Theriot v. Building Trades United Pension Trust Fund

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

DEBORAH THERIOT CIVIL ACTION

VERSUS No. 18-10250

BUILDING TRADES UNITED

PENSION TRUST FUND SECTION I

ORDER & REASONS

Before the Court is a motion to dismiss filed by defendant The Building Trades

United Pension Trust Fund (the “Pension Fund”).1 Also made defendant is the

Pension Fund’s Board of Trustees (the “Board of Trustees”).2 The Pension Fund

1 R. Doc. No. 10.

2 The motion to dismiss was filed on March 19, 2019 by the Pension Fund. In its

motion, the Pension Fund moved to dismiss count III of plaintiff Deborah Theriot’s

amended complaint, which alleges that the Pension Fund failed to produce requested

documents in violation of 29 U.S.C. § 1132(c). R. Doc. No. 4, at ¶¶ 28–29. The Pension

Fund moved to dismiss that claim, arguing that it is not the administrator of the

pension plan (“the Plan”) at issue and, therefore, not the proper defendant. R. Doc.

No. 10-1, at 12. In her opposition to the motion, Theriot asserted that the Pension

Fund failed to articulate why it was an improper defendant and failed to provide the

identity of the proper defendant. R. Doc. No. 20, at 23. However, Theriot conceded

that the claim could also be asserted against the Board of Trustees as administrator

of the Plan. Id. Thereafter, on May 16, 2019, Theriot moved for leave to file a second

amended complaint to add the Board of Trustees as a defendant with respect to

counts III and IV. R. Doc. No. 30. The Pension Fund opposed the motion only insofar

as it argued that the motion was futile if this Court determined that Theriot did not

have standing to bring this lawsuit. R. Doc. No. 35, at 1 (“The Pension Fund does not

oppose the proposed amendment if the motion to dismiss is denied.”).

At a June 21, 2019 telephone conference, the Court asked the parties to confirm

whether the Board of Trustees was the proper defendant as to count III and whether

the Pension Fund should be dismissed as to count III. The Court did not receive a

clear answer as to who was the proper defendant, but the parties agreed that the

Board of Trustees should be added as a defendant with respect to count III. The Court

then granted Theriot’s motion for leave to file a second amended complaint. R. Doc.

moves to dismiss plaintiff Deborah Theriot’s (“Theriot”) claims against it brought

pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”).

Theriot asserts her claims in her capacity as the court-appointed independent

administrator of the Succession of Audrey L. Hamann.3 Theriot filed a response in

opposition to the Pension Fund’s motion,4 and the Pension Fund filed a reply.5 The

parties also submitted supplemental briefing6 pursuant to this Court’s order.7

The Pension Fund filed its motion pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure, asserting in part that Theriot failed to state a claim upon

which relief can be granted.8 Specifically, the Pension Fund argues that Theriot does

not have standing under ERISA to assert her claims and that she has failed to

exhaust available administrative procedures.9 The Pension Fund also argues,

pursuant to Rule 12(b)(3), that this district is not the proper venue for Theriot’s

No. 43; see generally R. Doc. No. 44. Because the Board of Trustees was made a

defendant with respect to count III, the Pension Fund has failed to articulate why it

(the Pension Fund) is not a proper defendant with respect to count III, and the

Pension Fund has failed to assert any other basis for dismissal of count III, the Court

will not dismiss that claim at this time.

3 R. Doc. No. 44, at 1. Initially, Theriot also asserted her claims in her individual

capacity, but at a May 29, 2019 status conference, Theriot stated that she was no

longer asserting claims in her individual capacity. R. Doc. No. 37.

4 R. Doc. No. 20.

5 R. Doc. No. 26.

6 R. Doc. Nos. 45, 46 & 50.

7 R. Doc. No. 43.

8 See R. Doc. No. 10.

9 R. Doc. No. 10-1, at 1

lawsuit.10 For the following reasons, the motion is granted in part and denied in part,

as stated herein.

I.

The Court must first address the issue of standing. Along with its motion, the

Pension Fund attached a number of exhibits that Theriot references in her complaint.

At a May 29, 2019 status conference, the parties agreed that the Court may look

beyond the pleadings and consider the exhibits when considering the motion.11

Theriot also attached exhibits in response to the motion to dismiss.12

A.

The Court finds that the following facts related to Theriot’s standing under

ERISA are undisputed:

Robert A. Hamann (“Mr. Hamann”) participated in a pension plan (“the Plan”)

sponsored and underwritten by the Pension Fund and administered through the

Board of Trustees.13 Mr. Hamann died on December 30, 2016, and his wife, Audrey

L. Hamann (“Mrs. Hamann”) became entitled to post-retirement survival benefits by

the express terms of the Plan.14

On January 11, 2017, Mrs. Hamann submitted her application for the post-

retirement survivor benefit to the Pension Fund.15 The application form allows the

10 R. Doc. No. 10-1, at 13.

11 R. Doc. No. 37, at 1.

12 See R. Doc. Nos. 20-1–20-6.

13 R. Doc. No. 44, at ¶¶ 2 & 4; R. Doc. No. 10-1, at 2.

14 R. Doc. No. 44, at ¶ 4; R. Doc. No. 10-1, at 2.

15 R. Doc. No. 44, at ¶ 5; R. Doc. No. 10-1, at 2.

applicant to choose how she will receive her benefits: as a monthly annuity or as a

lump sum equivalent.16 The benefit illustration sheet explains:

You, the survivor, may instead elect to receive the benefit

as an actuarially equivalent lump sum. If you initially elect

a monthly benefit payment, you may elect at any time in

the future to receive the remainder of the Post-Retirement

Survivor benefit as a lump sum.17

Mrs. Hamann elected to receive her benefits under the monthly annuity option.18

In a letter dated March 1, 2017, Mrs. Hamann received notice that her

application for survivor benefits had been approved and that she would receive

monthly payments of $693.63.19 The letter also advised Mrs. Hamann that she could

elect to receive her benefits in a lump sum “at any time in the future.”20 That same

month, the Pension Fund mailed Mrs. Hamann a change form whereby she could

convert her monthly benefits into a lump sum payment.21 The Pension Fund

instructed Mrs. Hamann to return the change form “by April 5, 2017 to receive the

payment on May 1, 2017.”22 Mrs. Hamann completed and returned the change form,

which the Pension Fund received on April 4, 2017.23 Mrs. Hamann unfortunately

passed away on April 5, 2017.24

16 R. Doc. No. 44, at ¶ 5; see R. Doc. Nos. 10-3 & 10-5.

17 R. Doc. No. 44, at ¶ 5; R. Doc. No. 10-3.

18 R. Doc. No. 44, at ¶ 5; R. Doc. No. 10-1, at 2 (citing R. Doc. No. 10-5).

19 R. Doc. No. 44, at ¶ 6; R. Doc. No. 20-2, at 2.

20 R. Doc. No. 44, at ¶ 6; R. Doc. No. 20-2, at 1–2.

21 R. Doc. No. 44, at ¶ 7; R. Doc. No. 10-1, at 3; R. Doc. No. 10-6.

22 R. Doc. No. 10-6, at 1.

23 R. Doc. No. 44, at ¶ 7; R. Doc. No. 10-1, at 3; R. Doc. No. 10-6.

24 R. Doc. No. 44, at ¶ 7; R. Doc. No. 10-1, at 3.

After Mrs. Hamann’s death, her daughter, Theriot, inquired about the lump

sum payment.25 The Pension Fund sent Theriot a letter dated April 18, 2017

explaining that she was not entitled to the lump sum payment:

Plan documents state that the Joint and Survivor benefit

is payable for the survivor’s lifetime. Therefore[,] the

payment dated April 1, 2017 was the final payment Mrs.

Hamann was eligible to receive from this Fund. The

paperwork Mrs. Hamann submitted for a Lump Sum

payment was for May 1, 2017 and would not be payable due

to the fact that she was not living at that time.26

B.

The U.S. Fifth Circuit Court of Appeals has “recognized that standing is

essential to the exercise of jurisdiction and is a ‘threshold question . . . [that]

determin[es] the power of the court to entertain the suit.’” Coleman v. Champion Int’l

Corp./Champion Forest Prods., 992 F.2d 530, 532 (5th Cir. 1993) (quoting Warth v.

Seldin, 422 U.S. 490, 498 (1975)).

Although the Pension Fund filed its motion pursuant to Rule 12(b)(6), the

standing inquiry is more appropriately considered under Rule 12(b)(1). The Pension

Fund’s “argument that [Theriot] lacks standing to bring suit under ERISA is properly

considered as a jurisdictional attack under Rule 12(b)(1).” Feingerts v. Feingerts, No.

15-2895, 2016 WL 2744812, at *7 (E.D. La. May 10, 2016) (citing Piro v. Nexstar

Broad, Inc., No. 11-2049, 2012 WL 2089596, at *3 (W.D. La. Apr. 10, 2012); Cobb v.

