IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CARL L. YECKEL, §

 §

Plaintiff, §

 § Civil Action No. 3:06-CV-0105-D

VS. §

 §

THE CARL B. AND FLORENCE E. §

KING FOUNDATION RETIREMENT §

PENSION PLAN AND WELFARE §

BENEFIT PROGRAM, et al., §

 §

Defendants. §

MEMORANDUM OPINION

 AND ORDER 

The court must decide whether this lawsuit is barred by the

Rooker-Feldman doctrine or under the doctrine of res judicata and

whether the court should award sanctions against plaintiff and his

counsel under Fed. R. Civ. P. 11. For the reasons that follow, the

court holds that the case is not barred by Rooker-Feldman but is

precluded by res judicata and therefore dismisses it with

prejudice. The court denies the Rule 11 motion without prejudice.

I

Plaintiff Carl L. Yeckel (“Yeckel”) sues defendants The Carl

B. and Florence E. King Foundation Retirement Pension Plan and

Welfare Benefit Program (“Pension Plan”) and The Carl B. and

Florence E. King Foundation (“Foundation”) to recover statutory

penalties and a fine under 29 U.S.C. § 1132(a)(1)(A) and (c),

provisions of the Employee Retirement Income Security Act of 1974

(“ERISA”), 29 U.S.C. §§ 1001-1461, and for declaratory judgment, an

 

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1In deciding the Foundation’s and the Attorney General’s Rule

12(b)(1) motions, the court can consider evidence in addition to

the allegations of Yeckel’s first amended complaint because the

Foundation has presented evidence in support of its motion and the

Attorney General has adopted the Foundation’s motion and has also

presented evidence. It is settled that, if a defendant merely

files a Rule 12(b)(1) motion, it is considered a facial attack, and

the court is required to examine the sufficiency of the allegations

of the complaint, assuming them to be true. See Paterson v.

Weinberger, 644 F.2d 521, 523 (5th Cir. May 1981). The motion is

denied if the allegations are sufficient to allege jurisdiction.

Id. A defendant may make a factual attack on subject matter

jurisdiction by submitting evidence, such as affidavits or

testimony. Id. When a factual attack is made, the plaintiff must

come forward with proof and demonstrate by a preponderance of the

evidence that the court has subject matter jurisdiction. Id.

Accordingly, the court’s recitation of the background facts is

based upon undisputed facts or upon a preponderance of the

evidence.

2In his first amended complaint, Yeckel refers to the Program

as the “Pension Plan.” See, e.g., Am. Compl. ¶ 3.3. The court

will do so as well. 

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injunction, turnover, and attorney’s fees.1 He was formerly the

Foundation’s President, Chair of the Board of Directors, and Chief

Executive Officer. Yeckel maintains that he is entitled to recover

retirement pension and welfare benefits under the terms of the

Pension Plan,2 an ERISA-covered plan to which he is contractually

entitled to benefits under the terms of a 1983 employment agreement

with the Foundation (“Employment Agreement”). 

Yeckel filed the instant suit after Greg Abbott, Attorney

General of the State of Texas (“the Attorney General”), the

intervenor in this lawsuit, joined later by the Foundation as

 

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3

They also sued Thomas W. Vett, the Foundation’s former

Secretary, and William Jordan, Esquire, a former member of the

Board of Directors who provided legal services to the Foundation

and Yeckel, among others.

4

Shortly after the appeal was scheduled for oral argument,

Yeckel filed for bankruptcy. The bankruptcy court later lifted the

automatic stay, however, so that the case could be argued.

5

The court cites “Exhibit C” because the Foundation (and the

Attorney General) failed to comply with N.D. Tex. Civ. R. 7.1(i)(1)

in briefing these motions. Rule 7.1(i)(1) provides that “[a] party

who relies on documentary (including an affidavit, declaration,

deposition, answer to interrogatory, or admission) or nondocumentary evidence to support or oppose a motion must include

such evidence in an appendix.” Although they failed to include

their evidence in appendixes, because this deficiency did not

interfere with the decisional process of the court, the court

considered the documents that defendants submitted. 

