UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF COLUMBIA

__________________________________________ ) NATHA N L I NDEL L , ) ) Plaintiff, ) ) v. ) Civil Action No. 08-1462 ( PL F) ) L ANDI S CONSTRUCTI ON CO., et a l., ) ) Def endants. ) __________________________________________)
OPI NI ON Plaintiff Nathan L indell, a forme r employ ee of L andis Construction Company (“L andis”), br oug ht this action under the Employ ee Re tirement Income Sec urity Act of 1974, as amende d , 29 U.S.C. §§ 1001 et seq., (“ERI SA”). This matter c urre ntly is before the Court on defe ndants’ motion for summary judgme nt or, in the alternative, to dismi ss. After
car eful c onsideration of the parties’ paper s (includingtheir exhibit s), def endants’ de clar ations, and the r eleva

nt case law and sta

tutes, the Court will gra

nt the motion. 1
I . BA CKGROUND Plaintiff worked f

or L andis at all times rele vant to this action. See Complaint (“Compl.”) ¶

7. L andis offe rs an e mploy ee be nefit pension plan, known a s a 401(k) plan, to its employ ees ( the “401( k) Plan” or the “Plan”) . See id. ¶ 5. Plaintiff enr olled in the Plan in 2007.

The Court had the following paper s befor e it in consideration of this mot ion: 1 Def endants’ Motion for

Summary

J udg ment or to Dismiss (“Mot.”); Plaintiff’s Opposition to Def endants’ Motion for

Summary

J udg ment (“O pp.”); De fenda nts’ Reply

to Plainti ff’ s Opposition to Mot ion for Summary J udg ment or to Dismiss (“Rep.”) ; and Def endants’ Supplement to Reply
.See Mot., Statement of Mate rial F acts a s to W hich Ther e is No Ge nuine I ssue (“ Def . Fa cts”) ¶ 4. His total contributions for 2007, the only y ear in which he wa s enrolled in the 401( k) Plan, wer e $1,360. See id.

Plaintiff asserts two cla ims ag ainst defe ndants based upon his pa rticipation in the 401(k) Plan. In Count One for “ Unpaid and Untimely Contributions ,” plaintiff a lleg es that defe ndants failed to make promised matchingcontributions to the 401(k) Plan and that they failed to submit contributions deducted f rom plaintiff’s pa

y chec k to the 401(k) Plan in a timely
manner . See Compl. ¶¶ 11-17. In Count Two, “B rea ch of F iduciary Duty ,” plaintiff a lleg es that defe ndants Hug h J eff

rey Fox and the J ohn Doe f

iduciarie s brea ched the ir fiduciar y duty to him in their ca pacity as administrators of the Plan by failingto disclose cer

tain expenses and fa iling to
ensure that employ ee c ontributions were timely made. See id. ¶¶ 18-23. Plaintiff previously

filed a la wsuit ag ainst cer

tain of the c urre nt defe ndants for unpaid over

time wag es. See L indell v. L andis Constr. Corp., Civi l Action No. 08-0229, Complaint, Dkt. No. 1 (D.D.C. Fe bruar y 11, 2008). On Septembe r 8, 2008, the pa rties in that
case ag ree d to dismi ss the case based on a settlement ag ree ment. See L indell v. L andis Constr. Corp., Stipul ation of Dismissal, Dkt. No. 15 (D.D.C. Sept. 8, 2008). Af ter sig ning the settlement ag ree ment in the ear lier ca se, Mr. L indell filed the lawsuit cur rently befor e the Court. B ased on that settlement ag ree ment, this Court di smissed from the cur rent law suit the defenda

nts who were parties to the e arlier

case — L andis Construction Company and Ethan L andis. See L indell v. L andis Corp. 401(K) Plan, 640 F. Supp. 2d 11, 15 (D.D.C. 2009). The rema ining de fenda nts are L andis Corporation 401(k) Plan, Hug h J eff rey Fox, and J ohn Does 1-5, F iduciarie s.

