# Appendix — Pfister v. Delta Air Lines, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1862%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1980 - **Citation:** 446 U.S. 963 ## Text MAR 17 { Supreme Court of the United States OCTOBER TERM 1979 NogQeTA5L FREDERICK B. PFISTER, Petitioner Vv. HONORABLE NEWELL EDENFIELD JUDGE Or THE UNITED STATES District COURT FOR NORTHERN District Or GEORGIA, ATLANTA DIVISION and HONORABLE ROBERT HALL ( ASSIGNED SUCCESSOR DISTRICT JUDGE) JuDGE Or THE UNITED STATES DisTRICT COURT FOR NORTHERN District Or GEORGIA, ATLANTA DIVISION and UNITED STATES COURT OF APPEALS FOR THE FirtH Circuit AT NEw ORLEANS, LOUISIANA and DELTA AiR LINES, INC., et al, Respondents MOTION FOR LEAVE TO FILE PETITION, AND PETITION FOR COMMON LAW WRIT OF CERTIORARI AND WRIT OF MANDAMUS AND/OR PROHIBITION AND/OR INJUNCTION; TO DISTRICT COURT AND COURT OF APPEALS FOR FIFTH CIRCUIT. SEPARATE APPENDIX EUGENE J. CARELLA, Esq. 5455 Wilshire Boulevard Suite 1706 Los Angeles, California 90036 213/938-2878 Counsel for Petitioner PANDICK PRESS, WEST COAST, 1945 S. FIGUEROA, LOS ANGELES, CALIFORNIA (213) 747-4321 eee INDEX TO APPENDICES PAGE APPENDIX A Order and Opinion of District Judge Newell Edenfield Dated 20 Dec. 1978 and Filed 21 Dec. 1978 Dismissing Petitioners Claim for Injunctive Relief and Counts II, III, a cassis es aciietsnaacievwveinigonlyloudis voennpeneanedty A-1 APPENDIX B Order of District Judge Newell Edenfield Dated 26 Dec. 1978 and Filed 27 Dec. 1978 Substituting Counsel for I siccilcinsss hechivs kicdhincveashidibdaniceniaeceyurmnnisetiaaesninaiinniniente B-1 APPENDIX C Order of District Judge Newell Edenfield Dated 26 Feb. 1979, Advising Case Still Pending in District Court and Directing Copies be Filed in Lieu of Original in Court of PN NE OU 2 DOD. 1D TB. cxesncseccesecossepsscnsesnciccessonivanton C-1 APPENDIX D Order of District Judge Newell Edenfield Dated 27 June 1979, and Filed 2 July 1979 Substituting Dorothy Bishop SE Ne SE IIINS BREE ss csvcccsescaceunscconsccsnnnnntvesunenevanece D-1 APPENDIX E Order of District Judge Newell Edenfield Dated 29 June 1979 and Filed 2 July 1979 Granting Respondents Motion to Dismiss Counts V, VI, VII of Petitioners Complaint and Denying Petitioner’s Motion for nis i ll dik cipal steal eawbenmbapoasteansetoveetonens E-1 APPENDIX F Order of Circuit Judges Gee, Clark, Hill Filed in No 79- 1763 on 3 July 1979 Dismissing Petitioners Appeal from the District Court’s Order Entered 21 Dec. 1978 { Appen- akan ou inbiehaenabieebansatetuncsidinn F-1 APPENDIX G Order of Circuit Judge Gee in No 79-1763 Filed 6 Aug. 1979 Recalling Mandate and Extension of Time For Filing Petition for Rehearing en banc................cceeeeeeseeeeeees G-1 li APPENDIX H Clerk’s Statement of Docket Entry Advising Counsel Peti- tion for Rehearing and Rehearing en banc was Denied in ee Oe Fe I 6 SIL: BOP FW icctcpticcccesescnceverseninmietiesineinvens APPENDIX I Order of Circuit Judges Gee, Henderson, Hatchett Filed 5 Nov. 1979, in No. 79-1763 and No. 79-3207 ( Petitioner’s Appeal from District Court Order in Appendix B) Denying Petitioners Motion for Stay of Mandate in No. 79-1763 and to Consolidate Cases 79-1763 and 79-3207; Granting Respondent Motion to Dismiss Appeal No. 79- 3207; Remanding Motion for Costs Against Petitioners I ID IIE CRON isn ccdeniiscansascavcsensssbinnebeniesmaatsosevoonse APPENDIX J Order Filed 13 Nov. 1979 by Circuit Judges Gee, Hender- son, Hatchett in No. 79-1763 and No. 79-3207, Directing that Petitioners Cross Request for Sanctions Against Respondents be Stricken sua sponte and that Petitioner Motions for Leave to File an Amended Complaint; Disqualify Counsel for the Respondents, and for Stay of All Further Proceedings Until the Motion for Dis- qualification Directed to Newell Edenfield is Disposed of, SITE hs. dens chensicbsieniabidaseaidplaustbiaaudstésneaneilicmbekpastsintenieensds APPENDIX K Order Filed 5 Dec. 1979 by Circuit Judges Gee, Henderson, Hatchett, Denying Petitioners Motion that Aforestated Circuit Judges Stand Recused and Vacate its Orders in No. 79-1763 and No. 79-3207; and Further Denying Petition for Rehearing and Request for Mandamus Lodged with Chief Judge Brown; and Directing Petition- er’s Counsel to Seek Admission to the Fifth Circuit before BE NINE Gi cikccctenstaesscnsasisaenndoivecenisaibeaependvacbabiccinne APPENDIX L Clerk’s Docket Entry in Case No. 79-1763 and 79-3207 Directing the Reissuance of the Mandate in the above Cases Dated December 18, 1979...........c.cccsccssssssscessscseqenees PAGE TE ili PAGE APPENDIX M District Court’s Deputy Clerk Notice Dated 21 Dec. 1979 that No. C 78-1567A (District Court) has been Reas- signed to Judge Robert Hall APPENDIX N Order of Judge Newell Edenfield Dated 18 Dec. 1979 and Filed 19 Dec. 1979 Denying Petitioners Motion to Dis- qualify District Judge Newell Edenfield, Said Motion Filed in the District Court on 2 Aug. 1979 ......c.cccccccseeceeees N-1 APPENDIX O Index to Certified Record Prepared by U.S. Court of Appeals in No. 79-1763 and 79-3207 and Transmitted to United States Supreme Court on 17 Jan. 1980 .00......cceeseee O-1 APPENDIX P STATUTES INVOLVED Ne I itciheistieiensantieiv adietneopirenaonanidulintaa livehatindeame P-| Or Pins IE CI is cde tennbsiscibicd canteen Aianaticaicapiatocammonecdaas P-1, P-2, P-3 Se ie 1 MEE ccrirarsinpiticctncnnsdsantnidihionanieae Lae P-16 Se iF TOIL) iscctiniccedscsevsas saeeietiesseusitibaschtaaidiaeasbiianc P-16 Fe AE SION ssiveinscininintessntinintniscldbthiionedecnala aaa P-16 Be ls FE PIO. diseitaiicictetsborsrtosndentennesdandabiiitara atte P-3, P-4 FR. ee eiecicyintthinwssnipsscenctivihetubbieniscannen mean P-5 Be eies Te IRE occstinstnesenndtetntsbioccasssitce dienes biltedbenstdiaddaioleaaniiaaa: P-5 ee tee wiciesednisiitbahrcseinsitiniasnseabecticdaneua aul P-5, P-6 et EE TEP ess tshncciaddtbinuaa-ensossiusdachisapenaieboanaan P-6, P-7 BF es TE HU sclilianceshinsisdepieeeednieanneserndianeaee ete P-7, P-8 Be ne FE titinsichcccnnrcinsneenshabinbnainiadalatiniensacal aaa P-8, P-9 rE © one 5: | SAR Paneer OMe Alls EAL ROT cM N cs os NI! P-9 ee SEA BE cascicesiiniseiilincenniesatics P-9, P-10, P-11, P-12, P-13 BaP RID ccirinininicnnccinieeppeiistleinicenee eagch h lade P-13 FA OE Giivisdcnnintatsncisciceibeniccledaantnabieaa mentee P-13 Fe I D ebttieiisestinosuaniniketaae ne P-13, P-14 PEE TE elineninsincennnsesiinannscigleeh clean P-14 FE Ee OE sinipniateileceiaetidnlaneuieknn ae P-14, P-15 iv Vv PAGE PAGE APPENDIX Q APPENDIX S CONSTITUTIONAL PROVISION Letter from Delta Air Lines dated 5 March 1975 to AMENDMENT V—United States Constitution Frederick B. Pfister Terminating Benefits ...............2::0+e+0+ S-1 No person shall be held to answer for a capital, or APPENDIX T otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, SUREIIE FIGS CDUIPOIIBR TIO oss. sexs scesesesencsecevesosceccanexexsasees Q-1 APPENDIX R Legislative History 1. Legislative History, Employee Retirement Income Secu- rity Act of 1974, Volume 111 at 4871 “The enforcement provisions have been designed specific- ally to provide both the Secretary and participants and beneficiaries with broad remedies for redressing or pre- venting violations of the Retirement Income Security for Employees Act as well as the amendments made to the Welfare and Pension Plans Disclosure Act. The intent of the Committee is to provide the full range of legal and equitable remedies available in both state and federal courts and to remove jurisdictional and procedural obs- tacles which in the past appear to have hampered effective enforcement of fiduciary responsibilities under State law or recovery of benefits due to participants. For actions in federal courts, nationwide service of process is provided in order to remove a possible procedural obs- tacle to having all proper parties before the court.” (emphasis added ).2 2. H. R. Conference Dep. No. 93-1280; U.S. Code Congress & Adm. News at 5038, 5107 “All such actions in Federal or State courts are to be regarded as arising under the laws of the United States in similar fashion to those brought under Section 301 of the Labor-Management Relations Act of 19477)... .cccccccccccees R-1! Order Entered October 31, 1977 by United States Court of Appeals for District of Columbia ............:csseseseeeeereeneeneeneees T-1 APPENDIX A EXHIBIT A United States District