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coplaintiff, sued Yeckel and others3 and obtained a judgment

against them in a Texas county probate court. See Atty. Gen. ex

rel. The Carl B. and Florence E. King Found. v. Yeckel, No. 77,995-

A (Probate Ct. No. 1, Travis County, Tex.), appeal docketed, No.

03-04-00713-CV (Tex. App. Austin November 18, 2004) (“Probate

Suit”).4 They alleged, inter alia, that Yeckel had received

excessive compensation from the Foundation, had misused charitable

trust assets, and had breached his common law trust and statutory

fiduciary duties and violated Texas public policy. See Found. Mot.

to Dismiss Ex. C at 5-7, 11-12.5 They sought as part of the

requested relief a judgment that the Employment Agreement was void

ab initio because it violated public policy, was not authorized,

approved, or ratified by the Foundation’s Board of Directors, or

was not fair to the Foundation. Following a jury trial, the

 

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6Yeckel also alleges that his spouse is entitled to benefits

as his beneficiary. For simplicity, the court will refer

throughout this opinion to Yeckel as seeking benefits on his own

behalf.

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probate court entered a modified final judgment that provided, in

relevant part, that the Employment Agreement was void ab initio.

See id. Ex. F at 3. Yeckel filed a notice of appeal to the Texas

Court of Appeals in Austin, Texas on November 18, 2004. The appeal

was pending at the time Yeckel filed this lawsuit, and it is still

pending.

Yeckel relies on the Employment Agreement in this court, as he

did in his probate court counterclaims, to maintain that he is

covered by, and entitled to retirement pension and welfare benefits

under, an ERISA plan.6 The judgment denied Yeckel all relief that

he sought based on his ERISA-based counterclaims.

Yeckel alleges that the Foundation is violating ERISA by

relying on the Probate Suit judgment to refuse to honor its

obligations under the Pension Plan and ERISA. He posits that the

probate court lacked jurisdiction to use state fiduciary duty law

to deny ERISA-covered benefits, because such benefits are within

the exclusive jurisdiction of federal district courts. Yeckel

avers that his suit consists of causes of action under federal law

for enforcement under the civil enforcement scheme of ERISA and

falls within the complete preemption doctrine and is within the

exclusive jurisdiction of a federal district court. He sues in

 

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7Yeckel does not cite these statutory provisions in count 2.

He cites them earlier in his complaint when describing the nature

of the case. See Am. Compl. ¶ 2.1(b) and (c). 

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count 1 under 29 U.S.C. § 1132(a)(1)(A), alleging that he is

entitled to a penalty of $100 per day based on the Foundation’s

refusal to provide him information relating to the Pension Plan.

He also seeks in this count a $10,000 fine under § 1132(c) for the

Foundation’s continuing refusal to turn over requested information.

In count 2, Yeckel seeks a judgment under 29 U.S.C. § 1132(a)(3)(B)

and 28 U.S.C. §§ 2201-027 declaring that (1) the Pension Plan

exists, (2) it is covered by ERISA, (3) the Employment Agreement

was completed at his retirement and the probate court judgment

voiding the Agreement is moot, (4) the Pension Plan falls within

the exclusive jurisdiction of the federal courts, state breach of

fiduciary laws are completely preempted by ERISA, and defendants

cannot deny Yeckel his pension benefits based on the Probate Suit

judgment, and Yeckel and is entitled to pension benefits under the

Pension Plan. Yeckel also seeks in this count a judgment that

prescribes the amount and terms of his pension benefit payments, an

immediate payment of arrearage benefits; an injunction preventing

defendants from failing and refusing to comply with the terms of

the Pension Plan and from refusing to pay him future benefits;

attorney’s fees; and replacement of Pension Plan assets that have

been converted, dissipated, or cashed by the Foundation or Pension

Plan sponsor.

 

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8

The Foundation has filed this motion on its own behalf. It

specifically denies that the Pension Plan exists. Solely to avoid

a default, however, it moves to dismiss on behalf of the Pension

Plan. The court’s decision applies both to the Foundation and to

the Pension Plan.

9The Foundation contends under the Rooker-Feldman doctrine

that the court lacks jurisdiction “and this case should be

dismissed with prejudice.” Found. Mot. to Dismiss 5, ¶ 10. It is

well settled, however, that a dismissal for lack of subject matter

jurisdiction is without prejudice. See, e.g., Hitt v. City of

Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (per curiam); Ramming

v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam).

