintiff further demands an accounting of all monies received by 8

Defendants [Allied Fund] and Local 210 Fund since January 1, 2005 9

pursuant to all CBAs in which Plaintiff is named and a judgment 10

ordering Defendants to relinquish all monies owing to Plaintiff 11

[UMM Fund] under these CBAs. 12

13

Id. at 271. The district court thus interpreted the claims as alleging that the 14

failure to pay the UMM Fund under the terms of the CBA was a “violation” of 15

“the terms of the plan” and was therefore actionable under section 502(a)(3)(B) of 16

ERISA. But the opinion did not consider how the terms of a CBA, which is not 17

an UMM Fund plan document, could constitute terms of an ERISA plan. The 18

district court went on to deny the Defendants’ motion to dismiss, concluding that 19

the UMM Fund had standing to sue as a third

‐ party beneficiary of the CBA, and 20

that the CBA could be “enforced against” the 210 Fund, a non

‐ signatory, because 21

the 210 Fund “accepted the written agreement and

. . . acted upon it.” Id. at 272. 22

After discovery, the UMM Fund moved for summary judgment. In 23

opposition, the 210 Fund argued that the district court lacked subject matter 24

14jurisdiction over the two claims, because: Section 502(a) permits an ERISA plan 1

fiduciary to sue for equitable relief only if (i) a party has violated an ERISA 2

provision or (ii) a party has violated “the terms of the plan”; the court had 3

already dismissed the Section 515 claim, the sole alleged violation of ERISA 4

itself; and the CBAs were not part of an ERISA “plan.” 5

The district court held that it had jurisdiction on the following analysis. 6

Under ERISA, a “plan” includes “any

. . . plan, fund, or program

. . . established 7

or

. . . maintained for the purpose of providing for its participants or their 8

beneficiaries

. . . medical, surgical, or hospital care or benefits, or benefits in the 9

event of sickness, accident, disability, death or unemployment, or vacation 10

benefits.” 29 U.S.C. § 1002(1). Because each CBA earmarks the funds 11

contributed to the Allied Fund (and the UMM Fund) for “insurance, welfare, 12

Major Medical insurance and similar benefits” of union members, the district 13

court concluded that the CBA itself “established” an ERISA plan, and therefore 14

its terms constituted terms of “a plan.” Miranda II

, 785 F. Supp. 2d at 384. 15

Turning to the merits of the two remaining claims, the district court 16

granted summary judgment in favor of the UMM Fund, and directed the 210 17

Fund to provide the UMM Fund with an accounting of (1) all monies received 18

15from the Duane Reade settlement; and (2) all monies received pursuant to the 1

CBAs from January 1, 2005, to the date of the order. Id. at 375. After the 2

accounting was complete, the district court entered judgment in favor of the 3

UMM Fund in the amount of $2,460,777.33, plus pre ‐ and post

‐ judgment interest. 4

Silverman v. Miranda

, 918 F. Supp. 2d 200, 221 (S.D.N.Y. 2013) (“Miranda III ”). 5

The request for attorney’s fees was denied. Id. 6

Both parties appeal. The 210 Fund appeals the award to the UMM Fund. 7

The UMM Fund cross

‐ appeals, challenging (i) the dismissal of its Section 515 8

claim, (ii) the method used to calculate interest on the award, and (iii) the denial 9

of attorney’s fees. 10

11

DISCUSSION 12

We review the district court’s dismissal of the Section 515 claim pursuant 13

to Rule 12(b)(6) de novo

. See, e.g.

, Legnani v. Alitalia Linee Aeree Italiane, S.P.A

, 14

274 F.3d 683, 685 (2d Cir. 2001). We review de novo a district court’s grant of 15

summary judgment, Pilgrim v. Luther

, 571 F.3d 201, 204 (2d Cir. 2009), and we 16

affirm only where we are able to conclude, after construing the evidence in the 17

light most favorable to the non

‐ moving party and drawing all reasonable 18

16inferences in its favor, that “there is no genuine dispute as to any material fact 1

