Termination Allowance she was due under the terms of the Plan. Plaintiff does not allege that
IP misled her at any of these steps, that IP misrepresented the terms of the Termination
Agreement and General Release that it presented to plaintiff for her signature, or that she did not
receive all of the benefits that were owed her under the IP Plan.

Thus, even if the Termination Agreement ang General Release plaintiff signed were not
consistent with the terms of the IP Plan, the complaint fails to state a cause of action under
ERISA against IP. Plaintiff does meet the definition of “participant” under ERISA. The
statutory component of the “actual controversy” requirement is not satisfied here. See 28
U.S.C. § 2201. The Court does not have authority to issue a declaratory judgment under 28
U.S.C. § 2201 for a violation of plaintiff's rights under ERISA.

Assuming, arguendo, that the complaint could be construed as presenting a cause of
action under ERISA so as to satisfy the statutory component of the “actual controversy”
requirement, plaintiff must show that the constitutional component is also satisfied. Plaintiff
alleges the complaint presents a “case-in-controversy” because the “issue” presented by the
complaint is “concrete.” (Doc. 9 at 7). Plaintiff alleges that resolution of the issue will have
an immediate impact on her ability to pursue her state law claims for wrongful discrimination
and termination against IP. (/d. at 7-8). Defendant contends that plaintiff's injury is not
concrete or imminent because plaintiff has not brought a discrimination charge against IP to date.
(Doc. 15). Plaintiff argues in response that a “declaratory judgment may ‘be used to obtain
advanced rulings on matters that would be addressed in a future case of actual controversy.’”

(Doc. 18 at 4, citing MedImmune, 549 U.S. at 127).


[plaintiff], and does not otherwise bar her from pursuing her rights against [IP], including claims
against it for wrongful termination and discrimination.” (Jd., § 26).
II. Defendant IP’s answer and counterclaim

In its answer and counterclaim, defendant denies that the Termination Agreement violates
the Plan by conditioning the receipt of benefits on execution of the General Release. (Doc. 4).
Defendant asserts, among other defenses, that there is no case or controversy between the parties
as required under the Declaratory Judgment Act; in the alternative, that plaintiff has presented
only a theoretical or hypothetical case or controversy over which the Court should decline to
exercise its jurisdiction under the Act (/d., {J 26, 27); and plaintiff has not pled any factual
allegations or cited any specific statutory provisions that provide a basis for relief (/d., | 34).

If the Court finds there is a justiciable case or controversy, defendant pleads in the
alternative and presents counterclaims based on the following allegations: IP established the
Plan, which is an employee welfare benefit plan subject to ERISA, prior to 2017. Plaintiff was
covered by the Plan and was eligible for benefits under the Plan, subject to its terms and
conditions, when her employment ended. The Plan provides a “termination allowance for
eligible employees,” which eligible participants may obtain if their employment is terminated
under specified circumstances provided the individual (1) works until a specified “job
completion date,” and (2) “sign[s] a termination agreement acceptable to the Company.” (Doc.
4, 9941, 42). Plaintiff was given “a copy of a termination agreement acceptable to the
Company on or about June 20, 2017.” After she consulted with legal counsel, plaintiff signed
the Termination Agreement on July 21, 2017. Plaintiff did not revoke the Termination

Agreement within seven days, and the Termination Allowance was paid to her on August 31,


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION
MARTHA A. CASTELLON-VOGEL, Case No. 1:17-cv-00645
Plaintiff, Dlott, J.
Litkovitz, M.J.

vs.

INTERNATIONAL PAPER COMPANY,
Defendant.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court
on timely motion for an extension. Such objections shall specify the portions of the Report
objected to and shall be accompanied by a memorandum of law in support of the objections. If
the Report and Recommendation is based in whole or in part upon matters occurring on the
record at an oral hearing, the objecting party shall promptly arrange for the transcription of the
record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise directs. A party may respond to another
party’s objections WITHIN 14 DAYS after being served with a copy thereof. Failure to make
objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn,

474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

18


A ““concrete’ intangible injury based on a statutory violation must constitute a ‘risk of real harm’
to the plaintiff.” Jd. (quoting Summers, 555 U.S. at 496).