2I I . STANDARD OF REVI EW 2 Summary judgme nt may

be g rante d if “the ple ading s, the discover y and disclosure materia ls on file, and any aff idavits [ or dec larations] show that there is no ge nuine issue as to any materia l fac t and that the movant[s] [are] entitled to judgment as a matter of la

w.” F E D . R. C I V . P. 56(c); see also Ander son v. L iberty L obby , Inc., 477 U.S. 242, 247-48 (1986) ; Holcomb v. Powell, 433 F.3d 889, 895 (D .C. Cir. 2006). “A fa ct is ‘mater ial’ if a dispute ove r it might af fec t the outcome of

a suit under the g overninglaw; fa ctual disputes that ar e ‘irr eleva nt or
unnece ssary ’ do not aff

ect the summar

y judgme nt determination.” H olcomb v. Powell, 433 F.3d at 895 (quotingAnder son v. L iberty L obby , Inc., 477 U.S. at 248). An issue is “g enuine” if the evidenc e is such that a r easona ble jury could re turn a ve rdict for the nonmoving pa

rty . See Scott v. Har ris, 550 U.S. 372, 380 (2007); Ander son v. L iberty L obby , Inc., 477 U.S. at 248; Holcomb v. Powell, 433 F.3d at 895. When a motion for summar y judgme nt is under consider ation, “the evidenc e of the non-movant[s] is to be believed, a nd all justifiable infere nces a re to be drawn in [t heir] favor.” Ander son v. L iberty L obby , Inc., 477 U.S. at 255; see also Mastro v. Potomac Electric Power Co., 447 F.3d 843, 849- 50 (D.C. Cir. 2006); Aka v. Washing ton Hospital Center, 156 F.3d 1284, 1288 ( D.C. Cir. 1998) ( en banc ); Washington Post Co. v. U.S. Dep’t of Hea lth and Human Ser

vices, 865 F .2d 320, 325 (D.C. Cir. 1989). On a motion for summary

judgme nt, the Court must “esche w makingcre dibilit y deter minations or weighing the evidenc e.” Czekalski v. Peters, 475 F .3d 360, 363 (D.C. Cir. 2007).

Def endants’ motion re lies on materials outside the plea dings, a nd the Court has 2 considere d some of those mate rials. Rule 12(d) of the Fe dera l Rules of Civil Procedur e ther efor e require s the Court to treat the motion as one f or summary

judgme nt pursuant to Rule 56 rather than as a motion to di smiss pursuant to Rul e 12(b) (6). 3The nonmovingparty ’s opposition, however, must consist of more than mere

unsupported alleg ations or denials a nd must be supported by

aff idavits, declar ations or other competent e vidence , setting f orth specif

ic fa cts showingthat there is a g enuine issue f or trial. F E D . R. C I V . P. 56(e) ; Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). He is require d to provide e vidence that would permit a re asonable jury to find in his favor. L aning ham v. United States Navy , 813 F.2d 1236, 1242 ( D.C. Cir. 1987). I f the nonmovant’s e vidence is “mere ly colora ble” or “not sig nificantly

probative,” summary

judgme nt may

be grante d. Ander son v. L iberty L obby , Inc., 477 U.S. at 249-50; see Scott v. Harris, 550 U.S. at 380 (“ [W ]here the r ecor d taken a s a whole c ould not lead a r ational trier of fac t to find for the non-movingparty , there is ‘no g enuine issue f

or trial.’” ) (quotingMatsushita Electric Industrial Co. v. Ze nith Radio Corp., 475 U.S. 574, 587 (1986)).
I I I . DI SCUS SI ON A. Reque sts for Addit ional Discovery Def endants’ motion for summar y judgme nt is sparse and f

ocuses on their argument that plaintiff ca nnot meet his burden of

proof f or his claims. Plaintiff responds by
asser ting that summary

judgme nt is premature beca use discover

y documents have not been produce d by

defe ndants. See Opp. at 9. As expl ained be low, the Court ag ree s with defenda nts that plaintiff has ha d ample opportunity to take discove ry , and it will not reserve ruling on the summary judgme nt motion i n order to allow plaintiff to take a dditional discovery
. Discover y was orig inally

schedule d to be completed by November

13, 2009. See SchedulingOrde r, Dkt. No. 9 ¶ 1 ( Aug . 20, 2009). The Court grante d plaintiff’s motion for an

