Sullivan v. Nissan Supplemental Exec. Ret. Plan II

• Decision Date: 06 July 2021
• Docket Number: NO. 3:20-cv-00752,3:20-cv-00752
• Parties: BRIAN SULLIVAN, Plaintiff, v. THE NISSAN SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN II and NISSAN NORTH AMERICA, INC., Defendants.
• Court: U.S. District Court — Middle District of Tennessee

BRIAN SULLIVAN, Plaintiff, v. THE NISSAN SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN II and NISSAN NORTH AMERICA, INC., Defendants.

NO. 3:20-cv-00752

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

July 6, 2021

JUDGE RICHARDSON

MEMORANDUM OPINION

Pending before the Court is Defendants' Motion to Dismiss for Failure to Exhaust Administrative Remedies. (Doc. No. 21, the "Motion"). Plaintiff has responded. (Doc. No. 28). Defendants have replied. (Doc. No. 34). The motion is ripe for review.

For the reasons discussed herein, the Motion will be denied.

FACTUAL BACKGROUND¹

Plaintiff worked for Defendant Nissan for over 25 years. (Doc. No. 1 at 4). From 2013-2017, Plaintiff worked as the Director of Batteries for Nissan. (Id.). On April 1, 2017, Plaintiff was promoted to be Vice President of Powertrain and Battery Operations of Nissan, where he served until the company sold the department to the Envision Group in April 2019. (Id.). When the batteries department was sold, Plaintiff continued in his employment with Defendant Nissan as the Vice President of Powertrain. (Id.). Plaintiff's last day of employment with Defendant Nissan wasMarch 13, 2020. (Id. at 2). He resigned to work with his former department (now at Envision). (Id.).

During his exit interview on March 12, 2020, Plaintiff "made a verbal request as to the status of his . . . benefit payment"² under the Nissan Supplemental Executive Retirement Plan II (the "Plan") (Id. at 5).³ That same day, a representative from Nissan's Human Resources Department sent an email to Susan Gritton, Senior Counsel for Nissan, asking her to assist Plaintiff with questions regarding "his SERP."⁴ (Id.). Senior Counsel Gritton asked Plaintiff how she could assist him. (Id.). Plaintiff responded that he would "just like to understand the process to initiate the SERP II payment for October 2020." (Id.). Senior Counsel Gritton responded that the "SERP II Administrative Committee must first make a recommendation as to your eligibility for payment" and that Defendant Nissan must decide whether his new position was in violation of the Plan's non-competition provision. (Id.). At her request, Plaintiff responded with information answering her questions regarding his new title, job responsibilities, and start date. (Id.). The Plan's non-competition provision states that Defendants' obligation to pay benefits under the Plan is expressly conditioned upon the participant refraining from:

either directly or indirectly, solely or jointly with other persons or entities, owning, managing, operating, joining, controlling, consulting with, rendering services for or participating in the ownership, management, operation or control of, or being connected as an officer, director, employee, partner, principal, agent, consultant or other representative with, or permitting his/her name to be used with any business or organization (a "Competing Company") with which the Company competes.

(Doc. No. 1-2 at 10).

The Vice President of Human Resources thereafter issued a letter dated April 30, 2020, which Plaintiff calls an "advisory opinion," (Doc. No. 1 at 6), which stated:

This letter responds to your request for an opinion from the Administrative Committee of the Nissan Supplemental Executive Retirement Plan II ("SERP II") on whether providing services for AESC would create a forfeiture of your benefits under the non-competition clause of the SERP II.

Please be advised that under the terms of the SERP II, only Senior Vice-Presidents of the company, by majority vote, are empowered to make formal, binding decisions regarding possible breaches of the confidentiality and non-competition conditions of the SERP II. Consequently, an opinion from the Administrative Committee and/or any member of the Administrative Committee is advisory only.

The SERP II expressly conditions payment of any benefit on the employee complying with certain confidentiality obligations and on the employee not rendering services directly or indirectly to any "Competing Company" as the SERP II defines that term.

As mentioned above, you have inquired whether providing services for AESC would create a forfeiture of your SERP II benefits. We deem that it would. AESC is a company that manufactures and distributes or plans to manufacture and distribute batteries and/or other component parts to automobiles manufacturers. While Nissan may currently be AESC's sole customer, it is known that AESC's intentions are to sell to other OEMs that compete with Nissan.

Because AESC manufactures and distributes or plans to manufacture and distribute batteries and/or other component parts to OEMS other than Nissan, such employment by you would be in direct violation of the non-competition provision set forth in Section 2.3(b) of the SERP II and would result in a forfeiture of your benefits.

