IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

RONNIE DOOLEY, individually and on 

behalf of all others similarly situated 

Plaintiff, 

RONALD SAXTON, RODERICK C. 

WENDT, R. NEIL STUART, and JELDWEN EMPLOYEE STOCK OWNERSHIP 

& RETIREMENT PLAN, 

Defendants. 

PAPAK, Judge: 

3: 12-cv-01207-PK 

FINDINGS AND 

RECOMMENDATION 

Plaintiff Ronnie Dooley brings this class action under the Employee Retirement Income 

Security Act of 1974 ("ERISA") against the Jeld-Wen Employee Stock Ownership & Retirement 

Plan ("the Plan"), and the three administrators and trustees of the Plan: Jeld-Wen's President and 

Chief Executive Officer Roderick Wendt, Jeld-Wen's Executive Vice President and Chief 

Administrative Officer Ronald Saxon, and Jeld-Wen's Executive Vice President and Chief 

Financial Officer R. Neil Stuart. Dooley alleges that amendments made to the Plan in November 

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Case 1:12-cv-01207-MC Document 55 Filed 12/12/12 Page 1 of 17
2010 violated ERISA's anti-cutback provision, 29 U.S.C. § 1054(g), and that the Plan fiduciaries 

breached their duties under 29 U.S.C. § 1104 by implementing those amendments. Now before 

the court are defendants' motion to stay the proceeding pending Dooley's exhaustion of his 

administrative remedies (#43) and Dooley's motion to compel (#39.) For the reasons discussed 

below, the motion to stay should be denied and the motion to compel should be granted. 1 

BACKGROUND 

I. The Plan 

Plaintiff Ronnie Dooley worked for Jeld-Wen in Des Moines, Iowa, until he was 

terminated in 2007. (Compl., #1,,; 11.) He pmiicipated in the Jeld-Wen Employee Stock 

Ownership & Retirement Plan. Id at 1!4. The Plan is a defined contribution plan under ER1SA, 

meaning that a participant's retirement benefits are based on the amount contributed to the 

pmiicipant's account and any subsequent gains or losses to that amount. See 29 U.S.C. § 

1 002(34). In particular, the Plan is designed as an employee stock ownership plan (ESOP) such 

that plan contributions are invested in (and therefore valued by reference to) company stock, 

giving the Plan participants an ownership interest in the company. (Compl., #1, ,;,; 4,9, Ex. A at 

§ 1.1.) Under the Plan as it existed before November 2010, pmiicipants build equity through 

one-time employer contributions ("Basic Company Contribution"), annual employer 

contributions ("Regular Company Contributions") and employee contributions ("Elective 

1 This court recognizes that where a plaintiff seeks injunctive relief, a magistrate lacks the 

authority under 28 U.S. C. § 636(b)(l) to stay an action for plaintiffs failure to exhaust 

administrative remedies. See Reynaga v. Cammisa, 971 F.2d 414,416-417 (9th Cir. 1992). 

Because Dooley prays for the court to award injunctive relief in the form of an equitable 

accounting and an independent investigation, this court addresses defendants' motion to stay in a 

Findings and Recommendation instead of an Opinion and Order. 

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Case 1:12-cv-01207-MC Document 55 Filed 12/12/12 Page 2 of 17
Deferrals"). Jd at ~I 0. Upon termination of employment, the former employee can no longer 

pmiicipate in the Plan. Id. at ~18, §9.4. The fom1er employee's accounts are valued based on the 

worth of Jeld-Wen stock at the "next preceding or coinciding" valuation date. (Compl., #1, ~14, 

Ex. A at § 7. 6.) If the employee is terminated from employment after becoming fully vested but 

before turning 55, the employee can take a distribution in the year following his termination 

consisting of his own employee contributions and any one-time employer contributions. 

(Compl., #1, ~~12,13, Ex. A at§§ 10.4(b)(ii)(a),(b)). The fotmer employee, however, cannot 

take a distribution of any annual employer contributions until he tmns 55, or until six years after 

termination, whichever comes first. Id. Following tem1ination, all of the undistributed 

contributions remain in an account with the Plan and the account is "credited with interest at the 

Local Passbook Rate in effect" for that year. !d. at ~15, Ex. A at§§ 7.1 (h), 7.8(b). The Local 

Passbook Rate is defined as "the Wells Fargo Bank passbook rate of interest credited from time 

to time to savings accounts; however, the minimum rate shall be 3% and the maximum rate shall 

be 5%." Id. at ~16, Ex. A at§ 2.40. 