Cent. States, 461 F.3d 632, 635 (5th Cir. 2006); see also Lee v. Verizon Comms., Inc.,

25 R. Doc. No. 44, at ¶¶ 4 & 8.

26 R. Doc. No. 44, at ¶ 9; R. Doc. No. 10-1, at 3; R. Doc. No. 10-7.

837 F.3d 523, 533 (5th Cir. 2016) (“As a matter of subject matter jurisdiction, standing

under ERISA § 502(a) is subject to challenge through Rule 12(b)(1).”); Mem’l

Hermann Health Sys. v. Pennwell Corp. Med. & Vision Plan, No. H-17-2364, 2017

WL 6561165, at *4 (S.D. Tex. Dec. 22, 2017) (recognizing that the Fifth Circuit treats

standing under ERISA as a jurisdictional matter and applying Rule 12(b)(1)); James

v. La. Laborers Health & Welfare Fund, 766 F. Supp. 530, 531 (E.D. La. 1991)

(Feldman, J.) (considering whether the plaintiff had standing under ERISA in

response to a motion to dismiss for lack of subject matter jurisdiction pursuant to

Rule 12(b)(1)).

Pursuant to Rule 12(b)(1), “[a] case is properly dismissed for lack of subject

matter jurisdiction when the court lacks the statutory or constitutional power to

adjudicate the case.” Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d

1006, 1010 (5th Cir. 1998) (citation omitted). “The burden of proof for a Rule 12(b)(1)

motion to dismiss is on the party asserting jurisdiction.” Ramming v. United States,

281 F.3d 158, 161 (5th Cir. 2001). “When a Rule 12(b)(1) motion is filed in conjunction

with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional

attack before addressing any attack on the merits.” Id.

When applying Rule 12(b)(1), a court may dismiss an action for lack of subject

matter jurisdiction “on any one of three separate bases: (1) the complaint alone; (2)

the complaint supplemented by undisputed facts evidenced in the record; or (3) the

complaint supplemented by undisputed facts plus the court’s resolution of disputed

facts.” Spotts v. United States, 613 F.3d 559, 565–66 (5th Cir. 2010).

“When subject matter jurisdiction is challenged, the Court first considers

whether the defendant has made a ‘facial’ or a ‘factual’ attack upon the complaint.”

Magee v. Winn-Dixie Stores, Inc., No. 17-8063, 2018 WL 501525, at *2 (E.D. La. Jan.

22, 2018) (Vance, J.) (citing Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981)).

“A motion to dismiss for lack of standing is factual rather than facial if the defendant

submits affidavits, testimony, or other evidentiary materials.” Id. (internal quotation

marks omitted) (quoting Superior MRI Servs., Inc. v. Alliance Healthcare Servs., Inc.,

778 F.3d 502, 504 (5th Cir. 2015)). “When a defendant makes a factual attack on the

complaint, the plaintiff is ‘required to submit facts through some evidentiary method

and has the burden of proving by a preponderance of the evidence that the trial court

does have subject matter jurisdiction.’” Id. (quoting Paterson, 644 F.2d at 523). “In

the case of a facial attack, the court ‘is required to look to the sufficiency of the

allegations in the complaint because they are presumed to be true.’” Id. (quoting

Paterson, 644 F.2d at 523). “Ultimately, a motion to dismiss for lack of subject matter

jurisdiction should be granted only if it appears certain that the plaintiff cannot prove

any set of facts in support of his claim that would entitle plaintiff to relief.” Ramming,

281 F.3d at 161 (quoting Home Builders Ass’n, 143 F.3d at 1010).

C.

Standing under ERISA, pursuant to 29 U.S.C. § 1132(a), is limited to

participants, beneficiaries, and fiduciaries. Coleman, 992 F.2d at 533.27 The Fifth

Circuit strictly construes the class of claimants enumerated in § 1132(a). Cobb, 461

27 It is undisputed that Mrs. Hamann was neither a participant nor a fiduciary.

F.2d at 635; Coleman, 992 F.2d at 534 (“[O]ur previous decisions have hewed to a

literal construction of § 1132(a).”).28

A beneficiary is “a person designated by a participant, or by the terms of an

employee benefit plan, who is or may become entitled to a benefit thereunder.” 29

U.S.C. § 1002(8). “In order to qualify as a beneficiary, an individual must have a

‘reasonable or colorable claim to benefits.’” Feingerts, 2016 WL 2744812, at *7

(quoting Crawford v. Roane, 53 F.3d 750, 754 (6th Cir. 1995)); see also Cobb, 461 F.3d

at 635–36 (holding that, to have standing as a beneficiary under ERISA, a plaintiff

must show a designation of beneficiary status by a participant or the terms of the

plan and a colorable entitlement to benefits).

Theriot argues that as administrator of Mrs. Hamann’s estate, she has

standing to bring these claims on Mrs. Hamann’s behalf. Specifically, Theriot asserts

that she has derivative standing.29 The Fifth Circuit recognizes both independent

standing and derivative standing under ERISA. Hermann Hosp. v. MEBA Med. &

Benefits Plan, 845 F.2d 1286, 1287–89 (5th Cir. 1988), overruled on other grounds by

Access Mediquip, L.L.C. v. UnitedHealthcare Ins. Co., 698 F.3d 229 (5th Cir. 2012)

(mem.)). A party has independent standing when he or she is an enumerated party

under § 1132(a). Id. “But one who lacks the narrow status of a participant or

28 “Because ‘[w]here Congress has defined the parties who may bring a civil action

founded on ERISA, we are loathe [sic] to ignore the legislature’s specificity,’ standing

to bring an action founded on ERISA is a ‘jurisdictional’ matter.” Cobb, 461 F.3d at

634–35 (alterations in original) (quoting Hermann Hosp. v. MEBA Med. & Benefits

Plan, 845 F.2d 1286, 1288–89 (5th Cir. 1988), overruled on other grounds by Access

Mediquip, L.L.C. v. UnitedHealthcare Ins. Co., 698 F.3d 229 (5th Cir. 2012) (mem.)).

29 R. Doc. No. 20, at 8.

beneficiary may nevertheless sue derivatively on behalf of a participant or

beneficiary.” James, 766 F. Supp. at 532 (discussing Hermann and finding that a

succession representative could sue derivatively on behalf of the deceased).

“The Pension Fund does not dispute that provided Theriot is the administrator

of Mrs. Hamann’s estate, she would have standing under ERISA if Mrs. Hamann’s

estate is entitled to benefits from the Pension Fund.”30 Therefore, the Pension Fund

asserts that this Court must determine whether Mrs. Hamann’s estate is entitled to

benefits under the Plan—i.e., whether it has a colorable claim to the benefits—to

determine whether Theriot has standing.31

Theriot argues that it would be inappropriate for the Court to resolve the

merits of the underlying benefits claim to determine her standing.32 However, the

Fifth Circuit allows such an inquiry:

Although it may not be advisable to interpret the terms of

the plan at this jurisdictional stage, [the Court is] bound to

do so by Coleman, which interpreted the term “payable”

under the plan to determine whether the descendant and

heir of the plan participant qualified as a beneficiary.

Further, the definition of “beneficiary” directs the courts to

look to the terms of the plan at the jurisdictional stage to

decide whether the terms “designate” a plaintiff as a

beneficiary or whether they provide plaintiff with a

colorable claim for benefits.

Cobb, 461 F.3d at 637.

30 R. Doc. No. 26, at 2.

31 R. Doc. No. 26, at 3.

32 R. Doc. No. 20, at 10.

The parties do not dispute that Mrs. Hamann was a beneficiary of Mr.

Hamann’s Joint and Survivor benefits while she was alive. Rather, the Pension Fund

argues that Mrs. Hamann’s estate is not a beneficiary entitled to the lump sum

payment because the benefits were no longer payable when she died.33

Article VIII Section 1(a) of the Plan, which provides for Joint and Survivor and

Optional Forms of Benefit, states:

(1) [I]n the event of [the participant’s] death after his

Retirement, two-thirds of such reduced monthly Benefit

shall continue to be paid to the Participant’s Surviving

Spouse for life . . . .

(4) With respect to a Participant whose Surviving Spouse

is eligible for a Benefit under this subsection (a), the

Participant’s Surviving Spouse may request, in

writing, to receive a lump sum payment at any time

which is the Actuarial Equivalent of the Benefits

payable under this subsection (a), in lieu of such

Benefits.34

Mrs. Hamann initially received her benefits in the form of a monthly annuity,

but she later elected to receive the benefits as a lump sum. The Pension Fund advised

Mrs. Hamann that, if she wished to receive the lump sum payment, she should

complete and return the change form “by April 5, 2017 to receive the payment on May

1, 2017.”35 The Pension Fund also advised Mrs. Hamann that the lump sum benefit

would be $64,825.10 as of May 1, 2017. Mrs. Hamann completed the change form,

indicating that she “wish[ed] to receive the remainder of the benefits payable to [her]

33 R. Doc. No. 10-1, at 7.

34 R. Doc. Nos. 10-4 & 20-1, at 63 (emphasis added).

35 R. Doc. No. 10-6, at 1.

in a lump sum,” and the Pension Fund received the change form before her death.36

Theriot contends that, because the Plan’s provision, copied above, allowed Mrs.

