Opinion
Civil Action No. 00411-RV-L, Civil Action No. 00-524-RV-L
April 30, 2001
ORDER
These cases are before the Court on the motions of AmSouth Bank ("AmSouth") and Pierce, Ledyard, Latta Wasden, PLLC ("Pierce, Ledyard") for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Court concludes that there is no genuine issue as to any material fact and that (1) AmSouth is entitled to judgment for the relief it seeks in Civil Action No. 00-0411-RV-L, and (2) AmSouth and Pierce, Ledyard are entitled to summary judgment in their favor on the claim asserted by Davis Caff ("Carr") and Kaye Carr in Civil Action No. 00-0524-RV-L.
I. Background
This matter was initially brought by AmSouth on May 5, 2000 (Civil Action No. 00-0411-RV-L), against Davis Carr and the Trust Company of Steme, Agee Leach, Inc., for restitution of funds allegedly mistakenly placed by AmSouth into the retirement account of Carr. Subsequently, on May 9, 2000, Davis and Kaye Carr filed suit against AmSouth and Pierce, Ledyard in the Circuit Court of Mobile County seeking an accounting of the funds in question (Civil Action No. 00-0524-RV-L). This action was removed by AmSouth on June 8, 2000, and consolidated for the purpose of discovery pursuant to Federal Rule of Civil Procedure on 42(a) on September 6, 2000. On October 12, 2000, the parties filed a "Stipulation for Partial Dismissal," wherein the parties agreed to dismiss Sterne, Agee Leach, Inc. from this action, provided that it maintain a balance of at least $34,139.71 in the Caff pension plan account, and agree to be bound by the judgment of this court regarding the disposition of said funds. Stem, Agee was dismissed without prejudice pursuant to the terms of this stipulation on January 25, 2001. AmSouth filed a motion for summary judgment on behalf of itself as plaintiff in Civil Action No. 00-0411-RV-L, and on behalf of itself and Pierce, Ledyard as defendants in Civil Action No. 00-0524-RV-L, on February 1, 2001. The Rule 16(b) Scheduling Order in each of these cases states that responses to motions for summary judgment are to be filed within 15 days from the date after the motion is served. The court also issued a separate order setting forth this same deadline on February 5, 2001. To date, no responses have been filed by Davis or Kaye Caff in either case.
Local Rule 7.2(b) states that:
Within thirty(30) days thereafter, or as may be otherwise ordered, the party or parties in opposition [to summary judgment] shall file a brief in opposition thereto, and, if it is contended that there are material factual disputes, shall point out the disputed facts appropriately referenced to the supporting document or documents filed in the action. Failure to do so will be considered an admission that no material factual dispute exists, provided, that nothing in this rule shall be construed to require the non-movant to respond in actions where the movant has not borne its burden of establishing that there is no dispute as to any material fact.
The court notes that Defendant/Plaintiff Davis Caff is a licensed attorney in this district, yet he has failed to comply even with the larger, thirty-day response time provided in Local Rule 7.2(b).
II. UNCONTROVERTED FACTS
The factual background is taken directly from AmSouth and Pierce, Ledyard's brief in support of its summary judgment motion. Given that the Caffs have not filed a response to that motion, the court construes this silence to be an admission that no material factual dispute exists. See S.D. Ala. L.R. 7.2(b).
The Court finds that there is no genuine issue with respect to the following facts:
1. AmSouth, which was formerly known as AmSouth Bank of Alabama and Am South Bank, N.A., is a bank organized and existing under the laws of Alabama, with offices located in Mobile, Alabama. [AmSouth Complaint ¶ 1; Caff Answer ¶ 1].
2. Davis D. Caff ("Caff") is an individual now residing in Illinois. [AmSouth Complaint ¶ 3; Caff Answer ¶ 3].
3. Pierce, Ledyard is a law firm in Mobile, Alabama engaged in interstate commerce. Pierce, Ledyard was originally known as Pierce, Caff and Alford. [Affidavit of Donald F. Pierce].
4. For a number of years, AmSouth served as the Trustee of a "Money Purchase Pension Plan" and a "401(k) Profit Sharing Plan" (collectively refeffed to as "The Plans") administered by Pierce, Ledyard for its employees. Caff was employed by Pierce, Ledyard and participated in the Plans. He designated his wife, Kaye Caff, as the beneficiary of his share of the Plans. [Pierce Aff.; Affidavit of John W. Thoruley; Affidavit of Robert B. Richardson].
5. While it served as Trustee, AmSouth sent periodic reports to Pierce, Ledyard regarding the balances in the Plans and the transactions that had taken place with respect to the Plans' assets. Pierce, Ledyard distributed these reports to Caff and the other employees who participated in the Plans. [Affidavit of Robert F. Richardson; Affidavit of Anne McDevitt].
