NOT FOR PUBLICATION [Docket Nos. 15, 17]

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

GREER RAYMOND,

 Plaintiff,

v.

BARRY CALLEBAUT, U.S.A., LLC, 

BARRY CALLEBAUT AG, and COCOA

BARRY U.S., INC.,

Defendants.

Civil No. 11-2368 RMB/KMW

 OPINION

Greer Raymond

61 Grayson Circle

Willingboro, NJ 08046

Pro Se Plaintiff

Matthew Jeremy Bass

Robert A. Badman

Curtin & Heefner, LLP

250 N. Pennsylvania Ave.

Morrisville, PA 19067

Attorneys for Defendants

BUMB, United States District Judge:

Plaintiff Greer Raymond (the “Plaintiff”) claims that

Defendants Barry Callebaut, U.S.A., LLC, Barry Callebaut AG, and

Cocoa Barry U.S., Inc. (the “Defendants”) improperly denied her

benefits from her 401(k) account. Defendants have moved for

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dismissal of Plaintiff’s Amended Complaint. For the reasons that

follow, Defendants’ motion to dismiss is ADMINISTRATIVELY

TERMINATED, pending further clarification by Plaintiff as set

forth below. 

I. Background1

Plaintiff was employed by Defendants from June of 1991 until

she was terminated in May of 1997. Am. Compl. ¶ 6. While

Plaintiff was employed by Defendants, she contributed to a 401(k)

plan. Am. Compl. ¶ 6. In 1997, following her termination,

Plaintiff received notification from the Internal Revenue Service

(“IRS”) that a distribution was made to her from her 401(k)

account. Am. Compl. ¶ 6. Plaintiff apparently ignored this

notice believing that her money remained invested in her 401(k)

account. Am. Compl., Ex. B. 

On March 7, 2011, Plaintiff filed a Complaint in New Jersey

Superior Court, alleging state causes of action against

Defendants. On April 26, 2011, Defendants removed the action to

this Court. [Docket No. 1]. Defendants subsequently moved for

dismissal and this Court granted Defendants’ motion based on the

conclusory nature of Plaintiff’s Complaint and because of

Plaintiff’s failure to name the 401(k) plan as a defendant. 

1

The allegations contained in Plaintiff’s Amended Complaint

are accepted as true for purposes of the motion to dismiss.

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[Docket Nos. 4, 13]. Plaintiff then filed an Amended Complaint

on September 15, 2011. Defendants have again moved to dismiss.

[Docket No. 15]. They assert dismissal is warranted on two

grounds: (1) failure to include the 401(k) plan as a defendant;

and (2) because Plaintiff’s Amended Complaint is time-barred. 

II. Standard

To survive a motion to dismiss, “a complaint must contain

sufficient factual matter, accepted as true, to state a claim

to relief that is plausible on its face.” Sheridan v. NGK

Metals Corp., 609 F.3d 239, 262-63, n.27 (3d Cir. 2010)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (internal

quotation marks omitted)). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. (quoting Iqbal, 556 U.S. at

663.

The Court conducts a three-part analysis when reviewing a

claim: 

First, the court must “tak[e] note of the elements a

plaintiff must plead to state a claim.” Second, the court

should identify allegations that, “because they are no

more than conclusions are not entitled to the assumption

of truth.” Finally, “where there are well-pleaded factual

allegations, a court should assume their veracity and then

determine whether they plausibly give rise to an

entitlement for relief.” Id. (citations omitted).

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Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010);

see also Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir.

2009)(“ . . . [A] complaint must do more than allege the

plaintiff’s entitlement to relief. A complaint has to ‘show’

such an entitlement with its facts.”). 

III. Analysis

The Amended Complaint does little to address the factual

deficiencies the Court noted at oral argument on the motion to

dismiss the original Complaint. This Court still has great

difficulty discerning the nature of Plaintiff’s claims. That

difficulty is compounded by the fact that the Amended Complaint

does not articulate any specific legal theory, only that

Plaintiff “did not receive her 401(k) distribution.” Am. Compl. ¶

6. Mindful of Plaintiff’s pro se status, however, this Court

liberally construes the Amended Complaint as asserting an

Employee Retirement Income Security Act (“ERISA”) claim under 29

U.S.C. § 1132(a)(1)(b).2

 Giles v. Kearney, 571 F.3d 318, 322 (3d

Cir. 2009)(“Where the plaintiff is a pro se litigant, the court

2

Defendants interpreted the Amended Complaint as solely

asserting a claim for benefits under 29 U.S.C. §

1132(a)(1)(b). Plaintiff has not disputed their

characterization of the Amended Complaint, or claimed that

she is entitled to relief based on alleged failures to

provide plan benefit information. See 29 U.S.C. § 1132(c). 

As discussed below, however, this Court will afford

Plaintiff a final opportunity to explain the nature and

basis of her claims in a supplemental submission. 

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has an obligation to construe the complaint liberally.”); Day v.

Lockheed Martin Corp., 428 F. App’x 275, 278 (5th Cir.

2011)(holding that common law claims for benefits under a 401(k)

plan are preempted by ERISA); Cornejo v. Horizon Blue Cross/Blue

Shield of N.J., No. 11-7018, 2012 WL 715553, at *1 (D.N.J. Mar.

5, 2012)(similarly construing a claim under an employee benefits

plan). 