Hamann to elect to receive the lump sum “at any time,” and because she did so before

her death, Mrs. Hamann’s estate is entitled to the benefits.37

The Court finds that the phrase “at any time” refers to the time at which the

surviving spouse may request receipt of a lump sum. The Plan allows the surviving

spouse to elect a lump sum at any time after the election of monthly benefits. This

interpretation is made clear by the benefit illustration sheet that Theriot cites in her

second amended complaint, which explains: “If you initially elect a monthly benefit

payment, you may elect at any time in the future to receive the remainder of the Post-

Retirement Survivor benefit as a lump sum.”38 But the inquiry does not end there.

The Plan’s provisions do not contain any language referencing the change

form’s effective date or the date on which the benefits would convert from monthly

payments to the lump sum. Neither Theriot nor the Pension Fund has directed the

Court to any language in the Plan or any other documents that reference the effective

date or conversion date for the change form.

The Plan provides that, if and when the surviving spouse elects to receive the

benefits as a lump sum, the surviving spouse will receive the actuarial equivalent of

the benefits payable.39 As previously mentioned, the Pension Fund informed Mrs.

36 R. Doc. No. 10-6, at 1.

37 R. Doc. No. 44, at ¶ 19.

38 R. Doc. No. 10-3 (emphasis added).

39 “Actuarial equivalent” is defined by the Plan as “a Benefit having the same value

as the Benefit it replaces . . . .” R. Doc. No. 10-4, at 1; R. Doc. No. 20-1, at 27.

Hamann that, if it received her change form by April 5, 2017, she would receive her

lump sum benefit of $64,825.10—to replace her monthly benefit—on May 1, 2017.

The Pension Fund received Mrs. Hamann’s change form on April 4, 2017 when the

benefits were clearly payable.

Furthermore, the Plan clearly provides that the surviving spouse shall receive

the participant’s reduced monthly benefits for life. There is no dispute that Mrs.

Hamann was alive when she elected to receive the lump sum of her remaining

benefits and that she was alive when the Pension Fund received her change form.

While the Pension Fund advised Mrs. Hamann that she would receive the lump sum

on May 1, 2017, nothing in the Plan, the benefit illustration sheet, or the Pension

Fund’s correspondence with Mrs. Hamann suggests that her election would become

invalid or that she would no longer be entitled to the lump sum payment if she died

before May 1, 2017.

The Pension Fund has been unable to adequately explain why Mrs. Hamann

did not become entitled to the lump sum—the remainder of her benefits—before her

death. At this jurisdictional stage, the Court finds that Theriot, on behalf of Mrs.

Hamann’s estate, had a reasonable or colorable claim entitling the estate to benefits.

Therefore, Theriot, on behalf of Mrs. Hamann’s estate, has standing to assert her

claims.

II.

The Pension Fund also argues that venue is improper in the Eastern District

of Louisiana.40 Rule 12(b)(3) of the Federal Rules of Civil Procedure authorizes a

defendant to move for dismissal due to improper venue. “The district court of a

district in which is filed a case laying venue in the wrong division or district shall

dismiss, or if it be in the interest of justice, transfer such case to any district or

division in which it could have been brought.” 28 U.S.C. § 1406(a). “The burden is on

the plaintiff to establish that his chosen district is a proper venue.” Stewart v.

Marathon Petroleum Co. LP, No. 17-7775, 2018 WL 4352825, at *2 (E.D. La. Sept. 12,

2018) (Africk, J) (citations omitted). “[T]he Court must accept as true all allegations

in the complaint and resolve all conflicts in favor of the plaintiff.” Braspetro Oil Servs.

Co. v. Modec (USA), Inc., 240 F. App’x 612, 615 (5th Cir. 2007).

Pursuant to ERISA, 29 U.S.C. § 1132(e)(2), an action “may be brought in the

district where the plan is administered, where the breach took place, or where a

defendant resides or may be found . . . .” The Pension Fund asserts that the Pension

Fund resides in, is administered in, and is maintained in the Eastern District of

Wisconsin.41 The Pension Fund asserts that the only basis for venue in the Eastern

District of Louisiana is if the breach occurred in this district.42 The parties do not

dispute that the alleged breach was the Pension Fund’s denial of the lump sum

payment to Mrs. Hamann’s estate.

40 R. Doc. No. 10-1, at 13; R. Doc. No. 26, at 10.

41 R. Doc. No. 10-1, at 14.

42 R. Doc. No. 10-1, at 14.

To answer the question of where the breach took place, the Pension Fund relies

on Orgeron v. Moran Towing Corp., No. 93-4164, 1994 WL 462995 (E.D. La. Aug. 22,

1994). The plaintiff in Orgeron had applied for, but was denied, long-term disability

benefits. 1994 WL 462995, at *1. The district court held that the breach did not occur

in Louisiana and that venue was improper in the Eastern District of Louisiana

because the plaintiff never received long-term disability benefits in Louisiana. Id. at

*1–2. The court in Orgeron relied on Brown Schools, Inc. v. Florida Power Corp., 806

F. Supp. 146 (W.D. Tex. 1992), which “distinguished alleged breaches involving

payments which had been made to a beneficiary within the district and then ceased,

from alleged breaches in which payments were simply denied, with no transactions

taking place within the district at all . . . .” Orgeron, 1994 WL 462995, at *2. In

Orgeron, no payments had been made in the Eastern District at all. Id.

The Pension Fund argues that Mrs. Hamann never received the type of benefit

at issue in this litigation—the lump sum survivor benefit—in the Eastern District of

Louisiana. Specifically, the Pension Fund argues, without providing any legal

support, that the lump sum survivor benefit is a different benefit than the monthly

survivor benefits Mrs. Hamann had been receiving.43

Finding there to be no dispute between the parties that the breach at issue was

the denial of the lump sum payment of Mrs. Hamann’s survivor benefits to Mrs.

Hamann’s estate, and that there is no dispute that Mrs. Hamann was receiving said

survivor benefits in monthly payments and residing in the Eastern District of

43 R. Doc. No. 10-1, at 14; R. Doc. No. 26, at 11.

Louisiana when she died, the Court finds that the benefits at issue were received in

this district and that venue is proper. See French v. Dade Behring Life Ins. Plan, No.

09-394, 2010 WL 2360457, at *2 (M.D. La. Mar. 23, 2010) (“While not yet addressed

by the Fifth Circuit, several district courts within this circuit have either held or

assumed that ERISA venue is proper where a plan participant/beneficiary receives

or was to receive benefits.”).

III.

Finally, the Pension Fund argues that counts I, II, IV, and V of Theriot’s second

amended complaint should be dismissed pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure for failure to exhaust administrative remedies.

Pursuant to Rule 12(b)(6), a district court may dismiss a complaint or part of

a complaint when a plaintiff fails to set forth well-pleaded factual allegations that

“raise a right to relief above the speculative level.” See Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). The

complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Twombly, 550 U.S. at 547)).

A facially plausible claim is one in which “the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Id. If the well-pleaded factual allegations “do not permit the

court to infer more than the mere possibility of misconduct,” then “the complaint has

alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679

(quoting Fed. R. Civ. P. 8(a)(2)) (alteration in original).

In assessing the complaint, a court must accept all well-pleaded facts as true

and liberally construe all factual allegations in the light most favorable to the

plaintiff. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). Furthermore, “the

Court must typically limit itself to the contents of the pleadings, including

attachments thereto.” Admins. of the Tulane Educ. Fund v. Biomeasure, Inc., 08-

5096, 2011 WL 4352299, at *3 (E.D. La. Sept. 6, 2011) (Vance, J.) (citing Collins v.

Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000)). “[T]he Court may

consider documents that are essentially ‘part of the pleadings’—that is, any

documents attached to or incorporated into the plaintiff’s complaint by reference that

are central to the plaintiff’s claim for relief.”44 Zerangue v. Lincoln Nat’l Life Ins. Co.,

No. 19-1939, 2019 WL 2058984, at *2 (E.D. La. May 9, 2019) (Feldman, J.) (quoting

Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004)).

“Dismissal is appropriate when the complaint ‘on its face show[s] a bar to relief.’”

Cutrer v. McMillan, 308 F. App’x 819, 820 (5th Cir. 2009) (quoting Clark v. Amoco

Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)).

A.

