# Molla v. Gerdau Ameristeel, US, Inc.

> District Court, M.D. Florida · July 2, 2024

URL: https://www.frixlaw.com/law-library/cases/10642268

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** July 2, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10642268

## How later opinions describe it (automated extraction)

- affirming dismissal of an ERISA claim based on the holding “that the district court did not abuse its discretion in finding that plaintiff failed to plead exhaustion of administrative remedies or impossibility”
- holding that “the district court did not err in holding that plaintiffs must exhaust their remedies under the pension plan agreement before they may bring their ERISA claims in federal court”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

GRANT MOLLA,
on behalf of the Gerdau
Ameristeel US 401(k) Retirement
Plan, himself, and all others
similarly situated,

Plaintiff,

v. Case No. 8:22-cv-2094-VMC-SPF

GERDAU AMERISTEEL, US, INC.,
and GERDAU BENEFITS PLANS
ADMINISTRATIVE COMMITTEE,

Defendants.
______________________________/

ORDER
This matter comes before the Court upon consideration of
Defendants Gerdau Ameristeel US, Inc., and the Gerdau
Benefits Plans Administrative Committee’s Motion to Dismiss
(Doc. # 32), filed on December 7, 2023. Plaintiff Grant Molla
filed a response to the Motion on January 19, 2024. (Doc. #
39). For the reasons set forth below, the Motion is granted.
I. Background
Plaintiff is a participant in the Gerdau Ameristeel US
401(k) Retirement Plan (“Plan”). (Doc. # 1 at ¶ 8). On
September 9, 2022, plaintiff filed suit on behalf of the Plan,
himself, and all others similarly situated against Gerdau
Ameristeel US, Inc. and the Gerdau Benefits Plans
Administrative Committee (“Committee”). (Doc. # 1). Plaintiff
alleges that defendants are fiduciaries of the Plan and that
they breached their fiduciary duties of prudence in violation
of the Employee Retirement Income Security Act of 1974
(“ERISA”). (Id.). Specifically, plaintiff asserts that
defendants “cost the Plan and its participants millions of

dollars” “by caus[ing] the Plan to pay unreasonable and
excessive fees for recordkeeping and other administrative
services.” (Id. at ¶¶ 8, 12, 135-39).
Shortly after plaintiff filed his complaint, the parties
jointly filed a motion to stay the proceedings pending
exhaustion of administrative remedies. (Doc. # 12). While
plaintiff did not necessarily believe that exhaustion was
necessary, he agreed to comply with the “mandatory, pre-suit
administrative claim exhaustion procedure” outlined in the
Plan’s governing document. (Id. at ¶¶ 3-4). On October 1,
2022, the Court stayed the case pending exhaustion of

administrative remedies. (Doc. # 13).
On November 13, 2024, the parties jointly moved to lift
the stay. (Doc. # 23). The parties informed the Court that
the claim review process was complete and that “the retirement
plan committee considered and timely denied Plaintiff’s
claim,” as well as his appeal. (Id. at ¶ 7). The Court granted
the motion and reopened the case. (Doc. # 24).
On December 7, 2023, defendants moved to dismiss the
complaint. (Doc. # 32). Plaintiff responded on January 19,
2024. (Doc. # 39). The Motion is now ripe for review.
II. Legal Standard
On a motion to dismiss pursuant to Rule 12(b)(6), this

Court accepts as true all the allegations in the complaint
and construes them in the light most favorable to the
plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250,
1262 (11th Cir. 2004). Further, the Court favors the plaintiff
with all reasonable inferences from the allegations in the
complaint. Stephens v. Dep’t of Health & Human Servs., 901
F.2d 1571, 1573 (11th Cir. 1990). But,
[w]hile a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted). Courts are not “bound to accept as true
a legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986). The Court must limit its
consideration to well-pleaded factual allegations, documents
central to or referenced in the complaint, and matters
judicially noticed. La Grasta v. First Union Sec., Inc., 358
F.3d 840, 845 (11th Cir. 2004).
III. Analysis
Defendants assert that plaintiff’s complaint must be
dismissed for a single reason: the complaint does not allege

that plaintiff exhausted his administrative remedies or that
the Committee denied his claim, nor asserts that the Court
should overturn the Committee’s decision. (Doc. # 32 at 1).
Plaintiff counters that he is not required to plead exhaustion
when the parties do not dispute that he exhausted his
administrative remedies. (Doc. # 39 at 1). Of course, the
complaint did not allege exhaustion because plaintiff filed
his complaint before engaging in the administrative claim
review process. (Doc. ## 1, 12). The parties do not dispute
that plaintiff has now exhausted his administrative remedies.
(Doc. # 32 at 8; Doc. # 39 at 1).