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The Foundation moves to dismiss under Rule 12(b)(1) and

(b)(6).8 It maintains that the claims Yeckel brings here were

asserted as counterclaims in the Probate Suit, that they were

rejected in that litigation, and that he must now obtain relief

through the state appellate process.9 The Attorney General as

intervenor joins the Foundation’s motion, and he also moves the

court under Rules 12(b)(1) and (b)(6) to dismiss or abstain. Both

motions present the question whether Yeckel’s suit is barred by the

Rooker-Feldman doctrine and/or by the doctrines of res judicata

and/or collateral estoppel. The Attorney General requests in the

alternative that the court abstain under various abstention

doctrines. The Foundation also moves under Rule 11 for sanctions

against Yeckel and/or his counsel.

 

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II

The court will consider together the Foundation’s and the

Attorney General’s motions based on the Rooker-Feldman doctrine. 

The Rooker-Feldman doctrine “precludes a United States

district court from exercising subject-matter jurisdiction in an

action” where “the losing party in state court filed suit in

federal court after the state proceedings ended, complaining of an

injury caused by the state-court judgment and seeking review and

rejection of that judgment.” Exxon Mobil Corp. v. Saudi Basic

Indus. Corp., 544 U.S. 280, 291 (2005). The rationale underlying

Rooker-Feldman is that the district court lacks jurisdiction to

hear an appeal of a state case. See id. at 284-85. The Supreme

Court is the only federal court with “appellate authority ‘to

reverse or modify’ a state-court judgment.” Id. at 284 (quoting

Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923)).

Where the federal case was filed before the state proceedings

ended, the existence of the state case does not strip the federal

court of subject matter jurisdiction. See id. at 292 (“[N]either

Rooker nor Feldman supports the notion that properly invoked

concurrent jurisdiction vanishes if a state court reaches judgment

on the same or related question while the case remains sub judice

in a federal court.”). Rather, if the state adjudication finishes

before the federal adjudication, then preclusion principles, which

are not jurisdictional, govern. See id. at 293.

 

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10Defendants’ motions to dismiss are brought under Rule

12(b)(1) and (6). A Rule 12(b)(1) motion is a motion to dismiss

for lack of subject matter jurisdiction. Because the preclusion

doctrines of res judicata and collateral estoppel are not

jurisdictional in nature, see Exxon, 544 U.S. at 293 (“Preclusion,

of course, is not a jurisdictional matter” (citing Rule 8(c)), the

court will consider them in the context of Rule 12(b)(6), not (1).

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Under Exxon “a state court judgment is sufficiently final for

operation of the Rooker-Feldman doctrine[ ] when ‘the state

proceedings [have] ended.’” Rowley v. Wilson, 2006 WL 2233221, at

*1 (5th Cir. Aug. 4, 2006) (per curiam) (unpublished opinion)

(quoting Exxon, 544 U.S. at 291). If the state trial-court

judgment has been appealed and the federal case is filed before the

state appeal is resolved, then the state proceedings have not ended

by the time the federal case is filed, and Rooker-Feldman is

inapplicable. See id. (“At the time appellants filed this federal

lawsuit, their state proceedings had not ended. The state case was

on appeal to the Louisiana appellate court. Accordingly, the

Rooker-Feldman doctrine is inapplicable.”).

In the instant case the state trial court judgment has been

appealed. The appeal was pending at the time this suit was filed,

and it is still pending. Consequently, the court concludes that

the state proceedings have not ended for Rooker-Feldman purposes

and that the doctrine is therefore inapplicable.

III

The Foundation and the Attorney General also move to dismiss

under Rule 12(b)(6)10 on the ground that Yeckel’s claims are

 

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precluded under Texas law and are subject to the defenses of res

judicata and collateral estoppel. The court will consider the

Foundation’s and the Attorney General’s motions together.