Here, plaintiff brings her claim for declaratory relief under ERISA’s civil enforcement
provision, 29 U.S.C. 1132(a)(1)(B). A “participant” or “beneficiary” can bring an action under
§ 1132(a)(1)(B) to “recover benefits due to [her] under the terms of [her] plan, to enforce [her]
rights under the terms of the plan, or to clarify [her] rights to future benefits under the terms of
the plan[.]” 29 U.S.C. 1132(a)(1)(B). A “participant” or “beneficiary” can seek “(A) to enjoin
any act or practice which violates any provision of this subchapter or the terms of 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(a)(3). A
“participant” is defined as “any employee or former employee of an employer . . . who is or may
become eligible to receive a benefit of any type from an employee benefit plan which covers
employees of such employer. . ., or whose beneficiaries may be eligible to receive any such
benefit.” 29 U.S.C. § 1002(7).2_ A “former employee” qualifies as a “participant” only if she
has “a reasonable expectation of returning to covered employment” or she has “a colorable claim
‘to vested benefits.”” Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 117-18 (1989)
(citation omitted); see also Swinney v. Gen. Motors Corp., 46 F.3d 512, 518 (6th Cir. 1995)
(citations omitted); Sullivan v. Cap Gemini Ernst & Young U.S., 518 F. Supp.2d 983, 989 (N.D.

Ohio 2007). A “colorable claim to vested benefits” is a colorable claim that an individual (1)

? The term “beneficiary” means “a person designated by a participant, or by the terms of an employee benefit plan,
who is or may become entitled to a benefit thereunder.” 29 U.S.C. § 1002(8). Plaintiff does not allege she was a

“beneficiary” of IP’s Plan.
10


motion for judgment on the pleadings, all well-pleaded 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. 2007) (internal citation and quotation marks omitted)). “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 Twp. of Comstock, 592 F.3d
718, 722 (6th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (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)).

1. Plaintiff’s request for relief under the Declaratory Judgment Act

Plaintiff seeks relief under the Declaratory Judgment Act, 28 U.S.C. § 2201, which states:

(a) In a case of actual controversy within its jurisdiction, . . . any court of the

United States, upon the filing of an appropriate pleading, may declare the rights

and other legal relations of any interested party seeking such declaration, whether

or not further relief is or could be sought.
28 U.S.C. § 2201.

The Declaratory Judgment Act is not an independent basis for subject matter jurisdiction.
Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72 (1950). The Declaratory
Judgment Act only provides a remedy for cases over which there is an independent basis of

jurisdiction. NGS Am., Inc. v. Jefferson, 218 F.3d 519, 524 (6th Cir. 2000) (citing 28 U.S.C. §

2201(a)).


2017. (/d., 4/43). Plaintiff does not challenge the sufficiency or accuracy of the amount paid
and has not attempted to repay the amount. Defendant therefore counterclaims against plaintiff
for a declaratory judgment under 28 U.S.C. § 2201 and under ERISA, 29 U.S.C. § 1132(a)(3)
that (1) “uphold[s] and declar[es] the enforceability of the termination agreement required by the
Plan and acceptable to the Company,” and (2) “enjoin{s] Plaintiff from filing any claim,
complaint or taking any other action which she released and/or waived in the termination
agreement.” (/d., 9948, 49). Defendant also seeks its attorney fees and costs under 29 U.S.C.
§ 1132(g). (d., 9 49).
IV. Motions for judgment on the pleadings

Plaintiff moves for judgment on the pleadings. (Doc. 9). She asks the Court to enter
an order (1) declaring the General Release in the Termination Agreement to be “null and void
and otherwise unenforceable against her” and to “not bar her from pursuing her rights against
[IP], including claims against it for wrongful termination and discrimination”; and (2) dismissing
IP’s counterclaim. (/d. at 1). Plaintiff argues that the parties’ pleadings and attached exhibits
present undisputed material facts and that the validity of the General Release is a question of law
for the Court’s determination. In response, defendant argues that there may be disputed issues
of material fact based on the pleadings. In the event the Court disagrees and finds no issue of
material fact, defendant moves for judgment on the pleadings in its favor on its counterclaims.
(Doc. 17).