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 2

3

I 4

Subject matter jurisdiction over ERISA claims is conferred by section 5

502(f), which allows the federal district court to grant relief “provided for in 6

subsection (a) of this section.” ERISA § 502(f), 29 U.S.C. § 1132(f). The 7

referenced subsection enumerates the following ERISA causes of action: 8

(a) A civil action may be brought

. . . 9

10

(3) by a participant, beneficiary, or fiduciary 11

12

(A) to enjoin any act or practice which violates any 13

provision of this subchapter or the terms of the plan, or 14

15

(B) to obtain other appropriate equitable relief 16

(i) to redress such violations or 17

(ii) to enforce any provisions of this subchapter or the 18

terms of the plan. 19

20

ERISA § 502(a), 29 U.S.C. § 1132(a). The provision specifies the parties who have 21

standing to bring suit

‐‐ a plan participant, beneficiary, or fiduciary

‐‐ as well as 22

two categories of redressable violations: (i) violations of “any provision of this 23

subchapter;” and (ii) violations of “the terms of the plan.” Id. 24

17The trustees of the UMM Fund assert standing as fiduciaries. Their third 1

claim sought relief for an ERISA violation; specifically, a failure to comply with 2

section 515 of ERISA, which provides that 3

[e]very employer who is obligated to make contributions to a 4

multiemployer plan under the terms of the plan or under the terms 5

of a collectively bargained agreement shall, to the extent not 6

inconsistent with law, make such contributions in accordance with 7

the terms and conditions of such plan or such agreement. 8

9

ERISA § 515, 29 U.S.C. § 1145. An ERISA “employer” is defined as “any person 10

acting directly as an employer, or indirectly in the interest of an employer in 11

relation to an employee benefit plan.” 29 U.S.C. § 1002(5); see also Greenblatt v. 12

Delta Plumbing & Heating Corp.

, 68 F.3d 561, 575 (2d Cir. 1995) (applying this 13

definition of “employer” to section 515). The Amended Complaint asserts that 14

the 210 Fund was obligated to contribute to the UMM Fund “in the interest of” 15

the “employers” who were signatories to the CBAs, and that the 210 Fund failed 16

to do so. Am. Compl. ¶ 12. 17

A person who acts in an employer’s interest is one who controls an 18

employer (e.g.

, a parent corporation) or explicitly assumes the employer’s 19

obligations. Thus, in Cement & Concrete Workers District Council Welfare 20

Fund v. Lollo

, a corporate president who personally assumed the corporation’s 21

18obligation to make pension contributions under a CBA was held liable under 1

section 515. 35 F.3d 29, 37 (2d Cir. 1994); see also Simas v. Quaker Fabric Corp. 2

of Fall River

, 6 F.3d 849, 855 (1st Cir. 1993) (corporation that took control of an 3

employer is an ERISA employer); Frank v. U.S. West, Inc.

, 3 F.3d 1357, 1363 n.5 4

(10th Cir. 1993) (parent corporation may be an ERISA employer). However, 5

absent “any type of agency or ownership relationship or direct assumption of 6

the employer’s functions with regard to the administration of a plan,” courts in 7

this Circuit have been reluctant to find employer status for the purpose of 8

section 515. Greenblatt

, 68 F.3d 561 at 575

‐ 76; see also Bldg. Serv. 32B–J Health 9

Fund v. Impact Real Estate Mgmt., Inc.

, No. 00

‐ Civ

‐ 1343, 2000 WL 1530009, at *4 10

(S.D.N.Y. Oct. 16, 2000); Mason Tenders Dist. Council Welfare Fund v. Logic 11

Constr. Corp.

, 7 F. Supp. 2d 351, 356 (S.D.N.Y. 1998). 12

Citing Lollo

, the UMM Fund argues that the 210 Fund actually assumed 13

the employer’s contribution obligation under the terms of each CBA. The 14

argument does not withstand scrutiny of the CBA wording in Lollo

. There, the 15

president of a family

‐ owned business signed the CBA 16

in a dual capacity both on behalf of himself and on behalf of the 17

Employer and represents by his signature his authority to bind 18

himself, the Employer or Firm, and the principals and members 19

19thereof. The person signing on behalf of the Employer also agrees to 1

be personally bound by and to assume all the obligations of the 2

Employer provided for in this Agreement. 3

4

Cement & Concrete Workers Dist. Council Welfare Fund, Pension Fund, Legal 5

Servs. Fund and Annuity Fund v. Lollo

, No. 89 cv 3784, 1992 WL 281039 6

(E.D.N.Y. Oct. 1, 1992). The CBAs here contain no provision obligating the 7

employer to pay the UMM Fund, or an assumption by the 210 Fund of such an 8

obligation. Rather, each CBA obligates the employer to pay a contribution in 9

full to the 210 Fund, which in turn dispenses it. 10

The CBAs do provide that “[f]rom and out of the contributions made” to 11

the 210 Fund, a portion “shall be unconditionally and irrevocably allocated and 12