A

In deciding a Rule 12(b)(6) motion, the court construes the

complaint in the light most favorable to plaintiff, accepts as true

all well-pleaded factual allegations, and draws all reasonable

inferences in his favor. See, e.g., Lovick v. Ritemoney Ltd., 378

F.3d 433, 437 (5th Cir. 2004). The court will not grant a 12(b)(6)

motion to dismiss “unless the plaintiff would not be entitled to

relief under any set of facts or any possible theory that he could

prove consistent with the allegations in the complaint.” Great

Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305,

313 (5th Cir. 2002) (Fitzwater, J.) (addressing Rule 12(c)

standard) (quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.

1999) (per curiam)).

“In determining whether the present suit is barred by the

state court judgment, the court applies state law.” U.S. Bank

Nat’l Ass’n v. Safeguard Ins. Co., 422 F. Supp. 2d 698, 710 (N.D.

Tex. 2006) (Fitzwater, J.) (citing Landscape Design & Constr., Inc.

v. Transp. Leasing/Contract, Inc., 2002 WL 257573, at *3 (N.D. Tex.

Feb 19, 2002) (Fitzwater, J.)). “Under Texas law, res judicata and

collateral estoppel apply if this action is based on the same

claims as were raised or could have been raised in state court.”

 

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Id. (citing Transp. Concepts, Inc. v. San Francisco French Bread

Co., 2000 WL 1175642, at *1 (N.D. Tex. Aug. 17, 2000) (Fitzwater,

J.); Dittmann v. City of Garland, 1998 WL 574774, at *3 (N.D. Tex.

Aug. 31, 1998) (Fitzwater, J.)). “[A] subsequent suit will be

barred if it arises out of the same subject matter of a previous

suit and which through the exercise of diligence, could have been

litigated in a prior suit.” Hawk v. Williams, 2003 U.S. Dist.

LEXIS 20386, at *11 (N.D. Tex. Nov. 13, 2003) (Fitzwater, J.)

(unpublished opinion) (alteration in original) (quoting Barr v.

Resolution Trust Corp., 837 S.W.2d 627, 631 (Tex. 1992)). “Res

judicata bars ‘the relitigation of a claim or cause of action that

has been finally adjudicated, as well as related matters that, with

the use of diligence, should have been litigated in the prior

suit.’” Id. at *11-12 (citing Barr, 837 S.W.2d at 628). “Res

judicata requires proof of ‘(1) a prior final judgment on the

merits by a court of competent jurisdiction; (2) identity of

parties or those in privity with them; and (3) a second action

based on the same claims as were raised or could have been raised

in the first action.’” Id. at *12 (citing Amstadt v. U.S. Brass

Corp., 919 S.W.2d 644, 652 (Tex. 1996)). “[A] judgment is final

for the purposes of issue and claim preclusion ‘despite the taking

of an appeal unless what is called an appeal actually consists of

 

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11For this reason, the doctrine of res judicata can apply under

Texas law to a final judgment that has been appealed, even if the

Rooker-Feldman doctrine does not apply because the federal case was

filed while the state appeal was still pending.

12Res judicata is an affirmative defense. Hawk, 2003 U.S.

Dist. LEXIS 20386, at *7. “In the usual case, this court is unable

to grant dismissal under Rule 12(b)(6) based on an affirmative

defense because it rarely appears on the face of the complaint.”

Simon v. Telsco Indus. Emp. Benefit Plan, 2002 WL 628656 , at *1

(N.D. Tex. April 17, 2002) (Fitzwater, J.). Here, however, the

Foundation and the Attorney General have presented documents from

the Probate Suit that are the type that can be considered on motion

to dismiss and that establish without dispute that Yeckel’s suit is

barred by res judicata. Moreover, as noted, Yeckel challenges the

application of this doctrine only on one ground: that the Texas

probate court lacked subject matter jurisdiction. He does not

object to reliance on the Probate Suit documents.

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a trial de novo.’” Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 6

(Tex. 1986) (quoting Restatement (Second) of Judgments § 13).11

B

Yeckel does not dispute that the second and third res judicata

elements are satisfied in this case. He maintains only that his

claims are not precluded because the Texas probate court lacked

subject matter jurisdiction to enter a judgment that related to his

ERISA-covered retirement benefits plan, and the judgment was

therefore void in this respect.12

Yeckel specifically argues that, although his compulsory

counterclaim for recovery of benefits fell within the apparent

purview of concurrent state-court jurisdiction under 29 U.S.C.

