United States District Court, E.D. Pennsylvania
MEMORANDUM RE: MOTION TO DISMISS
Roma Concrete Corporation (“Roma”), alleges that
Defendant, Pension Associates, is liable for failing to
lawfully fulfill its role as the Third Party Administrator
and actuary for Roma's Defined Benefit Plan (“DB
Plan”). Roma's Amended Complaint arises from
Defendant's alleged material misrepresentations and
calculation errors in reports and accountings involving the
DB Plan, which allegedly caused a shortfall in benefits in
excess of $400, 000. (ECF 10, “Am. Compl.”
¶¶ 22-23, 27.) The Amended Complaint alleges three
Counts: (1) professional negligence; (2) breach of contract;
and (3) breach of fiduciary duty.
before this Court is Defendant's Motion to Dismiss all
Counts of the Amended Complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). For the reasons discussed below,
the Motion to Dismiss is DENIED.
Factual Background and Procedural History
Court provided a detailed summary of the factual allegations
in its Opinion granting Defendant's Motion to Dismiss the
original Complaint without prejudice, and with leave to
amend. (ECF 8, “June 3 Opinion” at
1-3.) As the Amended Complaint does not set
forth any new factual allegations, the Court does not repeat
the factual background here.
and Robert D. Scarduzio (“Scarduzio”), one of
Roma's owners, filed the original Complaint in this case
on October 10, 2018 (ECF 1, Notice of Removal Ex. A).
Defendant filed a Notice of Removal in this Court on March
18, 2019, alleging diversity jurisdiction pursuant to 28
U.S.C. § 1332(a)(1) (ECF 1).
March 28, 2019, Defendant filed a Motion to Dismiss the
original Complaint under Rule 12(b)(6) (ECF 3). The Motion to
Dismiss contended that Scarduzio's claims of professional
negligence, breach of contract, and breach of fiduciary
duty-Counts I, II, and III-were preempted by the Employee
Retirement Income Security Act of 1974 (“ERISA”).
(Id. at 9-12.) Roma and Scarduzio filed a Response
to the Motion on April 25, 2019 (ECF 7). The Court agreed
with Defendant that Scarduzio's claims were preempted by
ERISA and granted the Motion “without prejudice, and
with leave to amend to bring Scarduzio's claims
exclusively under ERISA.” (June 3 Opinion at 15.) As
“Defendant d[id] not argue that Roma's claims in
the same Counts [were] preempted[, ]” “the Court
d[id] not reach any conclusions on the issue of preemption as
to Roma's claims.” (Id. at 5, 15.)
12, 2019, Roma filed an Amended Complaint (ECF 10). Rather
than amend the Complaint to bring Scarduzio's claims
under ERISA, Roma removed Scarduzio as a named Plaintiff and
alleged the same Counts only on behalf of Roma. Defendant
filed the instant Motion to Dismiss all Counts of the Amended
Complaint on June 26, 2019 (ECF 11, “Mot.”).
Defendant argues that the claims are preempted by ERISA, just
as Defendant argued in the Motion to Dismiss “the
identical state law claims of Robert Scarduzio” in the
original Complaint. (Id. at 2 n.1.) Roma filed a
Response in opposition on July 9, 2019 (ECF 12,
“Resp.”), arguing that the Motion to Dismiss must
be denied pursuant to Federal Rule of Civil Procedure
12(g)(2), and that, alternatively, Roma's claims are not
preempted by ERISA. (Id. at 6-10.) Defendant filed a
Reply in support of the Motion on July 19, 2019 (ECF 13,
“Rep.”). The Reply contends that Rule 12(g)(2)
does not preclude the Motion to Dismiss because judges in
this District have permitted successive Rule 12(b)(6)
motions. (Id. at 2.) Defendant also reiterates that
Roma's claims are preempted by ERISA, referencing the
June 3 Opinion in support. (Id. at 2-5.)
considering a motion to dismiss under Rule 12(b)(6), the
Court “accept[s] all factual allegations as true [and]
construe[s] the complaint in the light most favorable to the
plaintiff.” Warren Gen. Hosp. v. Amgen, Inc.,
643 F.3d 77, 84 (3d Cir. 2011) (internal quotation marks and
citations omitted). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim for relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
Court in Iqbal explained that, although a court must
accept as true all of the factual allegations contained in a
complaint, that requirement does not apply to legal
conclusions; therefore, pleadings must include factual
allegations to support the legal claims asserted.
Iqbal, 556 U.S. at 678, 684. “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Id. at 678 (citing Twombly, 550 U.S. at
555); see also Phillips v. Cty. of Allegheny, 515
F.3d 224, 232 (3d Cir. 2008) (citing Twombly, 550
U.S. at 556 n.3) (“We caution that without some factual
allegation in the complaint, a claimant cannot satisfy the
requirement that he or she provide not only ‘fair
notice,' but also the ‘grounds' on which the
claim rests.”). Accordingly, to survive a motion to
dismiss, a plaintiff must plead “factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 556).
discussed above, Defendant moves to dismiss all three Counts
of the Amended Complaint under Rule 12(b)(6) on the grounds
that these claims are preempted by ERISA. (Mot. at 5-7; Rep.
at 3-5.) Roma contends that the Motion is procedurally barred
by Rule 12(g)(2) because Defendant raises arguments that
could have been asserted in the prior Motion to Dismiss.