When Dooley was terminated in 2007, he had not turned 55. (Compl., #1, ~17.) Pursuant 

to the Plan's terms, on December 12, 2008 Dooley withdrew his one-time employer contribution 

and his employee contributions from the Plan, along with what appears to be a pro rata share of 

the 3% interest that had accrued on those balances in 2008. (P. 's Resp., #47, Exs. A, B.) 

Dooley's annual employer contributions of approximately $140,000 remained in the Plan 

accruing interest during 2009, reaching over $145,000 by the end of that year. !d., Ex. C. 

Jeld-Wen's stock is not publically traded. Starting in 2007, the value of Jeld-Wen's stock 

began to fall. (Compl., #1, 1129.) At the end of2007, the year Dooley was terminated, thestock 

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was valued at $746 per share. !d. By the end of2008, the stock had fallen to $507 per share. !d. 

At the end of2009, the stock was valued at $417 per share. !d. Finally, at the end of2010, the 

stock was valued at $364 per share. !d. 

II. The November 2010 Amendment 

On November 19, 2010, Jeld-Wen amended the Plan in a number of ways, one of which 

is the focus of this action. The November 2010 amendment eliminated the provision allowing 

undistributed accounts of terminated employees to remain in the Plan as cash and accrue interest. 

(Compl., #I, ~21, Ex. B at §7 .8) Instead, those accounts were to "share in the allocation of [the 

Plan's] income, gains, and losses" and "[p]lan expenses," the same as accounts for current 

employees. !d. This aspect of the amendment was made retroactive to Janumy 1, 2010. !d. at 

,J23, Ex. B. Plaintiff alleges that the amendment had the effect of devaluing the accounts of 

terminated employees by: (1) devaluing the undistributed accounts by the propmiion of decline in 

the price of Jeld-Wen stock between January 1, 2010 and the date of the amendment; (2) 

retroactively eliminating interest accrued during 2010; and (3) retroactively imposing an expense 

fee for 2010. !d. at ~~26, 27, 30. For example, as a result of the November 2010 amendment, in 

2010 Dooley's account lost approximately $3,800 in interest, was charged a 1% administrative 

fee of over $1,4002

, and otherwise declined in value over $18,000, or about 15% of its value at 

the beginning of the year. !d. at ~~26,30,75. 

III. Procedural History 

It is undisputed that Dooley never filed a claim for benefits under the Plan. Instead, 

2 If the same l% expense fee was charged to every account in the Plan, if appears the Plan 

would have collected over $3.35 million in expenses during 2010, despite that actual expenses 

for the Plan's administration during 2010 were only $264,146. (Compl., #1, ~~79,80.) 

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Dooley filed the present action on July 5, 2012 seeking to represent a class of similarly situated 

former Jeld-Wen employees. (Compl., #1.) As Dooley clarified at oral argument, his complaint 

advances alternative theories of recovery, one characterizing the November 2010 amendment as 

the Plan's revaluation of Dooley's account, and the other viewing the November 2010 

amendment as triggering an investment of Dooley's account in Jeld-Wen stock. Counts I and II 

state Dooley's revaluation theory. In Count I, Dooley asserts an anti-cutback claim under 29 

U.S. C.§ 1054(g) against the Plan itself for instituting an amendment to the Plan that changed the 

valuation of Dooley's account from a fixed dollar amount to one linked to Jeld-Wen stock prices. 

Dooley alleges that the amendment had the effect of diminishing the value of the account and 

eliminating guaranteed interest. In Count II, Dooley asserts a claim against the individual 

defendants for breaching their fiduciary duties under 29 U.S.C. §1104(a)(1)(D) by making an 

unlawful cutback of accrued benefits, as described in Count I. Count III presents the investment 

theory, alleging that the individual defendants breached their fiducimy duties under 29 U.S. C. 

§ 11 04(a)(1 )(A) & (B) by making a retroactive investment of Dooley's account into Jeld-Wen 

stock as of Janumy 1, 2010, even though they knew that the stock's value had since fallen. In 

addition to the alternatively pled revaluation and investment theories, Dooley also alleges in 

Count IV that the individual defendants breached their fiducimy duties under 29 U.S.C. 