Plaintiff seeks to bring a class action pursuant to
Sections 409 and 502 of ERISA, 29 U.S.C. §§ 1109, 1132, for
breaches of fiduciary duties. (Doc. # 1 at ¶ 1). “[A]
participant, beneficiary or fiduciary” can bring a civil
action “for appropriate relief under [S]ection 1109.” 29
U.S.C. § 1132(a)(2). Section 1109 provides for liability for
breaches of fiduciary duties, stating in relevant part:
Any person who is a fiduciary with respect to a
plan who breaches any of the responsibilities,
obligations, or duties imposed upon fiduciaries by
this subchapter shall be personally liable to make
good to such plan any losses to the plan resulting
from each such breach, and to restore to such plan
any profits of such fiduciary which have been made
through use of assets of the plan by the fiduciary,
and shall be subject to such other equitable or
remedial relief as the court may deem appropriate,
including removal of such fiduciary.

29 U.S.C. § 1109(a). ERISA requires that “a fiduciary . . .
discharge his duties with respect to a plan solely in the
interest of the participants and beneficiaries and . . . for
the exclusive purpose of: (i) providing benefits to
participants and their beneficiaries; and (ii) defraying
reasonable expenses of administering the plan.” 29 U.S.C. §
1104(a)(1)(A). In doing so, a fiduciary must discharge his
duties “with the care, skill, prudence, and diligence under
the circumstances then prevailing that a prudent man acting
in a like capacity and familiar with such matters would use
in the conduct of an enterprise of a like character and with
like aims.” Id. § 1104(a)(1)(B).
“To state a claim for breach of fiduciary duty under
ERISA, the plaintiff must plead (1) that the defendant is a
plan fiduciary; (2) that the defendant breached its fiduciary
duty; and (3) that the breach resulted in harm to the
plaintiff.” Stengl v. L3Harris Techs., Inc., No. 6:22-cv-572-
PGB-LHP, 2023 WL 2633333, at *7 (M.D. Fla. Mar. 24, 2023)
(quoting Allen v. GreatBanc Trust Co., 835 F.3d 670, 678 (7th
Cir. 2016)) (internal quotation marks omitted); Lopez v.
Embry-Riddle Aeronautical Univ., Inc., No. 6:22-cv-1580-PGB-
LHP, 2023 WL 7129858, at *6 (M.D. Fla. July 12, 2023) (quoting

Allen, 835 F.3d at 678) (internal quotation marks omitted).
In addition to these elements, the Eleventh Circuit has
long required that plaintiffs exhaust administrative remedies
before pursuing a claim for either benefits under ERISA or
statutory violations of ERISA, unless use of the
administrative claims procedures would be futile. See Byrd v.
MacPapers, Inc., 961 F.2d 157, 160 (11th Cir. 1992) (“Eleventh
Circuit precedent requires employees to exhaust these
procedures before filing suit for benefits under ERISA. . .
. [However,] an exception should be recognized for pleading
impossibility of exhaustion in cases where claims procedures

prove futile.” (citations omitted)); Mason v. Continental
Grp., Inc., 763 F.2d 1219, 1227 (11th Cir. 1985) (holding
that “the district court did not err in holding that
plaintiffs must exhaust their remedies under the pension plan
agreement before they may bring their ERISA claims in federal
court”); Perrino v. S. Bell Tel. & Tel. Co., 209 F.3d 1309,
1315 n.6 (11th Cir. 2000) (“We apply this exhaustion
requirement to both ERISA claims arising from the substantive
provisions of the statute, and ERISA claims arising from an
employment and/or pension plan agreement.”); Id. at 1316
(“Thus far, our circuit has recognized exceptions only when
‘resort to administrative remedies would be futile or the

remedy inadequate,’ . . . . or where a claimant is denied
‘meaningful access’ to the administrative review scheme in
place . . . .” (citations omitted)).
The Eleventh Circuit has also explicitly required
exhaustion when a plaintiff pleaded a breach of fiduciary
duties under ERISA. E.g., Lanfear v. Home Depot, Inc., 536
F.3d 1217, 1223-24 (11th Cir. 2008) (“The exhaustion
requirement applies to complaints for breach of fiduciary
duty under ERISA regardless of whether the breach was
committed by a third-party administrator of the plan or the
employer.”). This requirement stems from ERISA’s dictate that

