21 F.3d 1499 (10th Cir. 1994), 93-1161, Moothart v. Bell

Docket Nº:93-1161.
Citation:21 F.3d 1499
Party Name:Linda K. MOOTHART, Plaintiff-Appellee, v. A. Gary BELL, Bradley P. Pollock, Bell & Pollock, P.C., Defendants-Appellants.
Case Date:April 18, 1994
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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21 F.3d 1499 (10th Cir. 1994)

Linda K. MOOTHART, Plaintiff-Appellee,


A. Gary BELL, Bradley P. Pollock, Bell & Pollock, P.C.,


No. 93-1161.

United States Court of Appeals, Tenth Circuit

April 18, 1994

Rehearing Denied May 6, 1994.

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[Copyrighted Material Omitted]

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Alexander R. Rothrock and C.M. Vandervoort of Burns, Figa & Will, P.C., Englewood, CO, for plaintiff-appellee.

Bradley P. Pollock of Bell & Pollock, P.C., Littleton, CO, for defendants-appellants.

Before LOGAN and SETH, Circuit Judges, and KELLY, [*] District Judge.

PATRICK F. KELLY, District Judge.

This appeal arises from the efforts of plaintiff Linda Moothart to obtain information from her former employers, Gary Bell and Bradley Pollock, as individuals, and defendant Bell & Pollock, P.C., regarding her rights under an employee benefit plan. Specifically, Ms. Moothart brought suit under 29 U.S.C. Secs. 1024 and 1132(c), the disclosure provisions of the Employee Retirement Income Security Act (ERISA), seeking copies of various plan documents and a penalty. The district court granted summary judgment in her favor on the merits, then held a trial to determine the proper amount, if any, of penalties and attorneys' fees. The court ultimately entered judgment in Ms. Moothart's favor in the amount of $29,565.75. The court also entered summary judgment in favor of Ms. Moothart on defendants' abuse of process counterclaim. Defendants now appeal those rulings. 1


Linda Moothart worked as a legal secretary in defendants' law firm for approximately four years. She resigned her position on August 23, 1988. In early 1989, Ms. Moothart enlisted attorney Richard Finke to help her with some tax planning. On February 23, 1989, Mr. Finke wrote a letter to Bradley

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Pollock advising him that Ms. Moothart was doing some planning and needed certain information regarding the firm's profit sharing plan. He requested copies of Bell & Pollock's summary plan description, summary annual report, and employee fringe benefit manual.

When he did not receive a response, Mr. Finke wrote a second letter on March 14, 1989. He wrote a third on April 3. On April 7, 1989, Bradley Pollock responded. He did not forward any documents. The response was in the nature of a tirade, questioning Mr. Finke's need for the documents and advising him that Ms. Moothart was not entitled to any benefits or information. 2 In his closing, Mr. Pollock advised that "if this matter is going to lead to litigation, then demand is made that [Ms. Moothart] stop all further contact with all persons in this firm." Appellee's Supp.App. at 10.

On April 10, 1989, Mr. Finke responded, advising Mr. Pollock that he thought, based on his conversations with Ms. Moothart, that she could have some vested interest in the firm's qualified plan. He made an additional request for the documents identified in his first letter. On April 13, Mr. Pollock responded, advising that the firm had not funded its profit sharing plan during the time Ms. Moothart was employed at the firm and, therefore, she had no benefits coming. The letter made additional accusations regarding Ms. Moothart's intentions and advised that she had received all the information Mr. Finke requested.

On April 17, Mr. Finke wrote yet another letter to Mr. Pollock, once again requesting a copy of the plan summary. The letter also advised that Mr. Finke sent a copy of the April 13 letter to his client and was waiting for her thoughts. Mr. Finke stated he would get back to Mr. Pollock when he heard from Ms. Moothart. The letter closed by stating, "I am not trying to make this adversarial in nature, but merely requesting a copy of something Ms. Moothart is legally entitled to receive." Id. at 18.

The parties did not correspond further. On March 23, 1990, Ms. Moothart filed a complaint pursuant to 29 U.S.C. Secs. 1024(b)(4) and 1132(c), alleging that Bell & Pollock, and Gary Bell and Bradley Pollock, individually, had violated ERISA through their failure to provide plan documents in accordance with the requests which attorney Finke made in February, March, and April of 1989. The complaint requested disclosure of the documents, as well as assessment of penalties.