§ 11 04(a)(1 )(A) & (B) by charging grossly excessive administrative fees to individual Plan 

accounts. 

Defendants answered Dooley's complaint on September 13,2012. Defendants denied 

that the November 19,2010 value of Jeld-Wen stock was lower than the Janumy 1, 2010 value of 

$417, alleging instead that the stock was valued at approximately $468.50 on November 19, 

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Case 1:12-cv-01207-MC Document 55 Filed 12/12/12 Page 5 of 17
2010. !d. at ~27. Defendants also asserted as an affirmative defense that Dooley and the class 

members' failure to exhaust administrative remedies. Id at 12. The same day defendants 

answered Dooley's complaint, the Administrative Committee3 of the Plan notified Dooley's 

counsel that it was "in receipt of Mr. Dooley's ... claim for benefits filed in the District Court of 

Oregon" and signaling its intention to "investigate, analyze and adjudicate" Dooley's claim, 

effectively treating the initial pleading in this case as an administrative claim for benefits under 

the Plan. (D.'s Memo., #44, Ex. A.) 

LEGAL STANDARD 

I. Motion to Stay 

The district court has inherent authority to stay an action before it, pending resolution of 

administrative proceedings which bear upon the case, if a stay is "efficient for its own docket and 

the fairest course for the patiies." Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 864 

(9th Cir.1979). "A stay should not be granted unless it appears likely the other proceedings will 

be concluded within a reasonable time in relation to the urgency of the claims presented to the 

court." !d. "If there is even a fair possibility that the stay ... will work damage to someone else, 

the patiy seeking the stay must make out a clear case of hardship or inequity." Lockyer v. Mirant 

Corp., 398 F.3d 1098, 1111 (9th Cir. 2005) (internal quotations omitted). 

II. Motion to Compel 

Federal Civil Procedure Rule 26(b )(!) provides that "any matter, not privileged, that is 

relevant to the claim or defense of any patiy" is discoverable, and that "[r]elevant information 

3 The three individual defendants in this action are also members of the Administrative 

Committee of the Plan. (Answer, #37, ~31); (D.'s Memo., #44, at 5.) 

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Case 1:12-cv-01207-MC Document 55 Filed 12/12/12 Page 6 of 17
need not be admissible at the trial if the discovery appears reasonably calculated to lead to the 

discovety of admissible evidence." Fed. R. Civ. P. 26(b)(l). However, district courts have 

discretion to limit the scope of discovety if: (i) the discovety sought is unreasonably cumulative 

or duplicative, or is obtainable from some other source that is more convenient, less burdensome, 

or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the 

information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely 

benefit, taking into account the needs of the case, the amount in controversy, the parties' 

resources, the importance of the issues at stake in the litigation, and the importance of the 

proposed discovery in resolving the issues. Fed. R. Civ. P. 26(b)(2)(C). 

DISCUSSION 

I. Motion to Stay 

Defendants style this motion as a request for the comi to exercise its discretion under its 

inherent powers and stay proceedings while the Plan evaluates what defendants characterize as 

Dooley's administrative claim for benefits. However, defendants fail to recognize thatthe 

applicability of the ERISA administrative exhaustion requirement is a pure question of law, not a 

discretionary decision. See Diaz v. United Agr. Employee Welfare Ben. Plan & Trust, 50 F.3d 

1478, 1483 (9th Cir. 1995). Accordingly, the court addresses the question of whether Dooley 

must exhaust his administrative remedies before filing the instant action. If exhaustion is not 

required, a stay would be pointless. I consider that question separately for Dooley's anti-cutback 

claim (Count I) and his three fiduciary duty claims (Counts II, III, and IV), and conclude that 

administrative exhaustion is not required for any of Dooley's claims. 

A. Anti-Cutback Claim 

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Case 1:12-cv-01207-MC Document 55 Filed 12/12/12 Page 7 of 17
Although ERISA does not contain any explicit exhaustion requirement, the Ninth Circuit 

has concluded that "federal comis have the authority to enforce the exhaustion requirement in 

suits under ERISA, and that as a matter of sound policy they should usually do so." Vaught v. 

