United States District Court, E.D. Michigan, Southern Division
States Magistrate Judge Anthony P. Patti
OPINION AND ORDER DENYING PLAINTIFF'S 1ST MOTION
FOR LEAVE TO AMEND COMPLAINT 
Gershwin A. Drain United States District Court Judge
a denial of benefits case under the Employee Retirement
Income Security Act (“ERISA”). Plaintiff moves to
amend his complaint, one year after filing his original
complaint and twenty-two days after the Court issued an
opinion and order granting Defendant's Motion for Partial
Judgment on the Pleadings. For the reasons that will follow,
Plaintiff's 1st Motion for Leave to Amend Complaint is
Titus (“Plaintiff” or “Titus”) worked
for Connelly Crane, a crane rental company. Dkt. No. 14, p. 8
(Pg. ID 473). Plaintiff operated and maintained construction
cranes. Plaintiff became a member of the Operating
Engineers' Local 324 Pension Plan (“the
Plan”) in August 1978. Dkt. No. 1, p. 3 (Pg. ID 3). The
Plan offers a Service Pension for active participants who are
at least 55 years old and have at least 30 years of credited
service. Id. In February 2014, Plaintiff became
eligible for a Service Pension. Id., p. 4 (Pg. ID
4). That same month, Plaintiff explored retiring and pursuing
his own sales and consulting company (BJ Crane Consulting).
There were risks to starting his own company. Plaintiff knew
he might lose his retirement income. Id. Plaintiff
sought to embark on running his own company only if he could
still receive his pension benefits. Id., p. 5 (Pg.
ID 5). According to ERISA and its regulations:
A right to an accrued benefit derived from employer
contributions shall not be treated as forfeitable solely
because the plan provides that the payment of benefits is
suspended for such period as the employee is employed,
subsequent to the commencement of payment of such benefits--
(i) in the case of a plan other than a
multiemployer plan, by an employer who maintains the plan
under which such benefits were being paid; and
(ii) in the case of a multiemployer plan, in
the same industry, in the same trade or craft, and the same
geographic area covered by the plan, as when such benefits
The Secretary shall prescribe such regulations as may be
necessary to carry out the purposes of this subparagraph,
including regulations with respect to the meaning of the term
29 U.S.C. § 1053 (a)(3)(B).
Status determination. If a plan provides for benefits
suspension, the plan shall adopt a procedure, and so inform
employees, whereunder an employee may request, and the plan
administrator in a reasonable amount of time will render, a
determination of whether specific contemplated employment
will be section 203(a)(3)(B) service for purposes of plan
provisions concerning suspension of benefits. Requests for
status determinations may be considered in accordance with
the claims procedure adopted by the plan pursuant to section
503 of the Act and applicable regulations.
29 C.F.R. § 2530.203-3 (b)(6).
February 2014, Plaintiff requested a Status Determination
from the Pension Plan regarding whether his proposed new
business would result in suspension of his retirement
benefits. Dkt. No. 1, p. 6 (Pg. ID 6). Plaintiff spoke with
the Pension Plan's Manager, Duane Menter. Dkt. No. 14, p.
9 (Pg. ID 474). Menter informed the Plaintiff that
establishing BJ Crane Consulting and working as a sales
representative and consultant would not result in the loss of
his retirement benefits provided that he was not operating
and maintaining cranes (also called bargaining unit work) or
paid directly by his former employer. Id., p. 10
(Pg. ID 475). The conversation with Menter was later
confirmed in a March 28, 2014 letter:
As Mr. Titus described this opportunity to me, he would be
establishing a consulting company, recognized by the IRS and
with a unique Tax Identification Number and as proprietor of
this Consulting Company would be doing work within the
construction industry. I explained to him that as long as he
was not personally working for an employer obligated to
contribute to the Local 324 Pension and that the work he
would be performing would not be that which would be covered
under a Collective Bargaining Agreement (Bargaining Unit
Work) that he would not be in violation of the Pension
Fund's rules regarding retirees who return to work.
Dkt. No. 14-2.
to the Plaintiff, the Plan also allowed retirees to perform
less than 40 hours per month of bargaining unit work without
having their retirement benefits suspended. Dkt. No. 14, p.