paid to the Union Mutual Medical Fund.” Whether this provision contractually 13

obligated the 210 Fund, a non

‐ signatory to the CBAs, to remit these funds to the 14

UMM Fund is a question of contract law heavily litigated in the district court. A 15

related contract question is whether, under relevant state law, the UMM Fund 16

was a third

‐ party beneficiary of the pre

‐ amendment CBAs, such that the Union 17

and management could not amend the CBAs to impair the flow of payments to 18

the UMM Fund without its consent. But under no reading of the CBAs (pre

‐ 19

amendment or post

‐ amendment) is the employer obligated to contribute any 20

20money to the UMM Fund. Not a single employer has been named as a 1

defendant. Because the 210 Fund was not obligated to remit funds to the UMM 2

Fund “in the interest of” an employer, the Section 515 claim was properly 3

dismissed. 4

5

II 6

The other two claims against the 210 Fund were understood by the 7

district court to be included within the category of civil ERISA claims that 8

permit a plan fiduciary to seek “appropriate equitable relief

. . . to enforce any 9

provisions of

. . . the terms of the plan .” 29 U.S.C. § 1132(a) (emphasis added). 10

The UMM Fund argued that by failing to comply with a term of the CBA, the 11

210 Fund violated the terms of an ERISA plan. 12

ERISA defines an “employee benefit welfare plan” as 13

any plan, fund, or program which was heretofore or is hereafter 14

established or maintained by an employer or by an employee 15

organization, or by both, to the extent that such plan, fund, or 16

program was established or is maintained for the purpose of 17

providing for its participants or their beneficiaries, through the 18

purchase of insurance or otherwise, 19

20

(A) medical, surgical, or hospital care or benefits, or benefits 21

in the event of sickness, accident, disability, death or 22

21unemployment, or vacation benefits, apprenticeship or other 1

training programs, or day care centers, scholarship funds, or 2

prepaid legal services, or 3

4

(B) any benefit described in section 186(c) of this title (other 5

than pensions on retirement or death, and insurance to provide such 6

pensions). 7

8

ERISA § 3(1), 29 U.S.C. § 1002(1). The parties agree that the UMM Fund is an 9

employee benefit welfare plan under this definition. 10

ERISA itself does not make plain where one looks to find the “terms” of 11

an ERISA plan, other than to mandate that “ [e]very employee benefit plan shall 12

be established and maintained pursuant to a written instrument .” ERISA 13

§ 402(a), 29 U.S.C. § 1102(a)(1); see Smith v. Dunham

‐ Bush, Inc.

, 959 F.2d 6 (2d 14

Cir. 1992) (discussing the written instrument requirement). But a number of 15

federal appellate circuits, including this Court, have identified (in various 16

contexts) two documents as setting forth plan terms: (1) the governing plan 17

document, i.e.

, the trust agreement or contract under which the plan was 18

formed; 4 and (2) the summary plan description (“SPD”), a plain

‐ English 19

4 ERISA establishes a general requirement that plan assets be held in trust, 29

U.S.C. § 1103(a), (b). The trust agreement is sometimes signed by the union and

its employers, see, e.g.

, Chao v. Merino

, 452 F.3d 174, 177 (2d Cir. 2006), and

sometimes, as here, by the union and a separate corporation representing a

subset of union members.

22summary of plan benefits and obligations that the plan administrator must file 1

with the United States Department of Labor and provide to each participant and 2

beneficiary of the plan. See, e.g.

, Pettaway v. Teachers Ins. & Annuity Ass’n of 3

Am.

, 644 F.3d 427, 434 (D.C. Cir. 2011); Jenkins v. Yager

, 444 F.3d 916, 934 n.4 4

(7th Cir. 2006); Militello v. Cent. States, Se. & Sw. Areas Pension Fund

, 360 F.3d 5

681, 686 n.2 (7th Cir. 2004); Bergt v. Ret. Plan for Pilots Employed by MarkAir, 6

Inc.

, 293 F.3d 1139, 1143 (9th Cir. 2002); Sunbeam

‐ Oster Co., Inc. Grp. Benefits 7

Plan for Salaried & Non

‐ Bargaining Hourly Emps. v. Whitehurst

, 102 F.3d 1368, 8

1375 (5th Cir. 1996) (noting that in some circumstances, the SPD may be the only 9

plan document); cf. Heidgerd v. Olin Corp.

