United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
S. Shah United States District Judge.
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.
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.
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).
was an employee of one of Boeing's subsidiaries from 1990
until 1998. [16-1] ¶¶ 6, 12. During that time,
Cinecoe's employer deducted wages from his paycheck and
deposited them into a retirement savings plan, the BIS
Savings Plan. 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. Id.
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. 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.
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.
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).
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. 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 .
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 ...