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TRUSTEES OF CENT. LABORERS' PEN. v. TISLER

July 29, 1986

TRUSTEES OF CENTRAL LABORERS' PENSION FUND, A TRUST FUND, TRUSTEES OF CENTRAL LABORERS' WELFARE FUND, A TRUST FUND, AND TRUSTEES OF ILLINOIS LABORERS' & CONTRACTORS' TRAINING PROGRAM & TRUST FUND, PLAINTIFFS,
v.
AUSTIN TISLER, D/B/A TISLER CONCRETE CONSTRUCTION, AND CAROL TISLER AND GREG TISLER, CO-EXECUTORS OF THE ESTATE OF JOHN AUSTIN TISLER, DECEASED, DEFENDANTS.



The opinion of the court was delivered by: Mihm, District Judge.

ORDER

Plaintiffs, Trustees of the three above-named trust funds, have filed this action seeking payment of unpaid fringe benefits contracted for by the Defendant, Austin Tisler. Jurisdiction is asserted pursuant to 29 U.S.C. § 185 and and 1132 and 28 U.S.C. § 1331.

This action was originally filed on July 26, 1985 against Austin Tisler and Henry Tisler, doing business as Tisler Concrete Construction. Plaintiffs learned during discovery that Henry Tisler was not, in fact, a partner in the concrete company and he was dismissed on stipulation for voluntary dismissal on February 6, 1986. Plaintiffs also learned that John Austin Tisler was dead and that Carol Tisler and Greg Tisler had been appointed co-executors of his estate (pursuant to an order of the Circuit Court of LaSalle County, Illinois, Probate Division, dated the 14th day of September, 1984). On March 20, 1986, Plaintiffs amended their complaint to add the co-executors as party Defendants. Thereafter, on April 30, 1986, Defendants Carol and Greg Tisler moved to dismiss the complaint. That motion is presently pending.

The argument of Defendants for dismissal is a two-pronged one. First, they claim that there is nothing in the amended complaint which either alleges or states a cause of action against Carol and Greg Tisler as individuals. The action against them must, therefore, lie, if at all, as executors of John Tisler's estate. The second step of their argument is that, under Illinois law, any claims against a decedent's estate must be filed within six months of the appointment of the executor and issuance of papers of administration. In this case, that happened on September 14, 1984. The complaint was not filed until July 26, 1985.

Notice of the death and the issuance of letters of office was published for three weeks beginning on September 19, 1984 and ending October 3, 1984 in the Ottawa Daily Times. The claim notice contained the following statement:

  "Claims against the estate may be filed in the
  office of the Clerk of Court, LaSalle County
  Courthouse, Ottawa, Illinois 61350, or with the
  representative, or both, within six months from
  the date of issuance of letters and any claim not
  filed within that period is barred. . . ."

The Plaintiffs respond to the motion to dismiss by claiming that exclusive jurisdiction of their cause of action is vested in the federal district courts by 29 U.S.C. § 1132(e) and that, pursuant to 29 U.S.C. § 1144, the law of the State of Illinois is preempted. The only exception to the exclusivity of jurisdiction, they assert, relates to the right of a participant or beneficiary of a fund or program to recover benefits in state court. 29 U.S.C. § 1132(a)(1)(B); Laborers' Health and Welfare Trust Fund v. Kaufman & Broad, Inc., 707 F.2d 412 (9th Cir. 1983).

The actual language of § 1144 reads as follows:

  "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."

Plaintiffs assert that subsection (b) contains no exemptions which are pertinent to the pending action.

The Plaintiffs contend that, inasmuch as the Illinois probate law would tend to bar cases otherwise timely filed pursuant to ERISA, the probate law does "relate to any employee benefit plan" and must be superseded pursuant to § 1144.

DECISION

Plaintiffs, Defendants, and the Court have all researched the issue carefully and conclude that this particular question is one of first impression.

As indicated by Plaintiffs, § 1144(a) of ERISA provides:

  "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) ...

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