W.D. La. Notes Split Re Availability of ERISA Actions Against Parties Other Than a Plan Itself

Per Pippin v. Broadspire Services, Inc., Not Reported in F. Supp. 2d, 2006 WL 2588009 (W.D. La. Sept. 8, 2006):

The federal appellate courts are divided as to whether to permit an ERISA claim against parties other than the plan itself. See Gelardi v. Pertec Computer Corp., 761 F.2d 1323, 1324 (9th Cir.1985) (holding that plain language of ERISA permits only actions against plan as entity for recovery of benefits under § 1132(a)(1)(B) and actions for breach of fiduciary duty under § 1109(a) and § 1105(a)); Jass v. Prudential Health Care Plan, Inc., 88 F.3d 1482, 1490 (7th Cir.1996) (following Gelardi ); Lee v. Burkhart, 991 F.2d 1004, 1009 (2d Cir.1993) (rejecting notion that employer was de facto co-administrator jointly liable with named plan administrator); Garren v. John Hancock Mut. Life Ins., Co., 114 F.3d 186, 187 (11th Cir.1997) ("The proper party defendant in an action concerning ERISA benefits is the party that controls administration of the plan."); Terry v. Bayer Corp., 145 F.3d 28, 36 (1st Cir.1998) (quoting Garren ); Daniel v. Eaton Corp., 839 F.2d 263, 266 (6th Cir.1988) (holding that employer is proper defendant in suit for benefits under ERISA if it controlled administration of plan); Hall v. Lhaco, Inc., 140 F.3d 1190, 1194 (8th Cir.1998) (recognizing circuit split). Broadspire has cited district court decisions in the Sixth and Seventh Circuits in which it was dismissed as a party. Pippin, in turn, has cited district court decisions in the First, Third, and Eleventh Circuits in which motions to dismiss filed by Broadspire were denied.

The Fifth Circuit addressed this issue in Musmeci v. Schwegmann Giant Super Markets, Inc., 332 F.3d 339 (5th Cir.2003), where the plaintiff named both a pension plan and the corresponding employer as defendants. The employer in question acted as both the plan administrator and plan sponsor. In deciding that the employer was properly named as a defendant, the court observed, inter alia, that it was "indisputably" the employer's decision to deny benefits to the plaintiffs. Id. at 350; cf. Carroll v. United of Omaha Life Ins. Co., 378 F.Supp.2d 741, 747 (E.D.La.2005) (employer not proper defendant where plan insurer had "ultimate authority to determine eligibility for benefits, as well as the obligation to pay additional benefits"); Mello v. Sara Lee Corp., 292 F.Supp.2d 902, 907 (N.D.Miss.2003) (finding, in light of Musmeci, that plan trustee was proper defendant "assuming the plaintiff can establish that [plan trustee] exerted the requisite control over the Plan"). Based on the Fifth Circuit's reasoning, we conclude that an examination of Broadspire's role in denying Pippin's benefits claim is essential in order to determine whether it is a proper party.

. . . As Pippin contends that Broadspire maintains discretionary authority over the plan, Broadspire is a fiduciary to the plan, and therefore was properly named as a defendant. Accordingly, the defendant's motion to dismiss the plaintiff's complaint against the plan administrator should be denied because the defendant as movant for dismissal under Rule 12(b)(6) has not met its burden to prove that the plaintiff "can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46, 78 S.Ct. at 102; see also DuBois v. Wal-Mart Stores, Inc., No. 05- 0433, 2005 WL 1801977, at *2 (W.D.La. July 28, 2005) (Little, J.) (denying motion to dismiss cause of action against employer for denial benefits under Musmeci).