4extension of tim e to complete disc overy , over de fenda nts’ opposition, ex tendingthe time to complete discove ry

until Decembe r 31, 2009. See Minute Or der (Nov. 12, 2009). Ac cording to defe ndants, the only

additional discovery

reque st that they

rec eived f

rom plaintiff wa s an ema il dated 11:16 p.m. on Dec ember 31, 2009, which re quested a dditional responses to a doc ument reque st origina lly

made in Oc tober 2009. See Rep. at 4, see also Rep., Ex. 4 (email from plaintiff’s counse l to defense counsel dated 12/31/09). The Sche duling Or der e ntere d in this case require s the parties to re solve all discover y disputes in a timely

manner so as “to allow suff

icient time for the c ompletion of discovery” by the date on which discover y is scheduled to close . See SchedulingOrde r ¶ 1. De fenda nts took the positi on that plaintiff’s midnight hour reque st was untimely . See Rep., Ex. 5 (email from de fense counsel to plaintiff’s c ounsel dated 1/1/10). Plaintiff did not, however, move for a n additional extension of tim e to complete disc overy , nor did he move to compel pr oduction of the doc uments by defe ndants. Plaintiff’s counsel ha s not been dilig ent in seekingadditional discovery , and the Court will not postpone resolution of the motion in order to permit additional discover y to be taken. In his oppositi on to defe ndants’ motion, plaintiff also reque sts permission to t ake additional discovery

pursuant to Rule 56(f) of the F eder al Rules of Civil P roce dure. Rule 56( f) provides that if a

party opposing a

summary judgme nt motion “shows by aff idavit that, for specifie d rea sons, it cannot prese nt fac ts essential to justify its opposit ion,” the Court may deny the summary

judgme nt motion and/or permit additional discovery to be taken. Plaintiff ha s submitt ed no such a ffidavit nor ma de a f ormal motion for Rule 56(f) discovery . The re quest does not comply

with the Rule, and the Court will not gr ant it. The Court will consider the

5defe ndants’ ar g uments in favor of summary judgme nt and plaintiff’s opposition on their merits. 3
B. The Merits Wit h reg ard to plaintiff’ s first claim, plaintiff’s theor y of the c ase is that L andis promised to provide e mploy er matchingcontributions to the 401(k) Plan equa l to three pe rce nt of his earning s. See Compl. ¶ 12. Plainti ff a sserts that def endants fa iled to pay

him overtime wag es which he w as due a

nd there fore that the amount of e mploy er c ontributions was less than promised. See id. ¶ 13. Plaintiff a lso asserts that he lost investment income be cause L andis’s submissi on of plaintiff’s own contributions to the 401(k) Plan wer e not made in a timely manner . See id. ¶ 15. Def

endants a rgue that the undisputed fa cts show that the compa ny ’s contributions to the 401(k) Plan we re discr etionary and ther efor e that it had no commitment to contribute any amount to the 401(k) Plan. De fenda nts have produc ed evide nce in the f orm of a de clar ation from the CEO and c o-owne r of L andis, Ethan L andis, stating that the 401(k) Plan “doe s not have a n ong oing e mploy er match, but a discre tionary profit sharing3% contribution paid af ter the year end.” See Mot., Ex . 1, Dec laration of Ethan L andis (“L andis Dec l.”) ¶ 3. T he Adoption Ag ree ment for the 401( k) Plan provided that the e mploy er ma y make discr etionary

contributions to the 401(k) Plan and pr ovides for a “Discr etionary

Safe- Har bor Contribution” by

which
Plaintiff might have had the oppor tunity to take additional discove ry had his 3 attorney acte d diligently , but he is bound by his attorney ’s ac tions, even thoug h they ultimately did plaintiff a disservic e. See Robinson-Smith v. Gov’t Emples. I ns. Co., 424 F. Supp. 2d 117, 120 (D.D.C. 2006) ( “Clients ge nera lly are presumed to be acc ountable for and bound by

their attorney s” conduc t.”) (c iting L ink v. Wabash Railroad Co., 370 U.S. 626, 633-34 (1962))
.