The defendants filed their answer, pro se, on April 6, 1990. On April 10, counsel for the plaintiff received a copy of the summary plan description. At trial, Bell & Pollock argued they also sent a copy of the summary annual report in early April. Counsel for Ms. Moothart stated she never received that copy, and the district court found that, in fact, the annual report was not produced until the day of trial. On the merits, the court granted summary judgment in favor of the plaintiff.

Following testimony on the penalty question and appropriateness of attorneys' fees, the court awarded a penalty in the amount of $30 per day. The court determined that the penalty would run from thirty days after Mr. Finke's first letter to the date of his last correspondence, then begin again from the date the complaint was filed extending to the date of trial, when the summary annual report was produced. The total amount of the penalty was $12,210. The court also awarded attorneys' fees, but lowered the proposed amount by ten percent to account for its decision to dismiss the individual claims against Gary Bell and Bradley Pollock. The attorneys' fees awarded amounted to $17,355.75.

Following these decisions, Ms. Moothart filed a motion for summary judgment on the abuse of process counterclaim. Bell & Pollock responded, asserting that factual issues precluded the entry of judgment. The district court granted plaintiff's motion, and entered

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judgment on the entire case on April 29, 1993. This appeal followed.


Defendants have raised eight separate claims in this appeal. The issues presented can be grouped, however, into three general areas. First, defendants maintain the district court erred in awarding judgment on the merits under ERISA, in particular because the court misconstrued the penalty statute and failed to consider and apply the doctrines of mitigation of damages and estoppel. They also contend it was error to award attorneys' fees. Second, they argue the court erred when it included Gary Bell and Bradley Pollock individually in the judgment entered, as those claims were dismissed. They contend the district court should have awarded them attorneys' fees for having to defend the lawsuit against the individuals. Finally, they challenge the district court's decision to enter summary judgment on the abuse of process counterclaim. We will address these arguments in turn.


This action was filed under ERISA's disclosure provisions, 29 U.S.C. Secs. 1024(b)(4) and 1132(c). These sections were included in ERISA so that plan participants and beneficiaries would be in a position to make informed decisions about how best to protect their rights. Bruch v. Firestone Tire & Rubber Co., 828 F.2d 134, 153 (3rd Cir.1987) (citing S.Rep. No. 127, 93d Cong., 2d Sess. 3 (1974), reprinted in 1974 U.S.C.C.A.N. 4838, 4863), aff'd in part, rev'd in part, on other grounds, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Section 1024(b)(4) provides, in relevant part:

The administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary plan description, plan description, and the latest annual report, ... or other instruments under which the plan is established or operated.

Section 1132(c)(1) is the penalty provision applicable where the court finds a violation of Sec. 1024. It states that an administrator may be liable, in the court's discretion, for penalties of up to $100 per day for the failure to mail the requested materials within thirty days of the request.

In the district court, Ms. Moothart argued that Mr. Finke's letters constituted "written requests" as the term is defined in the statutory scheme, and that the failure to provide the summary plan description and annual reports was a violation of the statute. The defendants maintain the district court erred in accepting this argument because 1) Mr. Finke's last letter stated he would "get back to them" after conferring with his client and they were lulled into believing the request was dropped, and 2) the complaint could not constitute a written request under the statute.

An attorney, such as Mr. Finke, is entitled to request plan information on behalf of the participant if the request is clear and puts the administrator on notice of the information sought. Curry v. Contract Fabricators Inc. Profit Sharing Plan, 744 F.Supp. 1061, 1066 (M.D.Ala.1988), aff'd, 891 F.2d 842 (11th Cir.1990). The statute does not specify, however, what form the request must take. A demand for benefits is not a written request. Pane v. RCA Corp., 868 F.2d 631, 639 (3d Cir.1989); Kleinhans v. Lisle Sav. Profit Sharing Trust, 810 F.2d 618, 623 (7th Cir.1987). Likewise, the Fifth Circuit has ruled that a note scribbled at the bottom of a social security award certificate requesting "policies covering my contract for salary continuation" would not be construed as a statutory request for information. Fisher v. Metropolitan Life Ins. Co., 895 F.2d 1073, 1077 (5th Cir.1990).

Here, defendants maintain that "the court ... ruled that the actions and inactions taken by the Plaintiff led the Defendants to reasonably believe that the matter had been dropped." Appellants' Br. at 24. They argue that Mr. Finke's letters could not, therefore, be written requests. They likewise contend that a complaint cannot constitute a request for information. The argument follows that there was, consequently, no statutory request for information and thus no violation.

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