Court NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FREDERICK B. PFISTER Civii ACTION vs. No. C78-1567A DELTA Air LINES., et al. ORDER This suit by a former employee of Delta Air Lines, Inc. (Delta) charges twenty-six defendants’ with violations of the Employment Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001, et seg. Originally filed in the United States District Court for the District of Columbia, the case was transferred to this district pursuant to 28 U.S.C. ' Plaintiff has named as defendants: Delta, the Delta Employee Benefit Plan (the Plan), consisting of Delta Family Care, Disability and Survivorship Plan, Delta Air Lines, Inc. Group Insurance Plan, and Delta Family-Care Retirement Plan; the Delta Administrative Committee acting on behalf of Delta Family Care, Disability and Survivorship Plan, and Delta Family-Care Retirement Plan; Delta Administrative Committee members W.T. Beebe, D.C. Garrett, Jr., R. Oppenlander, J.R. Howell, H.T. Fincher, R.W. Allen, R.S. Maurer, T.M. Miller, Wm. E. Stephens, each in their individual capacities; the Pian Administrator of Delta Family Care, Disability and Survivorship Plan, Delta Family-Care Retirement Plan, and Delta Employee Benefit Plan, individually; John Aduddell; J.J. Schneider; and Donald Baus (all of the above hereinafter collectively referred to as Delta defendants); Charles T. Bishop, Jr.; and the Brewer Adjustment Company. A-2 § 1404(a) on September 15, 1978.2 It is now before the court on twenty-four defendants’? motion to strike and/or dismiss, request for costs and attorneys’ fees, and request for an oral hearing. Rules 12(b)(6), 12(f), and 54(d), Fed.R.Civ-P. Plaintiff contends that in 1973, while employed as a mechanic by Delta at its facilities at Washington National ‘Airport in the state of Virginia and while a Participant in the Delta employee disability, medica!, and retirement benefit plan (“Plan”), he injured his back. On March 30, 1974, he allegedly reinjured his back but continued to work for Delta through June 30, 1974. Plaintiff charges that Delta had promised to provide him with “light work” following his injury in March, that it reneged on this promise and required heavy lifting, and that as a result he became totally disabled on June 30, 1974 and has continued so to the present. He further alleges that prior to his departure from Delta due to his disability, Delta, acting in concert with the Plan, sought to force plaintiff to quit his employment so that he would forfeit all Plan benefits. Plaintiff was certified as totally disabled by his physician on November 8, 1974, and, at some point, the Plan and Delta apparently acknowledged in a letter written by defendant Stephens that plaintiff was disabled and was entitled to total disability status through February 28, 1975. Plaintiff contends that defendants induced him to meet with defendant Bishop, an insurance adjuster, without benefit of counsel, by telling him they had already determined that he was totally disabled and wold receive all of his benefits. During that meeting plaintiff made a statement which has been interpreted by defendants as damaging to his disability claim. Following this interview, plaintiff alleges that the adjuster visited his physician. As a result, without any additional medical exam- ination, his doctor revised his diagnosis and declared plaintiff eligible for “light duty work”, and on March 1, 1975, the Plan 2 The district court granted defendants’ motion to transfer on March 31, 1977, but because plaintiff attempted a variety of appeals from that order, the case was not transferred to this district for a year and a half. 3 All of the defendants except Brewer Adjustment Company and Charles T. Bishop, Jr. have joined in this motion. neh an OM : A-3 arbitrarily rescinded his status of permanent disability and cancelled all employee benefits without an explanation for their conduct and without affording plaintiff an opportunity to be heard.* Plaintiff further asserts that he attempted to obtain copies of the benefit plans and other pertinent information from defendants but that defendants refused to provide him with the same until after this suit was filed and that he therefore was unable to convert his insurance or to appeal the decision regarding his disability. In an eight-count complaint, he now seeks disability and retirement benefits, cumulative damages and penalties in excess of $48,000,000, and a permanent injunction against the defendants. Defendants have moved to strike or dismiss certain of plaintiffs prayers for relief in Count I, certain statements included in plaintiff's allegations in Count I, plaintiffs claims in Counts II through VIII for compensatory and punitive dam- ages, and plaintiff's request for a trial by jury. Plaintiff has opposed this motion,5 and, as noted earlier, both sides have requested oral argument of this matter. The court declines to hear oral argument on these issues, noting for the benefit of plaintiff's counsel, who strenuously asserted his right to such argument, that Rule 78, Fed.R.Civ.P., states: ‘To expedite its business, the court may make provision by rule or order for the submission and determination of motions without oral hearing 4 There is some indication in plaintiff's brief that he was unaware of the reasons for the termination of his benefits until approximately July 16, 1975 when defendant Stephens, in a letter responding to an inquiry by plaintiff's congressman, Herbert C. Harris, II, stated that plaintiff had been denied long-term disability benefits because his doctor had certified that the plaintiff was able to perform “light work” on March 1, 1975. 5 The court notes that plaintiff's counsel is from Los Angeles, California and does not maintain an office in this district. Although he has not sought leave to appear pro hac vice, Local rule 71.4, the court will grant him permission to so appear. Counsel is cautioned to familiarize himself with the local rules of this court, however. A-4 upon brief written statements of reasons in support and opposi- tion.” The Local Rules of this court include such a provision,® and the court sees no need to deviate from its practice in this case. Count I of the complaint alleges deprivation of benefits to which plaintiff was entitled pursuant to the Plan and seeks recovery of those benefits or a lump sum payment of $500,000. This claim is based upon 29 U.S.C. § 1132(a)(1)(B), which authorizes a plan participant to bring a civil action “to recover benefits due him under the terms of his plan ....”” Both parties apparently agree that under the Plan plaintiffs right to contin- ued benefits after March 1, 1975 depended upon either his continued employment with Delta after that date or the contin- uation of his totally and permanently disabled status. Defend- ants now seek dismissal of the prayer for benefits on the ground that plaintiff was not in Delta’s employ on the critical date—a fact which he does not dispute—and that he was not then and is not now permanently disabled. Defendants’ latter assertion seemingly derives from plaintiffs allegation that although defendants determined, “without further medical examination, that Plaintiff could perform ‘light work’, [they have] failed to proffer any work of any type whatsoever to Plaintiff up to the present,” Complaint, Count I, 721, and that this failure to provide such work demonstrates defendants’ intent to deprive plaintiff of his benefits. Complaint, Count I, § 34. They argue that since plaintiff “seeks” light work he cannot have been or now.be totally disabled and therefore, as a matter of law, is not entitled to benefits under the Plan. The court declines to read plaintiffs allegation in this fashion, particularly in light of other charges contained in the complaint. Paragraph 14 of Count I alleges that “‘as a result of Plaintiff's conscientious efforts to carry out his duties as a Delta mechanic, his injuries were substantially aggravated, rendering 6 Local Rule 91.3 provides, “All motions shall be decided by the Court without oral hearing unless otherwise ordered by the Court.” rrr A-5 him totally and permanently disabled.”” Nowhere does plaintiff state that he is no longer totally disabled, and the court cannot infer this fact from the allegations relating to light work. A motion to dismiss for failure to state a claim should not be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41 (1957). Since plaintiff may be able to prove at trial his complete disability, and thus his entitlement to benefits, the court DENIES defend- ants’ motion on this point.’ Defendants have also moved to dismiss plaintiff's prayer for injunctive relief in Count I insofar as it seeks to enjoin them from future discrimination against other Plan participants. They note that this suit is not brought on behalf of a class and therefore that such relief is without basis. As plaintiff has offered no opposition on this point, the court hereby DIS- MISSES this prayer for injunctive relief. Defendants next argue that plaintiffs claim against the plan administrator for civil penalties of $100 per day should be dismissed. This claim is based upon 29 U.S.C. § 1132(c), which states: Any administrator who fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant or beneficiary (unless such failure or refusal results from matters reasonably beyond the control of the adminis- trator) by mailing the material requested to the last known address of the requesting participant or beneficiary within 30 days after such request may in the court’s discretion be 7 In opposition to defendants’ motion, plaintiff has also argued that he is entitled to benefits because Delta was under an obligation to provide him with “light work” and that if it had fulfilled its duty in this regard he would still be a Delta employee and would be covered by the Plan. The court finds no support under ERISA or any other law for such a position. A-6 personally liable to such participant or beneficiary in the amount of up to $100 a day from the date of such failure or refusal and the court may in its discretion order such other relief as it deems proper. Under 29 U.S.C. § 1024(b)(4), the administrator, upon writ- ten request of any participant or beneficiary, is required to furnish “a copy of the latest updated summary plan description, plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established of operated.” Plaintiff alleges that he requested in writing from the plan administrator but did not receive “the Plan text, the appeal procedures, and general information concerning his rights as a Plan participant.”® Complaint, Count I, ¥ 12. Defendants seek dismissal of this claim, noting that the requirement in section 1024(b)(4) that administrators supply a copy of the latest summary plan description and plan descrip- tion to participants upon request was not in effect at the time of the alleged violation, having been suspended by Department of Labor regulations until May 30, 1976, and then again until July 15, 1977.9 They argue therefore that plaintiff's claim for $100 a day penalties is inappropriate as a matter of law. Plaintiff counters that although the Secretary of Labor deferred the requirement pertaining to production of certain documents a similar provision contained in ERISA’s prede- cessor statute, the Welfare and Pension Plans Disclosure Act, authorized penalties of $50 per day for an administrator’s failure to provide certain documents to a plan participant. His argument continues that by virtue of 29 U.S.C. § 1032 this prior penalty provision is still in force. Section 1032(a)(1) provides, “The Welfare and Pension Plans Disclosure Act is repealed except that such Act shall continue to apply to any conduct and 8 It appears that plaintiff did receive these materials on or about December 16, 1976, after the filing of this suit. 929 C.F.R. §§ 2520.104-2, -4 (1977). A-7 ‘events which occurred before the effective date of this part.” Plaintiff interprets this section to mean that no provision of the old Act was deemed repealed until its replacement section had become effective. Therefore, although. the effective date of section 1024(b)(4) was postponed, the former $50 per day penalty provision necessarily governed the administrator’s conduct. The court cannot resolve the propriety of this penalty claim at this juncture for two reasons. First, it is unclear precisely which documents plaintiff requested in writing from defendant administrator. Plaintiff's allegation on this point is not specific, and it is possible, although unlikely, that he requested copies of documents other than the plan description and summary plan description. If he sought other documents required by section 1024 to be furnished to plan participants, the deferral regu- lation would have no impact since it excused production of the summary p.an descriptions and plan descriptions only; the administrator would still be liable for failure to supply the other covered material. See Pollock v. Castrovinci, et al., No. 78- 2071 (S.D.N.Y., Aug. 14, 1978) order denying summary judgment; see generally Hastings v. Merrill Lynch, Pierce, Fenner & Smith, et al., No. 7-70025 (E.D. Mich., Dec. 22, 1977) (order granting in part and denying in part summary judgment). The second reason that the court cannot conclude this controversy is that neither side has provided it with sufficient information to determine the applicability of the deferral provision. The Secretary’s regulation postponed the effective date of certain portions of section 1024(b)(4) only for welfare and pension plans which became subject to part | of ERISA prior to January 31, 1976. Thus, this regulation may not have applied to Delta at all.1° For all of the foregoing reasons, 10 Twenty-nine U.S.C. § 1031(b)(2) and any regulations pursuant thereto may also have some bearing on this case. A-8 defendants’ motion to dismiss the claim for a $100 per day penalty is DENIED." Defendants have also moved to strike certain allegations contained in Count I of the complaint pursuant to Rule 12(f), Fed.R.Civ.P. That rule authorizes the court to “order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Motions to strike, however, are not favored and material will not be stricken unless it is clear that it can have no possible bearing upon the subject matter of the litigation. 2A Moore’s Federal Practice, J 13.21[2], at 2429 (2d ed. 1975). The court has carefully reviewed the allegations in question, and while they appear to be irrelevant, it is unlikely that defendants will be prejudiced by their presence. Accordingly, the motion is DENIED on this point. In Counts II through VIII of the complaint, plaintiff requests compensatory and punitive damages totaling $48,000,000. Noting that plaintiff has based his complaint solely upon violations of ERISA, defendants now seek dismissal of these counts on the ground that ERISA’s general remedial scheme does not support a claim for such damages. They argue that the language of the civil enforcement provision, 29 U.S.C. § 1132, and the statute’s legislative history evidence a clear intent to preclude damages of this sort. In addition, they point 11 Defendants also requested that the court exercise its discretion and dismiss plaintiffs claim because plaintiff has now received the material and has not shown that he was harmed by the delay and because if the administrator failed to respond to plaintiff's demand the failure stemmed from matters reasonable beyond his control and thus was permitted by section 1024(b)(4). To exercise the court’s discretion on these grounds at this stage of the proceedings would be premature. It is not clear that plaintiff need show harm during the delay, and certainly, he would not be required to present such factual issues in response to a motion to dismiss. Further, whether the administrator’s failure was due to “matters reasonable beyond his control” is a question of fact to be developed at trial. A-9 out that punitive and compensatory relief has not customarily been awarded under analogous statutes. For the reasons set forth below, the court concludes that defendants are correct. Section 1132 provides that a civil action may be brought (1) by a participant or beneficiary— (A) for the relief provided for in subsection (c) of this section, or (B) to recover benefits due to him under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan; (2) by the Secretary, or by a participant, beneficiary or fiduciary for appropriate relief under section 1109 of this title; (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or 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: (4) by the Secretary, or by a participant, or beneficiary for