The following facts alleged in Theriot’s second amended complaint relate to the

Pension Fund’s motion to dismiss for failure to exhaust administrative remedies:

44 As stated previously, the parties agreed at a May 29, 2019 status conference that

the Court may look at the documents attached to the Pension Fund’s motion to

dismiss when resolving the motion. See R. Doc. No. 37.

Theriot alleges that the April 18, 2017 letter, by which the Pension Fund first

informed Theriot that the estate was not entitled to the lump sum payment, did not

meet the criteria for a proper claim denial under ERISA.45 On November 1, 2017,

Theriot’s then-counsel allegedly wrote to the Fund requesting copies of Plan

documents.46 Theriot asserts that the Pension Fund responded to that letter on

November 21, 2017 with an incomplete copy of Plan documents, and failed to include

plan amendments, a current summary plan description (“SPD”), and other documents

necessary to establish the Plan.47

Theriot alleges that on January 5, 2018, Theriot’s then-counsel wrote to the

Pension Fund requesting payment of the outstanding lump sum benefit.48 Theriot

claims that the Pension Fund responded by letter dated March 2, 2018, offering its

explanation as to why Theriot was not entitled to payment of the lump sum benefit

and advising her that she had no right to appeal an adverse plan determination or

file a lawsuit because such time to pursue a claim had expired.49 Theriot claims that

the Pension Fund also advised in the March 2, 2018 letter that it had concluded that

she had failed to exhaust her administrative remedies available under the Plan,

foreclosing her ability to seek judicial review.50

45 R. Doc. No. 44, at ¶¶ 9–10. As is later stated in this opinion, the Pension Fund does

not dispute that its April 18, 2017 letter failed to comply with ERISA procedures.

46 R. Doc. No. 44, at ¶ 11.

47 R. Doc. No. 44, at ¶ 11.

48 R. Doc. No. 44, at ¶ 12.

49 R. Doc. No. 44, at ¶ 13.

50 R. Doc. No. 44, at ¶ 14.

Theriot claims that on November 2, 2018, her current counsel wrote to the

Pension Fund requesting a decision with respect to Theriot’s original claim for

benefits or, to the extent that the Pension Fund considered the November 2, 2018

letter as an administrative appeal, requesting a submission date permitting receipt

and review of evidence to support Theriot’s appeal.51 Theriot asserts that she also

requested documents, including a complete copy of plan documents applicable to

Theriot’s claim and other administrative records that evidence the handling of

Theriot’s claim.52

Theriot contends that she did not receive a response to the November 2, 2018

letter, so her counsel wrote to the Pension Fund again on December 19, 2018.53

Theriot claims that the Pension Fund responded by letter dated January 4, 2019,

wherein the Pension Fund allegedly recharacterized its March 2, 2018 letter,

asserting that it treated Theriot’s counsel’s January 5, 2018 letter “in all respects like

a claim or appeal” of benefits and that the March 2, 2018 letter included the necessary

information that a claim or appeal denial must include to comply with ERISA

procedural requirements.54 Theriot asserts that the January 4, 2019 letter also

advised Theriot that it already fulfilled her request for a full copy of plan documents

and that the Pension Fund again advised her that a request for review of the adverse

benefits decision was untimely.55

51 R. Doc. No. 44, at ¶ 15.

52 R. Doc. No. 44, at ¶ 15.

53 R. Doc. No. 44, at ¶ 16.

54 R. Doc. No. 44, at ¶ 17.

55 R. Doc. No. 44, at ¶ 18.

B.

The Pension Fund argues that Theriot’s claim for benefits in count I of her

second amended complaint should be dismissed for failure to exhaust available

administrative procedures.56 “Fifth Circuit precedent instructs that ‘claimants

seeking benefits from an ERISA plan [must] first exhaust available administrative

remedies under the plan before bringing suit to recover benefits.’” Zerangue, 2019 WL

2058984, at *2 (quoting Crowell v. Shell Oil Co., 541 F.3d 295, 308 (5th Cir. 2008)).

“The policies underlying the exhaustion requirement are to: (1) uphold Congress’

desire that ERISA trustees be responsible for their actions, not the federal courts; (2)

provide a sufficiently clear record of administrative action if litigation should ensue;

and (3) assure that any judicial review of fiduciary action (or inaction) is made under

the arbitrary and capricious standard, not de novo.” Meza v. Gen. Battery Corp., 908

F.2d 1262, 1279 (5th Cir. 1990) (internal quotation marks omitted) (quoting Denton

v. First Nat’l Bank of Waco, Tex., 765 F.2d 1295, 1300 (5th Cir. 1985)).

“This requirement is not one specifically required by ERISA, but has been

uniformly imposed by the courts in keeping with Congress’ intent in enacting ERISA.”

Hall v. Nat’l Gypsum Co., 105 F.3d 225, 231 (5th Cir. 1997); see also Medina v.

Anthem Life Ins. Co., 983 F.2d 29, 33 (5th Cir. 1993) (“[W]e have fully endorsed the

prerequisite of exhaustion of administrative remedies in the ERISA context.”)

(citations omitted). “Dismissal of a complaint is appropriate when the proper

procedure has not been followed for filing a claim and administrative remedies have

56 R. Doc. No. 10-1, at 8.

not been exhausted.” Long v. Aetna Life Ins. Co., No. 14-403, 2014 WL 4072026, at *3

(E.D. La. Aug. 18, 2014) (Africk, J.) (citing Medina, 983 F.2d at 33). A plaintiff fails

to exhaust administrative remedies when she does not file a timely administrative

appeal. Moss v. Unum Grp., 638 F. App’x 347, 349–50 (5th Cir. 2016) (citing Lacy v.

Fulbright & Jaworski, 405 F.3d 254, 257 (5th Cir. 2005)).

In order to trigger the running of the administrative appeal period, notice of

the adverse benefit determination need only substantially comply with ERISA’s

notice requirements, 28 U.S.C. § 1133 and 29 C.F.R. § 2560.503-1(g). McGowan v.

New Orleans Emps. Int’l Longshoremen’s Ass’n, 538 F. App’x 495, 498 (5th Cir. 2013)

(“Strict compliance with ERISA is not necessary . . . . Fifth Circuit precedent makes

clear that substantial compliance will suffice to trigger the running of the

administrative appeal period.”) (per curiam) (citing Lacy, 405 F.3d at 257). “In

assessing whether the administrator has ‘substantially complied’ with the applicable

procedural requirements, the court must ‘consider[ ] all communications between an

administrator and plan participant to determine whether the information provided

was sufficient under the circumstances.’” Baptist Mem. Hosp.–DeSoto, Inc. v. Crain

Automotive, Inc., 392 F. App’x 288, 293 (5th Cir. 2010) (quoting Wade v. Hewlett-

Packard Dev. Co. LP Short Term Disability Plan, 493 F.3d 533, 539 (5th Cir. 2007),

abrogated on other grounds by Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242

(2019)).

Article XIII, Section 3 of the Plan provides, in relevant part:

(a) Notice of Denial of Claim. The Administrative Manager

or the Eligibility Committee of the Trustees shall give

written notice to a Participant or to his beneficiaries,

dependents or authorized other legal representatives,

as may be appropriate (collectively referred to in these

Benefit Review Procedures as “Participant”), whenever

there has been denied in whole or in part such

Participant’s claim with respect to his eligibility for, or

amount of, his Benefits. Such notice shall be given

within 90 days . . . after the receipt of Participant’s

claim and shall include the following:

(1) The specific reason or reasons for the denial;

(2) Reference to pertinent parts of the Plan on which

the denial is based;

(3) A description of any additional material or

information, if any, necessary for the Participant

to perfect his claim and, where appropriate an

explanation of why such material or information

is necessary;

(4) An explanation of this Fund’s Benefit Review

Procedure.

. . .

(b) Request for Review. The following subsections (1), (2) &

(3) shall govern requests for review of claims that have

been denied . . . .

(1) Within 60 days after the receipt, by the

Participant, of the notice described in and

required to be given pursuant to subsection (a),

wherein the Participant’s claim for Benefits is

denied in whole or in part, . . . the Participant

may, in writing,

(i) Request a review by the Eligibility

Committee of such denial of such a

claim;

(ii) Request an inspection of designated,

pertinent documents or files;

(iii) Submit issues and comments, as well

as additional or supplemental material

or information which may have been

requested in the notice of denial . . . .

(2) As part of such written request for review, a

Participant may request a hearing before the

Eligibility Committee . . . .

(3) With respect to any matter as to which a

Participant requests review in accordance with

this subsection (b) of this Section, the Eligibility

Committee shall act by the vote of the majority of

its members present and shall notify the

Participant of its decision:

(i) within 60 days after receipt, by the

Office of the Administrative Manager

of the Fund, of the written request for

review of the denial of the claim in

accordance with subsection (b)(1) and if

no hearing is requested in accordance

with subsection (b)(2); or

(ii) within 120 days after receipt, by the

Office of the Administrative Manager

of the Fund, of the written request for

review of the denial of the claim in

accordance with subsection (b)(1) and if

a hearing is requested in accordance

with subsection (b)(2).

