Greer Raymond v. Barry Callebaut USA LLC , 510 F. App'x 97 ( 2013 )

CLD-071 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-3962
___________
GREER RAYMOND,
Appellant
v.
BARRY CALLEBAUT, U.S.A., LLC; BARRY CALLEBAUT AG;
COCOA BARRY U.S., INC., Individually and Severally
____________________________________
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 1:11-cv-02368)
District Judge: Honorable Renee M. Bumb
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
December 13, 2012
Before: RENDELL, JORDAN and GARTH, Circuit Judges
(Opinion filed January 15, 2013)
_________
OPINION OF THE COURT
_________
PER CURIAM
Greer Raymond, proceeding pro se, appeals from an order of the United States
District Court for the District of New Jersey dismissing her amended complaint filed
pursuant to the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1002
et seq., with prejudice. Because this appeal does not present a substantial question, we
will summarily affirm the District Court‟s order. See 3d Cir. L.A.R 27.4; I.O.P. 10.6.
Because we write primarily for the parties, we need only recite the facts necessary
for our discussion. Raymond worked for Appellees from June 1991 until May 1997.
During this time, she contributed to both a 401(k) employee benefit plan and a general
pension plan. In 1997, she received a notice of a distribution of her plan benefits and a
notice of taxes due from the Internal Revenue Service (“IRS”). According to Raymond,
she did not receive the distribution from her 401(k) plan, despite Appellees‟ report that
she had received $9,348.71 after $1,875.25 was withheld for taxes.
Plaintiff originally filed a complaint against Appellees in the Superior Court of
Burlington County, New Jersey, on March 7, 2011. Appellees removed the action to the
District Court on April 26, 2011 and filed a motion to dismiss on May 3, 2011. On
September 15, 2011, the District Court granted Appellees‟ motion to dismiss but allowed
Raymond leave to file an amended complaint within thirty days. Raymond filed her
amended complaint on September 15, 2011, and Appellees filed a motion to dismiss on
September 28, 2011. The District Court administratively terminated the motion to
dismiss and ordered Raymond to file a submission clarifying the bases for her claims by
July 3, 2012. Raymond filed an affidavit on July 2, 2012, and Appellees filed another
motion to dismiss on July 17, 2012. On September 14, 2012, the District Court dismissed
Raymond‟s amended complaint with prejudice, determining that her claim had accrued in
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1997 and that it was time-barred under the applicable six-year statute of limitations.
Raymond then timely filed her notice of appeal.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and exercise
plenary review over the District Court‟s dismissal order. See Allah v. Seiverling, 229
F.3d 220, 223 (3d Cir. 2000). To survive dismissal pursuant to Federal Rule of Civil
Procedure 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true,
to „state a claim to relief that is plausible on its face.‟” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This
Court affirms a district court‟s dismissal for failure to state a claim “only if, accepting all
factual allegations as true and construing the complaint in the light most favorable to the
plaintiff, we determine that the plaintiff is not entitled to relief under any reasonable
reading of the complaint.” McGovern v. City of Phila., 554 F.3d 114, 115 (3d Cir. 2009).
We may affirm the District Court on any basis supported by the record. Brightwell v.
Lehman, 637 F.3d 187, 191 (3d Cir. 2011) (citations omitted).
In her affidavit, Raymond seeks the return of her 401(k) money along with any
interest she would have earned had the money remained in her 401(k) account.
Accordingly, the District Court properly analyzed her complaint under 29 U.S.C. §
1132(a)(1)(B), which allows a plan participant to bring a civil action “ to recover benefits
due to him under the terms of his plan.” Appellees raised a statute of limitations defense
in its motion to dismiss Raymond‟s second complaint, and Raymond herself, in both her
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amended complaint and affidavit, asked the District Court for an injunction to bar
Appellees from arguing that her claims were time-barred.
ERISA does not set any limitations period for non-fiduciary claims brought
pursuant to 29 U.S.C. § 1132(a)(1)(B). Generally, when Congress omits a statute of
limitations for a federal cause of action, courts “„borrow‟ the local time limitation most
analogous to the case at hand.” Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson,
501 U.S. 350, 355 (1991). Accordingly, we will “apply the statute of limitations for the
state claim most analogous to the ERISA claim pursued.” Gluck v. Unisys Corp., 960
F.2d 1168, 1179 (3d Cir. 1992).