appropriate relief in the case of a violation of 1025(c) of this title; (5) except as otherwise provided in subsection (b) of this section, by the Secretary (A) to enjoin any act or practice which violates any provision of this subchapter, or (B) to obtain other appropriate equitable relief (i) to redress such violation or (ii) to enforce any provision of this subchap- ter; or (6) by the Secretary to collect any civil penalty under subsection (i) of this section. Nowhere in this section does the word “damage” appear. Instead, each subsection either identifies the precise form of relief available to a plaintiff under that provision, e.g., recovery A-10 of benefits, ties the relief authorized to a specific provision of ERISA, e.g., a penalty for filing or document deficiencies or recovery of profits in the event of a breach of fiduciary duty, or refers to “other appropriate equitable relief.” Plaintiff's suit must necessarily be based upon subsections (a)(1) and (3). The latter provision by its own terms permits only equitable relief and thus does not encompass compensatory or punitive damages; the former, while describing a monetary recovery, leaves no suggestion that anything other than the amount due to a participant under the terms of the plan will accorded to him. That Congress did not intend to authorize awards of additional monetary relief is made clear by a review of portions of the voluminous legislative history of this Act. ERISA was enacted to establish safeguards and standards which would Protect and support the pension and benefit expectations of employees so that workers who had been employed for years would not discover upon retirement that the pension benefits upon which they planned to live were not forthcoming. Its purpose was not to punish pension fiduciaries, administrators, or employers but to insure the delivery of earned benefits. Since the pension and employee plan benefit system is a voluntary one in that employers may decline to provide such benefits, Congress was concerned that in legislating to protect employee rights under these programs, it not burden employers with additional costs and requirements so that they dis- continued these plans. The House Committee on Education and Labor stated: The Employee Benefit Security Act as reported by the Committee is designed to remedy certain defects in the private retirement system which limit the effectiveness of the system in providing retirement income security. The primary purpose of the bill is the protection of individual pension rights, but the Committee has been constrained to recognize the voluntary nature of private retirement plans. A-I1 The relative improvements required by this Act have been weighed against the additional burdens to be placed on the system. While modest cost increases are to be anticipated when the Act becomes effective, the adverse impact of these increases have been minimized. Additionally, all of the provisions in the Act have been analyzed on the basis of their projected costs in relation to the anticipated benefit to the employee participant. H.R. Rep. No. 93-533, 93d Cong., 2d Sess., reprinted in [1974] U.S. Code Cong. & Admin. News, 4639. Senator Nelson expanded upon this notion during the floor debate on the Conference Report: In all its deliberations and decisions, Congress was acutely aware that under our voluntary pension system the cost of financing pension plans is an important factor in determin- ing whether a pension plan will be adopted. Unduly large increases in cost can impede the progress of the private pension system. For this reason, in the case of those requirements which add to the cost of financing pension plans, Congress tried to adopt provisions which strike a balance between providing a meaningful protection for the employees and keeping costs within reasonable limits for employers. Legislative History of the Employee Retirement Income Security Act of 1974, 4800 (3 volumes, Subcommittee on Labor of the Senate Committee on Labor and Public Welfare. April, 1976). This concern over increased costs and the harmful effect they might have on the continuation of existing plans and the instigation of new ones explains the careful choice of language in section 1132, in specifically providing for injunctive relief and the recovery of benefits and certain penalties and thus pre- cluding compensatory and punitive damages. A-12 Plaintiff has pointed to nothing in the legislative history which undercuts this conclusion. The statement in the Senate report to the effect that the Act is intended to provide “legal and equitable remedies,” S.Rep. No. 93-127, 93d Cong., 2d Sess., reprinted in [1974] U.S. Cong. Code & Admin. News 4871, does not demonstrate, as plaintiff urges, the propriety of general and punitive damages. Instead, it suggests that the committee considered the recovery of benefits or the clari- fication of rights as legal remedies. Plaintiff's contention that punitive damages are essential to deter breaches of fiduciary duty and to guarantee proper management of the funds is also devoid of merit. ERISA includes a strong deterrent to such conduct in the form of criminal sanctions. Twenty-nine U.S.C. § 1131 provides: Any person who willfully violates any provision of part | of this subtitle, or any regulation or order issued under any such provision, shall upon conviction be fined not more than $5,000 or imprisoned not more than one year, or both; except that in the case of such violation by a person not an individual, the fine imposed upon such person shall be a fine not exceeding $100,000. Finally, the court concludes that its holding that neither punitive nor compensatory damages is available under ERISA is consistent with judicial interpretation of analogous statutes. Such relief has generally been denied under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seg., EEOC v. Detroit Edison Co., 515 F.2d 301 (6th Cir. 1975), the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634, Dean v. American Security Insurance Co., 559 F.2d 1036 (5th Cir. 1977), cert. denied, 434 U.S. 1066 (1978), the Equal Pay Act, 29 U.S.C. § 206(d), Kumbalek v. I. Bahcall Industries, Inc., 6 FEP Cas. 1269 (E.D. Wis. 1974), and the National Labor Relations Act, 29 U.S.C. §§150, et seg., International Union, UAA & AIW v. Russell, 356 U.S. 634 (1958). Plaintiff's citations to cases brought pursuant to the Labor Management Reporting and Disclosure Act, 29 U.S.C. §§ 401-412, in which A-13 punitive and compensatory damages have been awarded are inayposite since section 412, the remedial provision, authorizes suits to obtain “such relief (including injunctions) as may be appropriate” and thus clearly permits awards of damages. Plaintiff's attempted analogy to certain provisions of the Labor Management Relations Act, 29 U.S.C. §§ 141, et seq., meets a similar fate. The remedial language of both sections 185 (“money judgment”) and 187 (‘damages’) differs signifi- cantly from that contained in ERISA’s enforcement provision. Accordingly, this court concludes that neither compensatory nor punitive damages are available in actions brought pursuant to ERISA. See Hurn v. Retirement Fund Trust, 424 F.Supp. 80 (C.D. Cal. 1976); Bell v. Southern Log Scaling & Grading Bureau, No. 76-431 (D. Ore., Aug. 5, 1976). While this result requires the court to dismiss Counts II, III and IV, plaintiff contends that Counts V through VIII are still properly before the court. According to plaintiff, these counts set forth causes of action for fraud, misrepresentation and deceit, intentional and negligent infliction of emotional distress, breach of duty to deal in good faith, and tortious interference with the fiduciary relationship. Plaintiff's Supplemental Oppo- sition, at 28. His principal argument for the vitality of these counts appears to be that under ERISA these torts must be recognized as a part of the federal common law. The court declines this invitation to so extend the law, however. Noting that plaintiff has not alleged the existence of pendant jurisdic- tion for these claims or identified the state law on which they might be based, defendants have moved to dismiss these four counts on the grounds that the court should not exercise its pendant jurisdiction over these claims or, alternatively, that ERISA preempts all state tort claims relating to pension