Cadegan v . McCarron CV-00-540-JD 06/25/01
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Leah Cadegan, et a l .
v. No. 0
Opinio n N o . 2001 DNH 119
Joseph McCarron, et a l .
O R D E R
The plaintiffs, a group of eight present or former employees
of three related nursing homes, bring an action against four
individuals and two insurance companies, alleging violations of
the Employee Retirement Income Security Act (“ERISA”), 29
U.S.C.A. §§ 1103-06, and related state law claims. The claims
against American National Insurance Company were dismissed on
June 6, 2001. The other defendant insurance company, Boston
Mutual Insurance Co., Inc., also moves to dismiss the claims
brought against i t . The plaintiffs agree that the state claims
should be dismissed, but object to dismissal of the ERISA claim.
Standard of Review
When, as here, the defendants have filed an answer, a motion
to dismiss is more properly considered as a motion for judgment
on the pleadings. “After the pleadings are closed but within
such time as not to delay the trial, any party may move for
judgment on the pleadings.” Fed. R. Civ. P. 12(c). When
considering a motion for judgment on the pleadings, the “court
must accept all of the nonmoving party’s well-pleaded factual
averments as true and draw all reasonable inferences in her
favor.” Feliciano v . Rhode Island, 160 F.3d 780, 788 (1st Cir.
1998). Judgment on the pleadings is not appropriate “‘unless it
appears beyond doubt that the plaintiff can prove no set of facts
in support of her claim which would entitle her to relief.’”
Santiago de Castro v . Morales Medina,
943 F.2d 129, 130 (1st Cir.
1991) (quoting Rivera-Gomez v . de Castro,
843 F.2d 631, 635 (1st
Cir. 1988)).
With its motion, Boston Mutual submitted copies of the “Plan
Document and Summary Plan Description for Oasis Healthcare,”
“Managed Health Funding Insurance Administrators Administration
Agreement,” and the “Excess Loss Policy” issued to Oasis
Healthcare. Boston Mutual did not address the question of
whether the court may consider those materials without converting
the motion to one for summary judgment. See Fed. R. Civ. P.
12(c); Rubert-Torres v . Hosp. San Pablo, Inc., 205 F.3d 472, 475
(1st Cir. 2000). In response, the plaintiffs noted that those
documents are extrinsic to the complaint, but also submitted
extrinsic materials in support of their objection.
“Ordinarily, of course, any consideration of documents not
attached to the complaint, or not expressly incorporated therein,
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is forbidden, unless the proceeding is properly converted into
one for summary judgment under Rule 56.” Watterson v . Page, 987
F.2d 1 , 3 (1st Cir. 1993). Exceptions may be made, however, “for
documents the authenticity of which are not disputed by the
parties; . . . for documents central to plaintiffs’ claim; or for
documents sufficiently referred to in the complaint.”
Id. The
plan documents and insurance policies appended to the parties’
papers fall into the exception so that the motion need not be
converted to one for summary judgment.
Discussion
The plaintiffs allege that Boston Mutual, along with all
other defendants, breached its fiduciary duties under ERISA by
permitting or causing the employees’ contributions to the
employees’ group insurance benefits plan to be diverted to pay
their employers’ corporate debts. Boston Mutual moves to dismiss
on grounds that the allegations are insufficient to state a claim
and that the plan and insurance documents establish that it was
not a plan fiduciary.
The court considered the same claim and supporting
allegations in the context of the motion to dismiss filed by
American National Insurance Company, Inc., the other insurance
company defendant. See Order of June 6, 2001. The court
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determined that the plaintiffs’ allegations, which are made as to
all defendants without distinguishing among them, failed to state
an ERISA claim of breach of fiduciary duty. See id. The
reasoning in that order applies equally here and will not be
repeated.
In response to Boston Mutual’s motion, however, the
plaintiffs present a new theory that was not raised in response
to American National Insurance Company’s motion to dismiss and,
therefore, was not addressed in the June 6 order. The plaintiffs
now argue that the insurance policy issued by Boston Mutual to
their employee benefit plan was an asset of the plan and that
Boston Mutual was a fiduciary because it exercised authority or
control with respect to that asset within the meaning of 29
U.S.C.A. § 1002(21)(A). In particular, the plaintiffs argue that
Boston Mutual deprived the plan of insurance coverage, a plan
asset, by terminating the policy on the grounds that the premiums
had not been paid or payments to cover the self-funded part of
the plan had not been made. The plaintiffs explain that their
new theory was the result of information obtained through
discovery in the case.
Not surprisingly, Boston Mutual did not address the new
theory in its motion to dismiss, since the plaintiffs did not
allege such a claim in the complaint. To state a claim, the
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plaintiffs must at least “set forth factual allegations, either
direct or inferential, respecting each material element necessary
to sustain recovery under some actionable legal theory.”
Romero-Barcelo v . Hernandez-Agosto, 75 F.3d 2 3 , 28 n.2 (1st Cir.
1996); see also Fed. R. Civ. P. 8(a)(2). The plaintiffs cannot
overcome the deficiencies in their complaint with new arguments
and allegations raised for the first time in response to the
defendant’s motion to dismiss. See Bauchman v . West High Sch.,
132 F.3d 5 4 2 , 550 (10th Cir. 1997); see also Dewey v . Univ. of
N.H.,
694 F.2d 1 , 3 (1st Cir. 1982) (it is “not enough to allege
a general scenario which could be dominated by unpleaded
facts”). 1
Since the plaintiffs’ new theory of ERISA fiduciary
liability is not pled in the complaint, and the ERISA claim that
is pled is insufficient as a matter of law, Boston Mutual is
entitled to judgment as a matter of law as to the ERISA claim,
which is the only remaining claim.
1
The court notes that although the plaintiffs have filed a
motion to amend their complaint, the proposed amended complaint
does not make the claim raised in the plaintiffs’ new theory
presented here.
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Conclusion
For the foregoing reasons, the defendant’s motion to dismiss
(document n o . 24) is granted.
SO ORDERED.
Joseph A . DiClerico, Jr.
District Judge
June 2 5 , 2001
cc: Charles C . Douglas III, Esquire
Russell F. Hilliard, Esquire
Wilbur A . Glahn I I I , Esquire
William L. Chapman, Esquire
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