(c) Further Review. The following subsections (1) & (2)

shall govern requests for review of a decision or

determination by the Eligibility Committee under

subsection (b) . . . .

(1) In the event a Participant is dissatisfied with the

decision or determination, upon review, of the

Eligibility Committee, issued in accordance with

the procedures provided in subsection (b), he may

thereupon make a written request for further

review, by the Executive Committee, of such

decision or determination of the Eligibility

Committee. Such a request for review by the

Executive Committee shall be filed by the

Participant with the Office of the Administrative

Manager within 60 days after receipt, by the

Participant, of the decision or determination of

the Eligibility Committee issued in accordance

with subsection (b)(3).

. . .

(d) Decisions. The decision of the Eligibility Committee, or

of the Executive Committee, respectively, on review,

shall be in writing and shall include (a) specific reasons

for the decision and (2) [sic] references to pertinent

provisions of the plan on which the decision is based.

(e) Exhaustion of Administrative Remedies. The

procedures prescribed by subsections (a), (b) and (c) of

this Section must be followed and exhausted before any

Participant may institute any legal action (including

actions or proceedings before administrative agencies)

with respect to a claim concerning his eligibility for or

amount of, his Benefits from and under the Fund or

Plan.

The Pension Fund asserts that Theriot failed to exhaust administrative

procedures because she failed to timely appeal the denial of benefits under the Plan.

As stated above, a request for review of a denial of benefits must be made within sixty

days of the participant’s or claimant’s receipt of such denial. The Pension Fund

argues that because Theriot did not submit a request for review of the Pension Fund’s

denial of benefits until November 2, 2018, nearly eight months after its March 2, 2018

letter, Theriot did not adequately exhaust available administrative remedies.57

57 R. Doc. No. 10-1, at 10.

In response, Theriot argues that any untimeliness in appealing the benefit

denial was a direct result of the Pension Fund’s failure to comply with its own and/or

ERISA’s procedural requirements and that any further attempts by Theriot for

review of her claim would have been futile.58 Theriot focuses on the initial April 18,

2017 letter that denied Theriot the lump sum benefits. Theriot asserts that the April

18, 2017 letter failed to meet the criteria for a proper claim denial under ERISA and

that such failure directly caused her failure to seek timely review of the denial of

benefits.59 Specifically, she argues that the Pension Fund’s failure to inform Theriot

of her appeal rights and the procedures for doing so in the April 18, 2017 letter was

the reason that Theriot did not timely appeal her initial denial.

The Pension Fund does not dispute that its April 18, 2017 letter was non-

compliant with the Plan procedures and ERISA requirements.60 But Theriot’s failure

to timely appeal the April 18, 2017 denial is not the basis for the Pension Fund’s

argument as to Theriot’s failure to exhaust. Rather, the Pension Fund asserts that

Theriot did not timely appeal its March 2, 2018 letter,61 which the Court finds

substantially complied with ERISA’s requirements and the Plan’s procedures.

As previously stated, when a claim for benefits is denied, the Plan, in

accordance with 29 C.F.R. § 2560.501-1(g), requires that the Administrative Manager

58 R. Doc. No. 20, at 15–16.

59 R. Doc. No. 20, at 19; see also R. Doc. No. 44, at ¶ 12. In the January 5, 2018 letter,

Theriot made a “demand” for the outstanding lump sum payment. R. Doc. No. 10-10,

at 1. The Pension Fund advised Theriot that it construed the January 5, 2018 letter

as a request for review of its initial April 18, 2017 denial. R. Doc. No. 10-8, at 1.

60 R. Doc. No. 10-1, at 11.

61 R. Doc. No. 10-1, at 10.

or the Eligibility Committee of the Trustees (“Eligibility Committee”) provide the

participant with written or electronic notification that sets forth the specific reason(s)

for the denial, reference the specific provisions of the Plan that served as the basis

for the denial, describe additional materials or information, if any, necessary for the

participant to perfect her claim and, where appropriate, explain why such

information is necessary.62 The Administrative Manager or Eligibility Committee

must also provide an explanation of the Plan’s review procedures within applicable

time limitations.63

On January 5, 2018, Theriot’s then-counsel wrote the Pension Fund

demanding the value of the outstanding lump sum payment owed to Mrs. Hamann’s

estate.64 In response, by letter dated March 2, 2018, the fund director of the Pension

Fund, Michael Gantert (“Gantert”), informed Theriot that the Eligibility Committee

had denied her claim for Mrs. Hamann’s lump sum benefit, provided specific reasons

for such determination, provided the Plan provisions relied upon to reach that

determination, and attached the Plan’s review procedures, which clearly state that

any appeal must be filed within sixty days of receipt of such denial.65 Theriot’s next

correspondence with the Pension Fund was November 2, 2018, nearly eight months

later.66

62 R. Doc. No. 10-8, at 4 (Art. XIII, Section 3(a)).

63 R. Doc. No. 10-8, at 4 (Art. XIII, Section 3(a)).

64 R. Doc. No. 10-10, at 1.

65 R. Doc. No. 10-8, at 4.

66 See R. Doc. No. 20-3. The November 2, 2018 letter was sent by Theriot’s current

counsel and requests a decision as to Theriot’s claim for Mrs. Hamann’s outstanding

lump sum benefit, “or, if The Fund believes such a decision to have been reached

Theriot has failed to explain why the March 2, 2018 letter did not comply with

ERISA or provide proper notice of the Plan’s review procedures. While the Pension

Fund’s March 2, 2018 letter advised Theriot that it construed the April 18, 2017 letter

as the initial denial of her claim for benefits, making her January 5, 2018 letter

untimely, the Pension Fund still provided Theriot with the Plan provisions that made

clear that she had sixty days from receipt of the March 2, 2018 letter to appeal the

Eligibility Committee’s denial.

As previously stated, an initial denial by the administrator or the Eligibility

Committee can be reviewed by the Eligibility Committee, but the request for review

must be filed within sixty days of the participant’s receipt of the denial. If the

Eligibility Committee denies the claim for benefits a second time, the participant can

request a review by the Executive Committee, but the participant must request

review by the Executive Committee within sixty days of the receipt of the Eligibility

Committee’s decision upon review.

Theriot has not alleged in her second amended complaint that she requested

review by the Eligibility Committee of the March 2, 2018 denial of her claim for

benefits. Even if the Court were to construe her November 2, 2018 letter as a request

for review by the Eligibility Committee, such request was clearly untimely.

Additionally, Theriot has not alleged that she requested any further review by the

Executive Committee.

previously, . . . an administrative appeal of that decision.” Id. at 1. Counsel’s

November 2, 2018 letter on Theriot’s behalf makes no mention of the Pension Fund’s

March 2, 2018 letter denying her claim for benefits.

Theriot argues in her response, however, that any further request for review

would have been futile. “The exceptions to the exhaustion requirement [in ERISA

cases] are limited: a claimant may be excused from the exhaustion requirement if he

shows either that pursuing an administrative remedy would be futile or that he has

been denied meaningful access to administrative remedies.” McGowan v. New

Orleans Emp’rs Int’l Longshoremen’s Ass’n, No. 12-990, 2012 WL 4885092, at *7 (E.D.

La. Oct. 15, 2012), aff’d, 538 F. App’x 495 (5th Cir. 2013) (per curiam) (citing Denton,

765 F.2d at 1302; Meza, 908 F.2d at 1279). “These exceptions apply, however, only in

extraordinary circumstances.” Cent. States Se. & Sw. Areas Pension Fund v. T.I.M.E.-

DC, Inc., 826 F.2d 320, 329 (5th Cir. 1987). “A failure to show hostility or bias on the

part of the administrative review committee is fatal to a claim of futility.” McGowin

v. ManPower Int’l, Inc., 363 F.3d 556, 559 (5th Cir. 2004) (citing Bourgeois v. Pension

Plan for Emps. of Santa Fe. Int’l Corps., 215 F.3d 475, 479–80 (5th Cir. 2000)).

