United States District Court, E.D. Michigan, Southern Division
Robert E. Titus, Jr., Plaintiff,
Operating Engineers' Local 324 Pension Plan, Defendant.
Anthony P. Patti United States Magistrate Judge.
AMENDED OPINION AND ORDER DENYING PLAINTIFF'S
PROCEDURAL CHALLENGE TO THE SCHEDULING ORDER
 AND GRANTING DEFENDANT'S MOTION FOR
PARTIAL JUDGMENT ON THE PLEADINGS 
GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE.
a denial of benefits case under the Employee Retirement
Income Security Act (“ERISA”). This action
contests the Operating Engineers' Local 324 Pension
Fund's (hereinafter “the Pension Plan”)
determination suspending Robert Titus'
(“Plaintiff”) pension benefits. Plaintiff's
Complaint asserts three claims: (1) illegal suspension of
benefits [Count I], (2) failure to provide a full and fair
review [Count II], and (3) recovery of suspended benefits
[Count III]. Pending before the Court are two motions:
Plaintiff's Procedural Challenge to the Scheduling Order
 and Defendant's Motion for Partial Judgment on the
Pleadings . The Motions are interrelated and fully
briefed. The critical issue in this case is whether Counts I
and II of the Complaint fail as a matter of law. The Court
finds that Counts I and II fail to state valid claims under
ERISA § 502(a)(3). For the following reasons, the Court
will DENY Plaintiff's Procedural
Challenge to the Scheduling Order  and
GRANT Defendant's Motion for Partial
Judgment on the Pleadings .
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 Pension
Plan”) in August 1978. Dkt. No. 1, p. 3 (Pg. ID 3). The
Pension 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). Id. 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 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
Dkt. No. 14-2.
to the Plaintiff, the Pension 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 exceeding 40 hours per month. Id.
February 6, 2015, approximately ten months after starting BJ
Crane Consulting, the Pension Plan informed the Plaintiff
that his retirement benefits were being suspended. Dkt. No.
14-6, p. 2 (Pg. ID 508). According to the Pension Plan,
Plaintiff was working “forty (40) or more hours in the
same trade or craft in which [he was] employed while
participating in the [Pension Plan].” Id.
March 16, 2016 Plaintiff filed the present action. Plaintiff
alleges that the Pension Plan violated ERISA by suspending
his retirement benefits without providing him a valid Status
Determination. Dkt. No. 14, p. 11 (Pg. ID 476).
Plaintiff's Complaint asserts three claims: (1) illegal
suspension of benefits [Count I], (2) failure to provide a
full and fair review [Count II], and (3) recovery of
suspended benefits [Count III]. Pending before the Court are
two motions: Plaintiff's Procedural Challenge to the
Scheduling Order, Dkt. No. 14, and Defendant's Motion for
Partial Judgment on the Pleadings, Dkt. No. 19.
Defendant's Motion for Partial Judgment challenges the
sufficiency of Counts I and II. Plaintiff's Motion seeks
to have Count I of the Complaint scheduled as a usual civil
matter, not just a review of an ERISA denial of benefits. For
the sake of efficiency, the Court will take up
Defendant's Motion first.
Standard of Review for Judgment on the
Rule of Civil Procedure 12(c) authorizes either Party to move
for judgment on the pleadings “[a]fter the pleadings
are closed-but early enough not to delay trial.”
Fed.R.Civ.P. 12(c). Motions for judgment on the pleadings are
analyzed under the same de novo standard as motions to
dismiss under Rule 12(b)(6). Warrior Sports, Inc. v.
Nat'l Collegiate Athletic Ass'n, 623 F.3d 281,
284 (6th Cir. 2010). “For purposes of a motion for
judgment on the pleadings, all well-pleaded material
allegations of the pleadings of the opposing party must be
taken as true, and the motion may be granted only if the
moving party is nevertheless clearly entitled to
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),
the Supreme Court explained that “a plaintiff's
obligation to provide the ‘grounds' of his
‘entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do. Factual allegations must be
enough to raise a right to relief above the speculative
level[.]” Id. at 555. A plaintiff's
factual allegations, while “assumed to be true, must do
more than create speculation or suspicion of a legally
cognizable cause of action; they must show
entitlement to relief.” LULAC v.
Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (emphasis in
original) (citing Twombly, 550 U.S. at 555).
“To state a valid claim, a complaint must contain
either direct or inferential allegations respecting all the
material elements to sustain recovery under some viable legal
theory.” Bredesen, 500 F.3d at 527 (citing
Twombly, 550 U.S. at 562).
deciding a 12(c) motion for judgment on the pleadings, as a
general rule, matters outside the pleadings may not be
considered unless the motion is converted to one for summary
judgment under Fed.R.Civ.P. 56. See Weiner v. Klais &
Co., 108 F.3d 86, 88 (6th Cir. 1997). The Court may,
however, consider “the Complaint and any exhibits
attached thereto, public records, items appearing in the
record of the case, and exhibits attached to defendant's
motion to dismiss so long as they are referred to in the
Complaint and are central to the claims contained