6the Employ er ma y make a n Employ er Contribution . . . on behalf of all Participants in an a

mount equal to 3% of Par ticipant’s Plan Compensation. I n the eve nt that the Employ er e lects not to make a 401(k) Saf

e-H arbor Contribution, a supplemental notice will be distributed to all Participants prior to the date 30 da y s prior to the expiration of such Plan Yea r. See Mot. Ex. 4 at 7-8. The Summary Plan Descr iption for 2009 shows that the employ er’ s contributions to the 401(k) Plan wer e still “discretionar y ” at that point. Mot., Ex . 3 at 3. Ethan L andis also stated in his decla ration that with reg ard to plaintiff a nd the one year

for whic h he
was e nrolled in the 401(k) Plan, 2007, “L andis Construction would not have made any matching contribution since Mr. L indell did not contribute for a full y ear in 2007.” See L andis Dec l. ¶ 4. At the summary

judgme nt stag e, once the moving pa rties make out a

case that would entitle them “to judg ment as a matter of law if uncontrove rted a

t trial,” as de fenda

nts have with reg ard to the discr etionary nature of their c ontributions to t he 401(k) Plan, the Court will g rant summary

judgme nt unless the opposing pa rty offe rs some compe tent evidenc e showingthat there is a g enuine issue a s to a materia l fac t. 10A W RIG HT , M ILL ER & K A NE , F E D E R A L P R A C T I C E
A N D P R O C E D U R E : C I V I L § 2727 at 486 (3d e d. 2002); see a lso Celotex Corp. v. Catrett, 477 U.S. at 324; L aning ham v. United States Navy , 813 F.2d at 1242. “In this way the burde n of producingevidenc e is shifted to the par ty opposing the motion.” W RIG HT , M I L L E R & K A N E at 486-88. In order

to preve nt judgment a g ainst him, Mr. L indell must offer c ompetent evidenc e showing that there is a g enuine issue a s to defenda nts’ asser tion that their Plan contributions
wer e discre tionary . He ha s not done so.

Plaintiff appea

rs to rec og nize that the 401(k) Plan’s Adoption Ag ree ment, quoted above, pr ovides that employ er c ontributions are discr etionary and per mits t he employ er not to

7make a

contribution in any

g iven y ear . See Opp. at 4. Plainti ff a sserts, howeve r, that he r ece ived a letter from the plan sponsor

repr esenting

that matchingcontributions would be made at three perc ent of his salar

y . See id. at 9. Plaintiff has not submitted this l etter to the Court, nor ha s he submitt ed any

sworn stateme nts attesting to its contents. In fac t, plaintiff’s sworn de position testimony is that he is at best unce rtain whe ther a ny matchingto be done by

L andis was mandatory

or discre tionary . See Mot., Ex. 2, Depositi on of Nathan L indell (“L indell Dep.”) at 16. In addition, plaintiff has provided no r esponse to def endants’ e vidence that even if they had elec ted to make matc hing c ontributions for employ ees in 2007, they would not have matc hed plaintiff’s contr ibutions because he had not contributed f or the full year . The Court conc ludes that no g enuine issue of

materia l fac t exi sts with reg ard to whe ther L andis failed to make adequate matchingcontributions to plaintiff’s 401(k) Plan and w ill gra nt summary

judgme nt for defe ndants on this issue.

Wit h reg ard to plaintiff’ s alleg ations that L andis failed to submit contributions from plaintiff’ s paychec k to his 401(k) Plan on time — and that he c orre spondingly lost investment income — Ethan L andis stated in his decla ration that “A DP Pay

roll cuts a che ck for
eac h employ ee 401( k) deduc tions, and L andis sends the c heck to Citistreet on eve ry pay date.” See L andis Dec l. ¶ 6. He e x plicitly denies plaintiff’ s alleg ations that the plan contributions deducte d from plaintiff’ s paychec ks were ever delayed. See id. Plaintiff provide s no evidenc e in response to this st atement, other than a c opy

of his final pay

roll rec ord — a r ecor d for a pay period in which pla intiff elec ted not to make any contribution to his 401(k) Plan. See Opp., Ex. A (pa y roll rec ord for

