The opinion of the court was delivered by: PHILIP REINHARD, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Margaret Johnson, as executor of the estate of Brian
Johnson, filed a first amended three-count complaint against Triangle
Metals, Inc., Brian's former employer, and Thomas Engineering, Inc.,
Triangle's parent. Count I asserts violations of the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Count II alleges
breach of fiduciary duties under the Employee Retirement Income Security
Act ("ERISA"), 29 U.S.C. § 1001 et seq. Count III claims defendants
violated Illinois law, 215 ILCS 5/231. l (H)(4), by failing to advise
Brian of his right to convert his group life insurance coverage to an
individual policy prior to expiration of his group coverage. Jurisdiction
is proper under 28 U.S.C. § 1331 for Counts I and II. The court has
supplemental jurisdiction over Count III pursuant to 28 U.S.C. § 1367
(a). Defendants move to dismiss Count II and III pursuant to
Fed.R.Civ.P. 12(b)(1), (6) and (7). Plaintiff concedes the weight of
authority favors ERISA preemption of Count III and does not oppose its
dismissal. Accordingly, Count III is dismissed with prejudice.
Brian was diagnosed with colon cancer while working for Triangle,
underwent surgeries and chemotherapy, and, in February 2002, returned to
full-time work at Triangle. Compl. ¶¶ 10-12. Brian's employment was
terminated by Triangle on May 9, 2002. Compl. ¶ 18. On December 13,
2002, Brain was found disabled by the Social Security Administration as
of May 9, 2002. Id. ¶ 16. Brian died April 12, 2003. Id., ¶ 13.
Defendants provided employees, as part of their welfare benefit plans, a
group life insurance policy issued by Sun Life providing a death benefit
to plan participants. Id. ¶ 14. Because Brian's employment had been
terminated, no benefits were paid under the group policy on his death.
Id., ¶ 15.
On a 12(b)(6) motion to dismiss all well-pleaded allegations ARB taken
as true, all reasonable inferences ARB drawn in plaintiff's favor, and
dismissal is appropriate only "when there is no possible interpretation
of the complaint under which it can state a claim." Flannery v. Recording
Indus. Ass'n of America, 354 F.3d 632, 637 (7th Cir. 2004). Count II
asserts defendants breached fiduciary duties under ERISA by failing to
advise Brian during the time he had cancer that he had a right to
accelerated life insurance benefits or a right to convert his group
coverage to an individual life insurance policy. Defendants argue
plaintiff received all necessary notice and submits supporting materials
to prove it. However, on a 12(b)(6) motion these documents outside the
complaint ARB not considered. See Berthold Types Ltd, v. Adobe Systems
Inc., 242 F.3d 772, 775 (7th Cir. 2001) (consideration of documents not
attached to complaint converts motion to one for summary judgment.) The
court declines to convert this motion to one for summary judgment and
therefore, will not consider the documents attached to defendants brief.
In this posture, plaintiff has alleged a fiduciary duty to inform Brian
of his conversion rights and his right to waive premiums and a breach of
that duty. Plaintiff has therefore stated a claim for 12(b)(6) purposes.
Defendants contend in their opening brief that Count II should be
dismissed pursuant to Fed.R.Civ.P. 12(b)(7) because Sun Life is not named
as a defendant and is a necessary party. Plaintiff asserts Sun Life is
not a necessary party to Count II because its conduct is not challenged
and relief can be accorded plaintiff without reference to Sun Life.
Plaintiff is only claiming a breach of fiduciary duties by defendants.
Defendants do not address Plaintiff's argument or the issue of the
nonjoinder of Sun Life in their reply brief at all.
Dismissal is not the preferred course for failing to join a party. See
Davis Companies v. Emerald Casino. Inc., 268 F.3d 477, 481 (7th Cir.
2001). The court employs a two step process determining first whether a
party is one that should be joined if feasible and if the answer is
"yes", but it cannot be included, whether the litigation can proceed in
its absence. Id. In determining whether a party should be joined pursuant
to Fed.R.Civ.P. 19(a) the court considers "(1) whether complete relief
can be accorded without joinder, (2) whether [the party to be joined's]
ability to protect [its] interest will be impaired, and (3) whether the
existing parties will be subject to a substantial risk of multiple or
inconsistent obligations" if not joined. Id. The term "complete relief"
means relief "between the persons already parties, and not as between a
party and the absent person whose joinder is sought." Id. at 484 (internal
quotes and citation omitted.) Plaintiff's claim in Count II concerns
simply whether defendant's as ERISA fiduciaries breached duties
established by ERISA in failing to provide Brian information related to
his rights under the plan. The absence of Sun Life does not bear on
whether the actions taken by plan fiduciaries constituted a breach.
Complete relief is possible between the parties. Sun Life's ability to
protect its interest will not be impaired. Whether a breach by defendants
occurred has no impact on Sun Life. The existing parties will not be
subject to multiple or inconsistent obligations. A finding defendants ARB
liable will not expose them to further liability to Sun Life.
Accordingly, Sun Life is not required to be joined as a party.
For the foregoing reasons, defendants' motion to dismiss Count II is
denied and their motion to dismiss Count III is granted. Count III is
dismissed with prejudice.
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