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Perez v. Belanger

United States District Court, E.D. Pennsylvania

May 9, 2017

THOMAS E. PEREZ, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, Plaintiff,
v.
A. KENNETH BELANGER, ET AL., Defendants.

          MEMORANDUM

          J. CURTIS JOYNER, J.

         Joyner, J. May 9, 2017 Before the Court are Defendants' Partial Motion to Dismiss (Doc. No. 7), Plaintiff's Response in Opposition thereto (Doc. No. 11), and Defendants' Reply in Further Support thereof (Doc. No. 12). For the reasons below, Defendants' Motion is DENIED.

         I. Facts[1]

         Plaintiff brings this ERISA[2] action against Belanger and Company, Inc. (“the Company”), as well as the Company's president A. Kenneth Belanger (“K. Belanger”) and vice president Jo-Ann I. Belanger (together with the Company and K. Belanger, “Defendants”), in connection with alleged violations of fiduciary duties in administering and managing eight employee benefit plans over which the Defendants exercised control and authority regarding the management and disposition of their assets. For purposes of this partial motion to dismiss, the only relevant plans are (1) the Edward P. Shamy, Jr. 401(k) Plan (“Shamy Plan”); (2) the Bleach and Associates Plan (“Bleach Plan”); (3) the Advanced Telecommunications 401(k) Plan (“ATI Plan”); and (4) the Fabricated Alloy, Inc. 401(k) Profit Sharing Plan (“Faballoy Plan”).

         In 2009, the employer that sponsored the Shamy Plan decided to cease having the company perform most administrative services for the Shamy Plan and directed the Company to transfer its plan assets to a new service provider. The Company and K. Belanger did not transfer all of the Shamy Plan assets and instead left approximately $30, 000 in the Shamy Plan account that it managed. In 2011, the Company and K. Belanger transferred the remaining money in the Shamy Plan account to the Company's corporate bank account.

         The Bleach Plan was apparently terminated sometime in 2005. Years later, however, some Bleach Plan assets remained in the Bleach Plan account controlled by the Company. In November 2010, all remaining assets in the Bleach Plan's account were also transferred to the Company's corporate bank account.

         Finally, Plaintiff also alleges that K. Belanger prepared the Internal Revenue Service (“IRS”) Form 5500 for the ATI Plan, the Shamy Plan, and the Faballoy Plan, which the Company was required to do in order to comply with annual reporting requirements under ERISA. During the time alleged in the complaint (January 1, 2010 to the date of filing), however, the Company and K. Belanger allegedly did not disclose the full fees that it charged on the IRS Form 5500.

         By its complaint, Plaintiff seeks equitable relief in the form of a court order which, inter alia, requires the Defendants to restore the losses caused by their fiduciary breaches, removes them as fiduciaries of any employee benefit plans, and permanently enjoins them from acting in any fiduciary capacity with respect to employee benefit plans subject to ERISA.

         For purposes of the present Motion, the Defendants do not dispute that the alleged facts, if proven, would amount to violations of their fiduciary duties. Instead, Defendants argue that certain allegations on the face of Plaintiff's complaint reveal that several of Plaintiff's claims are barred by ERISA's six-year statute of limitations, ERISA § 413(1), 29 U.S.C. § 1113(1).

         II. Standard

         Federal Rule of Civil Procedure 12(b)(6) requires a court to dismiss a complaint if the plaintiff has failed to “state a claim on which relief can be granted.” In evaluating a motion to dismiss, the court must take all well-pleaded factual allegations as true, but it is not required to blindly accept “a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). Although a plaintiff is not required to plead detailed factual allegations, the complaint must include enough facts to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         III. Discussion

         Defendants' sole argument in favor of dismissal is that the statute of limitations has run on some of Plaintiff's claims, and that we should, therefore, dismiss those claims from Plaintiff's Complaint.[3] Although a statute of limitations is an affirmative defense, courts have allowed defendants to assert affirmative defenses such as the statute of limitations by way of a motion to dismiss. Davis v. Grusemeyer, 996 F.2d 617, 623 (3d Cir. 1993). This is generally only permissible when the affirmative defense appears on the face of the complaint. ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994). When facts or matters outside of the complaint are necessary to establish the affirmative defense, raising it under Rule 12(b)(6) is usually not permitted. See Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 657 (3d Cir. 2003).

         As an initial matter, the relevant dates are all included on the face of Plaintiff's Complaint. The applicability of ERISA's statute of limitations is, therefore, ...


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