United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
E. Bucklo, United States District Judge.
Finer Foods, LLC, (“Dominick's”) sues UFCW
Unions and Employers Midwest Pension Fund (the
“Fund”) for allegedly failing to comply with the
terms of a rehabilitation plan pursuant to Section 502(a)(10)
of ERISA, 29 U.S.C. § 1132(a)(10), (Count I) and for
breach of contract (Count II). Dominick's also alleges a
claim of unjust enrichment in the alternative (Count III).
The Fund moves to dismiss the complaint under Rule 12(b)(6).
For the reasons that follow, I grant the motion.
purposes of the Fund's motion, I accept all factual
allegations in the complaint as true and draw all reasonable
inferences in Dominick's favor. See Geinosky v. City
of Chicago, 675 F.3d 743, 746 (7th Cir. 2012).
I may consider, in addition to Dominick's allegations,
documents that are attached to the complaint and central to
its claims. Id. at 745 n.1.
is a Delaware Limited Liability Company. Cmplt. ¶ 1.
Dominick's sole member is Dominick's Supermarkets,
LLC, another Delaware Limited Liability Company, which has a
sole member, Safeway, Inc., a Delaware corporation with its
principal place of business in Boise, Idaho. Id. The
Fund “is a multiemployer plan within the meaning of
Section 3(37) of ERISA, 29 U.S.C. § 1002(37), and is
administered in Rosemont, Illinois.” Id.
2014, Dominick's made contributions to the Fund pursuant
to two collective bargaining agreements in effect from
October of 2008 to October of 2012 (the “CBAs”).
Id. ¶¶ 5, 17. Section 22.4 of each CBA
provides that in addition to its normal hourly contributions
to the Fund, Dominick's “has voluntarily agreed,
” subject to certain conditions, “to make an
additional single sum payment (the ‘Voluntary
Payment') to the fund on December 1, 2011.” Dkt.
1-1, 1-2 at ¶ 22.4. The conditions set forth in the CBAs
include that the Voluntary Payments “shall be used and
applied solely for the purpose of improving the funded status
of the Fund, ” and that the Voluntary Payments
“shall not be counted... (b) as an hourly or other
contribution used in any way to determine the withdrawal
liability payment schedule under ERISA Section 4219, or
Article XVI of the Pension Plan documents; or (c) otherwise
to increase the Employer's share of withdrawal liability
or withdrawal liability payments to the Pension Plan in any
September of 2010, the Fund's Board of Trustees passed
two resolutions accepting and acknowledging the Voluntary
Payments memorialized in the CBAs. Cmplt. at ¶ 9. By
that point, the Fund had been certified by an actuary
“to be in critical status under ERISA Section 305, 29
U.S.C. § 1085.” Id. at ¶ 12;
see Dkt 1-5 at 1. On October 22, 2010, the Fund
adopted a written rehabilitation plan (the
“Rehabilitation Plan”), which provided,
“[i]f an employer chooses, [it] can pay a reduced
Supplemental Contribution Rate increase over a collective
bargaining period” if it makes a Voluntary Payment.
Cmplt. ¶ 13. On November 9, 2010, the Fund passed a
consent resolution, stating, inter alia, that if
Dominick's Voluntary Payments “exceed the amount
Dominick's would have paid pursuant to the
[Rehabilitation] Plan's rehabilitation schedules, the
[Fund's] Trustees shall provide an equitable credit to
Dominick's” in the form of a reduced rate for its
contribution payments. Id.
December 1, 2011, Dominick's made the two Voluntary
Payments provided in Section 22.4 of the CBAs, “[b]ased
on the Fund's agreement to accept Voluntary Payments that
would later offset payments Dominick's was required to
make to the Fund.” Id. ¶ 14. The Fund
accepted these two Voluntary Payments, which totaled roughly
$12 million dollars, “pursuant to the terms, conditions
and agreements contained in the [CBAs], the Resolutions and
the Rehabilitation Plan.” Id. ¶ 15.
Dominick's subsequently received some $3 million in
offsets to its contributions to the Fund. Id. ¶
2014, Dominick's withdrew from the Fund, was assessed
withdrawal liability, and stopped being a contributing
employer to the Fund. Id. ¶¶ 5, 16, 18.
Dominick's then asked the Fund to offset its withdrawal
liability by the approximately $9 million of the Voluntary
Payments that had not been offset against Dominick's
contributions to the Fund, since the Voluntary Payments could
no longer be applied as offsets to contributions.
Id. ¶ 18. On June 4, 2014, the Fund rejected
this request. Id. ¶ 19. Nearly four years
later, Dominick's filed this lawsuit to compel the Fund
to credit or refund its excess payments.
survive the Fund's motion to dismiss, the complaint must
state a plausible claim for relief. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007). The Fund argues
that Dominick's fails to state a claim under Section
502(a)(10) of ERISA for two reasons: First, Dominick's is
not within the scope of “persons empowered to bring a
civil action” under Section 502(a)(10); and second,
even if Dominick's were empowered to bring such an
action, its factual allegations are insufficient to support a
claim under that section.
502(a)(10) of ERISA provides:
(a) PERSONS EMPOWERED TO BRING A CIVIL ACTION: A civil action
may be brought-
(10) in the case of a multiemployer plan that has been
certified by the actuary to be in endangered or critical
status under section 1085 of this title, if the plan sponsor-
(B) fails to update or comply with the terms of the funding
improvement or rehabilitation plan in accordance with the