United States District Court, S.D. Florida
ORDER DIRECTING PLAINTIFF TO PROVIDE MORE DEFINITE
STATEMENT IN AMENDED COMPLAINT AND DENYING DEFENDANT'S
MOTION TO DISMISS, WITHOUT PREJUDICE
M. SIMONTON UNITED STATES MAGISTRATE JUDGE.
matter is before the Court upon Defendant University of
Miami's Motion to Dismiss Plaintiff's Complaint, ECF
No. . The Plaintiff has filed an Opposition and the
Defendant has filed a Reply, ECF Nos.  . The case has
been referred by the Honorable Kathleen M. Williams, United
States District Judge, to the undersigned Magistrate Judge
for a determination of all non-dispositive matters and a
report and recommendation on any dispositive matters, ECF No.
For the following reasons, pursuant to Fed.R.Civ.P. 8 (a), 10
(b) and 12 (e), the undersigned orders the Plaintiff to file
an Amended Complaint which sets forth a more definite
statement of the claims asserted by Plaintiff. The
undersigned denies the Defendant's Motion to Dismiss
without prejudice to file a renewed motion to dismiss
Plaintiff's Amended Complaint, if
matter was initiated when Plaintiff Keith Gould
(“Gould”) filed a Class Action Complaint against
his former employer University of Miami
(“University”) pursuant to the Employee
Retirement Income Security Act, 29 U.S.C. §§ 1001
et seq. (“ERISA”). Generally, Gould
contends that the University failed to provide certain ERISA
plan benefits to him and other similarly situated employees,
and also failed to advise those employees that such benefits
were available to volunteer faculty members.
has filed a Motion to Dismiss contending, among other things,
that Plaintiff, as a volunteer faculty member, was not
eligible to participate in the ERISA plans at issue, save one
supplemental retirement plan, in which Plaintiff elected to
not participate, ECF No. .
thorough review of the Plaintiff's Class Action
Complaint, the Parties' filings related to the Motion to
Dismiss, and the applicable case law, as set forth in detail
below, the undersigned directs the Plaintiff to file a more
definite statement and denies the Defendant's Motion to
Dismiss, without prejudice.
The Class Action Complaint
following facts are taken from the Class Action Complaint,
and for purposes of resolving the Motion to Dismiss, are
taken as true.
is a former employee of the Defendant who brings this case on
behalf of himself and all similarly-situated persons to
“challenge the Defendant's breach of fiduciary duty
under ERISA.” ECF No.  at 1. From March 2012 until
July 2014, Plaintiff worked for the University as a member of
the “voluntary faculty.” ECF No.  at 2, ¶
6. In that capacity, Plaintiff worked more than forty (40)
hours a week and was paid on a regular basis, ECF No.  at
2, ¶ 6. Plaintiff contends that the University
classified him as an employee by identifying him as an
employee in its payroll system, making employee tax
deductions and withholdings from his pay, including
deductions for the employee portion of Medicare and FICA
taxes, issuing W-2s to the Plaintiff, and naming him as an
“employee” and the University as his
“employer.” ECF No.  at 2-3. The Defendant is
the plan sponsor and a fiduciary for the various qualified
retirement and welfare benefit plans offered to its employees
including plans for health care insurance, dental insurance,
vision insurance, long term disability insurance, short term
disability insurance, long term care insurance, life
insurance, accident insurance, flexible spending accounts,
retirement, supplemental retirement annuity, tuition
remission, and legal assistance, ECF No.  at 3.
about June 9, 2016, the Plaintiff sent a letter to the
University requesting an explanation as to why he was not
provided the same benefits as other employees. On or about
June 14, 2016, the University responded to the
Plaintiff's request in a letter which stated that the
Plaintiff's rights were set forth in a Voluntary Faculty
Manual which provided only limited privileges and benefits,
ECF No.  at 4. On July 6, 2016, the Plaintiff submitted a
claim to the University requesting that he be made whole for
the University's failure to provide him benefits as to
“all of the Plans.” ECF No.  at 4. That claim
was denied on July 20, 2016, because, according to the
University, Plaintiff was not an employee, and as a Voluntary
Faculty member, was not eligible for benefits such as health
insurance and retirement contributions, ECF No.  at 4.
