The opinion of the court was delivered by: Richard Mills, District Judge.
Summary judgment for Defendants.
Thomas D. White is an 81 year old former employee of E & F
Distributing Company (E & F) and worked for E & F from 1949
through December 31, 1979. For the first three to five years he
worked for E & F, White drove a truck and earned a regular
salary. At some point between 1952 and 1955, he became a
commissioned liquor salesman. In that capacity, he received no
regular salary, was paid a straight 3 or 3.2% commission, and
paid all of his own expenses. This compensation arrangement
continued until White retired from E & F in 1979.
On September 28, 1968, E & F adopted a pension plan, the E &
F Distributing Company Employees' Pension Plan (the Plan). The
1968 version of the Plan provided:
(a) he must be actively at work.
The 1968 version of the Plan computed pension payments based on
each participant's "annual compensation." The Plan defined
annual compensation as: "The amount paid as the fixed salary or
wage of a Participant immediately prior to the latest
Anniversary Date of the Plan, excluding commissions, bonuses,
overtime, premiums, and other non-recurring compensation."
Effective September 28, 1976, E & F replaced the 1968 version
of the Plan. The new Plan specifically excluded commissioned
salesmen from participation.
Despite language in the Plan documents which allows the Plan
to exclude commissioned salesmen from participation, several
commissioned salesmen have been allowed to participate.
Henry Manci, who took over White's job when he retired in
1980, has been listed as a participant since 1982.
Donald Ginder has been a participant since 1968. At that time
Mr. Ginder was a salaried employee. He has been carried as a
participant through an "administrative error," despite the fact
that he has been a commissioned salesman since sometime between
1973 and 1981.
James Egizii has been employed by E & F since 1975 and has
been a participant since 1977. E & F initially employed James
Egizii as a merchandiser and paid him a salary. At some point
during his tenure, James Egizii became a wine salesman and wine
sales manager. In that position he received both a salary and
David Hatfield has been employed by E & F since 1977 and has
been a participant since 1979. Like James Egizii, Mr. Hatfield
has been paid either a salary or a combination of salary and
commission. When E & F first hired Hatfield, he worked as a
special wine promoter and received a salary. At some point,
Hatfield also assumed sales duties, for which he earned a
Lou Wells, Walter Brown, Larry Gawthrop, Robert Stewart,
Ronald Adams, and Roger Ortman have been commissioned salesmen
for E & F since the early to mid 1980s and have all been
treated as participants in the Plan.
White requested pension benefits on April 22, 1993. This
lawsuit arises out of the Plan's refusal to pay a pension to
B. Procedural Background
This case began on May 20, 1994 when White filed his
Complaint, in which he names three separate defendants in three
counts. Count I requests relief from the E & F Distributing
Company Employees' Pension Plan (hereinafter referred to as
simply the Plan); Count II requests relief from Springfield
Marine Bank, n/k/a Bank One, Springfield, as Trustee (Bank
One); and Count III requests relief from E & F Distributing
Company as Plan administrator and employer (E & F).
On July 25, 1994, the Defendants answered the complaint by
responding to the allegations of paragraphs 1-16 of each count.
Defendants Bank One and E & F, however, failed to respond to
several allegations in the Counts against them.
On November 3, 1994, United States Magistrate Judge Charles
H. Evans entered the Scheduling Order. The Scheduling Order
provided that no motions to amend the pleadings or to join
parties could be filed after the date of the order.
Additionally, the Scheduling Order set June 23, 1995 as the
final date for filing dispositive motions.
On March 31, 1995, Defendants sought leave to file
affirmative defenses. Magistrate Judge Evans denied that motion
on reconsideration on June 23, 1995. Then Bank One and E & F
filed a motion for leave to amend their faulty answers. The
Court denied that motion on October 2, 1995, at which time the
Court also denied Defendants' objection to Magistrate Judge
Evans' order striking their affirmative defenses.
Shortly after this Court denied Defendants leave to amend
their answers, Defendants' attorney sought to withdraw from
this case. Defendants' attorney felt that the proceedings
concerning Defendants' Answers had created a conflict between
counsel and clients. Eventually, the Court allowed that
motion and replacement counsel stepped in.*fn1
The Court held a final pretrial conference on February 20,
1996. The case was set on the Court's March 1996 trial
calendar. Due to the number of criminal and civil jury trials
set that month, finding time for the bench trial in this case
seemed unlikely. Plaintiff, not wanting to simply waste the
time waiting for trial, filed a motion for summary judgment on
Counts II and III. And here we are.