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. Nat'l Collegiate Athletic Ass'n, 623 F.3d 281, 284 (6th Cir. 2010). “For purposes of a


actually refers to whether the plaintiff before the court “has a cause of action under the statute.”
Id. (quoting Am. Psychiatric Ass'n v. Anthem Health Plans, Inc., 821 F.3d 352, 359 (2d Cir.
2016) (citing Lexmark Int'l, Inc. v. Static Control Components, Inc., --U.S. --, 134 S.Ct. 1377,
1386 (2014) (clarifying that what courts have commonly referred to as “statutory standing” is not
actually a matter of standing but simply a question of whether a particular plaintiff has a cause of
action under the statute). Even if a plaintiff has a cause of action arising under a given statute,
the Article III standing requirements must still be satisfied. Jd. (ERISA claimants must show
that Article III elements are satisfied) (citing Loren v. Blue Cross & Blue Shield of Mich., 505
F.3d 598, 606-07 (6th Cir. 2007) (citing Cent. States Se. & Sw. Areas Health and Welfare Fund
v. Merck-Medco Managed Care, 433 F.3d 181, 199 (2nd Cir. 2005)).

To satisfy Article III’s standing requirements, plaintiff must show: “(1) [she] has suffered
an ‘injury-in-fact’ that is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the
defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed
by a favorable decision.” /d. at 581 (citing Loren, 505 F.3d at 606-07) (quoting Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81 (2000)). An injury is particularized
if it affects the plaintiff “in a personal and individual way.” Jd. at 581-82 (quoting Spokeo, 136
S.Ct. at 1548). Even where the plaintiff claims a statutory violation that is sufficiently
particularized, she cannot show Article III standing unless she demonstrates that the deprivation
of the statutory right “is accompanied by ‘some concrete interest that is affected by the

deprivation.”” Jd. at 582 (quoting Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009)).


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MARTHA A. CASTELLON-VOGEL, Case No. 1:17-cv-00645
Plaintiff, Dlott, J.
Litkovitz, M.J.
vs.

INTERNATIONAL PAPER COMPANY, REPORT AND
Defendant. RECOMMENDATION

I. Introduction

Plaintiff Martha A. Castellon-Vogel brings this action for declaratory judgment against
her former employer, International Paper Company (IP). Plaintiff claims that the Court has
subject matter jurisdiction over this case under 28 U.S.C. §1331 (federal question jurisdiction),
28 U.S.C. § 2201 (Declaratory Judgments), and 29 U.S.C. §§ 1132(a), (e), (f), 1391(c)
(Employee Retirement Income Security Act) (ERISA). (Doc. 1). Defendant filed an answer
and, in the alternative, a counterclaim for declaratory judgment against plaintiff under 28 U.S.C.
§ 2201 and ERISA, 29 U.S.C. § 1132(a)(3), and other appropriate equitable relief under ERISA.
(Doe. 4). This matter is before the Court on plaintiff's motion for judgment on the pleadings
(Doc. 9), defendant’s opposing memorandum (Doc. 15), and plaintiff's reply in support of her
motion (Doc. 18), and on defendant’s motion to strike improper material from the record under
Fed. R. Civ. P. 12(f) and defendant’s motion for judgment on the pleadings on its counterclaim
(Docs. 16, 17) and supporting memorandum (Doc. 15), plaintiff's memorandum in opposition to
defendant’s motions (Docs. 18, 19, 20), and defendant's reply in support of its motions (Doc.

23).


