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Derrick Askew v. R.L. Reppert

September 28, 2012

DERRICK ASKEW, PLAINTIFF
v.
R.L. REPPERT, INC., RICHARD L. REPPERT, TIMOTHY J. REPPERT, R.L. REPPERT, INC. EMPLOYEES PROFIT SHARING 401(K) PLAN, R.L. REPPERT, INC. MONEY PURCHASE PLAN (DAVIS BACON PLAN), R.L. REPPERT, INC. MEDICAL PLAN, AND R.L. REPPERT, INC. HRA MEDICAL EXPENSE REIMBURSEMENT PLAN, DEFENDANTS AND THIRD PARTY PLAINTIFFS
v.
CALIFORNIA PENSION ADMINISTRATORS & CONSULTANTS, INC., AND KISTLER TIFFANY BENEFITS CORP., THIRD PARTY DEFENDANTS



The opinion of the court was delivered by: James Knoll Gardner United States District Judge

OPINION

This matter is before the court on the separate motions of two third-party defendants to dismiss a Third Party Complaint filed against them jointly by seven defendants as third-party plaintiffs. For the reasons expressed below, I grant both motions to dismiss and dismiss both third-party defendants from this lawsuit without prejudice for third-party plaintiffs to file an amended third party complaint.

Plaintiff in this putative class action, Derrick Askew, is a former employee of defendant R.L. Reppert, Inc., a construction contractor. The company sponsors and administers four employee benefit plans, jointly referred to as "the Reppert Plans" for the benefit of its employees. Each plan *fn1 is a named defendant in this action.

Defendants Richard L. Reppert and Timothy J. Reppert are trustees of two of the four plans (the 401(k) plan, and the money purchase plan).

Each of the seven defendants is also a third-party plaintiff in this action. In their Third Party Complaint *fn2 , they sue third-party defendants, California Pension Administrators & Consultants, Inc. ("CalPAC"), and Kistler Tiffany Benefits Corp. ("Kistler Tiffany"). CalPAC and Kistler Tiffany were contracted by defendants as plan administrators to establish, administer, and maintain the employee benefits plans.

Specifically, this matter is before the court on Kistler Tiffany Benefits Corp.'s Motion to Dismiss or, Alternatively, Motion for a More Definite Statement ("Kistler Tiffany Motion to Dismiss"), filed November 14, 2011; *fn3 and Motion of Third Party Defendant California Pension Administrators & Consultants, Inc. Pursuant to F.R.C.P. 12(b)(6) to Dismiss the Third Party Complaint as to California Pension Administrators & Consultants, Inc. ("CalPAC Motion to Dismiss"), filed November 18, 2011. *fn4

Third-party plaintiffs filed their response in opposition to the Kistler Tiffany Motion to Dismiss on November 28, 2011, and their response in opposition to the CalPAC Motion to Dismiss on December 2, 2011. *fn5

SUMMARY OF DECISION

For the reasons expressed below, I grant the Kistler Tiffany Motion to Dismiss and the CalPAC Motion to Dismiss, and I dismiss the Third Party Complaint without prejudice for third-party plaintiffs to file an amended third-party complaint in accordance with this Opinion.

Specifically, I grant the Kistler Tiffany Motion and dismiss the Third Party Complaint against Kistler Tiffany because third-party plaintiffs do not aver sufficient facts to support a reasonable inference that Kistler Tiffany is a co-fiduciary with third-party plaintiffs pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"). *fn6

Additionally, I grant the CalPAC Motion and dismiss the Third Party Complaint against CalPAC because third-party plaintiffs do not aver sufficient facts to support a reasonable inference that CalPAC is a co-fiduciary with third-party plaintiffs pursuant to ERISA, or alternatively, an inference that CalPAC is a non-fiduciary and knowingly participated in a fiduciary breach with third-party plaintiffs.

JURISDICTION

This court has jurisdiction in this matter pursuant to

28 U.S.C. § 1331 because plaintiff's Class Action Complaint alleges that defendants and third-party plaintiffs violated ERISA and, thus, poses a federal question.