and welfare benefits. Since plaintiff has not seriously considered these issues in his briefs, the court will DEFER decision on the dismissal of Counts V through VIII and GRANT plaintiff an additional twenty (20) days in which to submit a supplemental brief on these topics. Defendants may then submit a reply brief within twenty (20) days of receipt of plaintiffs memorandum. A-14 The last major question to be resolved is whether or not plaintiffs demand for a trial by jury should be stricken. Defendants argue that plaintiffs suit seeks only equitable relief and thus that a jury trial would be inappropriate. They claim that just as “back pay” has been held to be restitution and thus equitable relief in Title VII actions so that jury trials have not been required, Slack v. Havens, 522 F.2d:1091 (9th Cir. 1975), plaintiff's claim for benefits—which appears to be the critical claim in this lawsuit—must be considered equitable. The court disagrees. While it is true that a monetary remedy need not neces- sarily be a legal remedy, whether it is to be considered legal or equitable is determined by interpretation of the remedial statute as a whole. Any pertinent legislative history will, of course, assist in this determination. In Title VII, to which defendants analogize, the remedial provision, 42 U.S.C. § 2000e-5(g), states: [T]he court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay .. . or any other equitable relief as the court deems appropriate. (Emphasis added.) Thus it is clear that back pay, in this context, is “other equitable relief’, and a trial by the court sitting without a jury is therefore proper. The remedial provision of the Age Discrimination in Employment Act, on the other hand, states that its provisions shall be enforced in accordance with the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201, et seg., and that “amounts Owing to a person as a result of a violation of [the ADEA] shall be deemed to be unpaid minimum wages or unpaid overtime compensation” under the FLSA. 29 U.S.C. § 626(b). A court A-15 is also authorized to give “such legal or equitable relief as may be appropriate.” /d. Relying upon the stated connection between the FLSA, which permitted jury trials, and the ADEA and the reference to /ega/ relief, the Supreme court concluded that under the ADEA a jury trial was required upon timely demand. Lorillard v. Pons, 434 U.S. 575 (1978). The provision at issue in the instant action falls between these two extremes and presents a much closer question. As noted earlier, it states in part:'@ (a) Accivil action may be brought— (1) by a participant or beneficiary— (B) to recover benefits due to him under the term of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan; (3) by a participant, beneficiary, or fiduciary— (A) to enjoin any act or 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. The structure of this section was considered in Stamps v. Michigan Teamsters Joint Council No. 43, 431 F.Supp. 745, 747 (E.D. Mich. 1977): _ The section sets forth, in the alternative, two remedies which are available to the beneficiary. Subsection (a)(3) clearly and specifically creates a civil action for equitable 12 See text at pp. 8-9, supra, for entire statute. A-16 relief. Subsection (a)(1)(B) creates a different civil action for legal relief. This follows the general rule of statutory construction that statutes should be construed in such a way as to render none of the subsections superfluous. If the court construed subsection (a)(1)(B) to also create a cause of action for equitable relief, it would be superfluous to subsection (a)(3). This court now concludes that the Stamps approach presents the proper construction of this statute. That the monetary benefits envisioned by subsection (a)(1)(B) are to be considered legal relief is supported by at least two portions of ERISA’s legislative history. First, the Joint Conference Report states that actions pursuant to this section “are to be regarded as arising under the laws of the United States in similar fashion to those brought under section 301 of the Labor-Management Relations Act of 1947.” H.R. Conf. Rep. No. 93-1280, 93d Cong., 2d Sess., reprinted in [1974] U.S. Cong. Code & Admin. News, 5038, 5107. Suits of that nature are customarily tried to a jury. Steele v. Brewery Workers Local 116, 432 F.Supp. 369 (N.D. Ind. 1977). Sec- ond, as mentioned earlier, the Senate report referred to “legal and equitable remedies” available under ERISA. This refer- ence to “legal” must have been made with the recovery of monetary benefits in mind. Accordingly, the court concludes that plaintiff has stated a claim for legal relief and is therefore entitled to a jury trial. Defendants’ motion to the contrary is DENIED. Finally, the court DENIES defendants’ request for costs and attorneys’ fees in connection with this motion. In sum, defendants’ motion to dismiss or to strike is GRANTED in part and DENIED in part, their request for costs and attorneys’ fees is DENIED, and the reques« for oral argument is also DENIED. Plaintiff is DIRECTED to submit a supplemental brief within twenty (20) days and defendants are ome NF A-17 DIRECTED to file their response, if any, within twenty (20) days of receipt of plaintiff's brief. The clerk is DIRECTED to resubmit this case in forty (40) days. So ORDERED, this 20th day of December, 1978. NEWELL EDENFIELD Newell Edenfield, United States District Judge Bere APPENDIX B In The United States District Court FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FREDERICK B. PFISTER, Plaintiff, VS. Civit ACTION DELTA Air LINES, INC., CHARLES T. BisHoP, Jr., BREWER ADJUSTMENT COMPANY, et al., No. C78-1567A Defendants. ORDER The within and foregoing Motion of Gorman and Canfield and Austin F. Canfield, Jr. as present attorneys of record for defendant Brewer Adjustment Company, the sole proprietor- ship of Joseph H. Brewer, now deceased, and defendant Charles T. Bishop, Jr. having been read and considered and it appearing to the Court that due notice of said request of such attorneys and of this Motion having been given to defendant Charles T. Bishop, Jr. and Mrs. Dorothy Bishop Brewer, the Executrix and personal representative of Joseph H. Brewer, deceased, and their being no objection to such Request and Motion, IT IS HEREBY ORDERED and adjudged that the firm of Gorman and Canfiled, and Austin F. Canfield, Jr. be and hereby are withdrawn as attorneys of record for defendants Charles T. Bishop, Jr. and Brewer Adjustment Company and I _ B-2 APPENDIX C Joseph H. Brewer, deceased, and his personal representative, EXHIBIT B Mrs. Dorothy Bishop Brewer, and, as moved, that the law firm Sa of Hansell, Post, Brandon & Dorsey and its partners and United States District Court associates are hereby acknowledged as attorneys of record for said defendants and the clerk of this Court is directed to make NORTHERN DISTRICT OF GEORGIA such changes on the docket and other papers to evidence such ATLANTA DIVISION substitutions of attorneys. This 26th day of December, 1978. FREDERICK B. PFISTER NEWELL EDENFIELD rs Civit ACTION Judge, U.S. District Court No. C78-1567A Northern District of Georgia DELTA AiR LINES, INC., et al Atlanta Division ORDER TO FORWARD COPIES It appearing to the Court that a notice of appeal has been filed by Frederick B. Pfister, plaintiff from the order of Decem- ber 21, 1978, and it further appearing that this case is still pending. IT IS ORDERED that the Clerk forward copies of the pleadings to the United States Court of Appeal in lieu of the Originals. This 16th day of February, 1979. NEWELL EDENFIELD Newell Edenfield, United States District Judge APPENDIX D United States District Court FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FREDERICK B. PFISTER, ow Civit ACTION Vs. Dexa Air Linés, INC., et al. No. C78-1567A Defendants. ORDER The foregoing Motion of the Plaintiff, FREDERICK B. PFISTER, requesting substitution of MRS. DOROTHY BISHOP BREWER, the Executrix of the Estate of JOSEPH H. BREWER, now deceased, sole owner and proprietor of named Defendant BREWER ADJUSTMENT COMPANY and providing for the continuance of the within action against said substituted Executrix as a personal representative of aforesaid deceased, JOSEPH H. BREWER, sole owner and proprietor of BREWER ADJUSTMENT COMPANY, having been duly read and considered