IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MICHAEL STEPHEN LEE, §

 §

Plaintiff, §

 § 

VS. §

 § Civil Action No. 3:04-CV-2260-D

 §

TYCO ELECTRONICS POWER §

SYSTEMS, INC., §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

This action presents the questions whether plaintiff Michael

Stephen Lee’s (“Lee’s”) state-law breach of contract claim against

defendant Tyco Electronics Power Systems, Inc. (“Power Systems”)

for failing to pay him full retirement benefits following the

termination of his employment is preempted by the Employee

Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C.

§§ 1001-1461, and whether he is entitled to recover under ERISA

against Power Systems. Concluding that the claim is preempted and

that Lee cannot recover from Power Systems under ERISA, the court

grants summary judgment dismissing the case.

I

The court assumes the parties’ familiarity with its opinion

that addressed Power Systems’ motion to dismiss under Fed. R. Civ.

P. 12(b)(6). See Lee v. Tyco Elecs. Power Sys., Inc., 393

 

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1In Lee I the court decided a Rule 12(b)(6) motion and

therefore accepted as true the well-pleaded facts alleged in Lee’s

complaint and viewed them in the light most favorable to him. See

Lee I, 393 F.Supp.2d at 430 n.2 (citing Capital Parks, Inc. v. Se.

Adver. & Sales Sys., Inc., 30 F.3d 627, 629 (5th Cir. 1994)).

Because the instant motion seeks summary judgment, a different

standard applies. See, e.g., Harris v. Miss. Valley State Univ.,

899 F. Supp. 1561, 1566 (N.D. Miss. 1995) (“Although motions to

dismiss and motions for summary judgment are interrelated and are

often asserted in the alternative, there are differences in the

legal standards applied under the two motions.”). Unlike a motion

to dismiss, which, with some exceptions, is decided only on the

contents of the complaint, in deciding this summary judgment motion

the court goes beyond the pleadings and considers summary judgment

evidence. 

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F.Supp.2d 429 (N.D. Tex. 2005) (Fitzwater, J.) (“Lee I”).1 In 2000

Power Systems acquired from Lucent Techologies, Inc. (“Lucent”) a

facility in Mesquite, Texas and assumed the obligations of the

collective bargaining agreement (“CBA”) that had been in effect

between Lucent and the Communications Workers of America (“CWA”).

Power Systems employed Lee at the Mesquite facility, where he was

a CWA member. In 2001, following negotiations with CWA, Power

Systems adopted the Tyco Electronics Pension Plan for Represented

Employees (the “Plan”). The Plan governed the retirement benefits

of Power Systems’ bargaining unit employees. Under the Plan, a

retiring employee was entitled to full pension benefits when he

obtained 30 years of service. An employee was entitled to reduced

pension benefits if he completed 25 years of service and was at

least age 50. The Plan included an extended compensation option

(“ECO”) that permitted employees to accrue additional service time

under certain circumstances. The decision to place an employee in

 

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2The plant closure is the subject of a prior opinion of this

court. See Commc’n Workers of Am., AFL-CIO v. Tyco Power Sys.,

Inc., 2003 WL 22271904 (N.D. Tex. Sept. 2, 2003) (Fitzwater, J.),

aff’d, 99 Fed. Appx. 499 (5th Cir. 2005) (per curiam) (unpublished

opinion).

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the ECO was within the sole discretion of Power Systems under the

terms of the CBA. AON Consulting, Inc. (“AON”) administered the

participants’ benefits under the Plan.

In October 2001 Power Systems notified all CWA represented

employees that it was closing the Mesquite facility.2 On February

28, 2002 AON notified Lee of his preliminary pension determination

and that he would be entitled to discounted rather than full

monthly retirement benefits because, although he was 50 years old,

he had obtained only 29 years of service. Lee’s last day of work

was March 14, 2002. 

Lee sent a letter dated March 20 to Power Systems and CWA,

advising them that he was invoking the ECO and would obtain 30

years of service on October 23, 2002, entitling him to full

benefits thereafter. He stated that

[i]f either of you contends that [Lee] is not

eligible or otherwise is not entitled to be,

and/or will not be placed on the [ECO], then

timely set out your contention in writing to

me at my address hereon. If nothing is

forthcoming relative to your contention, it

will be expected that [Lee] will be deemed

placed in or on said [ECO] program.

