United States District Court, E.D. Pennsylvania
THOMAS E. PEREZ, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, Plaintiff,
A. KENNETH BELANGER, ET AL., Defendants.
CURTIS JOYNER, J.
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.
brings this ERISA 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
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.
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
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.
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.
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).
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).
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. 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).
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,