Scottsdale Healthcare Corp. Health Plan, 546 F.3d 620, 626 (9th Cir. 2008) (internal quotation 

omitted). "[A] primary reason for the exhaustion requirement ... is that prior fully considered 

actions by pension plan trustees interpreting their plans and perhaps also further refining and 

defining the problem in given cases, may well assist the courts when they are called upon to 

resolve the controversies." Amato v. Bernard, 618 F.2d 559, 568 (9th Cir. 1980). Thus, 

exhaustion is ordinarily required where an action seeks "a declaration of the parties' rights and 

duties' under the pension plan." Fujikawa v. Gushiken, 823 F.2d 1341, 1346 (9th Cir. 1987). 

However, "[ e ]xhaustion of internal dispute procedures is not required where the issue is whether 

a violation of the terms or provisions of the statute [ERISA] has occurred." Fujikawa, 823 F.2d 

at 1345. Therefore, to determine whether administrative exhaustion is required for an ERISA 

claim, courts analyze whether the claim arises under the employee benefit plan or under ERISA 

itself Graphic Commc'ns Union, Dist. Council No. 2, AFL-CJO v. GCJU-Employer Ret. Ben. 

Plan, 917 F.2d 1184, 1187 (9th Cir. 1990). 

ERISA's anti-cutback provision, 29 U.S.C. § 1054(g), generally prohibits a pension plan 

from decreasing any "accrued benefit of a pmiicipant under a plan" through a plan amendment. 

29 U.S. C.§ 1054(g)(l). Courts in the Ninth Circuit have uniformly held that ERISA anticutback claims are claims arising under ERISA, not under individual benefit plans, and therefore 

do not require administrative exhaustion. See Barnes v. AT & T Pension Ben. Plan, No. C 

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Case 1:12-cv-01207-MC Document 55 Filed 12/12/12 Page 8 of 17
08-04058 MHP, 2010 WL 1340543, at *5 (N.D. Cal. Apr. 5, 2010); Traylor v. Avnet, Inc., No. 

CV-08-0918-PHX-FJM, 2009 WL 383594, at *5 (D.Ariz. Feb. 13, 2009); Goodin v. Innovative 

Tech. Solutions, Inc., 489 F.Supp.2d 1157, 1162-1163 (D.Haw. 2007). 

Defendants do not cite any cases in this circuit or any other- and this court does not find 

any- holding that a plaintiff is required to administratively exhaust an anti-cutback claim. 

Instead, defendants argue that Dooley's particular anti-cutback claim requires input from the Plan 

administrator on the nature of Dooley's pre-amendment entitlements, namely the value of 

Dooley's account just prior to the November 19, 2010 amendment and whether Dooley's account 

was entitled to be credited with interest on his undistributed account on a pro rata basis. Both of 

these questions, defendants insist, require an interpretation of the Plan itself. I evaluate the two 

aspects of Dooley's anti-cutback claim separately and find that neither requires interpretation by 

the Plan administrator. 

1. Revaluation 

The pm1ies do not dispute that Dooley's account was fully vested prior to the November 

2010 amendment, but they disagree about the manner in which the account was valued. Dooley 

alleges that the value of his account was essentially fixed at the time of his termination from 

Jeld-Wen and that the Plan amendment impermissibly cut back those accrued benefits by 

revaluing the account according to the company's share price. (Compl., #1, ~~51-54.) By 

contrast, defendants briefing assumes that the value of Dooley's account pre-amendment was not 

a fixed dollar amount, but rather was still tied to the value of Jeld-Weri shares. (D.'s Memo., 

#44, at 8.) 

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Defendants' provide no citation to the record to suppmi their contention, and their 

position is plainly contradicted by the explicit language of the Plan. Section 7.6 provides that, 

upon termination, a participant's account is valued based on the appropriate Valuation Date and 

adjusted for subsequent employee withdrawals and employer contributions. (Compl., #1, Ex. A 

at§ 7.6.) Any undistributed accounts thereafter are valued as provided in Section 7.8 of the Plan. 

!d. Section 7.8 makes clear that undistributed accounts no longer fluctuate in value with 

reference to the company stock, providing that if distribution of a fmmer employee's account is 

defened, as Dooley's was: 

the value of the Pmiicipant's Account shall be the value of the Pmiicipant's Account on 

the December 31 coinciding with or following the Participant's Separation from Service. 

The Account shall be credited with interest at the Local Passbook Rate in effect for such 

year. The Account shall not be credited with any fmiher contributions, Forfeitures, or for 

any appreciation or depreciation in value of Company Stock held by the Trust after the 

December 31 Valuation Date used to value the Account. 