VENUE

Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of th events giving rise to this action occurred in Emmaus, Lehigh County, Pennsylvania and Berwyn, Chester County, Pennsylvania, which are each within this judicial district.

PROCEDURAL HISTORY

Plaintiff Derrick Askew initiated this action on June 17, 2011 by filing a six-count Class Action Complaint on behalf of himself and a class of former and current employees of the defendants.

The Class Action Complaint alleges that defendants violated ERISA by failing to properly manage and administer various employee benefit plans and that defendants mismanagement of the plans constituted a breach of fiduciary duties owed pursuant to 29 U.S.C. § 1104.

On September 15, 2011, defendants -- and now third-party plaintiffs -- filed a Third Party Complaint against CalPAC and Kistler Tiffany. The Third Party Complaint claims that third-party plaintiffs contracted with both Kistler Tiffany and CalPAC to administer and maintain the employee benefit plans at issue here.

On November 14, 2011, Kistler Tiffany filed its motion to dismiss the Third Party Complaint or, alternatively, for a more definite statement. On November 18, 2011, CalPAC filed its motion to dismiss the Third Party Complaint and submitted a brief in support of this motion. Third-party plaintiffs filed their brief in response to the Kistler Tiffany Motion on November 28, 2011, and to the CalPAC Motion on December 2, 2011. Hence this Opinion.

STANDARD OF REVIEW

A claim may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted." A Rule 12(b)(6) motion requires the court to examine the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957) (abrogated in other respects by Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Generally, in ruling on a motion to dismiss, the court relies on the complaint, attached exhibits, and matters of public record, including other judicial proceedings. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2008).

Except as provided in Federal Rule of Civil Procedure 9, a complaint is sufficient if it complies with Rule 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief". Rule 8(a)(2) does not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Twombly, 550 U.S. at 570, 127 S.Ct. at 1974, 167 L.Ed.2d at 949. *fn7

In determining whether a complaint is sufficient, the court must accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading, the plaintiff may be entitled to relief. Fowler, 578 F.3d at 210 (citing Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).

Although "conclusory" or "bare-bones allegations" will not survive a motion to dismiss, Fowler, 578 F.3d at 210, a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits. Phillips, 515 F.3d at 231. Nonetheless, to survive a Rule 12(b)(6) motion, the complaint must provide "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Id. at 234 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940)(internal quotations omitted).

The court is required to conduct a two-part analysis when considering a Rule 12(b)(6) motion. First, the factual matters averred in the complaint, and any attached exhibits, should be separated from legal conclusions asserted. Fowler, 578 F.3d at 210. Any facts pled must be taken as true, and any legal conclusions asserted may be disregarded. Id. at 210-211.

Second, the court must determine whether those factual matters averred are sufficient to show that the plaintiff has a "plausible claim for relief." Id. at 211 (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. at 1950, 178 L.Ed.2d at 884).

Ultimately, this two-part analysis is "context-specific" and requires the court to draw on "its judicial experience and common sense" to determine if the facts pled in the complaint have "nudged [plaintiff's] claims" over the line from "[merely] conceivable [or possible] to plausible." Iqbal, 556 U.S. at 679-680, 129 S.Ct. at 1949-1951, 178 L.Ed.2d at 884-885.

A well-pled complaint may not be dismissed simply because "it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940-941 (internal quotations omitted).

FACTS

Based upon the averments in the Class Action Complaint and the Third Party Complaint, which I must accept as true for purposes of this Opinion under the applicable standard of review discussed above, the pertinent facts are as follows.

Plaintiff Derrick Askew is an adult individual and was an employee of defendant R.L. Reppert, Inc. from July 29, 2007 though August 31, 2008. *fn8

Defendant R.L. Reppert, Inc. is a Pennsylvania corporation with its principal place of business in Emmaus, Lehigh County, Pennsylvania. R.L. Reppert, Inc. is in the construction business as "a contractor performing construction work". *fn9 Some of the contracting and construction work performed by R.L. Reppert, Inc. is subject to the prevailing wage laws of the Commonwealth ...

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