and proper notice afforded all parties of record in the within proceeding, IT IS HEREBY ORDERED AND ADJUDGED that the Motion of the Plaintiff, FREDERICK B. PFISTER, substitut- ing MRS. DOROTHY BISHOP BREWER, the Executrix of the Estate of JOSEPH H. BREWER, the sole owner and proprietor of BREWER ADJUSTMENT COMPANY, the named De- fendant herein, be forthwith granted and entered by the Clerk of this Court. D-2 IT IS FURTHER ORDERED hereby that the within action be further continued and prosecuted against BREWER ADJUSTMENT COMPANY by and in the name of the aforesaid Executrix MRS. DOROTHY BISHOP BREWER; and that all processes duly invoked by this Court shall bind and otherwise obligate her as the Executrix of the Estate of JOSEPH H. BREWER, sole owner of BREWER ADJUSTMENT COM- PANY, and IT IS FURTHER ORDERED that the estate of JOSEPH HUGH BREWER, Decedent, identified as Estate No. 106-196 in the Probate Court in and for the County of Fulton, State of Georgia, remain open; and said Probate proceedings stayed until the claim of the Plaintiff against said Estate of JOSEPH H. BREWER as embodied in the Complaint herein as finally and properly discharged to the satisfaction of the Plaintiff. SO ORDERED this 27th day of June, 1979. NEWELL EDENFIELD Judge, U.S. District Court Northern District of Georgia Atlanta Division APPENDIX E United States District Court NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FREDERICK B. PFISTER CiviL ACTION VS. No. C78-1567A DELTA AIR LINES, INC. et al. ORDER This is a civil action involving alleged violations of the Employment Retirement Income Security Act of 1974 (ERISA), 29 29 U.S.C. §§ 1001, et seg., by twenty-six defend- ants.' It is now before the court pursuant to the court’s order of December 20, 1978 and plaintiff's request for reconsideration of that order. A brief review of the facts is appropriate. ‘ Plaintiff has named as defendants: Delta, the Delta Employee Benefit Plan, consisting of Delta Family Care, Disability and Survivorship Plan, Delta Air Lines, Inc. Group Insurance Plan, and Delta Family-Care Retirement Plan; the Delta Administrative Com- mittee acting on behalf of Delta Family Care, Disability and Survivorship Plan, and Delta Family-Care Retirement Plan; Delta Administrative Committee members W.T. Beebe, D.C. Garrett, Jr., R. Oppenlander, J.R. Howell, H.T. Fincher, R.W. Allen, R.S. Maurer, T.M. Miller, Wm. E. Stephens, each in their individual capacities; the Plan Administrator of Delta Family Care, Disability and Survivorship Plan, Delta Family-Care Retirement Plan, and Delta Employee Benefit Plan, individually; John Aduddell; J.J. Schneider; and Donald Baus (ali of the above hereinafter collectively referred to as “Delta defendants”); Charles T. Bishop, Jr.; and the Brewer Adjustment Company. E-2 Plaintiff asserts that in 1973, while employed as a mechanic by Delta at its Washington National Airport facilities and while a participant in the Delta employee disability, medical, and retirement benefit plan (“Plan”), he injured his back. He further contends that he reinjured his back on March 30, 1974 but that despite this injury he continued to work for Delta through June 30, 1974. Plaintiff states that following his second injury Delta promised to provide him with “light work” in the future. Contrary to this agreement, however, Delta allegedly continued to assign plaintiff to tasks requiring heavy lifting, which resulted in his total disability from June 30, 1974 to the present. Plaintiff further charges that during the March- June 1974 period, Delta, acting in concert with the Plan, sought to force plaintiff to quit his employment so that he would forfeit all plan benefits. In addition, certain of the defendants are said to have induced plaintiff to meet with defendant Bishop, an insurance adjuster employed by defendant Brewer Adjustment Company, in the absence of counsel, by telling him he had already been determined to be totally disabled? and would receive all his benefits under the Plan. Plaintiff contends that he made a statement during this interview which defendants have interpreted as being damaging to his disability claim and that as a result of this comment defendant Bishop met with plaintiff's physician and prevailed upon him to revise his diagnosis and declate plaintiff eligible for light duty work. On March 1, 1975, the Plan allegedly rescinded plaintiff's per- manent disability status and canceled all his emplyee benefits without providing any reasons for such action and without affording plaintiff an opportunity to be heard. Plaintiff also asserts that after this arbitrary action, he attempted to obtain copies of the benefit plans and other pertinent information but 2On November 8, 1974, a physican certified plaintiff as totally disabled, and sometime thereafter, Delta and the Plan appear to have acknowledged his disability and granted him disability status through February 28, 1975. E-3 that defendants refused to provide him with the same until after this suit was filed, thus preventing him from either converting his insurance or appealing the decision regarding his disability. Claiming that he was inappropriately denied Plan benefits and that he has suffered great physical and emotional harm because of defendants’ activities, plaintiff filed the instant action seeking disability and retirement benefits, compensatory and punitive damages in excess of $48,000,000, injunctive relief, a $100 per day penalty for failure to provide him with Plan information, and attorneys’ fees. By order dated December 20, 1978, in response to a motion submitted by all but two of defendants,‘ the court dismissed various aspects of plaintiff's eight-count complaint. Counts II through IV, which sought compensatory and punitive damages from defendants, were dismissed when the court determined that ERISA’s general remedial scheme does not support claims for such relief. In addition, the court dismissed the prayer for injunctive relief set forth in Count I to the extent that it sought to enjoin defendants from future discrimination against Plan participants other than plaintiff on the ground that this suit had not been brought on behalf of a class.5 Noting that plaintiff had not considered defendants’ preemption or pendent jurisdiction arguments in support of their motion to dismiss Counts V through VIII, which allegedly set forth state law tort claims for compensatory and punitive damages, however, the court deferred a decision on this portion of the motion. Plaintiff was granted an additional period of time within which to submit a supplemen- tal brief on the issues raised by defendants, and defendants 3 This action was originally filed in the United States District Court for the District of Columbia and was transferred to this district pursuant to 28 U.S.C. § 1404(a) on September 15, 1978. __ “Defendants Brewer Adjustment Company and Charles T. Bishop, Jr. did not join in this motion. 5 Plaintiff suggests that the court actually dismissed his entire request for injunctive relief. This is clearly an incorrect interpretation of the decision. See Order of December 18, 1978, at 5. E-4 were permitted an additional period of time in which to file a reply brief. Plaintiff has now submitted to the court two documents, styled “Plaintiff's Motion for Reconsideration” and ‘“‘Memorandum of Points and Authorities in Support of Country Ordered Reconsideration,” which apparently include whatever reply he proposes to make to defendants’ contentions regarding the tort counts, and defendants have responded. Plaintiffs motion for reconsideration focuses primarily upon the court’s determination that compensatory and punitive damages are not available as remedies for violations of ERISA and its consequent dismissal of Counts II through IV.6 Although plaintiff has presented no new arguments or authority in support of his position that such damages were intended under the statute, the court has carefully reviewed the question and concludes that its earlier decision was correct. Com- pensatory and punitive damages are not authorized under the precise and detailed statutory language of ERISA, and, given this statutory structure, the court sees no basis for constructing a new set of remedies. It therefore declines to alter its order and DENIES plaintiffs motion for reconsideration. The court must next