(Doc. No. 1-3, "April Letter").

Plaintiff asserts that Defendants have neither denied nor granted his claim for benefits. (Doc. No. 1 at 3). Plaintiff asserts that the April Letter was not a denial of benefits and that, therefore, he should be deemed to have exhausted his administrative remedies under the Plan. (Id. at 2-4). Plaintiff asserts that the Senior Vice Presidents ("SVPs") have failed to vote on whether his work with Envision violates the non-competition provision of the Plan, and he has therefore not received a denial of benefits. (Id. at 7).

The Complaint sets forth a single count, for breach of contract under 29 U.S.C. § 1132(a)(1)(B).

This matter is related to two other matters before this Court, Vest v. The Nissan Supplemental Executive Retirement Plan II et al, 3:19-cv-01021, and Delauter v. The Nissan Supplemental Executive Retirement Plan II et al, 3:20-cv-00609. In Vest, this Court previously ruled on a Motion to Dismiss or Alternatively, Compel Arbitration and Stay Proceedings which involved interpreting the same Plan at issue in this case. Vest v. The Nissan Supplemental Exec. Ret. Plan II, No. 3:19-CV-1021, 2020 WL 7695261 (M.D. Tenn. Dec. 28, 2020). In Delauter, this Court recently denied a Motion to Dismiss for Failure to Exhaust Administrative Remedies. No. 3:20-cv-609, 2021 WL 2515238 (M.D. Tenn. June 18, 2021).

LEGAL STANDARD

For purposes of a motion to dismiss under 12(b)(6), the Court must take all of the factual allegations in the complaint as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Id. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant isliable for the misconduct alleged. Id. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Id. at 1950. A legal conclusion, including one couched as a factual allegation, need not be accepted as true on a motion to dismiss, nor are mere recitations of the elements of a cause of action sufficient. Id.; Fritz v. Charter Township of Comstock, 592 F.3d 718, 722 (6th Cir. 2010), cited in Abriq v. Hall, 295 F. Supp. 3d 874, 877 (M.D. Tenn. 2018). Moreover, factual allegations that are merely consistent with the defendant's liability do not satisfy the claimant's burden, as mere consistency does not establish plausibility of entitlement to relief even if it supports the possibility of relief. Iqbal, 556 U.S. at 678.

In determining whether a complaint is sufficient under the standards of Iqbal and its predecessor and complementary case, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), it may be appropriate to "begin [the] analysis by identifying the allegations in the complaint that are not entitled to the assumption of truth." Iqbal, 556 U.S. at 680. This can be crucial, as no such allegations count toward the plaintiff's goal of reaching plausibility of relief. To reiterate, such allegations include "bare assertions," formulaic recitation of the elements, and "conclusory" or "bold" allegations. Id. at 681. The question is whether the remaining allegations—factual allegations, i.e., allegations of factual matter—plausibly suggest an entitlement to relief. Id. If not, the pleading fails to meet the standard of Federal Rule of Civil Procedure 8 and thus must be dismissed pursuant to Rule 12(b)(6). Id. at 683.

As a general rule, matters outside the pleadings may not be considered in ruling on a motion to dismiss under Rule 12(b)(6) unless the motion is converted to one for summary judgment under Rule 56. Fed. R. Civ. P. 12(d). When a document is referred to in the pleadings and is integral tothe claims, it may be considered without converting a motion to dismiss into one for summary judgment. Doe v. Ohio State Univ., 219 F.Supp.3d 645, 652-53 (S.D. Ohio 2016); Blanch v. Trans Union, LLC, 333 F. Supp. 3d 789, 791-92 (M.D. Tenn. 2018).

DISCUSSION

Defendants argue that this case should be dismissed pursuant to Rule 12(b)(6) because (supposedly) Plaintiff failed to exhaust the administrative remedies set forth in the Plan prior to filing the lawsuit, including by arbitrating the final review of his claim as (according to Defendants) he was obligated to do.⁵ (Doc. No. 22 at 1). As relief alternative to dismissal and if the Court determines the April Letter not to have been a denial, Defendants ask the Court to remand this case. (Id. at 16). Plaintiff responds that the Court should deem Plaintiff's claim exhausted and therefore not dismiss the case. (Doc. No. 28 at 9). Plaintiff also argues that remand is inappropriate. (Id. at 20).

A. Evidence and Conversion to Summary Judgment⁶

Fed. Rule of Civ. P. 12(d) states that "[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are...