Theriot does not specifically allege in her second amended complaint that a

request for review of the March 2, 2018 letter, either by the Eligibility Committee or

the Executive Committee, would have been futile.67 Rather, she alleges that the

Pension Fund advised her of its legal conclusion that she had failed to exhaust her

administrative remedies which “foreclose[d] the ability to seek judicial review.”68

Theriot further alleges that the letter “unequivocally proclaimed the [Pension Fund’s]

position” that she had no right to further administrative or judicial review.69 Theriot

67 R. Doc. No. 44, at ¶ 14.

68 R. Doc. No. 44, at ¶ 14.

69 R. Doc. No. 44, at ¶ 14.

now argues that this determination, which “came directly from the Director of the

Fund,” demonstrated “certainty of an adverse decision.”70 Theriot also asserts that

the letter did not provide for any further means of administrative review.71

In its March 2, 2018 letter, the Pension Fund advised Theriot that it was

reserving its right to assert that she had failed to exhaust administrative remedies

due to the untimeliness of her January 5, 2018 letter, and that such untimeliness,

pursuant to the Plan, forecloses judicial review.72 It did not unequivocally tell her

that she could not pursue her claims, and it proceeded to advise her of and explain

its decision as to her claim for benefits.73

Theriot has also failed to allege or argue that she received hostile treatment

from the Pension Fund or the Eligibility Committee or that Gantert demonstrated

bias in the March 2, 2018 letter that would have rendered futile any request for

further review. Theriot continued to correspond with the Pension Fund, seeking

(untimely) review of its March 2, 2018 letter.74 Furthermore, she has not alleged any

hostility or bias on the part of the Executive Committee such that any review by it

would have been futile. “[T]here is no indication in the record that [the Executive

Committee] would not have properly considered [Theriot’s] arguments and evidence

if she had submitted them within the [60]-day period.” Swanson v. Hearst Corp. Long

Term Disability Plan, 586 F.3d 1016, 1019 n.1 (5th Cir. 2009) (per curiam).

70 R. Doc. No. 20, at 21 (quoting Bourgeois, 215 F.3d at 479).

71 R. Doc. No. 20, at 21.

72 R. Doc. No. 10-8, at 2.

73 R. Doc. No. 10-8, at 2–3.

74 See R. Doc. Nos. 20-3–20-4.

To the extent that Theriot argues she did not timely pursue her administrative

remedies because the March 2, 2018 letter did not provide for further means of

administrative review or state that she could seek further administrative review, the

Court is not convinced. The Plan’s administrative appeal procedures were enclosed

with the March 2, 2018 letter sent to Theriot, as stated in the letter.75 In her

opposition, Theriot did not dispute the Pension Fund’s assertions that the procedures

were enclosed and she even acknowledged her receipt of said procedures.76 Theriot

was in possession of the Plan’s procedures and did not follow them after receiving a

substantially compliant denial. See McGowan, 538 F. App’x at 498 (finding that the

letter substantially complied with ERISA because, “[w]hile the letter itself did not

explicitly state that McGowan had 180 days to file a written appeal, it incorporated

that information by specifically identifying the pages on which the 180-day rule was

located,” and “a copy of the benefit booklet was included with the letter”).

The Court finds that Theriot failed to exhaust her administrative remedies and

that any exceptions to such a requirement are inapplicable in this case. Theriot has

also failed to demonstrate that she will be able to exhaust her administrative

remedies in the future, considering her untimely attempt to appeal the March 2, 2018

letter. Accordingly, the Court dismisses count I of the second amended complaint,

Theriot’s claim for benefits pursuant to § 1132(a)(1)(B), with prejudice. See Moss, 638

F. App’x at 349–50 (affirming the district court’s dismissal with prejudice because the

75 R. Doc. No. 10-8, at 2.

76 R. Doc. No. 20, at 19.

plaintiff did not show that he would be able to timely exhaust his administrative

remedies in the future).

C.

The Pension Fund also argues that counts II, IV, and V of Theriot’s second

amended complaint must be dismissed for failure to exhaust administrative

procedures because they are disguised claims for benefits.77 The Court agrees in part,

finding that count IV is a disguised claim for benefits, but that counts II and V must

be dismissed for failure to state a plausible claim for relief.

As previously discussed, an ERISA participant or beneficiary may bring a civil

action to recover benefits pursuant to 29 U.S.C. § 1132(a)(1)(B) (ERISA

§ 502(a)(1)(B)).78 The Supreme Court has “construed [§ 1132](a)(1)(B) narrowly,”

Manuel v. Turner Indus. Grp., L.L.C., 905 F.3d 859, 864 (5th Cir. 2018) (citing CIGNA

Corp. v. Amara, 563 U.S. 421, 435–26 (2011)), and explained that “[c]laims under

[§ 1132](a)(1)(B) are generally limited to actions ‘respect[ing] . . . the interpretation

of plan documents and the payment of claims,’” id. (alterations in original in part)

(quoting Varity Corp. v. Howe, 516 U.S. 489, 512 (1996)). On the other hand,

“[§ 1132](a)(3), which sounds in equity, creates a broad cause of action for certain

injuries that result from . . . other ERISA violations.” Id. at 864–65; see Varity, 516

77 See R. Doc. No. 45; see also R. Doc. No. 10-1, at 12.

78 ERISA §§ 502(a)(1)(B) and 502(a)(3) are codified at 29 U.S.C. §§ 1132(a)(1)(B) and

1132(a)(3), respectively. While many courts use the provisions interchangeably, this

Court will use the statutory provisions throughout this opinion for consistency.

U.S. at 512 (describing § 1132(a)(3) as a “catchall” provision).79 Claims for breach of

fiduciary duty are asserted through to § 1132(a)(3), which affords equitable relief. See

id. at 865; Innova, 892 F.3d at 732; see also Varity, 516 U.S. at 516 (Thomas, J.

dissenting) (“The Court holds today that [§ 1132(a)(3)] . . . provides the individual

relief for fiduciary breach that we found to be unavailable under [§ 1132(a)(2)].”).

“Generally, an [§ 1132](a)(3) claim for equitable relief may not be maintained

when [§ 1132](a)(1)(B) ‘affords an adequate remedy.’” Id. at 865 (quoting Estate of

Bratton v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 215 F.3d 516, 526 (5th Cir.

2000)). “[R]elief under § 1132(a)(3) generally is unavailable when a plaintiff may seek

monetary relief under § 1132(a)(1)(B).” Innova Hosp. San Antonio, Ltd. P’ship v. Blue

Cross & Blue Shield of Ga., Inc., 892 F.3d 719, 733 (5th Cir. 2018) (citing Swenson v.

United of Omaha Life Ins. Co., 876 F.3d 809, 812 (5th Cir. 2017)). “By looking at the

underlying alleged injury, it is possible to determine whether a given claim is

duplicative of a claim that could have been brought under [§ 1132](a)(1)(B).” Manuel,

905 F.3d at 865. “Simply because a plaintiff does not prevail on a § 1132(a)(1) claim

does not make viable an alternative claim under § 1132(a)(3).” Innova, 892 F.3d at

733 (citing Tolson v. Avondale Indus., Inc., 141 F.3d 604, 610 (5th Cir. 1998)).

“[A]lthough benefits claims require administrative exhaustion, fiduciary

claims do not.” Galvan v. SBC Pension Benefit Plan, 204 F. App’x 335, 339 (5th Cir.

79 Pursuant to § 1132(a)(3), a civil action may be brought “by a participant, beneficiary

or fiduciary (A) to enjoin any practice which violates any provision of this subchapter

or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to

redress such violations or (ii) to enforce any provisions of this subchapter or the terms

of the plan.”

2006) (per curiam) (citing cases). The Fifth Circuit recognizes, however, that “the

exhaustion requirement applies to fiduciary claims that are instead disguised benefits

claims, not to true breach-of-fiduciary-duty claims.” Id. (citing Simmons v. Wilcox,

911 F.2d 1077, 1081 (5th Cir. 1990)). “[T]he exhaustion requirement would be

rendered meaningless if plaintiffs could avoid it simply by recharacterizing their

claims for benefits as claims for breach of fiduciary duty.” Simmons, 911 F.2d at 1081

(citing Drinkwater v. Metro Life Ins. Co., 846 F.2d 821, 826 (1st Cir. 1988)).

“Fiduciary claims amount to benefits claims when ‘resolution of the claims rests upon

an interpretation and application of an ERISA-regulated plan rather than on an

interpretation and application of ERISA.’” Galvan, 204 F. App’x at 339 (quoting

D’Amico v. CBS Corp., 297 F.3d 287, 291 (3d Cir. 2002)).

