Bostic v. OHIO RIVER CO.(OHIO DIVISION), ETC.

• Decision Date: 06 July 1981
• Docket Number: Civ. A. No. 78-3060.
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Everett B. BOSTIC, Plaintiff, v. The OHIO RIVER COMPANY (OHIO DIVISION) BASIC PENSION PLAN, and Robert A. Langdon, Plan Administrator of the Ohio River Company, (Ohio Division) Basic Pension Plan, and Robert A. Langdon, Individually, Defendants.

517 F. Supp. 627

Everett B. BOSTIC, Plaintiff, v. The OHIO RIVER COMPANY (OHIO DIVISION) BASIC PENSION PLAN, and Robert A. Langdon, Plan Administrator of the Ohio River Company, (Ohio Division) Basic Pension Plan, and Robert A. Langdon, Individually, Defendants.

Civ. A. No. 78-3060.

United States District Court, S. D. West Virginia, Huntington Division.

July 6, 1981.

COPYRIGHT MATERIAL OMITTED

Frederick L. Delp, Huntington, W. Va., for plaintiff.

Thomas H. Gilpin, William C. Beatty, Huntington, W. Va., Richard A. Zellner, Irvin M. Feldman, Cleveland, Ohio, for defendants.

MEMORANDUM OPINION AND ORDER

STAKER, District Judge.

Plaintiff Everett B. Bostic, a resident of this District, filed suit in this court on March 23, 1978, claiming that the defendants had violated certain of his rights under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq. Specifically, plaintiff alleges that defendants have not provided him with either increased and additional pension benefits to which he says he is due or forms and materials with which application for such benefits can be made.¹ Plaintiff also charges that the Plan is administered in an arbitrary and discriminatory manner.

Now before the court is the defendants' motion to dismiss the within complaint because of improper venue, filed pursuant to Rule 12(b)(3), Federal Rules of Civil Procedure, and various memoranda and other material relating to said motion. It is noted that this motion is a renewed one, the first such motion having been denied without prejudice by Judge Charles H. Haden II of this court on August 31, 1978.² Pursuant to 28 U.S.C. § 1406(a),³ the court will treat the defendants' motion not as one seeking dismissal, but as one seeking transfer of this cause to another district.

29 U.S.C. § 1132(e)(2) governs where proper venue is laid for ERISA actions. It reads as follows:

Where an action under this subchapter is brought in a district court of the United States, it may be brought in the district where the plan is administered, where the breach took place, or where a defendant resides or may be found, and process may be served in any other district where a defendant resides or may be found.

Defendant Robert A. Langdon has filed an affidavit which indicates that he lives and works⁴ exclusively within the Southern District of Ohio. This information has been uncontroverted by the plaintiff, and for purposes of this motion, will be accepted by the court as proven evidence. It is thus apparent that defendant Langdon does not reside and cannot be found, in either of his within capacities, in the Southern District of West Virginia. Therefore, unless defendant Plan "is administered," or "resides or may be found," or the alleged "breach took place," in this District, then venue for this action is not proper herein.

At the outset, the court would note that, quite predictably, defendants contend that on the instant set of facts, venue is proper only in the Southern District of Ohio, where the plan is headquartered. Plaintiff counters that Congress meant for each of the venue alternatives to be just that — alternatives — and that therefore venue must be appropriate in more than one district.

Plaintiff's argument fails to comprehend that the class of those who may bring suit under ERISA is not limited to pension plan participants or beneficiaries.⁵ 29 U.S.C. § 1132(a) indicates that ERISA civil actions may be instituted by participants, beneficiaries, or fiduciaries of pension plans, or by the Secretary of Labor. The same section of the statute tells us that ERISA is the basis for redressing a wide range of pension plan-related problems. The point is this — ERISA actions may be properly maintained by a number of types of petitioners for a number of types of causes. Therefore, it is not at all inconceivable or even unlikely that the venue alternatives will not be actual alternative choices of forum in all cases. One or more of the "alternatives" may not be applicable to all situations; and, two or more of them will certainly overlap in some not-all-too-uncommon circumstances.