D. App. 93. On April 22, 2002 Lee wrote to AON, copying both Power

Systems and CWA, advising AON that he had invoked the ECO and

 

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3

As explained in Lee I, although Lee begins the paragraph that

alleges a cause of action by stating that he “alleges equitable

estoppel” and that he “detrimentally relied” on Power Systems’

representations, the court treats the complaint as alleging a

breach of contract claim. Lee I, 393 F.Supp.2d at 431 n.6. Lee

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would await the expiration of the period until he was entitled to

full benefits. On July 31 Lee returned to AON the payment

authorization form that had been appended to AON’s initial

preliminary pension determination. He requested that pension

payments begin November 1, 2002. 

On October 2, 2002 AON notified Lee that, effective October 1,

he would receive full retirement benefits. On November 1, 2002 Lee

received his first check for the full benefits amount. On November

12, however, AON notified Lee that he had been paid an incorrect

amount and that a revised calculation was being processed. It

explained that his request to delay receipt of benefits changed

only his age at retirement, but it had not affected his years of

service. Two days later, on November 14, AON sent Lee a letter

enclosing the revised calculation of his discounted (as opposed to

full) monthly benefits. In response, Lee wrote to Power System and

CWA on December 17, objecting to the reduction in his monthly

benefits. He reminded them that, in his March 2002 letter, he had

requested that they state in writing any objection to his

entitlement to be enrolled in the ECO program, and that no

objection had been made.

Lee later sued Power Systems for breach of contract.3 Power

 

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also alleges that his March 2002 letter invoked a provision of the

Plan entitled Transition Leave of Absence (“TLA”). 2d Am. Compl.

2. The TLA allowed employees to count leave time toward their

years of service. See D. App. 36-37. The March 2002 letter,

however, invoked only the ECO, not the TLA. Id. at 93. Because

Lee contends the March 2002 letter constituted the offer that Power

Systems accepted to form the alleged contract, the TLA was not part

of the alleged contract. Id. at 119. Even if it were, Lee’s

contract claim would still be preempted under ERISA for the reasons

explained below. Additionally, as noted in Lee I, Lee originally

sued Powers Systems for intentional infliction of emotional

distress, but he dropped that claim in his second amended

complaint. Lee I, 393 F.Supp.2d at 430 n.1.

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Systems moved to dismiss under Rule 12(b)(6), contending only that

the claim was preempted by § 301 of the Labor Management Relations

Act of 1947 (“LMRA”), 29 U.S.C. § 185. The court denied the

motion. See Lee I, 393 F.Supp.2d at 430. Power Systems did not,

however, raise the ERISA preemption argument that the court

addresses in this opinion. It now moves for summary judgment,

contending that Lee’s claim is preempted by both ERISA, 29 U.S.C.

§ 1144(a), and the LMRA, 29 U.S.C. § 185(a), and that his breach of

contract claim fails because no valid contract existed between

Power Systems and Lee. The court need only decide whether Lee’s

action is preempted by ERISA and whether he can recover from Power

Systems under ERISA.

II

As a threshold issue, the court addresses Lee’s apparent

contention that Power Systems has failed adequately to raise ERISA

preemption. He posits that Power Systems “now asserts an ERISA

defense . . . , which defense is not supported by any pleading, to

 

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4Lee also argues that, if the defense is properly before the

court, it fails on the same reasoning that the court relied on in

Lee I to reject preemption under § 301 the LMRA. As the court

explains in this opinion, Lee I was decided under a different

standard, see supra note 1, and the court had no occasion to

address ERISA preemption because it was not raised, see supra § I.

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which Plaintiff objects.” P. Br. 3.4 Lee appears to maintain

that, because Power Systems did not plead ERISA preemption as an

affirmative defense, it cannot now raise the defense as a ground

for summary judgment.

Conflict preemption under ERISA is an affirmative defense that

must be pleaded affirmatively under Rule 8(c). See Ellis v.

Liberty Life Assur. Co. of Boston, 394 F.3d 262, 275 n.34 (5th Cir.

2004) (“Conflict preemption . . . is an affirmative defense against

claims that are not completely preempted under Section 1132(a).”