, 906 F.2d 903, 907

‐ 08 (2d Cir. 1990) 10

(discussing which plan term controls when the governing plan document 11

contradicts the SPD). These two documents must be made available by the plan 12

administrator “ for examination by any plan participant or beneficiary.” 29 13

U.S.C. § 1124(b). In other words, the documents that lay out the plan terms 14

must be readily accessible in written form to all covered employees. See 15

Curtiss–Wright Corp. v. Schoonejongen

, 514 U.S. 73, 83 (1995) (noting that one of 16

ERISA’s purposes was to afford employees the opportunity to inform 17

themselves, “‘on examining the plan documents,’” of their rights and obligations 18

23under the plan) (quoting H.R. Rep. No. 93–1280, at 297 (1974), reprinted in 1974 1

U.S.C.C.A.N. 4639, 5077, 5078). The UMM Fund finds no case that treats a CBA 2

as a governing plan document setting forth ERISA plan terms. The district court 3

cited none. 4

If a plan’s trust agreement explicitly provides that employers must fulfill 5

their CBA contribution obligations (or comply with other plan terms), such a 6

provision can subject a delinquent employer to suit under section 502(a) for 7

violating a plan term. However, the Supreme Court has only recognized such a 8

cause of action when the employer violated a plan term that the CBA expressly 9

bound the employer to perform. Cent. States, Se. & Sw. Areas Pension Fund v. 10

Cent. Transp., Inc.

, 472 U.S. 559 (1985). For example, the CBA in Central States 11

provided that the employer was “bound by [the plan] trust agreement[].” Id. at 12

565. And the trust agreement specifically “place[d] on each participating 13

employer the responsibility to make ‘continuing and prompt payments to the 14

Trust Fund as required by the applicable collective bargaining agreement,’” and 15

further obligated each employer to furnish records to the plan administrator 16

upon request. Id. On those facts, the employer was required to adhere to these 17

plan terms and submit to a field audit conducted by the plan trustee. 18

24Here, however, no term of the UMM Fund Trust Indenture obligates 1

employers to make prompt payments under their CBAs. See UMM Fund Trust 2

Indenture, Silverman v. Miranda

, No. 06

‐ cv

‐ 13222 (S.D.N.Y. June 5, 2010), ECF 3

#125

‐ 2. And in any event, the CBAs do not require that the employers bind 4

themselves to the UMM Fund Trust Indenture. Although the CBAs provide that 5

the Allied Fund and the UMM Fund must handle the contributions received in 6

accordance with the terms of their respective trust indentures, that is not an 7

obligation that the employers perform (or could perform). 8

The district court opinion granting summary judgment in favor of the 9

UMM Fund held that the CBA “established” an ERISA plan: 10

Here, pursuant to the terms of each CBA, nearly all of which contain 11

identical operative language, “an employer” (i.e., each contributing 12

employer) and “an employee organization” (i.e., the unions) 13

“established” a plan to provide “insurance, welfare, Major Medical 14

insurance and similar benefits for” retired employees of the 15

unions.

. . . Although not every CBA qualifies as a “plan” under 16

ERISA § 502(a)(3)(B), in view of the plain language of the CBAs at 17

issue here and the [UMM Fund] indenture, Plaintiffs’ action to 18

enforce the CBAs is an action to enforce “the terms of [a] plan.” 29 19

U.S.C. § 1132(a)(3)(B). 20

21

Miranda II

, 785 F. Supp. 2d at 384. True, each CBA directs an employer to 22

contribute money for certain welfare benefits; however, the contributions are 23

25not directed to some distinct plan established under the CBA. The contributions 1

are to be made to the Allied Fund, with a portion passed along to the UMM 2

Fund

, and t he UMM Fund was itself “established” by a 1978 trust indenture that 3

long preceded all the CBAs at issue in this case. Although the CBAs recite some 4

of the provisions found in the Allied Fund and UMM Fund trust documents, 5

those references do not transmute the CBA itself into a plan document; and it 6

certainly does not make the employer contribution requirement, which does not 7

appear in the UMM Fund Trust Indenture, an UMM Fund plan term. It is 8

telling that Congress added section 515 to ERISA in 1980 for the express 9

purpose of creating a federal cause of action for delinquent contributions, see, 10

e.g.

, Robbins v. B.W. Blaushild Motors, Inc.