Termination Agreement and accepted the Termination Allowance. (Docs. 15,17). Defendant
also contends there is no “real case or controversy before the Court” because plaintiff has not
filed a charge of discrimination against IP to date; therefore, the claim she brings here is only
hypothetical. (Doe. 15 at 7-8, citing Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 325
(1936) (“By its terms, [the Declaratory Judgment Act] applies to ‘cases of actual controversy,’ a
phrase which must be taken to connote a controversy of a justiciable nature, thus excluding an
advisory decree upon a hypothetical state of facts.”)).

The Court finds that the complaint must be dismissed because plaintiff's claim does not
satisfy the “actual controversy” requirement of the Declaratory Judgment Act. Plaintiff is not a
“participant” in the IP Plan who brings this action for declaratory relief to recover benefits due
her under the terms of the IP Plan, to enforce her rights under the terms of the Plan, or to clarify
her rights to future benefits under the terms of the Plan. See 29 U.S.C. § 1132. Plaintiffis a
former employee of IP. She does not have a reasonable expectation of returning to covered
employment with IP. Plaintiff agreed when she signed the Termination Agreement that her
employment relationship with IP was “permanently terminated” as of that date, and she agreed
“not to apply for or otherwise seek employment with [IP] in any capacity” in the future. (See
Doe. 1, Exh. A, J 13: “No Re-Employment”). Nor does plaintiff have a colorable claim to
vested benefits. Plaintiff signed the Termination Agreement and accepted the payment of her
lump sum Termination Allowance for which she was eligible under the Plan. Plaintiff does not
allege the amount of benefits she was paid was incorrect or claim that she is entitled to receive
additional benefits under the Plan. Even if plaintiff is correct that the General Release does not

bar her discrimination and other wrongful termination claims, she does not have a reasonable

12


“will prevail in a suit for benefits, or that (2) eligibility requirements will be fulfilled in the
future.” Swinney, 46 F.3d at 518 (quoting Firestone, 489 U.S. at 117-18).

As a general rule, a person who effectively terminates all their rights in a plan cannot be a
“participant” in the plan. Swinney, 46 F.3d at 518. An employee ceases to be a participant in
a plan when she “has accepted the payment of everything due” her under the plan in a lump sum
and is owed no more benefits. /d. (citing Teagardener v. Republic-Franklin Inc. Pension Plan,
909 F.2d 947, 953 (6th Cir. 1990) (“the plaintiffs were no longer participants, since they received
all benefits that they were due under the Plan at the time their participation in the Plan
terminated.”) (emphasis in the original)). An exception to the general rule applies if an
employee gives up her right to benefits or fails to participate in the plan because of the
employer’s breach of fiduciary duty, in which case the employee can challenge that fiduciary
breach. Swinney, 46 F.3d at 518 (collecting cases). “Otherwise, a fiduciary could defeat an
employee’s standing to bring an ERISA action by duping him into giving up his right to
participate in a plan.” Jd.

Plaintiff contends the Court has jurisdiction over this case because there is a “substantial
controversy” before the Court as to the validity and enforceability of the General Release, and
resolution of the parties’ dispute will have an immediate impact on plaintiff's ability to bring
state law claims for wrongful termination and discrimination against IP. (Doc. 9 at 8).

Plaintiff claims she had a right to a Termination Allowance under the terms of an ERISA plan
and that consistent with the terms of the Plan, IP could not validly require her to sign a General
Release of claims as a condition of receiving those benefits. Defendant IP argues that plaintiff

is foreclosed from pursuing her claim under ERISA because she validly executed the