§ 1132(a)(1)(B), the judgment that the probate court entered did

not rest on the evaluation of the Pension Plan under 29 U.S.C.

 

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§ 1132(a)(1)(B), but instead on his offensive and defensive claims,

which were in direct conflict with the exclusive federal subject

matter jurisdiction under § 1132, ERISA’s civil enforcement scheme,

and in direct conflict with the exclusive remedies for fiduciary

duties under ERISA. Therefore, the probate court exceeded its

authority under ERISA and lacked subject matter jurisdiction to

enter the portion of its judgment that voided his ERISA-covered

retirement benefits under the Pension Plan. He posits that the

judgment in the Probate Suit was thus void as it related to the

ERISA-covered retirement benefits plan, and under Texas law a void

judgment has no preclusive effect and may be challenged at this

time in this court.

He reasons that 29 U.S.C. § 1132(a)(1)(B) and (e) provide for

concurrent jurisdiction over three categories of claims by a

beneficiary, but all other ERISA actions are within the exclusive

jurisdiction of the federal courts. Because he was fully retired

when the Probate Suit was tried, the Employment Agreement that the

Attorney General and the Foundation challenged in that suit had

relevance only respecting its references to the existing ERISAcovered retirement plan. The Foundation sought to use the jury

findings based on state breach of fiduciary duty law and other

state-law issues to void and destroy his retirement benefits under

the ERISA-covered plan. Although his counterclaim would normally

fall within 29 U.S.C. § 1132(a)(1)(B) for recovery of benefits and

 

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within the probate court’s concurrent jurisdiction, the

Foundation’s breach of fiduciary duty and other state-law claims

led the probate court to enter a judgment based on state court laws

that, due to ERISA complete preemption, it lacked subject matter

jurisdiction to enter. The probate court entered a judgment that

sustained a state-law claim for breach of fiduciary duty and on

other state-law grounds that purported to void Yeckel’s entitlement

to retirement benefits due under an ERISA-covered retirement

benefit plan. Federal courts have exclusive jurisdiction to hear

such cases and over any such remedy or cause of action. According

to Yeckel, he asserted in the probate court a compulsory

counterclaim under 29 U.S.C. § 1132(a)(1)(B). The probate court

would have had subject matter jurisdiction to interpret as a matter

of contract interpretation whether he was entitled to receive

benefits. But the probate court instead relied on the jury verdict

on state tort claims and state common law issues to enter a

judgment that conflicted with ERISA’s civil enforcement scheme and

its remedies and standards.

C

Yeckel’s jurisdictional arguments are flawed. First, even

assuming arguendo that the probate court decided the precise

question whether the Employment Agreement was an ERISA plan——as

opposed to deciding the preliminary question whether the agreement

 

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13It is apparent from Yeckel’s briefing that the references to

“offensive and defensive claims” are to the allegations of the

Attorney General and the Foundation that Yeckel breached state-law

fiduciary duties, committed fraud under state law, and violated

other state common law, which they asserted both as grounds to

obtain affirmative relief from Yeckel and to defeat his

counterclaims.

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that conferred Pension Plan benefits on Yeckel was void ab

initio——it had subject matter jurisdiction to do so. 

ERISA nowhere makes federal courts the

exclusive forum for deciding the ERISA status

vel non of a plan or fiduciary. Unless

instructed otherwise by Congress, state and

federal courts have equal power to decide

federal questions. Because ERISA is silent on

the matter of the power to declare ERISA

status, we conclude that the question of

[plaintiffs’s] ERISA status falls under the

usual concurrent state and federal

jurisdiction. 

Int’l Ass’n of Entrepreneurs of Am. v. Angoff, 58 F.3d 1266, 1269

(8th Cir. 1995) (citations omitted) (citing Fed. Exp. Corp. v.

Tenn. Pub. Serv. Comm’n, 925 F.2d 962, 968 (6th Cir. 1991)); CSXT,

Inc. v. Pitz, 883 F.2d 468, 472 (6th Cir. 1989)). This court has

also held “that state courts as well as federal courts are of

competent jurisdiction to determine whether a particular plan is

governed by ERISA and therefore not by state law.” Browning Corp.