, 559 F. Supp. 1, 2 (D.C. Ill. 1981)

‐‐ a 11

legislative measure that would have been unnecessary if aggrieved plan trustees 12

could simply sue under ERISA for delinquent contributions as a violation of a 13

plan term. 14

15

III 16

The first two claims in the Amended Complaint, which the district court 17

decided in favor of the UMM Fund, identified no legal basis for relief. Though 18

26we conclude that these allegations fail to state a claim under ERISA

‐‐ because the 1

payment terms of the CBAs were not UMM Fund plan terms

‐‐ these claims do 2

meet the pleading requirements for state law breach

‐ of

‐ contract claims. And 3

because a breach of contract claim was pleaded against a defendant who was 4

later voluntarily dismissed, the Amended Complaint recites supplemental 5

jurisdiction as a proper basis for subject matter jurisdiction. Am. Compl. ¶ 11. 6

Therefore, rather than reverse and direct dismissal of all the UMM Fund’s 7

claims, we vacate the award to the UMM Fund and remand for the district court 8

to consider whether to exercise supplemental jurisdiction over the first two 9

claims, construed as alleging state law breach of contract. The district court had 10

discretion to retain supplemental jurisdiction over such claims after it (properly) 11

dismissed the Section 515 claim. See Klein & Co. Futures, Inc. v. Bd. of Trade of 12

City of New York

, 464 F.3d 255, 262

‐ 63 (2d Cir. 2006). 13

Federal courts will normally decline to retain jurisdiction in such 14

circumstances. See id. However, in this case, it may be that discretion will be 15

exercised in favor of retaining jurisdiction, given that most of the relevant 16

contract law issues have already been briefed by the parties and decided in a 17

27trio of opinions. 5 1

We take no position on whether those issues were correctly decided; and 2

we have no occasion to consider the calculation of the award, or the denial of 3

attorney’s fees. 4

5

CONCLUSION 6

For the foregoing reasons, we vacate the judgment in favor of the UMM 7

Fund, and remand to the district court for further proceedings consistent with 8

this opinion. 9

5 Treating the remaining claims as contract claims rather than ERISA claims is

no mere formality. The 210 Fund may enjoy additional defenses to state law

claims for breach of contract, including ERISA preemption. We express no view

on the merits of such a defense.

281 CALABRESI, Circuit Judge

, concurring in part and dissenting in part: 1

I concur with Part I of the majority’s opinion, in which we affirm dismissal 2

of UMMF’s ERISA § 515 claim. I write separately to dissent from Part II of the 3

majority opinion, which concludes that the district court lacked subject matter 4

jurisdiction over UMMF’s other claims because the CBAs in question did not 5

constitute an ERISA “plan” under § 502(a)(3)(B). 6

I dissent for the simple reason that the district court expressly found, as a 7

factual matter, that the language and circumstances of these particular CBAs 8

made them an ERISA “plan” under § 502, and this factual finding was not 9

appealed. The district court wrote: “Although not every CBA qualifies as a 10

‘plan’ under ERISA § 502(a)(3)(B), in view of the plain language of the CBAs at 11

issue here and the UMMF indenture, Plaintiffs’ action to enforce the CBAs is an 12

action to enforce ‘the terms of [a] plan.’” Miranda II

, 785 F. Supp. 2d at 384 13

(quoting 29 U.S.C. § 1132(a)(3)(B)). However dubious such a finding may be, 14

since the Local 210 Fund did not contest it on appeal, a factual finding it remains, 15

and it gives the district court a proper basis for subject matter jurisdiction under 16

§ 502(f). 172 Were I to decide this issue in the first instance, I might well agree with the 1

majority that these CBAs do not meet § 502(a)’s definition of an ERISA “plan.” 2

But I am not prepared to say that there are no circumstances in which a CBA 3

could ever be an ERISA “plan,” and therefore am not prepared to vacate the 4

district court’s decision that, in this instance, it was. 5

I join the majority in remanding this case to the district court, which, I 6

hope, will decide the remaining claims under state law. I note that if the district 7

court were to find a state law contract breach for the same reasons that it found a 8

violation of ERISA, then the district court would likely reach the same result as 9

before. That is because the district court denied attorney’s fees, which, had they 10

been granted, would have been the principal difference between a victory by 11

UMMF on state law grounds and a victory under ERISA. 12

For these reasons, I concur in Part I of the majority’s opinion, respectfully 13

dissent from Part II, and join the majority in remanding the case to the district 14

court for reconsideration of UMMF’s remaining claims. 15