(citing Giles v. NYLCare Health Plans, Inc., 172 F.3d 332, 337 (5th

Cir. 1999)), cert. denied, __ U.S. __, 125 S.Ct. 2941 (2005); Rule

8(c) (“In pleading to a preceding pleading, a party shall set forth

affirmatively . . . any . . . matter constituting an avoidance or

affirmative defense.”). Power Systems does not contend that it

pleaded ERISA preemption in its answer, as it was obligated to do

under Rule 8(c). Rather, Power Systems maintains that it did not

waive the defense because it raised ERISA preemption at a

pragmatically sufficient time, and Lee was not prejudiced in his

ability to respond. See Lafreniere Park Found. v. Broussard, 221

F.3d 804, 808 (5th Cir. 2000) (“[An affirmative defense] will not

 

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5

In fact, under N.D. Tex. Civ. R. 7.1(e), he had more time (20

days) than is afforded by Rule 56(c) (10 days). 

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be deemed to have been waived so long as it was asserted at a

pragmatically sufficient time, and [the plaintiff] was not

prejudiced in its ability to respond.”) (internal quotation marks

omitted and brackets altered) (quoting United States v. Shanbaum,

10 F.3d 305, 312 (5th Cir. 1994)).

The court holds that Power Systems did not waive its right to

raise the affirmative defense of ERISA preemption as a ground for

summary judgment. First, Lee had ample time to respond to the

argument, even if raised for the first time in Power Systems’

summary judgment motion. The local civil rules of this court gave

him a reasonable amount of time to oppose the defense on the

merits.5 And if he had needed additional time to respond, he could

have requested an extension of time under Rule 6(b) or sought

relief under Rule 56(f). 

Second, on September 26, 2005, four months before Power

Systems filed its summary judgment motion, it advised Lee through

an interrogatory answer that it contended his claim was barred

under ERISA. Lee does not contend that he is surprised by Power

Systems’ reliance on the ERISA defense, and he would be unable to

sustain such an assertion were it made. Cf. Shanbaum, 10 F.3d at

312 (holding that affirmative defense of res judicata was raised at

pragmatically sufficient time when presented for first time in

 

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trial briefs filed same day as pretrial order and served on

opponent before trial began). 

Third, Lee does not assert that he has been prejudiced by

Power Systems’ failure to plead ERISA preemption as an affirmative

defense. Such prejudice cannot be shown, of course, merely on the

basis that Power Systems will be able to obtain dismissal of this

case under this defense. Were that so, the pragmaticallysufficient-time standard would be nullified any time a defense, if

allowed, would entitle the party raising it to prevail on the

merits. Instead, prejudice requires at least a showing akin to

what is necessary to refute the proposition that the defense was

raised at a pragmatically sufficient time. For example, prejudice

might be established by demonstrating that, had the defense been

pleaded earlier, Lee could have taken steps to avoid the preemptive

effect of the defense. This would often be the case when, had the

defense been pleaded, the opposing party could have developed

evidence that would have precluded summary judgment. But for

reasons the court will explain below in addressing the merits of

this defense, it does not appear that Lee could have avoided the

preemptive effect of ERISA as to a claim against Power Systems even

had the defense been pleaded affirmatively. ERISA preemption would

still bar his contract claim, and Power Systems would not be a

party from whom Lee could personally recover under ERISA. 

Accordingly, the court holds that Power Systems is not

 

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precluded from relying on ERISA preemption as a ground to obtain

summary judgment.

III

The court now turns to the merits of Power Systems’ contention

that it is entitled to summary judgment based on ERISA preemption.

A

There are two types of ERISA preemption. See Ellis, 394 F.3d

at 275 n.34 (discussing conflict and complete preemption in ERISA

context). Conflict (or ordinary) preemption occurs (1) when there

is a direct conflict between the operation of federal and state law

so that it is impossible to comply with both, or (2) when the state

law “‘stands as an obstacle to the accomplishment and execution of

the full purposes and objectives of Congress’” in the federal

statute. Boggs v. Boggs, 520 U.S. 833, 844 (1997) (quoting Gade v.

Nat’l Mgmt. Ass’n, 505 U.S. 88, 98 (1992)); see Crosby v. Nat’l

Foreign Trade Council, 530 U.S. 363, 372-73 (2000). “In general,

complete preemption exists when a remedy falls within the scope of

or is in direct conflict with [29 U.S.C. § 1132(a)], and therefore

is within the jurisdiction of federal court.” Haynes v. Prudential

Health Care, 313 F.3d 330, 333 (5th Cir. 2002) (citing Metro. Life

Ins. Co. v. Taylor, 481 U.S. 58, 66 (1987)). 

It is clear that Power Systems asserts conflict preemption.