6. In addition to the reports that Caff received while he was a participant in the Plans, during the pendency of this action AmSouth has furnished him with more than 800 pages of account statements and backup documentation with regard to the Plans and Caff's share of the Plans' assets. [Richardson Aff.].
7. While AmSouth served as Trustee of the Plans, the Plans were governed by a document entitled "AmSouth Bank N.A. Defined Contribution Plan and Trust." As pertinent to these cases, this Plan document provided that upon termination of their employment with Pierce, Ledyard, plan participants were entitled to receive their "vested balance" in the Plans. [Richardson Aff.; Thornley Aff. Ex. 1, ¶ 6.4].
8. On April 15, 1996 Caff terminated his employment with Pierce, Ledyard and joined a new firm named Caff, Alford, Glausen McDonald. The new Caff, Alford firm established its own retirement plan for which The Trust Company of Sterne, Agee Leach ("Sterne, Agee") served as Trustee. [Caff Complaint ¶ 4; AmSouth Complaint ¶¶ 9-10; Caff Answer ¶¶ 9-10].
9. In 1997, AmSouth transferred or "rolled over" the following assets on Caff's behalf from the Pierce, Ledyard retirement plans to the new Caff, Alford plan:
A. From the 401(k) Profit Sharing Plan:
(1) $72,263.55, composed of(a) $42,340.38 from the AmSouth Balanced Fund; (b) $23,110.67 from the AmSouth Equity Fund; and (c) the market value of $6,812.50 of South Alabama Bank stock that was held in the Self-Directed Fund portion of the 401(k) plan;
(2) $26,252.11, composed of $437.83 of cash from the Self-Directed Fund portion of the 401(k) plan and a life insurance policy cash surrender value of $25,814.28; and
(3) $3,365.49, representing the remaining cash in the Self-Directed Fund portion of the 401(k) plan.
B. From the Money Purchase Pension Plan:
(1) $68,279.42 of cash from the Pooled Investment Fund; and
(2) $6,298.31, composed of the $6,267.14 cash surrender value of another life insurance that was held in the Self-Directed Fund portion of the Money Purchase Pension Plan and cash earnings from the Self-Directed Fund of $31.17. [Richardson Aff.].
10. At the time AmSouth "rolled over" Caff's share of the Plans to his new plan, his vested balance in the Pooled Investment Fund portion of the Money Purchase Pension Plan was $34,139.71. AmSouth transferred that amount to Sterne, Agee, as the Trustee of Caff's new plan, on April 28, 1997. As the result of a clerical error, however, on May 7, 1997 AmSouth transferred another $34,139.71 to Sterne, Agee for the benefit of Caff. As a result, Caff received an erroneous overpayment of $34,139.71 credited to his new plan. [Richardson Aff].
11. On October 8, 1999 AmSouth reimbursed the Money Purchase Pension Plan for the erroneous overpayment. Caff has not, to date, refunded the overpayment to AmSouth. [Richardson Aff.].
III. SUMMARY JUDGMENT STANDARD
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In reviewing a summary judgment motion, the court must view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the non-moving party. See Alexander v. Fulton County, 207 F.3d 1303, 1335 (11th Cir. 2000). The party seeking summary judgment has the initial burden of showing that there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Once the moving party meets that burden, the non-moving party must set forth specific facts which demonstrate that there is a genuine issue of material fact for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). A genuine issue of material fact exists for trial if a reasonable jury could return a verdict in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
To avoid an adverse ruling on a motion for summary judgment, the nonmoving party "may not rest upon the mere allegations or denials of [its] pleading." Fed R. Civ. P. 56(e). Nor may the non-moving party defeat summary judgment by providing a mere "scintilla" of evidence. See Burger King Corp. v. Weaver, 169 F.3d 1310, 1321 (11th Cir. 1999). Instead, there must be a genuine factual conflict in the evidence to support a jury question. See Continental Gas. Go. v. Wendt, 205 F.3d 1258, 1261 (11th Cir. 2000).
IV. DISCUSSION a. Civil Action No. 00-0411-RV-L
AmSouth brings this action pursuant to 29 U.S.C. § 1 132(a)(3), which states that a civil action may be brought:
by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan.