The “statutory limitation most applicable to a claim for benefits under Section
1132(a)(1)(B) is a breach of contract claim.” Hahnemann Univ. Hosp. v. All Shore, Inc.,
514 F.3d 300, 305-06 (3d Cir. 2008). In New Jersey, the limitations period for “recovery
upon a contractual claim or liability” is six years. N.J. Stat. Ann. § 2A:14-1. However,
“the accrual date for federal claims is governed by federal law, irrespective of the source
of the limitations period.” Miller v. Fortis Benefits Ins. Co., 475 F.3d 516, 520 (3d Cir.
2007). When there is no controlling federal statute, the discovery rule for accrual applies.
See id. “In the ERISA context, the discovery rule has been „developed‟ into the more
specific „clear repudiation‟ rule whereby a non-fiduciary cause of action accrues . . .
when a beneficiary knows or should know he has a cause of action.” Id. at 520-21.
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 We agree with the District Court that Raymond‟s amended complaint and affidavit
establish that her claim under § 1132(a)(1)(B) accrued in 1997. Raymond alleges that in
1997, she received notice of the distribution of her 401(k) funds from the Internal
Revenue Service (“IRS”) but that she never received the funds. Furthermore, Raymond‟s
own exhibits confirm that her claim is based upon an allegedly improper liquidation of
her 401(k) account in 1997. Under New Jersey‟s six-year limitations period, Raymond
had until 2003 to file her § 1132(a)(1)(B) claim; however, she did not do so until March
7, 2011, when she first filed her complaint in Superior Court. Accordingly, we agree that
Raymond‟s § 1132(a)(1)(B) claim is time-barred.
Raymond‟s amended complaint and affidavit both allege that Appellees
mismanaged and neglected their fiduciary duties with respect to her 401(k) plan. As we
must read her amended complaint liberally, see Haines v. Kerner, 404 U.S. 519, 520
(1972), we will consider whether Raymond‟s complaint states a claim for breach of
fiduciary duty under 29 U.S.C. § 1132(a)(3).1 The statute of limitations for such an
action runs from the earlier of:
1
The District Court did not address Raymond‟s amended complaint and affidavit as
asserting a claim under § 1132(a)(3). However, to the extent the District Court thereby
erred, the error is harmless because, as discussed below, Raymond‟s claim is barred by
the statute of limitations applicable to such claims. See Hancock Indus. v. Schaeffer, 811
F.2d 225, 229 (3d Cir. 1987).
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(1) six years after (A) the date of the last action which constituted a part of
the breach or violation, or (B) in the case of an omission the latest date on
which the fiduciary could have cured the breach or violation, or
(2) three years after the earliest date on which the plaintiff had actual
knowledge of the breach or violation.2
29 U.S.C. § 1113; see also Kurz v. Phila. Elec. Co., 96 F.3d 1544, 1551 (3d Cir. 1996)
(“This section thus creates a general six year statute of limitations shortened to three
years in cases where the plaintiff has actual knowledge of the breach, and potentially
extended to six years from the date of discovery in cases involving fraud or
concealment.”). Under § 1113(2), actual knowledge “requires that a plaintiff have actual
knowledge of all material facts necessary to understand that some claim exists, which
facts could include necessary opinions of experts . . ., knowledge of a transaction‟s
harmful consequences . . ., or even actual harm.” Gluck, 960 F.2d at 1177 (internal
citations omitted). Here, again, Raymond had actual knowledge of the alleged breach of
duty in 1997, when she did not receive her 401(k) benefits even after receiving notice
from the IRS that they had been distributed. Accordingly, because she had until 2000 to
file any such § 1132(a)(3) claim, her claim is time-barred.
2
However, if a claim alleges breach of fiduciary duty based upon fraud or concealment,
“such action may be commenced not later than six years after the date of discovery of
such breach or violation.” 29 U.S.C. § 1113.
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For the foregoing reasons, no substantial question is presented and we will affirm
the judgment of the District Court. See 3d Cir. L.A.R 27.4; I.O.P. 10.6. Raymond‟s
motion for oral argument is denied.
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