Id. at§ 7.8(b) (emphasis added). In other words, after Dooley's account was valued posttermination, the remainder of Dooley's account that he could not withdraw was effectively held 

in cash, accruing interest. It no longer fluctuated with the value of Jeld-Wen stock. 

Where the explicit language of an ERISA plan describes the plaintiffs rights and 

benefits, it is the court's role- not the plan's- to determine whether a subsequent amendment of 

the plan violated ERISA's anti-cutback provision. Cf Goodwin, 498 F.Supp.2d at 1161 n. 6, 

1163 (finding no administrative exhaustion on ERISA anti-cutback claim was required where the 

"explicit terms" of an ERISA plan amendment eliminated plaintiffs entitlement to put options 

for distributions of privately held company stock). As the above analysis demonstrates, 

defendants have failed to show that Dooley's anti-cutback claim requires an interpretation of the 

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Case 1:12-cv-01207-MC Document 55 Filed 12/12/12 Page 10 of 17
Plan regarding the manner in which Dooley's account was valued before the November 2010 

amendment. Because the Plan fixed the value of that account prior to the amendment, I reject 

any argument offered by defendants that relies on the premise that the Plan must be consulted 

first to determine the proper valuation of Jeld-Wen stock immediately before the amendment 

took effect. 

Even assuming arguendo that defendants are correct and Dooley's account immediately 

prior to the amendment was valued according to the Jeld-Wen stock price, I would still tind that 

no Plan interpretation is necessary. Determining the value of Jeld-Wen stock at the moment 

before the Plan was amended, and thus the value of Dooley's account pre-amendment, is a matter 

of purely factual dispute, not plan interpretation. Dooley alleges that Jeld-Wen's stock was 

worth less than $417 per share on November 19, 2010, while defendants assert that the value of 

Jeld-Wen stock on that date was approximately $468.50. (Compl., #1, ~27); (Answer, #37, ~27.) 

The existence of such a factual dispute does not transfmm an otherwise statutory anti-cutback 

claim into a claim for entitlement to benefits under the Plan requiring exhaustion. See Traylor, 

2009 WL 383594, at * 5 (the existence of a "factual issue" conceming the effective date of a plan 

amendment and, thus, whether a new plan superceded that amendment, "does not trigger the need 

for exhaustion."). If a factfinder detem1ined Jeld-Wen stock was worth more on November 19, 

2010 than on January 1, 2010, retroactive revaluation of Dooley's account at the lower January 1 

price would have increased his account's value, and the revaluation component of his anticutback claim would fail. If, conversely, the stock was worth less on November 19 than on 

January 1, retroactive revaluation of Dooley's account using that higher price would have 

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Case 1:12-cv-01207-MC Document 55 Filed 12/12/12 Page 11 of 17
reduced his benefits, and this aspect of his anti-cutback claim would succeed. In sum, even if the 

comi accepts defendants' flawed assumption about the valuation of Dooley's account prior to the 

amendment, no administrative exhaustion is required. 

2. Interest 

The second half of Dooley's anti-cutback claim concerns elimination of interest earned in 

the nearly 11 months prior to the November 19, 2010 amendment. The Plan states that interest is 

to be "credited ... at the Local Passbook Rate in effect" for any given year, but does not say 

when or how often the interest is credited. (Compl., #1, ~15, Ex. A at§ 7.8(b).) The Plan's 

definition of Local Passbook Rate does not provide any more clarity, since it defines the rate in 

part as "the Wells Fargo Bank passbook rate of interest credited from time to time to savings 

accounts ... " without specifying how frequently- daily, monthly, or yearly- the interest is to be 

credited. Id, ~16, Ex. A, at §2.40) (emphasis added). Thus, if the record were restricted to the 

Plan provisions only, I would find that interpretation of the Plan is required to determine whether 

Dooley indeed was entitled to pro rata crediting of interest under the pre-amendment Plan. 

Dooley, however, notes that the Plan has already taken a position on his pre-amendment 

entitlement to pro rata interest by actually paying out a pro rata share of interest on his 2008 

account. • Thus, Dooley argues that the Administrator has already effectively interpreted the pre-

• The math is detailed in footnote 1 of Dooley's response brief. (#47, at 1.) In short, 

Dooley received a distribution on December 12, 2008, including interest of $4,163 .80. That 

interest amounts to a pro rata share of interest for the period from January 1, 2008 through 

December 12, 2008, assuming that simple interest accrued annually at a rate of3%. The annual 

simple 3% interest would come to $4,404.47. Dividing $4,404.47 by $4,163.80 approximates 

the fraction346/366, which conesponds with the portion of the year covered by the December 

12, 2008 distribution. 