10 (Pg. ID 475). Plaintiff relied on his conversation with
Mr. Menter, retired, applied for a Service Pension, and
opened BJ Crane Consulting. Id., p. 11 (Pg. ID 476).
Plaintiff maintains that he did occasional bargaining unit
work, but never exceeded 40 hours per month. Id.
February 6, 2015, approximately ten months after starting BJ
Crane Consulting, the Plan informed the Plaintiff that his
retirement benefits were being suspended. Dkt. No. 14-6, p. 2
(Pg. ID 508). According to the Plan, Plaintiff was working
“forty (40) or more hours in the same trade or craft in
which [he was] employed while participating in the
filed his original Complaint on March 16, 2016.
Plaintiff's original Complaint asserted three claims: (1)
illegal suspension of benefits pursuant to ERISA §
502(a)(3) (Count I), (2) failure to provide a full and fair
review pursuant to ERISA § 502(a)(3) (Count II), and (3)
recovery of suspended benefits pursuant to ERISA §
502(a)(1)(B) (Count III). Dkt. No. 1.
October 31, 2016, the Plan filed a Motion for Partial
Judgment on the Pleadings. Dkt. No. 19. The critical issue in
deciding the Motion for Partial Judgment was whether Count I
and Count II of the original Complaint failed as a matter of
February 27, 2017, the Court granted the Plan's motion,
in part, and found that Count I and Count II of the original
Complaint failed to state a claim under ERISA §
502(a)(3). Dkt. No. 34. After the Court's decision, only
Plaintiff's recovery of suspended benefits claim
(pursuant to ERISA § 502(a)(1)(B)) remained viable. On
March 22, 2017, Plaintiff filed a Motion for Leave to Amend
Complaint. Dkt. No. 35. Attached to the motion is an amended
Complaint (hereinafter “Proposed Complaint”).
Compared to the original Complaint, the Proposed Complaint
adds new factual allegations and alleges four Counts.
Proposed Count I seeks to enjoin the Plan from future ERISA
violations, pursuant to ERSIA § 502(a)(3). Dkt. No.
35-2, p. 15 (Pg. ID 1204). Proposed Count II seeks to reform
the Plan to comply with ERISA, pursuant to ERISA §
502(a)(3). Id., p. 22 (Pg. ID 1211). Proposed Count
III seeks to equitably estop the Plan from suspending
benefits inconsistently with its representations, pursuant to
ERISA § 502(a)(3). Id., p. 24 (Pg. ID 1213).
Proposed Count IV seeks recovery of Plaintiff's suspended
benefits, pursuant to ERISA 502(a)(1)(B). Id., p. 27
(Pg. ID 1216).
simply, the Plaintiff's original Complaint sought two
types of remedies, injunctive relief pursuant to ERISA §
502(a)(3) and recovery of benefits pursuant to ERISA §
502(a)(1)(B). This Court found that the original Complaint
failed to state a proper claim for injunctive relief, and
dismissed the injunctive relief claims brought under ERISA
§ 502(a)(3). After reading the Court's opinion and
order, the Plaintiff revised his Complaint to compensate for
the deficiencies with respect to injunctive relief.
Legal Standard for Amending Complaint
Federal Rule of Civil Procedure 15(a), leave to amend
pleadings “shall be freely given when justice so
requires.” Fed.R.Civ.P. 15(a). “The decision
whether or not to permit the amendment is committed to the
discretion of the trial court.” Gen. Elec. Co. v.
Sargent & Lundy, 916 F.2d 1119, 1130 (6th Cir. 1990)
(citing Zenith Radio Corp. v. Hazeltine Research,
Inc., 401 U.S. 321, 330-32 (1971). This discretion,
however, is limited by Rule 15(a)'s liberal policy of
permitting amendments to ensure the determination of claims
on their merits. Id. The Sixth Circuit usually
reviews a district court's denial of leave to amend for
abuse of discretion. Miller v. Champion Enterprises
Inc., 346 F.3d 660, 671 (6th Cir. 2003).
Discussion and Analysis
Defendant argues that amendment should be denied due to delay