First, it cites 29 U.S.C. § 1144(a), which provides for conflict

preemption. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45-47

 

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(1987). Second, the gravamen of Power Systems’ argument is that

Lee’s claim is preempted because it “relates to” an ERISA plan.

See Carnes v. Data Return, LLC, 2005 WL 265167, at *1 (N.D. Tex.

Feb. 1, 2005) (Fitzwater, J.). “The ‘relates to’ standard for

ERISA preemption concerns [conflict] preemption, not complete

preemption.” Id. (citing Copling v. Container Store, Inc., 174

F.3d 590, 595 n.9 (5th Cir. 1999), overruled on other grounds by

Arana v. Ochsner Health Plan, 338 F.3d 433, 440 (5th Cir. 2003) (en

banc)). 

B

ERISA is a “federal scheme designed to protect the

participants and beneficiaries of employee benefit plans.”

Hernandez v. Jobe Concrete Prods., Inc., 282 F.3d 360, 362 (5th

Cir. 2002). ERISA includes “expansive pre-emption provisions”

designed to ensure that “employee benefit plan regulation would be

‘exclusively a federal concern.’” Aetna Health, Inc. v. Davila,

542 U.S. 200, 208 (2004) (quoting Alessi v. Raybestos-Manhattan,

Inc., 451 U.S. 504, 523 (1981)). 29 U.S.C. § 1144(a) provides that

ERISA preempts “any and all State laws insofar as they may now or

hereafter relate to any employee benefit plan.” The Supreme Court

has broadly defined the phrase “relate to.” Metro. Life Ins., 481

U.S. at 739. The phrase is to be “given its broad common-sense

meaning, such that a state law relates to a benefit plan, in the

normal sense of the phrase, if it has a connection with or

 

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reference to such a plan.” Id. (internal quotation marks and

brackets omitted) (quoting Shaw v. Delta Air Lines, Inc., 463 U.S.

85, 87 (1983)). The Fifth Circuit has further explained that

§ 1144(a) preempts state-law causes of action when the state-law

claim addresses an area of exclusive federal concern, such as the

right to receive benefits under the terms of an ERISA plan, and the

claim directly affects the relationship between the traditional

ERISA entities——the employer, the plan and its fiduciaries, and the

participants and beneficiaries. Hollis v. Provident Life &

Accident Ins. Co., 259 F.3d 410, 414 (5th Cir. 2001).

Nevertheless, ERISA preemption is not

without limits. The Supreme Court has

cautioned that some state actions may affect

employee benefit plans in too tenuous, remote,

or peripheral a manner to warrant a finding

that the law relates to the plan. The

ultimate question is whether, if the

appellant’s claims were stripped of their link

to the pension plans, they would cease to

exist . . . . ERISA does not preempt state

law claims when the claims affect only an

employee’s employer/employee relationship with

an employer and not her

administrator/beneficiary relationship with

the company. 

Rokohl v. Texaco, Inc., 77 F.3d 126, 129 (5th Cir. 1996) (internal

quotation marks, brackets, footnotes, and citations omitted)

(citing and quoting, inter alia, Shaw, 463 U.S. at 100 n.21; Hook

v. Morrison Milling Co., 38 F.3d 776, 784 (5th Cir. 1994)).

 

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C

When the party who will have the burden of proof at trial

concerning an affirmative defense seeks summary judgment on the

basis of that defense, it “must establish ‘beyond peradventure all

of the essential elements of the . . . defense.’” Bank One, Tex.,

N.A. v. Prudential Ins. Co. of Am., 878 F. Supp. 943, 962 (N.D.

Tex. 1995) (Fitzwater, J.) (quoting Fontenot v. Upjohn Co., 780

F.2d 1190, 1194 (5th Cir. 1986)). This means that, to obtain

summary judgment, Power Systems must establish beyond peradventure

that Lee’s claim is preempted by ERISA.

Power Systems contends the Plan is an ERISA plan that governs

retirement benefits afforded to former employees, such as Lee. And

it maintains that Lee’s claim falls squarely within the domain that

ERISA preempts, because his breach of contract action is in reality

a complaint that Power Systems reduced his monthly pension

benefits. It urges that Lee complaining about a miscalculation of

pension benefits by AON, and that the formula on which he bases his

calculation and breach of contract claim are rooted in the ERISAgoverned plan. Lee does not explicitly disavow the premise that he

seeks benefits under the terms of an ERISA plan.

