881 F.2d 237 (6th Cir. 1989), 88-5407, Waxman v. Luna

Docket Nº88-5407, 88-5548.
Citation881 F.2d 237
Party NameStanley R. WAXMAN and wife, Jean Waxman, and Michael L. Waxman, Plaintiffs-Appellants, v. Donald E. LUNA; LHC & Associates, Incorporated, Defendants, and Hardaway Construction Company, Inc., Employee Benefit Plan; Charles Hardaway; Hardaway Construction Co., Inc.; L. Hall Hardaway, Sr.; L. Hall Hardaway, Jr.; American Group Administrators, Inc.; an
Case DateJuly 27, 1989
CourtUnited States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 237

881 F.2d 237 (6th Cir. 1989)

Stanley R. WAXMAN and wife, Jean Waxman, and Michael L.

Waxman, Plaintiffs-Appellants,

v.

Donald E. LUNA; LHC & Associates, Incorporated, Defendants,

and

Hardaway Construction Company, Inc., Employee Benefit Plan;

Charles Hardaway; Hardaway Construction Co., Inc.; L. Hall

Hardaway, Sr.; L. Hall Hardaway, Jr.; American Group

Administrators, Inc.; and Lafayette Life Insurance Co.,

Defendants-Appellees.

Nos. 88-5407, 88-5548.

United States Court of Appeals, Sixth Circuit

July 27, 1989

Submitted June 12, 1989.

Stanley R. Waxman, Memphis, Tenn., pro se.

Jean Waxman, pro se.

Michael L. Waxman, pro se.

Thomas M. Pinckney, Jr., Douglas Fisher, Howell, Fisher & Branham, Nashville, Tenn., for Hardaway Const. Co., Inc., Charles Hardaway, Donald Luna, L. Hall Hardaway, Sr., and L. Hall Hardaway, Jr.

Hertz & Schram, Bloomfield Hills, Mich., for Corporation.

T. Patrick Freydi, Freydi & Associates, Birmingham, Mich., for Rick Kay, Robert Fox, Charles Forbes, Olympia Stadium Corp., Prophet Productions, Ltd., Michael Tinik, Vincent Bannon and Building Group.

Tova Shaban, Alan M. Gershel, Alan C. Harnisch, Seyburn, Kahn, Ginn, Bess & Howard, Southfield, Mich., for Robert Cavalieri, and Michael Illitch.

Page 238

Charles A. Moore, William M. Wolfson, Alan M. Gershel, Detroit, Mich., for City of Detroit and Olympia Arenas, Inc.

Before KENNEDY, GUY, and NORRIS, Circuit Judges.

PER CURIAM.

Plaintiffs filed this action pursuant to the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. Sec. 1001, et seq. Plaintiffs are seeking to recover medical and hospital expenses that they claim are due them because of their participation in the Hardaway Construction Company, Inc., Employee Benefit Plan (Hardaway Plan). Subsequent to a trial, the district court entered findings of fact and conclusions of law in accordance with Rule 52 of the Federal Rules of Civil Procedure, and determined that the court lacked subject matter jurisdiction to hear this action because plaintiff Stanley Waxman did not have standing to sue under ERISA since he was never defendants' employee. Plaintiffs appeal and, upon review, we affirm the district court's dismissal of this action for lack of subject matter jurisdiction.

I.

The underlying facts in this case are generally uncontested, and therefore our recitation of the facts is as the district court found them. See Waxman v. Hardaway Constr. Co., 693 F.Supp. 587 (M.D.Tenn.1988). Plaintiff Stanley Waxman is a financial consultant with an extensive business background. At one time, while serving as a vice-president of industrial relations for a corporation unrelated to this action, he was responsible for negotiating insurance contracts with insurers and reinsurers. Defendant Hall Hardaway, Jr., was and is vice-chairman of Hardaway Construction Company. He is active in 150 partnerships and ten corporations, and is one of the trustees of the Hardaway Plan. Defendant Charles Hardaway was the Hardaway Plan's coordinator. Defendant Donald Luna was a mortgage broker in the business of procuring loans.

Waxman did loan brokering work for Luna on an independent contractor basis. In early 1982, Hall Hardaway, Jr., agreed to allow Luna and some of his business associates to use office space owned by Hardaway Construction Company. At that time, Luna was attempting to secure financing for construction projects in which Hardaway was involved. Luna was paid a fee or a percentage from loans that he procured for Hardaway. Neither Luna nor Waxman was ever on the regular payroll of any Hardaway entity.

In the early summer of 1982, Luna asked Hall Hardaway, Jr., if Luna and one or two of his associates could participate in the Hardaway Plan, which provided hospitalization and medical coverage to participants. Luna agreed to pay the premiums for himself and his associates and, as a result, Hall Hardaway, Jr., permitted them to join. Waxman was subsequently enrolled and was given a booklet outlining benefits and an enrollment card. Waxman testified at trial that he viewed his participation in the Hardaway Plan as a gift or perk, and that he was not interested in who specifically made the gift. Waxman additionally enrolled his wife and his dependent son, Michael.

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