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ROCHFORD v. JOYCE

November 16, 1990

PETER J. ROCHFORD, CARMEN DeSANTO, ANDREW GRETCHOKOFF, and RALPH ELLIOT, individually and on behalf of all others similarly situated, Plaintiffs,
v.
WILLIAM D. JOYCE, JOHN D. KELAHAN, FRANK WSOL, ROBERT J. BAKER, JOHN J. BARRANCO, MICHAEL P. MURPHY, INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL 710 PENSION FUND, Defendants



The opinion of the court was delivered by: MORAN

 Plaintiffs Peter J. Rochford, Carmen DeSanto, Andrew Gretchokoff *fn1" and Ralph Elliot, file this action individually and on behalf of a class of plaintiffs who were denied pension benefits by defendants allegedly due to various restrictive vesting requirements. These restrictive practices include a requirement to accumulate twenty years of covered employment; the requirement to attain a certain age when a worker attains twenty years of covered employment; not allowing or only allowing limited break-in-service periods; and not allowing workers with break-in-service periods to self-pay. In their three-count complaint plaintiffs allege that defendants, the International Brotherhood of Teamsters Local 710 Pension Fund ("the Fund") and its trustees, breached their fiduciary duties under § 404(a)(1) of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1104(a)(1), by establishing, maintaining and administering the Fund to the detriment of the plaintiffs; breached their fiduciary duties under § 302(c)(5) of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 186(c)(5), by failing to maintain the Fund for the sole and exclusive benefit of the employees; and committed common law fraud by making misstatements and omissions of material facts relating to the employees' interest in the Fund. Defendants now move for summary judgment against plaintiffs DeSanto, Rockford and Gretchokoff, individually, based on a multitude of defenses, including non-justiciability of the claims; non-application of ERISA to pre-ERISA plans; non-applicability of the LMRA; failure to exhaust administrative remedies under ERISA and the LMRA; failure to plead fraud with particularity as required by Rule 9(b) of the Federal Rules of Civil Procedure; preemption of common law fraud by ERISA; and bars by the applicable statutes of limitations.

 FACTS

 Plaintiff Rochford was a dockman and accumulated twenty years of Local 710 covered service between 1953 and 1973. In April 1973 Rochford was fired from his job due to excessive absenteeism. At that time he had not attained the age of 50. Rochford did not work thereafter in Local 710 covered employment. In 1976 Mr. Rochford applied for a deferred pension but the Fund rejected his application because he was not in covered employment after August 1, 1973. *fn2" In 1985 Rochford again applied for a pension -- this time an early retirement pension. On September 10, 1985, the Fund once again rejected his application, although Rochford had accumulated twenty years of covered service. According to the trustees, Rochford was required to complete thirty years of covered service or be 50 years old at the time he completed twenty years of service to be eligible for an early retirement pension. Rochford took no further action to appeal the Fund's denial of either pension.

 Plaintiff DeSanto accumulated 19 years and eight months of covered employment and voluntarily left covered service in 1970, at the age of 41. In 1973 or 1975, DeSanto contacted an unidentified employee of the "Federal Labor Board" about his lack of a pension and allegedly was told that the agency could do nothing because DeSanto had no vested rights. He never filed an application for any kind of pension with the Fund and never asked to make self-payments to ensure 20 years of covered service.

 Plaintiff Gretchokoff worked in covered employment for 18 years and was laid off in 1980 at age 53 due to termination of his employer's business. He subsequently became disabled, allegedly due to a prior on-the-job injury, and was unable to obtain covered employment. Gretchokoff now suffers from diabetes mellitus, is partially paralyzed, has had his legs amputated, and is not mentally competent. He applied for a disability pension in September 1981. The Fund denied his application in November 1981 because he was not in covered service at the time he became totally and permanently disabled. He appealed the denial and exhausted his administrative remedies, but the trustees denied his appeal on March 1, 1982. *fn3" Due to his medical condition, Gretchokoff did not appear for a deposition.

 DISCUSSION

 I. Standard of Review

 Courts grant summary judgment where "there is no genuine issue as to any material fact and where the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). We resolve ambiguities against the movant and draw all reasonable inferences in favor of the non-movant. Roman v. United States Postal Service, 821 F.2d 382, 385 (7th Cir. 1987). However, the non-movant may not rest on denials; that party must set forth specific facts showing that there is a genuine issue of material fact. Anderson, 477 U.S. at 248.

 One issue on this motion is whether plaintiffs' claims are barred by the applicable statutes of limitations. Determining the date on which the plaintiffs knew or had reason to know of defendants' alleged wrongdoing generally is a question of fact which should not be decided prior to trial. Walker v. Aetna Life Insurance Co., 1988 Fed.Sec.L.Rep. (CCH) P 93,955, at 90,430 (N.D. Ill. 1988). However, summary judgment may be available on this issue based on the record before the court. Id. at 90,430.

 II. Justiciability of DeSanto's Claims

 Before we discuss the substance of this complaint we must determine whether we have the power to hear DeSanto's claims. Our task is made that much harder due to DeSanto's failure to respond to this issue, which was raised by defendants. Nevertheless, this court must address the issue of justiciability.

 The record clearly shows that DeSanto never applied for a pension (DeSanto dep. at 6-7). Thus he has never been denied a pension. Nor is there any evidence that he ever contacted the Fund. We previously stated that

 
an employee normally has no real dispute with a pension fund until the application of its requirements to his personal circumstances causes him injury or he is immediately threatened with such injury.

 Daniel v. Peick, 2 Employee Benefits Cas. (BNA) 2303, 2310 (N.D. Ill. 1981) (citing Lugo v. Employees Retirement Fund of the Illumination Products Industry, 529 F.2d 251 (2nd Cir. 1976) cert. denied, 429 U.S. 826, 97 S. Ct. 81, 50 L. Ed. 2d 88 (1976)). We believe that the reasoning in Daniel applies to DeSanto as well. There is no evidence of injury or threat of injury at this time. It would be speculative for this court to predict what the trustees might do when DeSanto finally applies for benefits. See Stewart v. M.M. & P. Pension Plan, 608 F.2d 776, ...


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