Plaintiff's motion precipitated cross-motions and responses.
Ordinarily the Court would not entertain such untimely motions
for summary judgment (the deadline for filing dispositive
motions was June 23, 1995).*fn2 This case, however, is set for
a bench trial. The motions for summary judgment propose to
resolve this case, either partially or wholly, without the need
for a trial. Therefore, this is one instance in which deviation
from the scheduling order actually serves the interests of
justice by decreasing the burden on the Court's scarce
resources, especially trial time.
C. Positions of the Parties
Plaintiff opened the floodgates to late-filed motions for
summary judgment when, on March 15, 1996, he filed a motion for
summary judgment. That motion related only to Counts II and
III, which are against Bank One and E & F. White's motion,
which did not comply with Local Rule 7.1(D)(1) (requiring that
a "Statement of Undisputed Facts" accompany all motions for
summary judgment), raised only one issue. White argued that
because Bank One and E & F neglected to answer Count III,
paragraphs 17-20, and Count III, paragraphs 17-24,
respectively, they had admitted them under Fed.R.Civ.P. 8(d).
Without objecting to the lateness of Plaintiff's motion, the
Plan filed a motion for summary judgment on March 18, 1996. The
Plan's motion related only to Count I and argued simply that
White was never eligible to participate in the Plan, and
consequently could not claim that Defendants wrongly denied him
pension benefits. Just like Plaintiff's motion, this motion did
not comply with Local Rule 7.1(D)(1).
Also on March 18, 1996, E & F filed a cross-motion for
summary judgment with respect to Count III. This motion, again
lacking the required statement of undisputed facts, adopted the
Plan's argument and additionally asserted that under the
Employee Retirement Income Security Act of 1974 (ERISA), White
could not recover from a plan fiduciary the relief he sought in
Count III. E & F contended that even if it had failed to answer
some portions of the complaint, it had denied that White was
eligible to participate in the Plan. E & F also argued that
White was not entitled to the relief he sought as a matter of
law, so E & F's failure to answer part of the Complaint had no
Finally, on March 21, 1996 Bank One chimed in. Its motion
addressed Count II. Unlike the other motions, Bank One's motion
was accompanied by the required statements regarding disputed
and undisputed facts. Like the other two defendants, Bank One
argued that White was not eligible to participate in the Plan.
Bank One also argued that White could not recover his benefits
through an individual action against the Plan's trustee.
On April 4, 1996 White responded to the Plan's motion for
summary judgment. This time, White filed a statement of
undisputed facts. In that statement, White partially adopted
Bank One's statement of undisputed facts and added new
information, supported by discovery material.
Finally, on April 12, 1996, Bank One responded to White's
statement of undisputed facts.
II. SUMMARY JUDGMENT STANDARD
Under Fed.R.Civ.P. 56(c), summary judgment "should be granted
if the pleadings and
supporting documents show that `there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.'" Ruiz-Rivera v. Moyer,
70 F.3d 498, 500-01 (7th Cir. 1995). The moving party has the burden of
providing proper documentary evidence to show the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine
issue of material fact exists when "there is sufficient
evidence favoring the nonmoving party for a jury to return a
verdict for that party." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
Courts must consider evidence in the light most favorable to
the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144,
90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).*fn3
Once the moving party has met its burden, the opposing party
must come forward with specific evidence, not mere allegations
or denials of the pleadings, which demonstrates that there is
a genuine issue for trial. Howland v. Kilquist, 833 F.2d 639
(7th Cir. 1987). "A scintilla of evidence in support of the
nonmovant's position is insufficient to successfully oppose
summary judgment; `there must be evidence on which the jury
could reasonably find for the [nonmoving party].'" Brownell v.
Figel, 950 F.2d 1285 (7th Cir. 1991) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505,
2512, 91 L.Ed.2d 202 (1986)).
Summary judgment is an appropriate tool in cases such as this
one, which are essentially contract interpretation cases.