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Case 1:12-cv-01207-MC Document 55 Filed 12/12/12 Page 12 of 17
amendment Plan to entitle participants to daily pro rata crediting of annually compounded 

interest, not a single annual crediting of such interest at the end of the year. Put another way, 

Dooley essentially posits that the Plan administrator is estopped from interpreting the preamendment Plan in a manner inconsistent with its prior decision to credit pro rata interest. 

Notably, defendants do not respond to this argument. That omission is telling. Defendants are 

estopped from taking a position potentially inconsistent with their previous treatment of Dooley's 

interest. No interpretation of the Plan language is therefore necessary to establish that under the 

pre-amendment Plan provisions Dooley was entitled to a pro rata crediting of accrued interest. 

Since neither aspect of Dooley's anti-cutback claim requires the Plan administrator to 

interpret Dooley's entitlement to benefits under the Plan, Dooley's claim arises under ERISA, 

not the Plan itself. See Graphic Communications Union, 917 F.2d at1187. Therefore, Dooley is 

not required to administratively exhaust his anti-cutback claim. 5 

B. Breach of Fiduciary Duty Claims 

Defendants argue that Dooley is also required to exhaust his breach of fiduciary duty 

claims. Defendants contend that Count II in Dooley's complaint is nothing more than an anticutback claim couched in the format of a breach of fiduciary duty claim and that Count III is 

merely pled as an alternative theory to Count II. Finally, defendants propose that although Count 

5 Dooley also contends that even if exhaustion of his anti-cutback claim was otherwise 

required, exhaustion would be futile in this instance because the Plan has already signaled its 

position by denying allegations fundamental to his claims in defendants' answer in this suit, and 

because the individual defendants who serve on the Plan's Administrative Committee are 

conflicted. I disagree, but need not address those arguments at length because I find that Dooley 

was not required to exhaust his claim in the first place. 

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Case 1:12-cv-01207-MC Document 55 Filed 12/12/12 Page 13 of 17
IV (alleging breach of fiduciary duty for excessive expense charges) does not require exhaustion, 

it should be stayed anyway while the other claims are exhausted because it arises out of 

substantially the same facts as the other claims. 

Defendants rely on a single case, Diaz v. United Agricultural Employee Welfare Benefit 

Plan and Trust, for the proposition that exhaustion of these claims is required. But Diaz is 

inapposite. There, plaintiff sought benefits for medical coverage under an ERJSA plan for 

treatment his daughter received after he had been terminated from employment. 50 F.3d 1478, 

1482 (9th Cir. 1995). The plan denied his administrative claim for benefits based on the plan's 

pre-existing limitations provision. Jd. Plainti±T did not appeal the decision administratively as 

permitted by the plan, but instead brought suit in the district court under ERISA. Id. The comi 

granted summary judgment against plaintiff because he had failed to exhaust administrative 

remedies. I d. at 1483. On appeal, plaintiff argued that he was excused from administrative 

review because his suit was premised on a violation of COBRA, 29 U.S.C. § 1166, not on a 

violation of the terms of the plan. Jd. Plaintiff insisted the plan had violated COBRA when it 

failed to notify him of the right to continue coverage at his own expense within 14 days of 

learning that he was terminated. Jd. However the Ninth Circuit agreed with the district court that 

plaintiff was required to exhaust, indicating that although a plaintiff's claim may "implicate" 

statutory requirements imposed by ERJSA or COBRA, "that prospect does not give a claimant 

the license to attach a 'statutory violation' sticker to his or her claim and then to use that label as 

an asserted justification for a total failure to pursue the congressionally mandated internal appeal 

procedures." Jd. at 1484. 

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Case 1:12-cv-01207-MC Document 55 Filed 12/12/12 Page 14 of 17
Here, unlike in Diaz, Dooley alleges breach of fiduciary duty claims that rely exclusively 

on the duties of fiduciaries miiculated in ERISA, 29 U.S. C.§ 1104(a)(1). Such claims do not 

just vaguely "implicate" statutmy requirements, they fundamentally depend on them. For this 

reason, courts hold that breach offiducimy duty claims arise under ERISA, not a particular plan's 

provisions, and therefore need not be exhausted at the administrative level. See Graphic 

Communications Union, 917 F.2d at 1187. 