AmSouth asserts, and Carr has not contested that AmSouth is a fiduciary as that term is defined under ERISA. See 29 U.S.C. § 1002 (21)(A)(iii). Therefore, AmSouth requests equitable relief in pursuant to Section 1 132(a)(3)(B) for reimbursement of the erroneously paid funds. "Restitution is an equitable remedy designed to restore to a plaintiff something of value that is wrongfully in the possession of another."First National Life Ins. v. Sunshine-Jr. Food Stores, 960 F.2d 1546, 1553 (11th Cir. 1992). Furthermore, the Eleventh Circuit has found that "Section 11 32(a)(3) undoubtedly authorizes a fiduciary in certain circumstances to bring an action for restitution to recover benefits mistakenly paid out." Id. (citing Blue Gross and Blue Shield of Alabama v. Weitz, 913 F.2d 1544, 1549 (11th Cir. 1990) (finding that a fiduciary of an ERISA plan could maintain an action for restitution under § 1132(a)(3) against a physician to whom payments were made in violation of the plan.)).
To date, Carr has put forth no evidence at all demonstrating that he is entitled to the $34,139.71, that AmSouth maintains was erroneously credited to his account. Furthermore, Carr has never disputed AmSouth's version of the accounting history of this case. In fact, in the related action, Carr has only filed suit seeking an accounting of the accounts manage by AmSouth and/or Pierce, Ledyard. Therefore, finding absolutely no evidence to the contrary, the court finds that the amount in question, $34,139.71, is the property of AmSouth, and orders that restitution shall be made accordingly.
b. Civil Action No. 00-0524-RV-L
Plaintiffs Davis and Kaye Carr ("the Carrs") have brought this action seeking an accounting of the funds managed by AmSouth and/or Pierce, Ledyard on behalf of Davis Carr while he was employed at Pierce, Ledyard (f.k.a. Pierce, Carr Alford). As AmSouth and Pierce, Ledyard have pointed out, the Carrs have not identified any legal basis demonstrating their entitlement to such relief either in their original complaint or at any other point during this litigation.
Should the Carrs' claim for accounting be based upon state law, it would clearly be preempted by ERISA. ERISA specifically preempts "any and all State laws insofar as they may now or hereafter relate to any employee benefit plan" 29 U.S.C. § 1144 (a). The Supreme Court has found that this preemption is to be construed broadly, holding that a law is "related to" an employee benefit plan, "if it has a connection with or reference to such a plan." Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97 (1983).
Since neither party has adequately briefed the issue of when a party would be entitled to an "accounting" under ERISA, the court declines to do so for them at present. However, the court does notes that it appears that accountings are available under ERISA in certain circumstances.See, e.g. Elmore v. Cone Mills Corp., 23 F.3d 855, 863 (4th Cir. 1994);Nugent v. Jesuit High School of New Orleans, 625 F.2d 1285, 1287-88 (5th Cir. 1980). At any rate, the question of whether the Carrs do in fact possess a legal entitlement to an accounting from Am South or Pierce, Ledyard is of little consequence given the factual record presently before the court.
The uncontroverted facts, as put by AmSouth and Pierce, Ledyard, demonstrate that as a result of this litigation, Carr has been provided with over "800 pages of account statements and other documentation" concerning his retirement accounts. Furthermore, the Carrs have neither moved to compel the disclosure of any additional documentation nor filed any interrogatories or requests for the production of any additional information from either AmSouth or Pierce, Ledyard. Therefore, the court concludes that the relief which the Carrs have requested has already been satisfied, and therefore, their request for an accounting is hereby denied as moot.
V. CONCLUSION
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). For the foregoing reasons, the Court concludes that AmSouth and Pierce, Ledyard have met their burden as moving parties under Rule 56, and their motion should therefore be granted in both matters.
Therefore, AmSouth's motion for summary judgment in Civil Action No. 00-0411-RV-L is hereby GRANTED. Judgment is hereby ordered in favor of plaintiff AmSouth in the amount of $34,139.71, plus prejudgment interest. The parties are instructed to submit proposed calculations for the amount of prejudgment interest owed by defendant Carr within fifteen (15) days from the date of this order. In addition, because Carr has failed to respond to AmSouth's motion for summary judgment, AmSouth is entitled to recover reasonable attorney's fees and costs pursuant to 29 U.S.C. § 1 132(g)(1) and Fed.R.Civ.P. 54(d)(1).
Additionally, AmSouth and Pierce, Ledyard's motion for summary judgment in Civil Action No. 00-0524-RV-L is hereby GRANTED. The Carrs shall receive nothing from AmSouth or Pierce, Ledyard pursuant to this action. Am South and Pierce, Ledyard are entitled to recover reasonable attorney's fees and costs pursuant to 29 U.S.C. § 1132 (g)(1) and Fed.R.Civ.P. 54(d)(1).
AmSouth and Pierce, Ledyard's motions to Consolidate for Trial are therefore MOOT. A separate Order and Judgment consistent with these findings will be entered for each of these cases.