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Solis v. Caro et al

April 12, 2012

SOLIS
v.
CARO ET AL



Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Amy J. St. Eve than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

Defendant Caro's motion to dismiss for lack of subject matter jurisdiction and improper venue [17] is denied. O[ For further details see text below.] Notices mailed by Judicial staff.

STATEMENT

Before the Court is pro se Defendant Nicholas C. Caro's ("Caro") motion to dismiss for lack of subject matter jurisdiction and improper venue. For the reasons set forth below, the Court denies Caro's motion in its entirety.

BACKGROUND

On September 30, 2011, Plaintiff Hilda L. Solis, Secretary of Labor, United States Department of Labor, (the "Secretary") filed a Complaint against Caro, N.C. Caro M.D., S.C. (the "Practice"), and the N.C. Caro M.D., S.C. Defined Benefit Plan (the "Plan"), alleging claims for breach of fiduciary under the Employee Retirement Income Security Act ("ERISA"), as amended, 29 U.S.C. §§ 1001, et seq. (R. 1, Compl.) The Secretary's Complaint seeks injunctive relief to redress violations, restitution from the Plan's fiduciaries, including Caro, and other equitable relief. (Id., Prayer for Relief.)

The Secretary alleges the following facts. The Plan is an employee benefit plan within the meaning of ERISA § 3(3), 29 U.S.C. § 1002(3). (Id. ¶ 3.) The Practice, an Illinois corporation, created the Plan on January 1, 1999, and amended and restated it on May 29, 2007, retroactively effective as of January 1, 2007, to provide pension, disability, and death benefits to eligible employees. (Id. ¶¶ 3, 11.) At all relevant times, the Practice was the Plan's sponsor, the Plan's administrator, and a fiduciary of the Plan. (Id. ¶ 5.) Caro was the president and sole owner of the Practice, the Plan's sole trustee, a fiduciary of the plan, and a party-in-interest to the Plan. (Id. ¶ 6) Caro's wife, Patricia Caro, who is not a party to this litigation, was a party-in-interest to the Plan during the relevant time period. (Id. ¶ 9.)

Courtroom Deputy KF

Initials:

Between April 27, 2006 and February 29, 2008, Caro liquidated more than $263,951.00 from the Plan's investment accounts and transferred it to accounts held in his own name, in his former medical practice's name, and in his wife's company's name. (Compl. ¶¶ 13-18.) Instead of using the money to provide benefits to the Plan's participants or to pay Plan expenses, Caro used it to pay for the Practice's operating expenses and legal fees, among other things. (Id. ¶¶ 15-20.) The Secretary avers that in doing so, Caro breached his fiduciary duty.

On July 15, 2011, Caro filed for chapter 7 bankruptcy in the U.S. Bankruptcy Court for the Northern District of Illinois in Case Number 11-29162. (Id. ¶ 8.) On October 13, 2011, the Secretary filed an adversary complaint against Caro in that court, seeking to have Caro's debt to the Plan deemed non-dischargeable. See Solis v. Caro, Adv. No. 11-02088 (Bankr. N.D. Ill.) at R. 1.

LEGAL STANDARD

In light of Caro's status as a pro se party, the Court liberally construes his motion. See Marshall v. Knight, 445 F.3d 965, 969 (7th Cir. 2006). Caro argues that the Court should dismiss this action because it is a "core proceeding" over which the Court lacks subject matter jurisdiction and because venue is improper. Caro also moves to enjoin the ...


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