However, plaintiff's argument does comprehend Congress' apparent general intent in promulgating ERISA. While it is true that

in most instances, the purpose of statutorily specified venue is to protect the defendant against the risk that a plaintiff will select an unfair or inconvenient place of trial,

Leroy v. Great Western United Corp., 443 U.S. 173, 183-184, 99 S.Ct. 2710, 2716-2717, 61 L.Ed.2d 464 (1979), such does not seem to have been Congress' overriding concern in establishing ERISA venue. Judge Wallace of the Ninth Circuit Court of Appeals recognized this in his excellent opinion in Varsic v. U.S. District Court, C.D.Cal., 607 F.2d 245 (9th Cir. 1979) in the following discussion:

The liberal intent of Congress, which is embodied in ERISA generally, and in section 1132(e)(2) specifically, is clear. "It is ... the policy of ERISA to protect interstate commerce and the interests of participants in employee benefit plans and their beneficiaries, ... by providing for ... ready access to the Federal courts." 29 U.S.C. § 1001(b). The Committee on Education and Labor of the House of Representatives, reporting on a draft of the ERISA legislation, stated that

ERISA'S enforcement provisions have been designed specifically to provide ... participants and beneficiaries with broad remedies for redressing or preventing violations of the Act. The intent of the Committee is to provide the full range of legal and equitable remedies available in both state and federal courts and to remove jurisdictional and procedural obstacles which in the past appear to have hampered effective enforcement of fiduciary responsibilities under state law for recovery of benefits due to participants. For actions in federal courts, nationwide service of process is provided in order to remove a possible procedural obstacle to having all proper parties before the court.

H.R.Rep. No. 93-533, 93rd Cong., 1st Sess. 17 (1973), reprinted in 1974 U.S. Code Cong. & Ad.News, pp. 4539, 4655.

We cannot agree ... that the congressional purpose of this section was to restrict venue.

Id. at 247-248.

More recently, a United States District Court within this Fourth Circuit has come to a similar conclusion. Fulk v. Bagley, 88 F.R.D. 153 (M.D.N.C.1980). In Fulk, Judge Mehrige of the Eastern District of Virginia, sitting by designation, stated that "Congress intended to open the federal forum to ERISA claims to the fullest extent possible." Id. at 167.

While the Leroy court explained that the purpose of statutorily specified venue is generally to protect a defendant from a forum-shopping plaintiff, it prefaced that explanation with the qualifying "in most instances." Here, as did the Varsic court, and for the same reasons, we come to the conclusion that ERISA is one of those exceptions to the "in most instances" general rule.

This does not necessarily mean that the court is retracting its statements about the § 1132(e)(2) "alternatives" being or not being actual alternatives in this situation. What it does mean is that, since there is an absence of binding precedent to the contrary (or persuasive precedent to the contrary which the court finds convincing), the court will construe the venue provisions of ERISA, with respect to both their applicability and their breadth, liberally in favor of plaintiff, a pension plan participant, as the legislative history and the language of the statute itself would seem to dictate.

I. "The district where the plan is administered ...."

It is the defendants' position that the Plan is administered solely in the Southern District of Ohio since it is managed exclusively in that District. Plaintiff argues to the contrary inasmuch as checks and other Plan materials are mailed to persons in the Southern District of West Virginia. In support of this contention, plaintiff cites the following partial definition of "administer" from The American Heritage Dictionary of the English Language (American Heritage Publishing Co., 1971), at page 17 thereof:

1. to have charge of; direct; manage.

2. to mete out; dispense .... (emphasis supplied by the court)

A similar argument was presented in Sprinzen v. Supreme Court of the State of New Jersey, 478 F.Supp. 722 (S.D.N.Y. 1979), at 723. In Sprinzen, trustees of what was arguably an "employee benefit plan," established to provide employees with legal services, brought an action in the district in which the plan was managed. Defendants filed a motion to dismiss due to improper venue, claiming that the district of an ERISA employee benefit plan's administration was the district in which benefits were tendered. Defendants continued that, since ERISA's legislative history evinces concern for the beneficiaries of employee benefit plans, to read "administer" as meaning "to manage" for purposes of ERISA venue would be contrary to Congressional intent.

The Sprinzen court did not adopt defendants' position. Rather, that court reasoned as follows:

Plaintiffs contend that in determining "where the plan is administered" we are to focus upon the plan, and that we should adopt the general definition of "administer" which is "to manage.".... ... Looking at the plain, unambiguous meaning of "where the plan is administered," we find that the plaintiffs' construction is correct. The legislative history and the language used in other sections of the statute do not, contrary to defendants' contentions, require a different result.

Id. at 723, 724. See also Boyer, infra, at 481 F.Supp. 458-459.

In the instant case, defendant Robert A. Langdon, administrator of the defendant Plan, declares that: he maintains his office, the sole situs of Plan administration, in Cincinnati, Ohio; the assets from which Plan benefits are paid are held in trust in a Cincinnati bank; and all decisions concerning Plan administration, including "decisions concerning the...