GCIU Employer Retirement Fund v. Chicago Tribune Co.,
66 F.3d 862, 864 (7th Cir. 1995) ("In this case, there is no dispute
over the material facts and the issue presented is solely one
of contract interpretation — a question of law. Resolution at
the summary stage is therefore appropriate.") (citations
omitted); Murphy v. Keystone Steel & Wire Co., 61 F.3d 560,
564-65 (7th Cir. 1995) ("Summary judgment is particularly
appropriate in cases involving the interpretation of
In their motions and cross-motions, the parties raise three
legal issues: (1) whether White was eligible to participate in
the Plan; (2) whether ERISA allows White to recover the damages
he seeks from E & F and Bank One; and (3) whether E & F and
Bank One must concede defeat because they failed to answer part
of the Complaint.
A. Was White Eligible to Participate in the Plan?
All three Defendants join in challenging White's lawsuit
because they believe that White was not eligible to participate
in the Plan. Defendants do not seem to attack this suit on the
basis of standing, but instead challenge White's ultimate right
to any benefits.
Whether White was eligible to participate in the Plan is a
central question for two reasons. First, if White was not
eligible to participate in the Plan, he might not be empowered
to bring this suit. Second, if White was not eligible to
participate in the Plan, he may not recover any benefits under
First, the question of standing. White sues under the
Employee Retirement Income Security Act of 1974 (ERISA),
29 U.S.C. § 1001-1461 (1994). Specifically, White proceeds under
29 U.S.C. § 1132(a)(1)(B), 1132(a)(2), 1132(a)(4), and
1132(c)(1) (1994). These sections provide various methods for
enforcing the terms of, and rights under,
pension plans. 29 U.S.C. § 1132 defines the available methods
of civil enforcement:
(a) Persons empowered to bring a civil action
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 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;
(2) by the Secretary, or by a
participant, beneficiary, or fiduciary for
appropriate relief under section 1109 of this
(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; . . .
Id. (emphasis added). 29 U.S.C. § 1132(c) provides a remedy for
plan administrators' failure to supply requested information to
participants or beneficiaries.
ERISA defines the term "participant" as "any employee or
former employee of an employer, or any member or former member
of an employee organization, who is or may become eligible to
receive benefits of any type from an employee benefit plan
which covers employees of such employer or members of such
organization, or whose beneficiaries may be eligible to receive
any such benefit." 29 U.S.C. § 1002(7) (emphasis added).
The courts have loosened the absolute-seeming language of
ERISA to permit suits by employees or former employees who have
colorable claims to vested benefits. Firestone Tire & Rubber
Co. v. Bruch, 489 U.S. 101, 117-18, 109 S.Ct. 948, 957-58, 103
L.Ed.2d 80 (1989) (holding that the term "participant" includes
"former employees who . . . have `a colorable claim' to vested
benefits") (quoting Kuntz v. Reese, 785 F.2d 1410, 1411 (9th
Cir.) (per curiam), cert. denied, 479 U.S. 916, 107 S.Ct. 318,
93 L.Ed.2d 291 (1986)). Only former employees whose claims are
"so bizarre or so out of line with existing precedent [that
they] necessarily stumble[ ] over the low threshold of the
`colorable' requirement" lack standing. Panaras v. Liquid
Carbonic Industries Corp., 74 F.3d 786, 790 (7th Cir. 1996)
(quoting Andre v. Salem Technical Services, 797 F. Supp. 1416
(N.D.Ill. 1992)). It is not necessary to decide whether White's
claim is bizarre or out of line with existing precedent because
Defendants have not explicitly challenged his standing*fn4 and
because the Court ultimately concludes that White is not
entitled to benefits under the Plan.
But the Court must still determine whether White was ever
eligible to receive benefits from the Plan. See Tolle v.
Carroll Touch, Inc., 977 F.2d 1129, 1133 (7th Cir. 1992)
(noting that when someone sues for benefits due "he or she is
essentially asserting his or her contractual rights under an
employee benefit Plan. . . . [a]nd, the wrong that the person
alleges in bringing such an action is that despite the fact
that he or she has satisfied the conditions necessary for
benefits under the plan, the defendant has failed to abide by
the terms of the plan") (citation omitted). If White was not
eligible to participate in the Plan, then his claim is futile
and the Court must dismiss this suit. To resolve that question,
the Court must look to the documents governing the Plan.