employers “establish procedures for reviewing employees’
claims under their employee benefits plans.” Byrd, 961 F.2d
at 160 (citing 29 U.S.C. § 1133).
Based on this requirement to exhaust administrative
remedies or establish a valid excuse for failing to do so, a
plaintiff asserting a claim under ERISA must plead exhaustion
of administrative remedies or that a court should excuse
exhaustion. See Garcon v. United Mutual of Omaha Ins. Co.,
779 F. App’x 595, 599 (11th Cir. 2019) (“[P]laintiffs in ERISA
actions must exhaust available administrative remedies before
suing in federal court, unless a district court excuses the
exhaustion requirement . . . . The plaintiff must plead that

he has exhausted available administrative remedies.”
(citations and internal quotation marks omitted)); Byrd, 961
F.2d at 160 (affirming dismissal of an ERISA claim based on
the holding “that the district court did not abuse its
discretion in finding that plaintiff failed to plead
exhaustion of administrative remedies or impossibility”);
Bolton v. Inland Fresh Seafood Corp. of Am., Inc., No. 1:22-
cv-04602-LMM, 2023 WL 9196735, at *3 (N.D. Ga. Dec. 5, 2023)
(“The Eleventh Circuit requires an ERISA plaintiff to
affirmatively plead exhaustion or an exception to the rule on
the face of the complaint.” (citations omitted)); In re

Managed Care Litig., 595 F. Supp. 2d 1349, 1353 (S.D. Fla.
Jan. 28, 2009) (“[T]he Eleventh Circuit requires [a]
plaintiff to affirmatively plead exhaustion on the face of
the complaint.” (citations omitted)).
In short, because plaintiffs must exhaust the applicable
administrative claims procedures, courts within the Eleventh
Circuit have dismissed claims for breach of fiduciary duties
under ERISA for failing to plead information related to
exhaustion of administrative remedies. E.g., Kennedy v.
Geronemus, No. 10-61153-CIV-ALTONAGA/Brown, 2010 WL 11549886,
at *1, *4 (S.D. Fla. Nov. 4, 2010) (dismissing a claim under

ERISA for breach of fiduciary duties when the plaintiffs
failed to allege futility and inadequacy of use of
administrative remedies in the complaint).
Plaintiff argues that this case is different from those
cited by defendants because the parties do not dispute that
plaintiff has now exhausted his administrative remedies.
(Doc. # 39 at 3-4). Based on the parties’ shared
understanding, plaintiff argues, the complaint need not plead
either that plaintiff exhausted his administrative remedies
or that plaintiff is excused from doing so. (Id.).
The Court disagrees. The parties’ mutual agreement that

plaintiff has exhausted his administrative remedies does not
excuse plaintiff from pleading this fact in his complaint.
Admittedly, the Eleventh Circuit does not appear to have
caselaw that explicitly addresses whether a plaintiff must
amend their complaint to plead exhaustion of administrative
remedies in this situation. In several cases within this
circuit in which the cases have been reopened upon exhaustion
of administrative remedies, however, parties have been
required to file an amended complaint stating that they have
exhausted their administrative remedies or have voluntarily
filed an amended complaint that pleads exhaustion. E.g., In
re Managed Care Litig., Nos. 00-1334-MD, 05-23326-CIV, 2009

WL 2004206, at *1 (S.D. Fla. July 9, 2009) (dismissing the
second amended complaint “without prejudice to re-file
concomitantly with the Plaintiffs’ ERISA allegations, if and
when the Plaintiffs plead that they have exhausted all
administrative remedies,” and stating that plaintiffs could
file a motion to reopen the case “to file another amended
complaint that satisfies the requirement to plead exhaustion
of administrative remedies with respect to the ERISA
claims”); In re Managed Care Litig., Nos. 00-1334-MD, 05-
23206-CIV, 2009 WL 2004209, at *1 (S.D. Fla. July 9, 2009)
(same); Lanfear v. Home Depot, Inc., No. 1:07-cv-197-ODE

(Doc. # 70) (N.D. Ga. Oct. 8, 2009) (granting plaintiffs leave
to file a third amended complaint following exhaustion of
administrative remedies).
These cases convince the Court that a plaintiff must
still plead exhaustion of administrative remedies even when
the parties do not dispute this fact. Therefore, to proceed
with this action, plaintiff must file an amended complaint
that pleads exhaustion of administrative remedies.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1) Defendants Gerdau Ameristeel US, Inc., and the Gerdau
Benefits Plans Administrative Committee’s Motion to
Dismiss (Doc. # 32) is GRANTED.
(2) The complaint is DISMISSED without prejudice.
(3) If he wishes to proceed on his ERISA claim, Plaintiff
Grant Molla must file an amended complaint within 14
days from the date of this Order.
DONE and ORDERED in Chambers in Tampa, Florida, this 2nd
day of July, 2024.

VIRGINIA M. HERNANDEZ’COVINGTON
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10642268. Public record. Not legal advice.