consider that portion of defendants’ motion—which had previously been deferred—requesting that Counts V through VIII of the complaint be dismissed. These counts seek compensatory and punitive damages for torts allegedly committed by defendants in the course of denying plaintiff his employee benefits. According to plaintiff, they set forth causes of action for the intentional and negligent infliction of emotional distress (Count V), fraud, misrepresentation, and deceit (Count VI), tortious interference with the attorney-client relationship (Count VII), and breach of the fiduciary duty to deal in good faith (Count VIII). Defendants contend that 6 Plaintiff also takes issue with certain portions of the statement of facts contained in the December order. Since the facts in question had no bearing on the substantive rulings in that order, the court need not resolve these objections. E-5 these counts are subject to dismissal because plaintiffs com- plaint specifically states that his claims arise only under ERISA and such claims are not cognizable under that statute, because ERISA preempts all state tort claims, and because even if such claims are not preempted, the court should not exercise its pendent jurisdiction over these counts. Paragraph | of Count I of the complaint sets forth the specific legal bases for this lawsuit, and this paragraph is incorporated into all other counts of that document. Since this paragraph refers only to ERISA, and presents no other ground for relief, defendants assert that these counts seeking com- pensatory and punitive damages should be dismissed as were Counts II through IV. Although defendants’ statement of the jurisdictional bases asserted in the original complaint is correct, plaintiff's response reveals his belief that he has invoked the court’s pendent jurisdiction to assert state tort claims.”? He notes that his ‘“‘Answer to Defendants’ Motion to Dismiss” filed in February, 1977, refers to the court’s pendent jurisdiction over these counts, and, in addition, he relies upon a “Supplemental Complaint” from November, 1978 which he indicates corrected the oversight in the earlier complaint. While the official file and docket do not reflect the filing of such a supplemental com- plaint, the court concludes that since plaintiff has evidenced his intent to invoke the court’s pendent jurisdiction and can easily remedy his failure to do so in his complaint, dismissal of Counts V through VIII on this technical point would be inappropriate. 7 The court initially understood—perhaps incorrectly—plaintiff to be arguing that the torts alledged in these counts must be recognized as part of the federal common law under ERISA. It declined to so extend the law, however. See Order of December 18, 1978, at 13. E-6 Defendants next contend that these tort counts must fail because ERISA preempts state tort claims of this nature. Section 514(a) of ERISA, 29 U.S.C. § 1144(a), states: Except as provided in subsection (b) of this section, the provisions of this subchapter and subchapter III of this chapter shall supersede any and all state laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title. This section shall take effect on January 1, 1975. State laws are defined as “all laws, decisions, rules, regulations or other state action having the effect of law,” 29 U.S.C. § 1144(c), as indicated, subsection (b) of this statute carves a narrow area in which state laws may continue to operate. Those state laws not preempted are ones “regulating insurance, banking, or securities” and “any generally applicable criminal laws.” No specific exception for tort laws of general appli- cation was included. Section 514(a) was clearly intended to have broad pre- emptive effect, see Wadsworth v. Whaland, 562 F.2d 70 (Ist Cir. 1977), cert. denied, 435 U.S. 980 (1978); National Car- riers’ Conference Committee v. Heffernan, 454 F.Supp. 914 (D. Conn. 1978); Hewlett Packard Co. v. Barnes, 425 F.Supp. 1294 (N.D. Cal. 1977), aff'd 571 F.2d 502 (9th Cir.), cert. denied, 47 U.S.L.W. 3222 (U.S., October 2, 1978 )( detailed reviews of the provision’s legislative history), and it appears, given the connection between the allegedly tortious activities, the fidu- ciary obligation, and the Plan, that this provision would encompass the claims in issue here. Hurn v. Retirement Fund Trust, 424 F.Supp. 80 (C.D. Cal. 1976); see Francis v. United Technologies Corp., 458 F.Supp. 84 (N.D. Cal. 1978). But see American Telephone & Telegraph Co. v. Merry, 592 F.2d 118 (2d Cir. 1979); STONE v* STONE, 450 F.Supp. 919 (N.D. Cal. 1978), appeal pending, No. 78-2313 (9th Cir.). The court need not resolve this question at this juncture, however, since eee E-7 even assuming that plaintiff could assert a nonpreempted claim in tort, the court would decline to exercise its pendent jurisdic- tion to hear it. In United Mine Workers v. Gibbs,383 U.S. 715 (1966), the Supreme Court discussed various factors to be taken into consideration before a federal court exercises its pendent jurisdiction over a state law claim. It stated: That power [of pendant jurisdiction] need not be exer- cised in every case in which it is found to exist. It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiffs right. Its justifica- tion lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them. Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. ae Id. at 726. (Citations and footnotes omitted.) The Court also noted that the substantial predomination of state issues, “whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought” and the likelihood of jury confusion in treating divergent legal theories of relief should weigh heavily in leaving the resolution of state claims to state tribunals. Jd. at 726-27. Consideration of these factors in the case at bar leads to the conclusion that this is not a proper case for the exercise of pendent jurisdiction. The trial of a state cause of action in tort for recovery of compensatory and punitive damages in the same proceeding as an action under ERISA to recover lost benefits would result in further complication of an already difficult and complex lawsuit. Moreover, it appears that in connection with his state tort claims, plaintiff will need to offer evidence of incidents or facts which have no bearing on the benefits E-8 question. Thus, if the state tort claims are tried with the federal claims, the likelihood of jury® confusion “in treating divergent legal theories of relief” is substantial. This is particularly true since the court has dismissed plaintiffs requests for com- pensatory and punitive damages under ERISA while plaintiff will be able to litigate the question of such damages on his state claims. Finally, on the basis of the relief requested, it appears that the state tort issues substantially predominate plaintiff's complaint. Plaintiff's ERISA claims seek $500,000 in benefits and a penalty of $100 per day for failure to provide him with Plan information. The total relief sought in Counts V through VIII pursuant to his state causes of action amounts to $25,000,000. Accordingly, on the basis of these factors, the court DECLINES to exercise its pendent jurisdiction over the state claims set forth in these counts. See Hurn, supra; Van Hoomissen v. Xerox Corp., 368 F.Supp. 829 (N.D. Cal. 1973 )( Title VII). In sum, plaintiff's motion for reconsideration is DENIED and defendants’ motion to dismiss Counts V through VIII is GRANTED. So ORDERED, this 29th day of June, 1979. NEWELL EDENFIELD Newell Edenfield, United States District Judge 8In its December order, the court determined that plaintiff is entitled to a jury trial on his ERISA claim. APPENDIX F In the United States Court of Appeals FOR THE FIFTH CIRCUIT No. 79-1763 FREDERICK B. PFISTER, Plaintiff-Appellant, versus DELTA AiR LINES, INC., et al., Defendants-Appellees. Appeal from the United States District Court for the Northern District of Georgia Before CLARK, GEE and HILL, Circuit Judges. BY [RE COURT: IT IS ORDERED that appellees’ motion to dismiss the appeal is granted. APPENDIX G In the United States Court of Appeals FOR THE FIFTH CIRCUIT No. 79-1763 FREDERICK B. PFISTER, Plaintiff-Appellant, versus DeLTA AiR LINES, INC., et al, Defendants-Appellees. Appeal from the United States District Court for the Northern District of Georgia OR DER: IT IS ORDERED that appellant’s application to