Wl


Federal courts’ jurisdiction is limited by Article III of the Constitution, which restricts

federal judicial power to the adjudication of “[c]ases” or “[c]ontroversies.” Duncan v. Muzyn,
885 F.3d 422, 427 (6th Cir. 2018) (citing Spokeo, Inc. v. Robins, -- U.S. --, 136 S.Ct. 1540, 1547
(2016)). The Declaratory Judgment Act’s requirement of “a case of actual controversy” affirms
the Constitutional case or controversy requirement. MedImmune, Inc. v. Genentech, Inc., 549
U.S. 118, 126-27 (2007) (citing Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937); Kelley v.
EJ. DuPont de Nemours & Co., 17 F.3d 836, 844 (6th Cir. 1994) (the “case or controversy”
jurisdictional requirement of Article III of the United States Constitution applies to declaratory
judgment actions). There is no case or controversy if a plaintiff lacks standing to sue.
Duncan, 885 F.3d at 427 (citing Spokeo, Inc., 136 S.Ct. at 1547). See also Crawford v. Roane,
53 F.3d 750, 753 (6th Cir. 1995) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975) (“Standing
is essential to the exercise of jurisdiction and is a ‘threshold question . . . [that] determin[es] the
power of the court to entertain the suit.”)). The plaintiff bears the burden of establishing
standing and must show standing for each claim she wishes to pursue. Hagy v. Demers &
Adams, 882 F.3d 616, 620 (6th Cir. 2018) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S.
332, 352 (2006)); see also Soehnlen v. Fleet Owners Ins. Fund, 844 F.3d 576, 581-82 (6th Cir.
2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). If the plaintiff fails to
establish standing, the court must dismiss the complaint for lack of jurisdiction under Fed. R.
Civ. P. 12(b)(1). Lyshe v. Levy, 854 F.3d 855, 858 (6th Cir. 2017) (citing Allstate Ins. Co. v.
Glob. Med. Billing, Inc., 520 F. App’x 409, 410-11 (6th Cir. 2013)).

There are constitutional and statutory components to the court’s standing inquiry.

Soehnlen, 844 F.3d at 581-82. What courts have commonly referred to as “statutory standing”


nonetheless signed and returned the Termination Agreement to IP on July 21, 2017. She
informed IP that she “reserves her rights, including to bring causes of action against IP for
wrongful termination and discrimination, as receipt of her Plan severance benefits does not
provide IP with a general release of any such employment claims.” (Doc. 1, §] 13, Exh. C).
Plaintiff did not revoke her acceptance of her Termination Allowance within 7 days, or by July
28, 2017, as provided under the Plan.

IP denies that the Plan and Termination Agreement “do not and cannot impose an
enforceable release of [plaintiff's] employment-related claims against IP.” (Doc. 1,§ 16). IP
has informed plaintiff that if she pursues legal remedies that she purportedly released under the
Termination Agreement, IP will rely on the Termination Agreement to oppose such efforts and
will seek to recover its costs, attorney fees and other sanctions against plaintiff.

On August 14, 2017, IP confirmed in writing that it had processed and would be paying
plaintiff's Termination Allowance. (Doc. 1, Exh. D). IP reiterated its position that the
Termination Agreement is a valid release of plaintiff's employment-related claims. (/d.). IP
paid plaintiff's Termination Allowance under the Plan on August 31, 2017.

Based on these allegations, plaintiff brings a claim for declaratory judgment. Plaintiff
alleges that an actual case or controversy exists between the parties as to the “validity,
effectiveness, and enforceability of the provisions of the General Release,” and a declaratory
judgment in her favor would “settle the controversy, clarify the legal relations between the
parties, and serve as an effective remedy.” (Doc. 1, {] 24, 27). Plaintiff seeks a declaration

that “the General Release of Claims in the Agreement is null and void, unenforceable against