In cases brought under ERISA, federal courts apply federal
common law principles. GCIU Employer Retirement Fund, 66 F.3d
at 865. Federal courts "interpret
the terms of [ERISA governed plans] `in an ordinary and popular
sense as would a [person] of average intelligence and
experience.'" Hammond v. Fidelity and Guarantee Life Insurance
Co., 965 F.2d 428, 430 (7th Cir. 1992) (quoting Evans v. Safeco
Life Insurance Co., 916 F.2d 1437, 1441 (9th Cir. 1990)); see
also Phillips v. Lincoln National Life Insurance Co.,
978 F.2d 302, 308 (7th Cir. 1992). "Where the contract is unambiguous, a
court must determine the meaning of the contract as a matter of
law. The document should be read as a whole so that all its
parts will be given effect." Murphy, 61 F.3d at 565 (citations
White makes two arguments regarding his eligibility. First,
he argues that the plain language of the Plan unambiguously
included people like him — commissioned salesmen. Second, and
alternatively, he argues that the language of the Plan is
ambiguous in light of certain extrinsic evidence. White argues
that because the Defendants apparently allowed several
commissioned salesmen to participate, the terms of the Plan are
ambiguous. Even though it may appear to exclude commissioned
salesmen, White argues, the Plan's inclusion of some
commissioned salesmen means that the Plan was not really meant
to exclude commissioned salesmen.
1. Is the Language of the Plan Ambiguous on its Face?
The terms of the Plan
are not ambiguous. The Plan
clearly excludes commissioned salesmen from the class of
employees eligible to participate.
The Court must follow well established principles when
reading the Plan documents.
Murphy, 61 F.3d at 565 (citations omitted) (emphasis in
Defendants argue that by allowing only "salaried employees"
to participate, the Plan excluded other types of employees,
namely hourly and commissioned employees. Even if the term
"salaried employees" is not crystal clear on its face,
Defendants claim, its meaning is clarified by the exclusion
from "annual compensation" of all commissions. The Court
agrees. The term "salaried employee" is unambiguous and does
not, in its ordinary sense, include individuals paid solely a
commission based on sales volume. The Court also agrees that
the Plan document, taken as a whole, does not include
commissioned salesmen, because it excludes from the calculation
of pension benefits any earnings in the form of commissions.
The 1968 version of the Plan listed salaried employees as the
employees eligible to participate in the Plan. The term
salaried means "receiving a salary . . . contrasted with
hourly-rated." Webster's Third New International Dictionary
2003 (1986). A salary is defined as "Fixed compensation paid
regularly (as by the year, quarter, month, or week) for
services." Id. Salary's obsolete definition is "remuneration
for services given." Id. The term "salaried employee,"
therefore, means an employee who is paid a fixed amount of
money on a periodic basis (the period being larger than an
Now the Court must tackle the question implicitly raised by
White's response to Defendants' motions: does Defendants'
apparent disregard of the language excluding commissioned
salesmen entitle White to pension benefits?
Id. One reason why plan fiduciaries should not be forced to pay
benefits not called for in the written plan is that "[f]orcing
trustees of a plan to pay benefits which are not part of the
written terms of the program disrupts the actuarial balance of
the Plan and potentially jeopardizes the pension rights of
others legitimately entitled to receive them." Id. at 389; see
also Central States, Southeast and Southwest Areas Health and
Welfare Fund v. Neurobehavioral Assocs., 53 F.3d 172 (7th Cir.
1995); Cefalu v. B.F. Goodrich Co.,
, 1296 (5th
Not only has the Seventh Circuit been reluctant to allow
actions for benefits when a plan does not provide for them, but
it has also held that strict enforcement of a plan against one
employee and not against others does not violate ERISA. In
McGath v. Auto-Body North Shore, Inc., 7 F.3d 665 (7th Cir.
1993), an employee argued that he was the victim of
discrimination under 29 U.S.C. § 1140 because the trustees of
his employer's pension plan strictly enforced eligibility rules
to keep him out of the plan while they apparently allowed in
other employees who did not qualify. Id. at 669-670. The
Seventh Circuit said that such conduct by a trustee did not
amount to discrimination. "Because the plan must be
administered according to its terms, [plaintiff] cannot
complain because he is held to those terms; this is true even
if the rules were bent for another individual." Id. at 670
(footnote omitted). Although McGath involved a claim of
discrimination under ERISA § 510, it is still instructive.