recall and stay mandate and for extension of time in which to file a petition for rehearing en banc of this Court’s dismissal order of July 3, 1979, is granted. Such petition shall be filed within twenty days of the filing of this order. United States Circuit Judge APPENDIX H United States Court of Appeals FIFTH CIRCUIT OFFICE OF THE CLERK October 1, 1979 Tel 504-589-6514 Gilbert F. Ganucheau 600 Camp Street Clerk New Orleans, LA. 70130 TO ALL PARTIES LISTED BELOW: NO. 79-1763 — FREDERICK B. PFISTER v. DELTA AIR LINES, ET AL. Dear Counsel: R This is to advise that an order has this day been entered denying the petition ( ) for rehearing, and no member of the panel nor Judge in regular active service on the Court having requested that the Court to polled on rehearing en banc ( Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 16) the petition ( _) for rehearing en banc has also been denied. See Rule 41, Federal Rules of Appellate Procedure for issuance and stay of the mandate. Very truly yours, GILBERT F. GANUCHEAU, Clerk By SALLY HAYWARD Deputy Clerk cc: Mr. Eugene J. Carella Mr. Peter G. Nash Messrs. David C. Garrett, III Eugene G. Partain Mr. Hugh E. Wright APPENDIX I In The United States Court Of Appeals FOR THE FIFTH CIRCUIT Nos. 79-1763 & 79-3207 FREDERICK B. PFISTER, Plaintiff-Appellant, versus Decta Air Lines, INC., et al., Defendants-Appellees. Appeal from the United States District Court for the Northern District of Georgia Before GEE, HENDERSON and HATCHETT, Circuit Judges. aY THRE: COURT IT IS ORDERED that appellant’s motion for stay of mandate in case No. 79-1763, and to consolidate that cause with No. 79-3207 is DENIED. IT IS FURTHER ORDERED that appellee’s motion to dismiss the appeal in case No. 79-3207 is GRANTED. IT IS FURTHER ORDERED that appellee’s motion to hold plaintiff's counsel personally responsible for costs, in- cluding attorney’s fees of the appeal taken in case No. 79-3207 is REMANDED to the trial court for consideration there. APPENDIX J In The United States Court of Appeals FOR THE FIFTH CIRCUIT Nos. 79-1763 and 79-3207 FREDERICK B. PFISTER, Plaintiff-Appellant, versus DELTA AiR LINES, INC., et al., Defendants-Appellees. Appeal from the United States District Court for the Northern District of Georgia Before GEE, HENDERSON and HATCHETT, Circuit Judges. BY THE COURT: IT IS ORDERED that appelant’s motion for LEAVE TO FILE amended complaint and pleading in this court is DE- NIED. IT IS FURTHER ORDERED that appellant's motion to disqualify lead courisel for the defendants-appellees is DENIED. IT IS FURTHER ORDERED that appellant’s motion for stay of all further proceedings in both the district court and this court until the lower court acts upon the motion for dis- qualification, is DENIED WITHOUT PREJUDICE. ene J-2 APPENDIX K IT IS FURTHER ORDERED that appellant’s opposition | In the United States Court of Appeals and cross request for sanctions and its annexed petition for rehearing and suggestions for rehearing en banc are, on the FOR THE FIFTH CIRCUIT court’s own initiative, stricken as containing impertinent, dis- respectful and unnecessarily abusive references to the district judge and to opposing counsel and parties. Fed.R.Civ.P. 12(f), Nos. 79-1763 and see Theriault v. Silber, 574 F.2d 197 (Sth Cir. 1978). Should 79-3207 counsel desire to file papers, couched in more moderate terms, seeking the relief proposed in the stricken documents, he is FREDERICK B. P sicaicaagng granted leave to do so within ten days. Plaintiff-Appellant, versus Dexta Air LINES, INC., et al., Defendants-Appellees. Appeal from the United States District Court for the Northern District of Georgia Before GEE, HENDERSON and HATCHETT, Circuit Judges. BY THE COURT: 7 IT IS ORDERED that Appellant’s motion for this panel to stand recused and to vacate various of its prior orders is DENIED. IT Is FURTHER ORDERED that Appellant’s petition for rehearing and for other relief lodged with Chief Judge Brown having been, by the Chief Judge’s instructions, referred to the panel which entered the orders of which rehearing is sought, is DENIED. IT IS FURTHER ORDERED that counsel for Appellant, Mr. Eugene J. Carella, before seeking to practice further before this Court, obtain admission to its Bar as required by Local Rule 5. The Clerk is directed to mail to Mr. Carella the form required by Rule 46, Fed.R.App.P. and to accept no further - filings by Mr. Carella until he shall have been admitted to the Bar of this Court. APPENDIX L United States Court of Appeals FIFTH CIRCUIT OFFICE OF THE CLERK December 18, 1979 GILBERT F. GANUCHEAU .. TEL 504-589-6514 CLERK 600 CAMP STREET NEW ORLEANS, LA 70130 Mr. Ben H. Carter, Clerk U. S. District Court 56 Forsyth St., NW Atlanta, GA 30303 NOS. 79-1763 & 79-3207— | FREDERICK B. PFISTER VS. DELTA Air Lines, INC., et al. (Dist. Ct. No. C78-1567A) Dear Mr. Carter: Enclosed is a certified copy of this Court’s order of November 13, 1979 which is reissued as and for the mandate in the above cases. The records in each case will be returned at a later date. Very truly yours, GILBERT F. GANUCHEAU, Clerk BY BRENDA HAUCK Deputy Clerk /bh enclosure cc: (LETTER ONLY) Mr. Eugene J. Carelia Mr. Peter G. Nash Messrs. Eugene G. Partain David C. Garrett, III Mr. Hugh E. Wright APPENDIX M United States District Court NORTHERN DISTRICT OF GEORGIA OFFICE OF THE CLERK Room 100, U. S. Courthouse 56 Forsyth Street, N.W. Atlanta, Georgia 30303 BEN H. CARTER IN REPLYING, GIVE NUMBER CLERK OF CASE AND NAMES OF PARTIES Eugene J. Carella RE: FREDERICK B. PFISTER 5455 Wilshire Blvd. vs Suite 1706 DeLTa Aire Lines, INc., Et AL Los Angeles, California 90036 C78-1567A NOTICE Please be advised that effective December 3, 1979, the above styled action has been reassigned to the Honorable Robert H. Hall. If you have any questions, please contact Kay Bates, Courtroom Deputy Clerk for Judge Hall at (404) 221-5207. BEN H. CARTER, CLERK By KAY BATES Kay Bates Courtroom Deputy Clerk APPENDIX N United States District Court NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FREDERICK B. PFISTER Civit ACTION Vs. No. C78-1567A DELTA AIRLINES, INC., et al. ORDER This action is currently before the court on plaintiff's motion for disqualification of the undersigned distnct judge. Inasmuch as this case is being transferred to Judge Robert H. Hall, who was recently. appointed to this court, plaintiff's motion is DENIED AS MOOT. SO ORDERED, this 18th day of December, 1979. NEWELL EDENFIELD Newell Edenfield, ‘United States District Judge APPENDIX O In The United States Court of Appeals FOR THE FIFTH CIRCUIT Nos. 79-1763 & 79-3207 FREDERICK B. PFISTER, Plaintiff-Appellant, versus DELTA AiR LINES, INC., et al., Defendants-Appellees. INDEX VOLUMES DOCUMENTS Volume I I l Volume II MERA LC TO COTTON LT RECT 2 Volume III Motion To Dismiss Appeal No. 79-1763 ............:cccccceseseeeeseees 3 Order Granting Motion to Dismiss Appeal No. 79-1763........ 4 Telegraphic Motion For Recall Of Mandate in cause No. Pa ia sai iech talon cclaita Sach gipecdidakh Adneghosutidenigionbbotnenaléncsandeibosinesias 5 Order Granting Motion For Recall Of Mandate in cause No. RE ee aiieaasatiiiiei th Nai dikDinsiiclisteabieancapicadubeiatistbarabatbebasaahabooaics 6 Order Denying Petition For Rehearing And Petition For Rehearing En Banc in cause No. 79-1763 ............:.sceses0e00. 7 Motion For Stay And To Consolidate Appeals Nos. 79-1763 raat achanaacattscihS cestaggthidcedcesuneinpsandesciasssbandces 8 Motion to Dismiss Appeal And To Hold Plaintiff's Counsel Personally Responsible For the Costs, Including At- torneys’ Fees filed in No. 79-3207.................c.ccccccossssccosseceees 9 VOLUMES DOCUMENTS Addendum To Brief In Support Of Motion To Dismiss, etc., a TI SP iia arrcliserettncdisaieipecadeniintdomndianteesatenasateientns Appellee’s Response To Appellant’s Motion For Stay and Consolidation in Nos. 79-1763 and 79-3207 ..............sscee000 Appellant’s Opposition And Cross-Request For Sanctions PS NINN RUT. FI chicas ie eenntale sOtigeinsccnbiniceennsoneds Motion For Leave To File Amended Complaint And Plead- ing In This Court filed in cause Nos. 79-1763 and 79-3207 Motion To Disqualify Legal Counsel For The Defendants- Appellees filed in cause Nos. 79-1763 and 79-3207............ Motion For Stay Of All Proceedings filed in cause Nos. 79- Se UE i cnetechecctcniicph