Int’l v. Lee, 624 F.Supp. 555, 557 (N.D. Tex. 1986) (Mahon, J.). 

Second, the so-called offensive and defensive claims of the

Attorney General and the Foundation in the probate court13 were not

within the exclusive jurisdiction of federal courts. Yeckel treats

these claims as if they were in substance ERISA civil actions. He

 

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argues that because they did not fall within § 1132(a)(1)(B), they

were within the exclusive jurisdiction of the federal courts under

29 U.S.C. § 1132(e)(1). See, e.g., P. Br. Resp. to Found. Mot. to

Dismiss 9 (arguing that, aside from claims within the scope of

§ 1132(a)(1)(B), “[a]ny other civil ERISA action is within the

exclusive jurisdiction of the Federal Courts.”). Yeckel’s

arguments rest on a misunderstanding of § 1132(e)(1).

Section 1132(e)(1) provides that,

[e]xcept for actions under subsection

(a)(1)(B) of this section, the district courts

of the United States shall have exclusive

jurisdiction of civil actions under this

subchapter brought by the Secretary or by a

participant, beneficiary, fiduciary, or any

person referred to in section 1021(f)(1) of

this title. State courts of competent

jurisdiction and district courts of the United

States shall have concurrent jurisdiction of

actions under paragraphs (1)(B) and (7) of

subsection (a) of this section.

Id. (emphasis added). 

Section 502 of ERISA, 29 U.S.C. § 1132(a)

(1976), provides that a civil action may be

brought under ERISA by a plan “participant,”

“beneficiary,” or “fiduciary,” or by the

Secretary of Labor. That provision, 29 U.S.C.

§ 1132(e)(1), also confers exclusive

jurisdiction on federal courts to hear these

actions. 

Hermann Hosp. v. MEBA Med. & Benefits Plan, 845 F.2d 1286, 1287

(5th Cir. 1988) (emphasis added; footnote omitted). In the probate

court lawsuit, the Attorney General filed and the Foundation

alleged that the Employment Agreement was void ab initio because it

 

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14Section 1132(e)(1) incorporates by reference § 1021(f).

Section 1021(f) refers to the administrator of a defined benefit

plan that is a multiemployer plan. See 29 U.S.C. § 1021(f).

15A claim can be completely preempted under ERISA without

necessarily being within the exclusive jurisdiction of the federal

courts. As the court explains infra, a claim is completely

preempted when the remedy falls within the scope of § 1132(a). A

state-law claim that seeks a remedy like one available under

§ 1132(a)(1)(B) is therefore completely preempted and removable to

federal court. But even Yeckel recognizes that a state court of

competent jurisdiction can exercise subject matter jurisdiction

over such a claim.

16Yeckel includes in his brief lengthy discourses on ERISA

preemption that appear to blur the conceptual distinctions among

ERISA exclusive jurisdiction, complete preemption, and conflict or

ordinary preemption. See, e.g., P. Br. Resp. to Found. Mot. to

Dismiss 7.

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violated public policy, was not authorized, approved, or ratified

by the Foundation’s Board of Directors, or was not fair to the

Foundation. The claims asserted against Yeckel were not brought

under ERISA; they were asserted under state law.14 Section

1132(e)(1) did not, therefore, vest the federal district courts

with exclusive jurisdiction over the claims.

In fact, not only would federal courts not have had exclusive

jurisdiction, the state-law claims of the Attorney General and the

Foundation would not even have been completely preempted under

ERISA.15 There are two types of ERISA preemption. See Ellis v.

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

2004) (discussing conflict and complete preemption in ERISA

context).16 Conflict (or ordinary) preemption occurs (1) when there

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

 

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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 Solid Wastes 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)). Yeckel

appears at least inferentially to argue that the claims of the

Attorney General and the Foundation for breach of fiduciary duty

are completely preempted. He maintains that, because the Attorney

General and the Foundation sought to declare the Employment

Agreement void on the basis that Yeckel had breached his fiduciary

duties under state law, and because ERISA §§ 1104 and 1109 provide

a claim and remedy for breach of fiduciary duty, the claims were

completely preempted under ERISA and the court lacked subject

matter jurisdiction to the extent it voided his retirement benefits

under the Pension Plan.