This case is in principle materially indistinguishable from

Degan v. Ford Motor Co., 869 F.2d 893 (5th Cir. 1989), where the

panel found ERISA preemption. Lee neither addresses nor

distinguishes Degan in his summary judgment response. In Degan the

 

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defendant-employer closed the facility where Degan was employed,

preventing him from obtaining pension benefits because of his age.

Id. at 891. The employer offered the employees several options,

including, inter alia, relocation out-of-state or lump-sum

separation pay. Id. Degan maintained that his employer and union

had orally advised him of a special benefits package available: If

he took separation pay, he would still be eligible for earlyretirement partial pension benefits at age 55 and then to full

pension benefits at age 60. Id. When the employer later denied

early-retirement benefits, Degan sued the employer and union in

state court, alleging breach of contract and seeking both partial

and full pension benefits that he alleged had previously been

promised him by the employer and union. Id. 

Following removal, the employer argued that the plaintiff’s

claim was preempted under § 301 of the LMRA. Id. The district

court held that the plaintiff was asserting a hybrid § 301 claim,

applied the limitations under the National Labor Relations Act, and

dismissed the suit as time-barred. Id. at 892. The Fifth Circuit

affirmed, but on different grounds. In pertinent part, it held

that Degan’s claim was preempted by, and not cognizable under,

ERISA. Id. at 895. In the instant case, Lee alleges that Power

Systems entered into a contract with him, albeit written instead of

oral, that entitled him to full pension benefits under more

favorable terms than were otherwise available under the terms of

 

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the Plan. The gravamen of his claim is like the one in Degan,

which the panel held was preempted under ERISA. 

Lee’s legal theory rests on the premise that Power Systems

contractually agreed to change benefits to which he was entitled

under the Plan to a different class, i.e., full rather than

discounted pension benefits. The contract, assuming it existed,

operated to alter or amend the terms of the Plan as applied to Lee,

and his breach of contract claim is therefore preempted. See

Hubbard v. Blue Cross & Blue Shield Ass’n, 42 F.3d 942, 946 (5th

Cir. 1995) (“We have also held that ERISA preempts state law claims

of fraud, breach of contract or negligent misrepresentation that

have the effect of orally modifying the express terms of an ERISA

plan and increasing plan benefits for participants or beneficiaries

who claim to have been misled.”) (citing Mem’l Hosp. Sys. v.

Northbrook Life Ins. Co., 904 F.2d 236, 245 (5th Cir. 1990)).

Moreover, the remedy he seeks is damages in the amount of the

difference between full and discounted benefits. This also

demonstrates that his claim is preempted. See, e.g., Cefalu v. B.F.

Goodrich Co., 871 F.2d 1290, 1294 (5th Cir. 1989) (holding that

state-law breach of contract action related to employee benefit

plan and was preempted by § 1144(a) because, if plaintiff’s suit

were successful, his damages would consist of pension benefits he

would have received had he been employed by successor company and,

to compute damages, court was required refer to pension plan that

 

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covered plaintiff when he worked for former employer, and precise

damages and benefits plaintiff sought were created by employee

benefit plan); Holdbrook v. Cal. Fed. Bank, 905 F. Supp. 367, 370

(N.D. Tex. 1995) (Kendall, J.) (“[A] claim which seeks damages

which are measured by pension benefits provides a sufficient

‘connection’ to an employee benefit plan for preemption

purposes.”). At its core, Lee’s claim addresses an area of

exclusive federal concern because he seeks to recover pension

benefits under an ERISA plan. Lee does not dispute that he is a

Plan beneficiary, that AON is the Plan Administrator, or that Power

Systems is the Plan’s sponsor.

In sum, because Lee’s breach of contract claim addresses his

alleged right to receive a certain sum of benefits under the terms

of an ERISA plan——an area of exclusive federal concern——and it

directly affects the relationship among traditional ERISA

entities——Power Systems as the employer, AON as the Plan

Administrator, and Lee as a Plan beneficiary——it is preempted by

ERISA. See Hollis, 259 F.3d at 414; cf. Rokohl, 77 F.3d at 130

(allowing ERISA preemption would effectively permit defendantemployer to hide behind its ERISA plan in avoidance of state

anti-discrimination law).

Accordingly, the court holds that Power Systems has

established beyond peradventure that Lee’s claim is conflict

preempted by 29 U.S.C. § 1144(a).