McGath held that an employee cannot complain about treatment by
his employer or the plan trustees so long as they acted within
the scope of the written documents. Furthermore, the Seventh
Circuit's statement was not based as much on ERISA § 510 as on
29 U.S.C. § 1104(a)(1)(D), which provides that fiduciaries must
discharge their duties "in accordance with the documents and
instruments governing the plan." 7 F.3d at 670 n. 5.
Allowing White to recover benefits would undermine the
explicit terms of the Plan. The Court does not know why some
commissioned salesmen at E & F have been allowed to participate
in the Plan. Perhaps the trustees have violated their fiduciary
duties to the other participants in the Plan by admitting
unqualified participants. That fact, however, does not affect
this case. White is clearly not eligible to participate in the
Plan. Therefore, the Plan and its fiduciaries cannot be held
liable for failing to pay him a pension.
Possibly, White could have invoked estoppel to claim that
Defendants could not deny him the right to participate after
having allowed other commissioned salesmen to participate.
See Weatherly v. Illinois Bell Telephone, 856 F. Supp. 1301
(N.D.Ill. 1994).*fn6 The Seventh Circuit has approved the use
of equitable estoppel in at least one type of case. Black v.
TIC Investment Corp., 900 F.2d 112, 115 (7th Cir. 1990); see
also Krawczyk v. Harnischfeger Corp., 41 F.3d 276, 280 (7th
Cir. 1994) (noting that the Seventh Circuit has approved use of
estoppel for unfunded welfare plans, but declining to address
whether the concept should apply to funded plans); Russo v.
Health, Welfare & Pension Fund, Local 705 International
Brotherhood of Teamsters, 984 F.2d 762, 767 (7th Cir. 1993).
But the Court can find no authority for the proposition that
plan fiduciaries may
be estopped to withhold pension benefits from a former employee
simply because the fiduciaries have allowed other similarly
situated employees to participate.*fn7 White might also argue
that Defendants' conduct constituted an informal modification
of the terms of the agreement. But such modifications are not
permitted. "[A]s a general rule, ERISA does not recognize oral
modification of a written benefit plan. . . ." Russo, 984 F.2d
Even if the Court adopted the theory White proposes, it is
unclear what benefits he would be entitled to. No employees
hired before 1980 who have been exclusively commissioned
salesmen have been allowed to participate. White lists three
employees hired before 1980 who have been listed as
participants: Donald Ginder, James Egizii, and David Hatfield.
These three employees were all either eligible to participate
under the plain language of the Plan at some point since 1968
or are still eligible.
Mr. Ginder has been a participant since 1968, when he was a
salaried employee. He has been carried as a participant through
an "administrative error," despite becoming a commissioned
salesman since at some point between 1973 and 1981. Mr. Egizii
has been employed by E & F since 1975 and has been a
participant since 1977. During his employment, Mr. Egizii has
been paid either a salary or a combination of salary and
commission. Therefore, Mr. Egizii has always been eligible to
participate, but may not be entitled to a pension based on his
total compensation. Mr. Hatfield has been employed by E & F
since 1977 and has been a participant since 1979. Like Mr.
Egizii, Mr. Hatfield has been paid either a salary or a
combination of salary and commission.*fn8
The Court declines White's invitation to ignore the
unambiguous language of the Plan. Even if the Court did ignore
the Plan's exclusion of commissioned salesmen, the extrinsic
evidence White offers does not lead to the conclusion that
White should receive pension benefits. See Howe, 896 F.2d at
1110 ("[I]t is the extrinsic evidence itself . . . that is
Even though Defendants are entitled to summary judgment
because White was not eligible to become a participant, the
Court will address Bank One's and E & F's alternate argument
that if White was eligible to participate in the Plan, ERISA
does not authorize the relief he seeks from them.
Counts II and III are virtually identical. These Counts state
that they arise under 29 U.S.C. § 1132(a)(1)(B), 1132(c)(1),
1109, 1132(a)(2), 1025(c), and 1132(a)(4). Count II demands:
(1) that the Court order Bank One to pay Plaintiff all benefits
due under the Plan, (2) that the Court declare that Plaintiff
has vested and non-forfeitable rights in the money deemed due,
and (3) costs and attorneys fee's. Count III requests identical
relief with respect to E & F.