Section 1132(a)(2) confers on the Secretary of Labor, or a

participant, beneficiary, or fiduciary, the right to bring a civil

action for appropriate relief under § 1109. Such a claim is within

 

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the exclusive jurisdiction of the federal courts. See Sommers Drug

Stores Co. Employee Profit Sharing Trust v. Corrigan, 883 F.2d 345,

347 (5th Cir. 1989) (“[Section 1132(a)(2)] authorizes either the

Secretary of Labor or a ‘participant,’ ‘beneficiary’ or ‘fiduciary’

to bring a civil action for breach of fiduciary duty as proscribed

by § 1109(a). Section 1132(e)(1) confers exclusive jurisdiction on

federal courts to hear such actions.”). Section 1109(a) creates

liability for breach of fiduciary duty for “[a]ny person who is a

fiduciary with respect to a plan.” Browning v. Levy, 283 F.3d 761,

778-79 (6th Cir. 2002) (quoting § 1109(a)). The Attorney General

and the Foundation did not sue Yeckel, however, as a fiduciary of

the Pension Plan for breaching fiduciary duties owed to the plan.

They sued him as a fiduciary of the citizens of the state of Texas

(due to the Foundation’s status as a charitable organization) and

of the Foundation for breaching fiduciary duties to the citizenry

at large and to the Foundation. And they did not, as § 1109

requires, sue to obtain relief for the Pension Plan. See Farrell

v. Auto. Club of Mich., 870 F.2d 1129, 1133 (6th Cir. 1989)

(“Section 1109 authorizes relief only to the plan itself, not to

individual beneficiaries.” (citing Mass. Mut. Life Ins. Co. v.

Russell, 473 U.S. 134, 140 (1985)). Accordingly, their breach of

fiduciary duty claims were not completely preempted as claims that

sought remedies under § 1132(a)(2).

 

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Yeckel’s sole basis for opposing the application of res

judicata therefore fails. The court holds that Yeckel’s lawsuit is

barred by res judicata doctrine, and it dismisses this action with

prejudice.

IV

The Foundation moves under Rule 11 for sanctions against

Yeckel and/or his counsel based on the claims brought in this

lawsuit. It maintains that this suit has been brought for an

improper purpose, the suit is prohibited and not warranted by

existing law, and the allegations and factual contentions lack

evidentiary support.

Yeckel objects to the Foundation’s motion for sanctions on the

ground that it does not comply with N.D. Tex. Civ. R. 7.1(b), (h),

(i), 7.2(d). He also maintains that he brought the suit for a

proper purpose, his claims are warranted by existing law or by a

good faith argument for the extension, modification, or reversal of

existing law, and each allegation and factual contention contained

in his first amended complaint has evidentiary support or is likely

to have evidentiary support after a reasonable opportunity for

discovery. Yeckel also objects to the requested amount of

sanctions as excessive and unsupported by the evidence.

The court denies the motion without prejudice. The

Foundation’s motion is premised materially, if not largely, on the

Rooker-Feldman doctrine, see Found. Mot. for Sanctions 1-2, 10-11,

 

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17Although the court has dismissed this action with prejudice,

it retains jurisdiction to address a renewed motion for Rule 11

sanctions, if one is filed. Cf. Cooter & Gell v. Hartmarx, 496

U.S. 384, 395-96 (1990) (holding that district court has

jurisdiction to impose sanctions under Rule 11 even after case has

been voluntarily dismissed under Rule 41(a)(1)).

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which the court has today held inapplicable. The Foundation should

therefore reexamine in light of today’s decision whether it

desires to pursue such a motion and, if so, whether the renewed

motion should be refined in terms of the grounds and rationale on

which it is based.17

* * *

Accordingly, for the reasons stated, the court grants the

Foundation’s March 22, 2006 motion to dismiss under Rule 12(b)(6),

and it grants the Attorney General’s April 3, 2006 motion to

dismiss under Rule 12(b)(6), it denies the Rule 12(b)(1) motions of

the Foundation and the Attorney General, and it dismisses this

action with prejudice by judgment filed today. The court denies

without prejudice the Foundation’s May 30, 2006 motion for

sanctions.

SO ORDERED.

August 21, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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