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Cinecoe v. The Boeing Co.

United States District Court, N.D. Illinois, Eastern Division

September 5, 2017

Jean-Joseph Cinecoe, Plaintiffs,
v.
The Boeing Company, The BIS Savings Plan, and The Employee Benefit Committee, Defendants.

          MEMORANDUM OPINION AND ORDER

          Manish S. Shah United States District Judge.

         Plaintiff, Jean-Joseph Cinecoe, brings this action against defendants, the Boeing Company, the BIS Savings Plan, and the Boeing Employee Benefit Committee, under the Employee Retirement Income Security Act of 1974 and the Illinois Wage Payment and Collection Act. Defendants move to dismiss the complaint. For the following reasons, the motion is granted.

         I. Legal Standards

         To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain factual allegations that plausibly suggest a right to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court must accept all factual allegations as true and draw all reasonable inferences in the plaintiff's favor, but need not accept legal conclusions or conclusory allegations. Id. at 678-79. It is uncommon for district courts to dismiss a complaint at the pleading stage as untimely because a complaint is not required to anticipate or to overcome affirmative defenses, such as the statute of limitations. See Cancer Found., Inc. v.

         Cerberus Capital Mgmt., LP, 559 F.3d 671, 674 (7th Cir. 2009). Nevertheless, “if a plaintiff alleges facts sufficient to establish a statute of limitations defense, the district court may dismiss the complaint on that ground.” O'Gorman v. City of Chicago, 777 F.3d 885, 889 (7th Cir. 2015).

         II. Background

         Cinecoe was an employee of one of Boeing's subsidiaries from 1990 until 1998. [16-1] ¶¶ 6, 12.[1] During that time, Cinecoe's employer deducted wages from his paycheck and deposited them into a retirement savings plan, the BIS Savings Plan.[2] Id. ¶¶ 9, 13. Cinecoe believes that the deductions totaled $34, 380.73. Id. ¶ 14. In approximately July 1999, Boeing sold its subsidiary to Science Applications International Corporation. Id. ¶ 15. Pursuant to the sale, Boeing also transferred plan sponsorship to SAIC. Id. ¶ 16. After the transfer, Boeing never sent Cinecoe, and Cinecoe never received, balance statements for his account or notice of the sale or transfer.[3] Id. ¶¶ 17-18.

         In 2014, Cinecoe made a claim for benefits with Boeing. Id. ¶ 21. On November 20, 2014, Boeing explained that if Cinecoe had been a participant in the plan, his account would have been transferred to SAIC at the time of the sale; but, Boeing informed Cinecoe that there was no record of an account under his name. Id. ¶ 22. Yet, records from the Social Security Administration show payroll deductions, labeled as “deferred comp 401(k), ” on Cinecoe's paychecks each year from 1992 to 1998.[4] Id. ¶ 26. On September 3, 2015, Cinecoe sent the SSA records to Boeing. Id. ¶ 30. Several weeks later, Boeing confirmed for Cinecoe that there were no records of his account. Id. ¶ 31.

         Cinecoe appealed, and on March 3, 2016, the Boeing Employee Benefit Committee upheld the benefit denial. Id. ¶¶ 32-33. It stated that if Cinecoe's account exceeded $3, 500 at the time of his termination, he could have elected to receive the vested balance of his account, or to defer receiving a distribution from his account. Id. ¶ 33. The Committee, however, had no record of Cinecoe electing to receive his benefit. Id. ¶ 34. With respect to the SSA records, the Committee reasoned that evidence of the deferred compensation did not “equate to an unclaimed benefit.” Id. ¶ 35. Consequently, the Committee concluded that there was no deferred compensation benefit or attributable interest payable to Cinecoe. Id. ¶ 36. The Committee recommended that Cinecoe contact SAIC, which assumed sponsorship of and responsibility for the plan in June 1999. Id. ¶ 37. Cinecoe reached out to SAIC only to learn that it did not have any records of an account under Cinecoe's name. Id. ¶ 38.

         III. Analysis

         A. ERISA

         Cinecoe brings his federal claims under § 1132(a)(3), which allows a plan participant or beneficiary to bring an action to enjoin any act or practice that violates an ERISA provision or terms of the plan, or to obtain equitable relief that will redress ERISA violations, or to enforce ERISA provisions or terms of the plan. 29 U.S.C. § 1132(a)(3). Counts I and II of the amended complaint allege that defendants breached their fiduciary duty, thereby violating § 1104(a) by: (1) failing to notify him that Boeing sold his former employer to SAIC and transferred plan sponsorship to SAIC; (2) failing to follow a prudent procedure for transferring his account and for maintaining records of that transfer; (3) failing to ensure that his account information from the plan was accurate and properly transferred; and (4) failing to ensure that the funds were in fact deposited into his account. 29 U.S.C. § 1104(a).

         Defendants move to dismiss Cinecoe's federal claims as untimely. Actions for breach of fiduciary duty under ERISA must be brought within the earlier of: (1) three years after the earliest date on which the plaintiff had actual knowledge of the breach, or (2) six years after the latest date on which an action that constituted a part of the breach occurred, or in the case of an omission, the latest date on which the fiduciary could have cured the breach. 29 U.S.C. § 1113; see also Fish v. GreatBanc Tr. Co., 749 F.3d 671, 678 (7th Cir. 2014). The statute provides an exception for cases of fraud or concealment; such actions must be brought no later than six years after the date on which the plaintiff discovers the alleged breach.[5] 29 U.S.C. § 1113; see also Wolin v. Smith Barney Inc., 83 F.3d 847, 850 (7th Cir. 1996) disapproved of on other grounds by Klehr v. A.O. Smith Corp., 521 U.S. 179 (1997) (“If there is fraudulent concealment the plaintiff gets a generous six years from the date of discovery of the violation in which to sue, but no more, even if the defendant somehow succeeds in preventing him from suing within that period.”). Cinecoe argues that this exception applies and that he did not discover that he would not receive a benefit payout from his plan until November 2014. Since he commenced this action less than two years after that discovery, he argues that his complaint is timely. See [1].

         In order for the fraudulent concealment exception to apply, however, a plaintiff must establish that defendants engaged in fraudulent concealment. Laskin v. Siegel, 728 F.3d 731, 735 (7th Cir. 2013). “An ERISA fiduciary commits fraud or concealment by delaying a wronged beneficiary's discovery of his claim either by misrepresenting the significance of facts the beneficiary is aware of (fraud) or by hiding facts so that the beneficiary does not becomes [sic] aware of them (concealment).” Id. (citing Radiology, 919 F.2d at 1220). To meet the burden for fraudulent concealment, a plaintiff must ...


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