Plaintiff has not shown that inclusion of the General Release in the Termination
Agreement has caused her to suffer “(1) . . . an ‘injury-in-fact’ that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action of [IP]; and (3) . . . the injury [likely] will be redressed by a
favorable decision” in this lawsuit. Soehnlen, 844 F.3d at 581. First, plaintiff does not allege
that she suffered an actual injury as a result IP’s inclusion of the General Release in the
Termination Agreement. Plaintiff received the full Termination Allowance to which she was
entitled under the Plan. Plaintiff does not claim that she was denied benefits as a result of
signing the Termination Agreement and she does not allege that she will suffer a loss of future
benefits. Rather, the only injury she claims is the release of rights that she agreed to in
exchange for the benefits she received. She claims she has been injured because she will be
precluded from pursuing discrimination and wrongful termination claims that are covered by the
General Release but which she intends to file in state court at a future date. The claimed injury
is only conjectural at this point. For plaintiff's injury to materialize, two things must occur.
First, plaintiff must file a claim that is encompassed by the General Release. Second, IP must
raise the General Release as a defense to plaintiff's claim. Given the contingent nature of
plaintiff's claim, “the facts alleged, under all the circumstances, [do not] show that there is a
substantial controversy, between parties having adverse legal interests, of sufficient immediacy
and reality to warrant the issuance of a declaratory judgment.” See MedImmune, 549 U.S. at
127 (quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941).

Plaintiff has not established “an actual controversy” as required for the Court to exercise

15


3% Defendant’s motion to strike (16) and motion for judgment on the pleadings on its

counterclaims (Doc. 17) be DENIED as moot.

Date: CHE: i "8 A hong
Fils L. Litkovitz

United States Magistrate Judge



This is a General Release and covers all claims under federal, state or local law,
whether based on statute or common law, that relate to employment, including but
not limited to, all federal, state, and local discrimination laws, claims, charges,
and legal actions under the following:

e Age Discrimination in Employment Act [ADEA]. . .;
e Title VII of the Civil Rights Act of 1964, as amended. . .;

e Any other federal, state or local laws, ordinances, or regulations
prohibiting employment discrimination or regulating the terms and
conditions of employment. . . .

This General Release also includes a release and waiver of any claims for breach
of express or implied contract, any claims . . . under any federal, state or local
statute or common law relating in any way to the employment relationship, and

any right to any recovery of money or any other personal remedy. It applies
both to claims that you know about and to claims you do not know about.

(Doe. 1, Exh. A, ¥ 7).

The Plan itself does not contain express language that requires an eligible participant to
sign a general release of employment-related claims to obtain severance benefits, and the Plan
does not give notice that eligibility for a termination allowance is conditioned on a general
release of employment-related claims.

Plaintiff, through her counsel, advised IP on July 12, 2017, that her eligibility for her
termination allowance under the Plan could not be conditioned on the General Release.
Plaintiff advised IP that she was already entitled to termination benefits under IP’s Plan pursuant
to ERISA, 29 U.S.C. § 1132(a)(1)(B), and IP could not rely on Plan language requiring that
termination benefits be paid under a “termination agreement acceptable to the Company” to
condition receipt of benefits on a “non-Plan and unauthorized General Release, [imposed]

without notice, and at IP’s unfettered discretion. ...” (Doc. 1,911; Exh. B). Plaintiff

3


II. Allegations of the complaint

Plaintiff makes the following allegations in the complaint (Doc. 1): Plaintiff, a resident of
Ohio, was employed by defendant IP, a New York corporation conducting business in Ohio, for
28 years as a full-time salaried employee. On June 30, 2017, IP eliminated plaintiff's job as a
Senior Staff Engineer at its Loveland, Ohio facility. The job elimination constituted a
“Termination Event” under the International Paper Company Salaried Employee Severance Plan
(“Plan”). The Plan is a welfare plan' governed by ERISA which was established during
plaintiff's employment to provide severance benefits for eligible employees.

IP required plaintiff to sign a Termination Agreement and Release (“Termination
Agreement”) in order to receive the “Termination Allowance” she was entitled to receive under
the Plan. (/d., Exh. A). IP represented that the Termination Agreement was “a termination
agreement acceptable to the Company” under the terms of the ERISA plan. The “Termination
Allowance” was a lump sum cash payment equal to two weeks salary for each year or partial
year of service in accordance with the terms of the IP Plan, with certain additional benefits.
(Ud., Exh. A, §2). Under the Plan, plaintiff had 21 days, which was until July 21, 2017, to sign
the Termination Agreement and return it to IP.