II. Motion to Compel 

On August 22, 2012, plaintiff served interrogatories and requests for production on 

defendants, seeking a variety ofinfmmation about the Plan's administrative review committee, 

the November 2010 amendments, local passbook interest rates, valuations of Jeld-Wen stock 

since 2005, communications with Plan pmiicipants, the existence of Plan pmiicipants similar to 

Dooley, and potential trial witnesses. (P.'s Memo., #40, Ex. A.) Defendants objected that 

plaintiffs requested discove1y was premature, considering the motion to stay discussed above. 6 

Id Defendants also made objections based on privilege and confidentiality, among other 

grounds. Id 

Plaintiff now moves to compel, arguing that: (1) discovery should not be stayed because 

of the motion to stay; (2) defendants' privilege objections should be overruled because they have 

not produced a privilege log as required under Fed. R. Civ. P. 26(b)(5); and (3) defendants' 

confidentiality objections should be overruled because they have not proposed a confidentiality 

6 The motion to stay, however, had not yet been filed at the time of defendants' response 

to discovery requests. 

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Case 1:12-cv-01207-MC Document 55 Filed 12/12/12 Page 15 of 17
order as required under the Joint Rule 16 Report (#27, ~5.) Because I recommend denying the 

motion to stay, I need only address the second and third issues. 

The Ninth Circuit holds that "boilerplate objections or blanket refusals inserted into a 

response to a Rule 34 request for production of documents are insufficient to assert a privilege." 

Burlington N & Santa Fe Ry. Co. v. US. Dist. Court for Dist. oj}vfont., 408 F.3d 1142, 1149 

(9th Cir. 2005). District courts analyze a number of factors in a "holistic reasonableness 

analysis" to determine whether privilege is waived by failing to provide a privilege log within the 

30 days required for responses under Rule 34. ld. One of those factors is "the degree to which 

the objection or assertion of privilege enables the litigant seeking discovety and the court to 

evaluate whether each of the withheld documents is privileged." ld. Providing a privilege log is 

presumptively sufficient to satisfy this factor, while relying on boilerplate objections is 

presumptively insufficient. ld. Defendants argue that given the "unique circumstances" of 

ERISA' s exhaustion requirement and the strong likelihood that there will be no discovery beyond 

the administrative record, the court should defer consideration of privilege claims. But because a 

exhaustion of remedies is not required for plaintiffs claims, discovery will not be limited to the 

administrative record. Defendants should be ordered to either produce a privilege log explaining 

the basis for their privilege or produce the requested discovety. 

Meanwhile, defendants' confidentiality objections are apparently just placeholders. 

Defendants state that after the pending motions are resolved, they will submit an appropriate 

confidentiality order under which production of confidential infmmation can occur. 

Ultimately, defendants resistance to plaintiffs motion to compel boils down to a request 

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Case 1:12-cv-01207-MC Document 55 Filed 12/12/12 Page 16 of 17
to stay all discovery while plaintiff exhausts administrative remedies. Because exhaustion is not 

required for plaintiffs claims, discove1y must proceed. 

CONCLUSION 

For the reasons discussed above, defendants motion to stay pending Dooley's exhaustion 

of his administrative remedies (#43) should be denied and Dooley's motion to compel (#39) 

should be granted. 

SCHEDULING ORDER 

The Findings and Recommendation will be referred to a district judge. Objections, if any, 

are due fourteen (14) days from service of the Findings and Recommendation. If no objections 

are filed, then the Findings and Recommendation will go under advisement on that date. 

If objections are filed, then a response is due fourteen (14) days after being served with a 

copy of the objections. When the response is due or filed, whichever date is earlier, the Findings 

and Recommendation will go under advisement. 

IT IS SO ORDERED. 

Do<cd ;;,, )2: ~y ofDcrcmbc<, 20( ) ~. J \ 

s--WLJ. \ ~L-fJa:i'> Honorable Paul Papak 

United States Magistrate Judge 

Page 17- FINDINGS AND RECOMMENDATION 

Case 1:12-cv-01207-MC Document 55 Filed 12/12/12 Page 17 of 17