11/11/07 through 11/24/07); see also Rep., Ex. 1, Declara tion of Hug h J eff rey Fox (“F ox Dec l.”) ¶ 5 ( stating that plaintiff elec ted to have no 401( k) deduc tion made
8from his final paychec k). Plaintiff has not met his burden of showingthat a g enuine issue of materia l fac t exi sts with respect to this issue. The Court there fore will gr ant judg ment in favor of the def endants on the que stion of whether they timely submitt ed the c ontributions that plainti ff made f rom his paychec k to his 401(k) Plan. Count Two of plaintiff’s c omplaint alleg es that Hug h J eff rey Fox and the J ohn Doe f iduciarie s brea ched a

fiduciar y duty to plaintiff by

failingto disclose that the expenses associate d with administering the 401(k) Plan would be c harg ed to the plan pa rticipants. 4 Def endants have provide d the Court with the decla ration of Etha

n L andis in which he state s that no administrative fe es ar e cha rg ed to the 401(k) Plan participants, see L andis Dec l. ¶ 9, and the decla ration of Mr. F ox stating that “L andis Construction is bil led for a ll administ rative f ees f or its 401(k) plan, not the employ ees. I have ne ver se en any

document indicatingthat Mr. L indell
was c harg ed for

administrative fe es for

the 401(k) pla

n.” F ox Dec l. ¶ 6. Plaintiff responds by

rely ing on the Service Agree ment for the 401( k) Plan which details numerous c osts and fee s associate d with the Plan. I n the sec tion entitled “Miscellaneous Pay roll and Da

ta Remittance Proc essing ,” which disc usses cha rg es assoc iated with data submissi on, there are two options — either to “B ill the Employ er the applicable per a ctive Participant re cordke epingfee ” or to “ Debit ea ch ac tive Participant’s a ccount ( semi-annua lly , the applicable fee . The diff

ere nce be tween this sum and the total annua l fee will be billed to the Employ er) .” Opp., Ex B, CitiS tree t Service A g ree ment at 66. The se cond option, to debit the

Plaintiff also alleg es that these de fenda nts breac hed a f

iduciary duty by failingto 4 ensure that the contributions wer e timely remitted to the 401(k) Plan. As discussed with reg ard to plaintiff’s first count, howe ver, the undisputed fac ts show that L andis did not submit plaintiff’s contr ibutions i n an untimely manner . Acc ording ly , there can be no liability for br eac h of fiducia ry duty on this theory
. 9participa

nt’s acc ount, is selected. See id. This selection does not nec essar ily mean that the participa nts in L andis’s 401(k) Plan were char g ed administrative c osts, however , beca use this section also provide s that costs for data submission are free if the employ er use s an ele ctronic or automated data submission m ethod. See id. This document ther efor e does not lea d to the conclusion that plaintiff wa s char g ed administrative c osts for his 401(k) Plan. In addition, plaintiff testified in his sworn deposition that he did not know whethe r he w as cha rg ed administrative costs for pa rticipation in the 401(k) Plan. See L indell Dep. at 36- 37. In light of the sworn state ments by

Mr. L andis and Mr. F ox that no administrative costs ar e cha rg ed to plan participa nts, the Court concludes that no g enuine issue of fac t exi sts as to whether pla intiff was char g ed administrative f

ees f or his participation in the 401(k) Plan.
I V. CONCLUSI ON As explained above, the Court has conc luded that there are no g enuine issues of materia l fac t with reg ard to plaintiff’ s claims. The Court there fore will gr ant summary judgme nt for de fenda

nts. An Orde r consistent with this Opinion will issue this same day
. 5 _/s/________________________ PAULL . FRI EDMAN United States District J udg e DATE: May

28, 2010

The Court there fore need not r eac h defe ndants’ numer ous proce dural c halleng es, 5 many of which a

re w ell taken, to plaintiff’ s response br ief. 10