Count IV

Count IV of Theriot’s second amended complaint asserts a claim for breach of

fiduciary duties pursuant to § 1132(a)(3). Specifically, Theriot alleges that the

Pension Fund and the Board of Trustees did not comply with ERISA procedures

because of their failure to make plan documents immediately available to Theriot

upon request; failure to reasonably apprise Mrs. Hamann or Theriot of their rights

under the Plan; failure to review Mrs. Hamann’s initial claim; failure to issue a denial

compliant with ERISA regulations; failure to conduct an administrative review

process required by the Plan; failure to clearly convey in the SPD the Pension Fund’s

position that claims for the payment of a survivor’s lump sum benefits could not be

made at any time; failure to create an administrative record; failure to properly

advise Theriot of her rights to administrative and judicial review; and undertaking

procedures designed to discourage and thwart Theriot’s rights to appeal pursuant to

the Plan.80

Theriot further alleges that the Pension Fund violated its fiduciary duties by

operating under a conflict of interest because it was both the entity charged with

deciding whether benefits should be paid and the entity that paid such benefits.81

Finally, Theriot claims that the Pension Fund breached its fiduciary duties by

preparing a SPD that deviated from the Plan terms because it allegedly failed to

disclose the Fund’s position that a survivor’s lump sum benefit election could only be

made during a period for which benefits had not yet been paid.82

The Pension Fund argues that Theriot’s claims for breach of fiduciary duty

under count IV of her second amended complaint are disguised claims for benefits

and should be dismissed for failure to exhaust administrative procedures.83

Specifically, the Pension Fund argues that count IV alleges irregularities in the

Pension Fund’s procedures for handling Mrs. Hamann’s claim, which is properly

brought under § 1132(a)(1)(B) rather than § 1132(a)(3). In Manuel, the Fifth Circuit

specifically explained that under § 1132(a)(1)(B), “a claimant may question the

completeness of the administrative record; whether the plan administrator complied

with ERISA’s procedural regulations; and the existence and extent of a conflict of

80 R. Doc. No. 44, at ¶ 30.

81 R. Doc. No. 44, at ¶ 32.

82 R. Doc. No. 44, at ¶ 33.

83 R. Doc. No. 45, at 1–3.

interest created by a plan administrator’s dual role in making benefits

determinations and funding the plan.” Manuel, 905 F.3d at 867 (alterations in

original in part) (quoting Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 263

(5th Cir. 2011)).

Theriot’s claims in paragraph 30 of the second amended complaint alleging

procedural irregularities and her claim in paragraph 32 alleging that the Pension

Fund operated in a “dual role” creating a conflict of interest are cognizable under

§ 1132(a)(1)(B). Theriot has not responded to the Pension Fund’s arguments in

connection with these claims or attempted to distinguish such claims from her claim

for benefits. The Court finds, therefore, that Theriot’s claims in paragraphs 30 and

32 of her second amended complaint must be dismissed as disguised claims for

benefits which were not exhausted through administrative procedures.

Theriot only defends her claim in paragraph 33 of her second amended

complaint that the Pension Fund maintained a SPD that deviated from the Plan.84

Specifically, she argues that her claim pursuant to § 1132(a)(3) is based on the fact

that the Pension Fund did not comply with 29 U.S.C. § 1102 (ERISA § 102), which

requires that the SPD apprise participants of their rights and obligations under the

plan and include information concerning the “circumstances which may result in

disqualification, ineligibility, or denial or loss of benefits.”85

84 R. Doc. No. 46, at 2; see R. Doc. No. 44, at ¶ 33.

85 R. Doc. No. 46, at 2 (citing 29 U.S.C. § 1022(a) & (b)).

In Manuel, the Fifth Circuit held that “claims for injuries related to SPD

deficiencies are cognizable under [§ 1132(a)(3)] and not [§ 1132(a)(1)(B)].” Manuel,

905 F.3d at 865–66. Theriot argues that, like the plaintiff in Manuel, she has alleged

that the SPD contained a deficiency and failed to apprise Mrs. Hamann of the

exclusion upon which it denied her claim for benefits.86 See id. at 866. While Manuel

provides that a claim alleging deficiencies in the SPD is properly asserted under

§ 1132(a)(3), Manuel also emphasizes that the Court should focus on the underlying

alleged injury to determine whether a claim is duplicative of the claim for benefits.87

In Manuel, the Fifth Circuit remanded the plaintiff’s claims related to SPD

deficiencies because “the district court concluded that, as a threshold matter, SPD

claims could not be maintained under [§ 1132](a)(3).” Id. at 866. The Fifth Circuit

did not make a finding as to whether the plaintiff had sufficiently alleged an injury

related to SPD deficiencies separate from an injury related to the claim for benefits.

This Court recognizes that injuries related to SPD deficiencies are cognizable

under § 1132(a)(3). However, the Court finds that Theriot has not alleged an injury

related to an SPD deficiency. As previously stated, Theriot alleges that the SPD

deviates from the Plan’s terms by failing to disclose the Pension Fund’s position that

the survivor’s lump sum benefit election could only be made during a period for which

benefits had not been paid rather than “at any time” as stated in the Plan.88 Theriot

86 R. Doc. No. 46, at 3.

87 “[C]laims for injuries relating to SPD deficiencies are cognizable under

[§ 1132](a)(3) . . . .” Manuel, 905 F.3d at 865–66 (emphasis added).

88 R. Doc. No. 44, at ¶ 33.

does not allege, however, that such alleged deviation resulted in any harm or injury

other than the denial of benefits. The injury she alleges arises from the denial of

benefits based on the terms of the Plan—that she was denied the lump sum benefit

even though the Plan states that a survivor can elect the lump sum benefit at any

time. Claims that arise under the interpretation of the Plan and plan documents

must be brought pursuant to § 1132(a)(1)(B).89 Therefore, the Court finds that

89 Furthermore, in her second amended complaint, Theriot has neither requested

equitable relief, the remedy for claims pursuant to § 1132(a)(3), nor shown why she

might be entitled to equitable relief in connection with her claims in count IV.

Confusingly, Theriot argues in her supplemental brief that this Court could award

her equitable relief in the form of equitable estoppel or surcharge. R. Doc. No. 46, at

4.

The Supreme Court and the Fifth Circuit have recognized that surcharge—“monetary

‘compensation’ for a loss resulting from a trustee’s breach of duty, or to prevent the

trustee’s unjust enrichment”—is within the scope of appropriate equitable relief with

respect to § 1132(a)(3). Gearlds v. Entergy Services, Inc., 709 F.3d 448, 451 (5th Cir.

2013) (discussing CIGNA Corp. v. Amara, 563 U.S. 421, 441–42 (2011)). However,

Theriot essentially argues that the Pension Fund should be estopped from denying

her benefits and that she should receive monetary surcharge for the benefits she

would have received. Id. Such requests are requests for benefits and lends support

to the Court’s finding that Theriot has not alleged an injury separate from the denial

of benefits in connection with her claims in count IV of her second amended

complaint.

Theriot also argues that she does not have to specifically request equitable relief in

her complaint for the district court to award such relief. R. Doc. No. 46, at 4. She

relies on Gearlds, which instructed courts to “focus on the substance of the relief

sought and the allegations pleaded, not on the label used.” Gearlds, 709 F.3d at 452.

Theriot’s reliance on Gearlds is unpersuasive. In that case, the plaintiff specifically

requested “[a]ny and all other damages and/or relief, equitable or otherwise, to which

[he] may be entitled under federal law.” Id. at 452 (alterations in original). The Fifth

Circuit explained that while the plaintiff had not specifically requested the type of

equitable relief sought, he had nevertheless specifically requested equitable relief and

pleaded a plausible claim for such relief. Id. Theriot, on the other hand, has not

specifically requested any form of equitable relief in connection with the alleged SPD

deficiencies or other claims in count IV of her second amended complaint. For the

Theriot’s claim for breach of fiduciary duties in connection with alleged deficiencies

in the SPD is a disguised claim for benefits and it must also be dismissed for failure

to exhaust administrative procedures.

Count II

In count II of her second amended complaint, Theriot asserts that the Pension

Fund failed to provide her with a full and fair review of an adverse benefits

determination pursuant to ERISA, 29 U.S.C. § 1133; Article XIII, Section 3 of the

Plan; and the SPD.90 Specifically, she alleges that the Pension Fund’s April 18, 2017

letter failed to provide reasons for the denial of the lump sum benefit, failed to provide

the provisions on which the Pension Fund relied to reach its decision, and failed to

describe administrative review procedures, rendering it noncompliant with ERISA,

the Plan, and the SPD. 91 Theriot further alleges that the Pension Fund repeatedly

reasons stated, the Court, having reviewed the substance of her claims, has

determined that count IV is in fact a disguised claim for benefits rather than a claim

for breach of fiduciary duty.

90 R. Doc. No. 44, at ¶ 23. ERISA, 29 U.S.C. § 1133, provides that every employee

benefit plan shall:

(1) provide adequate notice in writing to any participant or

beneficiary whose claim for benefits under the plan has

been denied, setting forth the specific reasons for such

denial, written in a manner calculated to be understood

by the participant, and

(2) afford a reasonable opportunity to any participant

whose claim for benefits has been denied for a full and

fair review by the appropriate named fiduciary of the

decision denying the claim.

91 R. Doc. No. 44, at ¶¶ 24–25.

failed to apprise her of her appeal rights under ERISA.92 Theriot asserts that these

violations denied her the right to full and fair review of her benefits claim.93

The Pension Fund argues that Theriot’s claim pursuant to § 1133 in count II

of her second amended complaint can only be enforced though § 1132(a)(3), which, as

discussed supra, cannot be maintained when it is, in fact, a disguised and duplicative

claim for benefits.94 The Court does not address such argument, however, because it

finds that Theriot has not stated a plausible claim for relief.