Of the ERISA sections listed in the Complaint only two allow
civil actions against Bank One and E & F. Sections 1132(a)(2)
and 1132(c) provide for relief against fiduciaries and
administrators respectively. The Court will address only §
1132(a)(2) because whether White is entitled to relief under
1132(c) depends on whether he was a participant — an issue the
Court has already addressed.
Section 1132(a)(2) provides that a civil action may be
brought "for appropriate relief under section 1109 of this
title." 29 U.S.C. § 1109 provides:
A plan participant may not individually recover unpaid benefits
under § 1132(a)(2). Massachusetts Mutual Life Insurance Co. v.
, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985).
White suggests that the Supreme Court's recent decision in
Varity Corp. v. Howe, ___ U.S. ___, 116 S.Ct. 1065, 134 L.Ed.2d
130 (1996), somehow changed the law. In Varity Corp., however,
the Court distinguished Russell because that case dealt only
with § 1132(a)(2), while the plaintiff in Varity Corp. had
proceeded under § 1132(a)(3). Id. at ___, 116 S.Ct. at 1076.
White makes two arguments to evade the consequences of
proceeding solely under 1132(a)(2). First, he argues that the
duty he is trying to enforce is one found in the Plan, not in
ERISA. Second, he argues that his failure to bring his suit
under 29 U.S.C. § 1132(a)(3), which allows individual relief,
is inconsequential because he may amend his pleadings to
reflect the evidence.
White's first argument is circular. While the Plan imposes
duties on its fiduciaries, ERISA imposes a duty on the
fiduciaries to follow the terms of the Plan.
29 U.S.C. § 1104(a)(1) ("[A] fiduciary shall discharge his duties with
respect to a plan solely in the interest of the participants
and beneficiaries and — . . . (D) in accordance with the
documents and instruments governing the plan . . . ").
Therefore, although White may rely on the language of the Plan,
any right to sue the fiduciaries comes from ERISA.
White's second argument also fails. It should be clear to
everyone involved in this case that the Court does not take
lightly motions to amend the pleadings filed late in the case.
Furthermore, amending the Complaint would have no effect at
this point, because the Court has entered a Pretrial Order.
That Order does not mention 29 the other statute sections
included in the Complaint. Therefore, Plaintiff has forfeited
his right to proceed under that section. See Nagy v. Riblet
Products Corp., 79 F.3d 572, 574-75 (7th Cir. 1996).
White also improperly relies on amendments to conform
pleadings to the evidence. Rule 15(b) allows such amendments
"[w]hen issues not raised by the pleadings are tried by express
or implied consent of the parties. . . ." Fed.R.Civ.P. 15(c).
Obviously, Defendants do not consent to Plaintiff's attempt to
proceed under § 1132(a)(3).
Ultimately, it is unnecessary to resolve the third legal
issue the parties raise in their motions. White was never
eligible to participate in the Plan and the relief he seeks in
Counts II and III is barred by ERISA. Therefore, even if Bank
One and E & F did admit part of the Complaint by failing to
answer it, their admission would have no impact on the outcome
of this case.
Despite all the wrangling over the pleadings that has
occurred in this case, this case boils down to a simple legal
question that could, and probably should, have been resolved by
a motion to dismiss or a timely-filed motion for summary
judgment. Considering the resources the parties and the Court
have expended in this matter, the outcome is unfortunate, but
it is the outcome that the law mandates. The Court must grant
summary judgment in favor of Defendants because White is not
entitled to the relief he seeks.
Ergo, Plaintiff's Motion for Partial Summary Judgment is
DENIED; Defendant E & F Distributing Company Employees' Pension
Plan's Motion for Partial Summary Judgment is ALLOWED;
Defendant E & F Distributing Company, as Plan Administrator and
Employer's Cross-Motion for Summary Judgment is ALLOWED;
Defendant Springfield Marine Bank, n/k/a Bank One, Springfield,
as trustee's Cross-Motion for Summary Judgment on Count II is
As no other issues remain to be resolved, this cause is
DISMISSED with prejudice, each party to bear its own costs.