The Termination Agreement contained a “General Release of Claims” provision at 7
(“General Release”). The General Release states, in part:

By signing this Agreement, you release IP from any claim of any kind arising out

of or related to your employment with IP, the termination of your employment, or

any matter or event occurring up to the date you sign this Termination Agreement.

You also agree that, except as provided in Paragraph 8 below, you will not file or
be a party to any legal action, or claim against IP regarding these claims.

' 29 U.S.C. § 1002(1) defines an “employee welfare benefit plan” and “welfare plan” as any “plan, fund, or program
. .. established or maintained by an employer . . . to the extent that such plan . . . was established or is maintained for
the purpose of providing for its participants or their beneficiaries” specified types of benefits.

2


claim for ERISA benefits. Plaintiff therefore does not meet the definition of “participant”
under 29 U.S.C. § 1002(7), and she has not stated a cause of action under ERISA. See
Firestone Tire and Rubber Co., 489 U.S. at 117-18; see also Teagardener, 909 F.2d at 952 (the
plaintiffs were not “participants” because they had accepted the payment of everything due them
at the time their participation in the plan terminated and they were not due any more benefits);
Joseph v. New Orleans Electrical Pension & Retirement Plan, 754 F.2d 628, 630 (5th Cir. 1985)
(cited in Teagardener, 909 F.2d at 952) (retirees who had accepted the payment of everything
due them under an ERISA plan in a lump sum were not “participants” because they had already
received the full extent of their benefits and were no longer eligible to receive future payments);
of. Sullivan, 518 F. Supp.2d at 989-90 (former employee presented a colorable claim that the
waiver she signed did not bar her ERISA claim because if the plaintiff's position was correct, she
had a reasonable claim that she would prevail in a suit for benefits).

Further, plaintiff does not allege a breach of fiduciary duty by IP that caused her to forfeit
her right to ERISA benefits under the IP Plan or to fail to participate in the Plan. See Swinney,
46 F.3d at 518. Plaintiff alleges that defendant IP fully disclosed the General Release to her
before she signed the Termination Agreement; she was advised to consult with an attorney
before she signed the Termination Agreement and was given several weeks to do so and consider
whether to accept the terms of the Agreement; plaintiff was aware of the consequences of the
General Release before she signed the Termination Agreement; plaintiff, through her attorney,
reserved her right to bring causes of action against IP for wrongful termination and
discrimination (Doc. 1, § 13; Exh. C); plaintiff signed the Termination Agreement, which

included the General Release, after obtaining the advice of counsel; and she accepted the

13


complaint under the Declaratory Judgment Act. This Court lacks subject matter jurisdiction
over plaintiff's complaint.

2. Defendant’s motion to strike

Defendant moves to strike text in plaintiff's answer and exhibits that refer to settlement
negotiations between the parties under Fed. R. Civ. P. 12(f). (Doc. 16). Defendant argues that
plaintiff is barred under Fed. R. Evid. 408(a) from introducing evidence of “compromise” or
settlement negotiations to prove she has presented a valid claim in the complaint. Plaintiff
asserts in response that evidence of settlement negotiations is admissible to show that a case or
controversy exists as opposed to demonstrating the validity of a claim. (Doc. 18 at 2-3).

Rule 408 provides that certain evidence, including evidence of “compromise” or
settlement offers and negotiations, is not admissible “to prove or disprove the validity... of a
disputed claim.” Fed. R. Evid. 408. Evidence related to settlement offers or negotiations that
plaintiff has submitted to show she has a justiciable claim are not properly considered in
resolving this issue. The Court has therefore disregarded any references to settlement
communications and documentation of settlement discussions submitted by plaintiff.

IT IS THEREFORE RECOMMENDED THAT:
1, This case be DISMISSED for lack of subject matter jurisdiction and terminated on the

docket of the Court.

2 Plaintiff's motion for judgment on the pleadings (Doc. 9) be DENIED as moot.