As previously discussed,

Challenges to ERISA procedures are evaluated under the

substantial compliance standard. [Lacy, 405 F.3d at 256–

57 & n.5]. This means that the “technical noncompliance

with ERISA procedures will be excused so long as the

purpose of section 1133 has been fulfilled.” Robinson v.

Aetna Life Ins., 443 F.3d 389, 393 (5th Cir. 2006). The

purpose of section 1133 is “to afford the beneficiary an

explanation of the denial of benefits that is adequate to

ensure meaningful review of that denial.” Schneider v.

Sentry Long Term Disability, 422 F.3d 621, 627–28 (7th

Cir. 2005). The “substantial compliance” test also

“considers all communications between an administrator

and plan participant to determine whether the information

provided was sufficient under the circumstances.” Moore v.

LaFayette Life Ins. Co., 458 F.3d 416, 436 (6th Cir. 2006).

Lafleur, 563 F.3d at 154.

While “ERISA regulations provide insight into what constitutes full and fair

review,” of which there are many, id., Theriot’s allegations with respect to the Pension

Fund’s alleged violation of § 1133 concern only the contents of the notice she received

92 R. Doc. No. 44, at ¶ 26.

93 R. Doc. No. 44, at ¶ 25.

94 R. Doc. No. 45, at 3.

in connection with the Pension Fund’s adverse benefits determination.95 Theriot

alleges that the April 18, 2017 letter, the initial adverse benefit determination, failed

to comply with ERISA and the Plan.96 However, having considered all alleged

communications between the Pension Fund and Theriot, the Court concluded, in

connection with its finding that Theriot failed to exhaust administrative remedies,

that the March 2, 2018 letter substantially complied with ERISA. See supra Section

III.B. Specifically, in contrast to Theriot’s allegations, the Pension Fund in the March

2, 2018 letter provided Theriot with specific reasons for the denial of benefits, the

Plan provisions it relied upon to reach its decision, and the Plan’s review procedures

that described her rights and obligations in connection with administrative and

judicial review.97 The March 2, 2018 letter complied with the Plan and 26 C.F.R.

§ 2560.503(1)-g(1), which “adds a ‘gloss’ on § 1133(1)’s notice requirement.” Lacy, 405

F.3d at 256.

Theriot has not alleged any facts that might support an additional theory or

basis underlying her claim that the Pension Fund failed to provide her with a full and

fair review. Even construing the facts in the light most favorable to Theriot, the

Court cannot reasonably infer that the Pension Fund is liable for the misconduct

plaintiff alleges in count II of her second amended complaint. Therefore, the Court

finds that Theriot has failed to state a plausible claim for relief and it must dismiss

count II of the second amended complaint.

95 R. Doc. No. 44, at ¶¶ 24–27.

96 R. Doc. No. 24, at ¶ 24.

97 See R. Doc. No. 10-8.

Count V

Finally, the Pension Fund moves to dismiss count V of Theriot’s second

amended complaint. Without reaching the Pension Fund’s reasons as to why count

V of the second amended complaint should be dismissed as a disguised claim for

benefits, the Court finds that Theriot has failed to state a plausible claim for relief.

In count V, Theriot alleges that the Pension Fund interfered with her right to

be reasonably apprised of her rights, obligations and review procedures under the

Plan, in violation of ERISA, 29 U.S.C. § 1140, in a number of ways.98 The Court finds

that the facts alleged in connection with count V do not state a plausible claim for

relief as the Court is unable to draw the reasonable inference that the Pension Fund

can be held liable for the misconduct Theriot alleges. The Court will consider each of

her allegations with respect to count V of the second amended complaint in turn.

First, Theriot alleges that the Pension Fund interfered with her right to review

when it “twice conveyed to Plaintiff its legal conclusion that she had failed to exhaust

her administrative remedies and even went so far as to state that her options for

administrative/judicial review were foreclosed instead of apprising her of her

rights.”99 Theriot specifically makes this assertion in connection with the March 2,

98 R. Doc. No. 44, at ¶ 34. Section 1140 makes it “unlawful for any person to discharge,

fine, suspend, expel, discipline, or discriminate against a participant or beneficiary

for exercising any right to which he is entitled under the provisions of an employee

benefit plan . . . or for the purpose of interfering with the attainment of any right to

which such participant may become entitled under the plan . . . . The provisions

of section 1132 of this title shall be applicable in the enforcement of this section.”

99 R. Doc. No. 44, at ¶ 34.

2018 letter, which the Pension Fund provided to the Court in support of its motion to

dismiss.100

As previously discussed, the Pension Fund did not inform Theriot in the March

2, 2018 letter that her rights to review were foreclosed; rather, the Pension Fund

explained its position that her January 5, 2018 letter was untimely and it stated

simply that it was reserving its right to assert that Theriot failed to exhaust her

administrative remedies pursuant to Article XIII, Section 3 of the Plan.101 It further

advised her that the failure to exhaust administrative remedies forecloses the ability

to seek judicial review.102 The Pension Fund attached the Plan’s review procedures

to the March 2, 2018 letter, which fully advised Theriot of the process for

administrative and judicial review under the Plan.103 Considering that the Pension

Fund advised Theriot of its position and attached the Plan’s review procedures that

contained her rights and obligations with respect to administrative and judicial

review, the Court cannot reasonably infer that the Pension Fund interfered with her

rights to review under the Plan by failing to apprise her of such rights.

Next, Theriot asserts that the Pension Fund interfered with her rights in

violation of § 1140 because it “failed to apprise Plaintiff of her rights for review,

including her right to appeal the adverse benefits determination.”104 As explained

100 R. Doc. No. 44, at ¶ 14; see generally R. Doc. No. 10-8.

101 R. Doc. No. 10-8, at 2.

102 R. Doc. No. 10-8, at 2.

103 R. Doc. No. 10-8, at 4–6.

104 R. Doc. No. 44, at ¶ 34.

above, the Pension Fund provided Theriot with the Plan’s review procedures. This

allegation is unsupportable.

Third, Theriot alleges that the Pension Fund interfered with her rights in

violation of § 1140 by failing “to include clear procedures in the plan documents and

SPD for addressing the distribution of benefits in Plaintiff’s situation.”105 Theriot has

not shown how such failure interfered with her rights under ERISA. “Under [§ 1140]

plaintiffs are required to prove by a preponderance of the evidence that the

defendants specifically intended to commit acts which violated the provisions of

ERISA or the terms of the plan.” Heimann v. Nat’l Elevator Indus. Pension Fund, 187

F.3d 493, 508 (5th Cir. 1999) overruled on other grounds by Arana v. Ochsner Health

Plan, 338 F.3d 433 (5th Cir. 2003); see also Spencer v. FEI, Inc., 725 F. App’x 263, 269

(5th Cir. 2018) (per curiam) (“It is at least clear that to establish a prima facie case

under [§ 1140], a plaintiff must prove that the defendant acted with ‘specific

discriminatory intent.’”). Theriot’s complaint does not make any allegation or allow

the Court to draw a reasonable inference that the Pension Fund intended to exclude

proper distribution procedures in the plan documents or the SPD or that the Pension

Fund failed to do so with the “purpose of interfering” with rights that Theriot may

become untitled to under the Plan. See § 1140. Such allegation does not state a

plausible claim for relief under § 1140.

105 R. Doc. No. 44, at ¶ 34.

Finally, Theriot alleges that the Pension Fund discriminated against the

exercise of her rights to appeal and to judicial review “by failing to provide an initial

formal claim denial and by subsequently instructing her that she has no rights to

judicial review.”106 The Court has already addressed such allegations above.

The Court finds that count V of Theriot’s second amended complaint must be

dismissed for failure to state a plausible claim for relief.

IV.

For the foregoing reasons,

IT IS ORDERED that the motion is GRANTED IN PART and DENIED IN

PART.

IT IS FURTHER ORDERED that the motion to dismiss for lack of subject

matter jurisdiction, pursuant to Rule 12(b)(1), is DENIED.

IT IS FURTHER ORDERED that the motion to dismiss for improper venue,

pursuant to Rule 12(b)(3), is DENIED.

IT IS FURTHER ORDERED that the motion to dismiss pursuant to Rule

12(b)(6) is GRANTED IN PART. Counts I and IV of Theriot’s second amended

complaint are DISMISSED WITH PREJUDICE for failure to exhaust

administrative procedures. Counts II and V of Theriot’s second amended complaint

are DISMISSED WITHOUT PREJUDICE for failure to state a claim for relief.

106 R. Doc. No. ¶ 34. The Court notes that Theriot’s second amended complaint is

misnumbered and this citation refers to the second ¶ 34 of the second amended

complaint.

The Pension Fund’s motion to dismiss count III of the second amended complaint is

DENIED.

New Orleans, Louisiana, July 17, 2019.

LANCE M. AFRICK

UNITED $TATES DISTRICT JUDGE

44