Following Plaintiff's request for a full and fair review
of the denial, the University upheld the denial on November
16, 2016. The University stated that the denial was
predicated upon the Plaintiff's failure to make elective
deferrals from his University earnings during his period of
work for the Supplemental Retirement Annuity Plan (“SRA
Plan”), the only plan for which he was eligible to
participate, ECF No.  at 5. Plaintiff was never notified
of his eligibility for that plan or any other plan, and was
not given the opportunity to make elective contributions to
those plans. The Defendant never responded to the request for
relief as to any of the other Plans.
Complaint also sets out “Allegations as to
Class.” ECF No.  at 5-7. In that section, the
Plaintiff describes the class as “numerous
similarly-situated employees, including all employees
classified as ‘voluntary faculty'.” ECF No.
 at 5-6. The Plaintiff describes the common questions of
law or fact for the class members as follows:
1. Whether the Class member are eligible to participate in
the Plans notwithstanding their designation as
“voluntary faculty”; and,
2. Whether the University can disregard the terms of its
Plans based on other policies, such as the Voluntary Faculty
Manual or the Faculty Manual.
ECF No.  at 6. The Complaint alleges one count of Breach
of Fiduciary duty pursuant to 29 U.S.C. § 1132 (a)(3),
which asserts that the University violated its fiduciary duty
under ERISA by failing to extend to Plaintiff, and members of
the putative class, the opportunity to participate in the
plans, ECF No.  at 7. The Plaintiff contends that as a
result of the breach of fiduciary duty, the Plaintiff, and
the class, suffered harm including the lost value of the Plan
benefits, and that the University was unjustly enriched. The
Plaintiff seeks class certification, an equitable award of
all make-whole relief to which the Plaintiff and the Class
are entitled, and an equitable award to remedy the
University's unjust enrichment, attorneys' fees,
costs, and interest, as permitted by law, and any other
relief to which the Plaintiff and class are entitled, ECF No.
 at 7-8.
Plaintiff attached no documents to the Complaint.
The Defendant's Motion to Dismiss
Motion to Dismiss, Defendant advances a number of arguments.
Defendant first contends that although Plaintiff was only
eligible to participate in the Supplemental Retirement
Annuity (“SRA”) plan offered by the University,
and was given the opportunity to do so, Plaintiff never
elected to make contributions to that plan during his
employment, ECF No.  at 2. Defendant further contends
that the Plaintiff was not eligible to participate in any
other plans offered by the University because Plaintiff was
not a “regular” or “full-time” member
of the faculty. Defendant thus contends that Plaintiff's
action should be dismissed because ERISA § 502(a) only
provides relief for plan participants, beneficiaries or
next argues that, even if the Plaintiff is deemed to be a
participant of any of the University's ERISA plans, the
Plaintiff is still not entitled to relief pursuant to §
502(a)(3) of ERISA because any claim for recovery of unpaid
benefits must be brought pursuant to § 502(a)(1)(B).
Defendant further contends that relief is not available to
the Plaintiff based upon the Defendant's alleged failure
to affirmatively disclose unspecified “enrollment
information” because the Court may not impose
disclosure obligations and remedies on the Defendant where
the Defendant is subject to the fiduciary duties under ERISA,
which do not include such disclosure obligations.
next contends that Plaintiff has failed to state a cause of
action predicated on fraud by the University because the
Plaintiff fails to meet the heightened pleading requirements
of Federal Rule of Civil Procedure 9(b).
Defendant contends that the Plaintiff has failed to allege
facts that indicate that he suffered harm from any alleged
ERISA violation or that the Defendant was unjustly enriched
by any of the alleged violations.
support of its Motion to Dismiss, the University has
submitted the Declaration of Jennifer S. Cohen, the Executive
Director of HR-Benefits for the University, ECF No. [11-1].
Attached to the Declaration are copies of the letters
referenced in the Plaintiff's Complaint including the
June 9, 2016, July 6, 2016 and September 15, 2016 letters
from Keith R. Gould, D.O., to the University, and the June
14, 2016, July 20, 2016, November 16, 2016 letters from the
University to the Plaintiff, ECF Nos. [11-1]-[11-7]. Also
attached to the Declaration is the Manual for the Voluntary
Faculty of the ...