 

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6Conflict preemption under ERISA, unlike complete preemption,

does not confer federal question jurisdiction. See, e.g., Carnes,

2005 WL 265167, at *2 (“Ordinary preemption under § 1144 is not an

exception to the well pleaded complaint rule, and a claim that is

preempted by § 1144 alone cannot be removed from state court based

on federal question jurisdiction.”). Here, however, the court has

subject matter jurisdiction based on diversity of citizenship. The

court therefore has subject matter jurisdiction to decide whether

Lee can recover against Power Systems under ERISA.

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IV

Having determined that Lee’s claim is preempted, the court

must now decide whether Lee can recover against Power Systems under

ERISA.6

Power Systems contends that Lee’s claim is barred by ERISA

because he would be required to establish his entitlement to a

different benefit amount and that AON miscalculated his benefits,

a showing he cannot make; he sued the wrong entity, because he was

required to sue the Plan itself; and he failed to timely file suit.

Lee does not respond to these arguments.

29 U.S.C. § 1132(a) sets out the types of civil enforcement

actions recognized under ERISA. Section 1132(a)(1)(B) allows a

plan participant or beneficiary to bring a civil action “to recover

benefits due to him under the terms of his plan, to enforce his

rights under the terms of the plan, or to clarify his rights to

future benefits under the terms of the plan.” “When a

[participant] wants what was supposed to have been distributed

under a plan, the appropriate remedy is a claim for denial of

benefits under [§ 1132(a)(1)(B)] of ERISA . . . .” McCall v.

 

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7It should be noted that Lee sued the party from whom he

thought he could recover for breach of contract under state law.

In concluding that he did not sue the correct entity, the court has

of course first determined that his state-law claim is preempted

under ERISA. 

8

Power Systems cites Madera, Metropolitan Life Ins. Co. v.

Palmer, 238 F.Supp.2d 831 (E.D. Tex. 2002), and Murphy v. Wal-Mart

Assocs. Group Health Plan, 928 F. Supp. 700, 708-710 (E.D. Tex.

1996). See also Powell v. Eustis Eng’g Co., 2003 WL 22533650, at

*2 (E.D. La. Nov. 6, 2003) (concluding that plan itself was only

proper defendant in suit to recover benefits under

§ 1132(a)(1)(B)); Blum v. Spectrum Rest. Group, Inc., 261 F.Supp.2d

697, 708-09 (E.D. Tex. 2003) (same), aff’d, 2005 WL 1865370 (5th

Cir. Aug. 8, 2005) (per curiam) (unpublished opinion); Roig v. Ltd.

Long Term Disability Program, 2000 WL 1146522, at *9 (E.D. La. Aug.

4, 2000) (same); and Crawford v. Exxon Corp., 851 F. Supp. 242, 244

(M.D. La. 1994) (granting summary judgment “because ERISA only

provides for suits against the Plan as an entity to recover

benefits”). 

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Burlington N./Santa Fe Co., 237 F.3d 506, 512 (5th Cir. 2000); see

also McGowin v. ManPower Int'l, Inc., 363 F.3d 556, 559 (5th Cir.

2004) (affirming ERISA preemption and construing state-law fraud

claim for damages that amount to loss of retirement benefits as

seeking relief under § 1132(a)(1)(B)). Lee’s complaint seeks

damages equal to past and future benefits allegedly owed to him

under the Plan terms. Because he prays for relief specifically

provided for by § 1132(a)(1)(B), his cause of action arises under

this civil enforcement section.

Any claim under § 1132(a)(1) must be dismissed, however,

because Lee has not sued the correct entity.7

 As Power Systems

notes, district courts in this circuit,8 including this court, see

Madera v. Corporate Solutions, Inc., 2004 WL 2494958, at *3 (N.D.

 

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9

Compare Riordan v. Commonwealth Edison Co., 128 F.3d 549, 551

(7th Cir. 1997) (observing that “[i]t is true that ERISA permits

suits to recover benefits only against the plan as an entity.”);

Lee v. Burkhart, 991 F.2d 1004, 1009 (2d Cir. 1993) (citing

Gelardi v. Pertec Computer Corp., 761 F.2d 1323 (9th Cir. 1985)

(per curiam), as authoritative); Gelardi, 761 F.2d 1323 (same) with

Layes v. Mead Corp., 132 F.3d 1246, 1249 (8th Cir. 1998) (noting

that proper party against whom claim for ERISA benefits may be

brought is party that controls administration of plan); Garren v.

