United States District Court, M.D. Georgia, Macon Division
T. TREADWELL, JUDGE
Plaintiffs-Dewey Cannella, Alphonse Rispoli, Jr., Louis
Sanchez, Aron Forem, Bruce Vivadelli, and Frank Miraglia, in
their capacity as Trustees for the WWEC Local 863 Pension
Plan (the “Trustees”)-moved for summary judgment
on their claims against the Defendant-Lue Rea Boone. Doc. 23.
The Trustees assert two counts in their complaint: Count I
under ERISA, 29 U.S.C. § 1132(a)(3), (Doc. 1
¶¶ 22-23); and Count II for conversion under
Georgia law (Doc. 1 ¶¶ 24-25). The core of the
Trustees' complaint is that Boone continued to accept her
late husband's “monthly pension payments in the
amount of $3, 549.69 for the period March 2013 through
December 2014, ” which were delivered via direct
deposit. Doc. 1 ¶ 16.
Trustees sought summary judgment because “the
undisputed evidence, including the testimony [of the]
Defendant, shows that she was on notice that she was not
entitled to her deceased husband's pension payments, but
that she continued to accept that [sic] those payments and
convert them to her own use in violation of the terms of the
Pension Plan document and Georgia law.” Doc. 23-7 at 7.
And, “The amount of the pension payments so converted
and owing to Plaintiffs is . . . undisputed.”
Id. As an equitable remedy under 29 U.S.C. §
1132(a)(3), the Trustees requested that the Court impose
“a constructive trust over the mistaken pension
payments to the extent those funds have not been dissipated,
permanently enjoin Defendant from further disposing or
transferring any of the funds still in her possession and
control, [and] require the return of such funds and a tracing
of any portion of the funds no longer in her control.”
Id. at 5. The record does not demonstrate that any
of the pension funds remain or that there are any traceable
proceeds. See Doc. 23-1 ¶¶ 15-17.
who is pro se, did not file a response.
Court, having some concerns with the Trustees' motion,
scheduled a hearing for April 18, 2017. See Doc. 25
(minute sheet). At the hearing, counsel for the Trustees
conceded that the Trustees have no meritorious claim for an
ERISA remedy on these facts because of the Supreme
Court's decision in Montanile v. Board of Trustees of
National Elevator Industry Health Benefit Plan, 136
S.Ct. 651 (2016). The Trustees, though they have had the
opportunity to do so, offer no reason why the ERISA claim
should not be dismissed for this reason; accordingly, the
ERISA claim is DISMISSED without prejudice.
Trustees' complaint asserts that the Court's sole
basis of jurisdiction over their state law conversion claim
is supplemental jurisdiction under 28 U.S.C. § 1367.
Doc. 1 ¶ 6. In light to the potential dismissal of their
ERISA claim, the Court ordered the Trustees to show cause why
the Court should continue exercise jurisdiction over the
conversion claim. Doc. 26.
courts . . . possess the authority to dismiss claims brought
under § 1367(a) if:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or
claims over which the district court has original
(3) the district court has dismissed all claims over which it
has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling
reasons for declining jurisdiction.
28 U.S.C. § 1367(c); Parker, 468 F.3d at 743
(“Any one of the section 1367(c) factors is sufficient
to give the district court discretion to dismiss a case's
supplemental state law claims.”). Once any of these
factors is satisfied, the district court possesses the
discretion to dismiss supplemental claims and must
“weigh . . . at every stage of the litigation, ”
whether to dismiss the supplemental claims. . . .
Actually determining whether to dismiss the claims calls for
the court to weigh the “host of factors” outlined
[prior case law]: “judicial economy, convenience,
fairness, and comity.” . . .
. . . . “A district court abuses its discretion if it
applies an incorrect legal standard, follows improper
procedures in making the determination, or makes findings of
fact that are clearly erroneous.” Klay v. United
Healthgroup, Inc., 376 F.3d 1092, 1096 (11th Cir. 2004)
(quotation marks omitted); see also Estate of Amergi ex.
rel. Amergi v. Palestinian Auth., 611 F.3d 1350, 1365
(11th Cir. 2010) (“A district court does not abuse its
discretion when it has a range ...