United States District Court, D. New Jersey
plaintiff, Nicholas Bergamatto ("Bergamatto"),
brings this action against the Board of Trustees of the New
York Shipping Association International Longshoremen's
Association Pension Trust Fund ("the Board"), and
Charles Ward ("Ward") in his alleged capacity as
plan administrator of the Pension Trust Fund. Bergamatto
seeks to recover pension benefits under an employee pension
benefit plan. The plan is covered by the Employee
Retirement Income Security Act ("ERISA"), 29 U.S.C.
§ 1001 et seq. Currently before the Court is the
motion of the defendants to dismiss the Complaint under
Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim upon which relief can be granted. For the reasons set
forth below, the motion is denied.
2000, Bergamatto began employment as a dockworker for the New
York Shipping Association ("NYSA"). (Cplt., Dkt.
No. 1, ¶5) As a result of his employment, he became a
member of the International Longshoremen's Association
2000 to 2003, Bergamatto did not participate in his
employer's pension plan, the NYSA-ILA Pension Trust Fund,
but instead participated in an annuity program.
(Id.) In 2004, however, Bergamatto became a
participant in the NYSA-ILA Pension Trust Fund. (Id.
to Bergamatto, on April 23, 2010, the Waterfront Commission
suspended his waterfront pass, thereby leaving him unable to
work. (Id. ¶7) About six months later, on
October 27, 2010, Bergamatto injured his rotator cuff, an
injury which, he says, rendered him temporarily disabled.
(Id.) At the time, Bergamatto had a "full
expectation to return to work . . . upon the lifting of his
suspension and restoration of his waterfront pass."
(Id. ¶8; see ¶ 17) However, the
suspension of his waterfront pass was never lifted.
(Id.) Effective April 21, 2013, Bergamatto retired
at age 66. (Id.)
Bergamatto's retirement, NYSA and ILA had entered into a
collective bargaining agreement which, in part, provided that
pension participants hired after October 1996 would receive
credit for pension benefit accruals based on years worked
from 1996 to 2004. (Id. ¶9) On May 2, 2013, the
Board amended the NYSA-ILA Pension Trust Fund's January
7, 2010 Agreement and Declaration of Trust and Plan to
incorporate that new provision, effective October 1, 2012.
(Dkt. No. 8-2, at 7 to 8)
on the new Plan provision, Bergamatto requested benefit
accruals for the years 2000 through 2004. (Cplt. ¶9) His
request was denied because he did not have any work hours in
2012, when the new Plan provision took effect. That was
Bergamatto's last full year before his retirement.
10, 2014, Bergamatto, through counsel, appealed that decision
to Charles Ward, the "designated Plan Administrator of
the NYSA-ILA Pension Trust Fund", by sending a letter
through certified mail. (Id. ¶2, 10; Dkt. No.
11-2, Ex. B) In his letter, Bergamatto requested a copy of
"the pertinent [NYSA-ILA Pension Trust Fund] provisions
or operative summary plan description." (Id.
¶IO) The letter was received on July 16, 2014.
November 12, 2014, Bergamatto, again through counsel, sent a
second letter to Ward. (Id. ¶l 1; Dkt. No.
11-2, Ex. C) In that letter, Bergamatto stated that Ward did
not respond to his first letter. (Id.) He also
informed Ward that he "had already incurred $9500.00 in
penalties pursuant to 29 U.S.C.A. sec.
days later, on November 14, 2014, Ward sent Bergamatto's
counsel a copy of a letter dated July 25, 2014, that Ward had
sent to Bergamatto. (Id. ¶12; Dkt. No. 11-2,
Ex. D) In that earlier letter, Ward had denied
Bergamatto's benefit request "on the basis of
Article V, Section 1 of the Plan." (Id.) He
explained that because Bergamatto's last year of credited
service was 2010, he was no longer a Plan participant when he
applied for the 2000 to 2004 benefit accrual. (Id.)
November 21, 2014, Bergamatto, through counsel,
"rejected Ward's response as untimely", and
reiterated his request for a copy of the summary plan
description. (Id. ¶13; Dkt. No. 11-2, Ex. D) On
December 2, 2014, Ward sent Bergamatto a copy of the 2010
summary plan description, as well as Bergamatto's work
record. (Id. ¶14)
one month later, on January 6, 2015, Bergamatto, through
counsel, appealed Ward's denial of benefits to the Board.
(Id. ¶15) The Board held a hearing on June 18,
2015. (Id.; see Dkt. No. 8-2, at 10 to 15)
point before the appeal hearing, the Board Secretary sent
Bergamatto a letter regarding the $7, 693.71 that Bergamatto
received in temporary disability benefits from the NYSA-ILA
Accident and Health Plan because of his rotator cuff injury.
(Id. ¶16; Ex. A to 11-1) The letter stated that
the benefits were paid in error because Bergamatto's
waterfront pass was revoked at the time. [Id.) The
letter requested that Bergamotto refund those benefits.
asserts that his pass was "never revoked but only
suspended." (Id.) "Under the rules of the
Waterfront Commission", Bergamatto says, "the pass
can only be revoked after a hearing." (Id.)
29, 2015, the Board affirmed Ward's decision.
(Id. ¶18; see Dkt. No. 8-2 at 18 to
19) The Board's affirmance did not address the demand for
a refund of erroneously paid temporary disability benefits.
(Id. ¶18; see Dkt. No. 8-2 at 18 to
September 9, 2016, Bergamatto filed this action pursuant to
ERISA section 502, 29 U.S.C. §1132(e)(1). [Id.
¶4) The Complaint alleges 1) wrongful denial of accrued
benefits, and 2) statutory penalties for disclosure
violations. (Id. ¶¶ 20-23)
the Board and Ward, filed this joint motion to dismiss the
Complaint on December 2, 2016. (ECF no. 8) In connection with
the motion, the Board and Ward also submitted an affidavit
from counsel and six exhibits. (ECF no. 8-2; ECF no. 8-2 Ex.
1 to 6).
January 23, 2017, counsel for Bergamatto filed a brief
"in opposition to motion for summary
judgment." (ECF no. 11-3) He also filed an affidavit
from his client, Bergamatto, and a certification from himself
in support of the motion. (ECF nos. 11-1 and
11-2) Bergamatto's affidavit attached one
exhibit, and his counsel's certification attached six.
(ECF no. 11-1, Ex. A; ECF no. 11-2, Ex. A to F).
February 3, 2017, the Board and Ward submitted a reply
memorandum of law in support of their motion to dismiss. (ECF