Defendants contend that the Amended Complaint should be

dismissed because of Plaintiff’s failure to name the plan as a

defendant and because any claim under 29 U.S.C. § 1132(a)(1)(b)

is time-barred. Plaintiff does not dispute her failure to name

the plan or that her claims are time-barred. With respect to the

former purported deficiency, this Court will not dismiss the

Amended Complaint on that basis at this time. The Court will,

notwithstanding Plaintiff’s failure to name the 401(k) plan as a

defendant in this action, construe the Amended Complaint as

asserting a claim against the plan. Nellons v. Bell Atl.Corp.,

No. Civ. 03-6137, 2005 WL 1318873, at *1 n.1 (D.N.J. May 26,

2005)(construing a complaint as having properly been brought

against the ERISA plan, despite plaintiff’s failure to name the

plan as a defendant, pursuant to Federal Rule of Civil Procedure

8(e) which requires that pleadings “be construed so as to do

justice”). And, in any event, courts have permitted plan

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beneficiaries to sue their employers where the employer controls

the administration of benefits under the plan. Evans v. Emp.

Benefit Plan, Camp Dresser & McKee, Inc., 311 F. App’x 556, 558

(3d Cir. 2009)(“In a claim for wrongful denial of benefits under

ERISA, the proper defendant is the plan itself or a person who

controls the administration of benefits under the plan.”). Here,

it is arguable, as pled in the Amended Complaint, that the

Defendants control the administration of the 401(k) plan and are

therefore proper defendants. 

With respect to the second purported deficiency, Plaintiff’s

claim does appear to be time-barred. 29 U.S.C. § 1132 does not

contain its own statute of limitations. See Gluck v. Unisys

Corp., 960 F.2d 1168, 1179 (3d Cir. 1992). Instead, this Court

“borrows” the state law statute of limitations for the most

analogous state action in the forum state. Id. A claim for

benefits, like here, is most analogous to a state contract

action, which is subject to a six-year statute of limitations

under New Jersey law. N.J.Stat.Ann. § 2A:14-1; Kapp v. Trucking

Emps. of N.J. Welfare Fund, Inc.-Pension Fund, 426 F. App'x 126,

129 (3d Cir. 2011); See Syed v. Hercules Inc., 214 F.3d 155, 159

(3d Cir. 2000)(cert. denied 531 U.S. 1148); 

While New Jersey law governs the statute of limitations time

period, the federal discovery rule governs the accrual date for

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federal claims. Miller v. Fortis Benefits Ins. Co., 475 F.3d 516,

520 (3d Cir. 2007). In the ERISA context, the discovery rule has

developed into the “clear repudiation rule,” under which a claim

accrues “when a beneficiary knows or should know he has a cause

of action.” Id. at 520-21; see also Ozarowsky v. Owens-Illinois,

Inc., No. 09-cv-1622, 2010 WL 2696789, at *5 (W.D. Pa. July 6,

2010)(where there was a missed payment of benefits plaintiff

should have “quickly and more readily” discovered that there was

no payment, and the statute of limitations began to run from the

first missed payment).

Here, Plaintiff did not initiate this lawsuit until March 7,

2011. Therefore, for the suit to have been timely asserted under

New Jersey’s six-year statute of limitations, Plaintiff’s claim

would have had to accrue on or after March 7, 2005. Based on

this Court’s reading of the Amended Complaint, it appears to have

accrued far earlier. Plaintiff should have known of her claim in

1997 when, according to the Amended Complaint, Plaintiff received

notice of the distribution of her 401(k) funds but never, in

fact, received any distribution. See Miller, 475 F.3d, at 522,

523 (holding that “[t]he beneficiary should exercise reasonable

diligence to ensure the accuracy of his award,” and “requir[ing]

beneficiaries to safeguard those rights upon a denial of

benefits”). Under this reading of the Amended Complaint, it is

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plain that any claim based on her failure to receive money from

her 401(k) account would have accrued in 1997, and dismissal

based on the statute of limitations would be appropriate. 

Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002)(cert.

denied 540 U.S. 826)(holding that the statute of limitations is

an appropriate basis for dismissal on a motion to dismiss where

the dates relevant to the timeliness of the claims are plain and

apparent from the complaint). However, given the continued lack

of clarity in the Amended Complaint, this Court will give

Plaintiff a final opportunity, before dismissing Plaintiff’s

Amended Complaint, to provide: (1) a clear recitation of the

nature of her claims; and (2) factual allegations sufficient to

render those claims plausible, pursuant to Iqbal. 

III. Conclusion

For all these reasons: (1) Defendants’ motion to dismiss is

ADMINISTRATIVELY TERMINATED; (2) Plaintiff shall have until July

3, 2012 to make a submission clarifying her claims; and (3)

Defendants shall have until July 17, 2012 to submit any response

to Plaintiff’s submission.3

 In the event Plaintiff does not make

a submission, this Court will interpret that failure as an

admission that its interpretation of Plaintiff’s Amended

3

Plaintiff also made a motion that the Court reject Defendants’ motion to

dismiss. [Docket No. 17]. That motion is DENIED as moot.

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Complaint is correct, reinstate Defendants’ motion to dismiss,

and will dismiss Plaintiff’s Amended Complaint as time-barred.

s/Renée Marie Bumb 

RENÉE MARIE BUMB

United States District Judge

Dated: June 19, 2012

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