John Hancock Mut. Life Ins. Co., 114 F.3d 186, 187 (11th Cir. 1997)

(per curiam) (same); Curcio v. John Hancock Mut. Life Ins. Co., 33

F.3d 226, 233 (3d Cir. 1994) (same); Daniel v. Eaton Corp., 839

F.2d 263, 266 (6th Cir. 1988) (same). 

10See supra note 9.

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Tex. Nov. 4, 2004) (Lindsay, J.); Holloway v. HECI Exploration Co.

Employees’ Profit Sharing Plan, 76 B.R. 563, 570 (N.D. Tex. 1987)

(Fitzwater, J.), aff’d sub nom. In re HECI Exploration Co., 862

F.2d 513 (5th Cir. 1988), have held that only the plan is a proper

defendant in a suit under § 1132(a)(1). The Fifth Circuit has not

decided this question, and the circuits are split.9 But those that

have expanded the universe of proper defendants have included only

parties that control the administration of the plan. See Bradley

v. Summit Inst. for Pulmonary Med. & Rehab., 2005 WL 2219284, at *9

n.7 (W.D. La. Sept. 13, 2005) (observing that “[a]t the very least,

as is required in other circuits, an employer must have sufficient

discretionary authority over the plan to qualify as a plan

fiduciary”).10 Lee has not responded to this argument and, in

particular, he does not contend there is a fact issue that Power

Systems controls the administration of the Plan. The record

reflects that AON is the plan administrator. Accordingly, the

 

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court need not decide whether the Plan is the only proper defendant

in a suit to recover benefits under § 1132(a)(1), because, even if

parties that control the administration of the plan can also be

defendants, Power Systems does not control the Plan and therefore

is not an entity that can be held liable under § 1132(a)(1).

Moreover, Lee cannot obtain relief from Power Systems for

breach of fiduciary duty, even assuming that Power Systems were

sued as, and determined to be, a fiduciary. First, although

§ 1132(a)(2) provides a cause of action to participants for

injuries caused by fiduciary duty violations under 29 U.S.C.

§ 1109, such claims can only be brought if they inure to the

benefit of a plan as a whole but not to the benefit only of

individual plan beneficiaries. See Matassarin v. Lynch, 174 F.3d

549, 566 (5th Cir. 1999) (affirming summary judgment award on

§ 1132(a)(2) claim because most of plaintiff-employee’s allegations

concerned only her individual account) (citing, inter alia, Mass.

Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 140-44 (1985)). Lee

seeks only to recover pension benefits allegedly owed to him and

not to benefit the Plan as a whole. Consequently, he cannot obtain

relief under this provision of ERISA. 

Second, although § 1132(a)(3) also allows a participant to sue

a plan fiduciary for breach of fiduciary duty, Lee cannot bring

such an action because he has a cognizable claim under

§ 1132(a)(1). See Musmeci v. Schwegmann Giant Super Mkts., Inc.,

 

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11The court need not reach the other grounds on which Power

Systems relies in moving for summary judgment.

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332 F.3d 339, 349 n.5 (5th Cir. 2003) (holding that § 1132(a)(3)

claim is unavailable as a matter of law when § 1132(a)(1) remedy is

available) (citing Great-West Life & Annuity Ins. Co. v. Knudson,

534 U.S. 204 (2002)); see also Stalls v. Liberty Fin. Cos., 1999 WL

134511, at *2-*3 (N.D. Tex. Nov. 8, 1999) (Fitzwater, J.) (holding

that where relief is available under § 1132(a)(1)——even if claim is

not viable——§ 1132(a)(3) claim fails). 

The remaining provisions of § 1132(a) are inapposite, and Lee

has no viable claim for relief under them. See 29 U.S.C.

§ 1132(a)(4) (providing relief for violations of ERISA reporting

requirements); (a)(5)-(6) (providing relief to Secretary); (a)(7)

(providing relief to states); (a)(8) (providing relief for

violations of ERISA provision regulating multi-employer benefit

plans); (a)(9) (providing relief where an annuity purchase results

in violation of duties imposed by ERISA or plan).

The court concludes that, because ERISA preempts Lee’s statelaw claim and he cannot recover under ERISA, his suit must be

dismissed.11

 

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* * *

The court grants Power Systems’ January 27, 2006 motion for

summary judgment and dismisses this action with prejudice by

judgment filed today.

SO ORDERED.

June 20, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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