United States District Court, W.D. Texas, San Antonio Division
RODRIGUEZ, UNITED STATES DISTRICT JUDGE
day came on to be considered Defendant's motion to
dismiss (Dkt. no. 38) and Plaintiff's motion to dismiss
counterclaim (Dkt. no. 44).
motion to dismiss ERISA and COBRA claims
“Nothing in ERISA requires employers to establish
employee benefits plans…. An action for benefits under
an ERISA plan may be brought only by a participant in or
beneficiary of an ERISA plan… A plaintiff must satisfy
two requirements to establish participant status. First, the
plaintiff must be a common law employee. Second, the
plaintiff must be, ‘according to the language of the
plan itself, eligible to receive a benefit under the
plan.” Bauer v. Summit Bancorp, 325 F.3d 155,
159 (3d Cir. 2003) (internal citations omitted). Plaintiffs
in this case argue that even though they signed agreements
acknowledging an independent contractor status, they were
improperly classified as independent contractors and are
common law employees eligible to participate in the
employer's ERISA plans.
in their motion to dismiss argue that Plaintiffs are
overlooking the second Bauer requirement.
Essentially, Defendants argue that assuming arguendo the
plaintiffs are indeed common law employees, the Summary Plan
Description in this case states that individuals who signed
independent contractor agreements are not eligible
“even if you are later adjudicated to be a common law
employee.” The Court agrees with the Defendants'
interpretation. As stated by the Court in Puga v.
Williamson-Dickie Mfg. Co., the “dispositive
question … [is] not whether the claimants were
employees but whether, considering them as employees, they
were eligible to participate in an ERISA plan according to
the specific terms of the plan under consideration.”
No. 4:09-CV-335-A, 2009 WL 3363823, at *5 (N.D. Tex. Oct. 16,
are limited by ERISA on who they may exclude, but the
limitations are narrow. See 29 U.S.C. § 1052(a)
(age or length of service). In this Plan the employer
excluded individuals who may even later be determined to be
common law employees. Although this may appear unfair, ERISA
allows this practice. See e.g. Martin v. Pub. Serv. Elec.
& Gas Co., No. CIV A 05-5801 DMC, 2006 WL 3491063,
at *1 (D.N.J. Dec. 4, 2006), aff'd on other
grounds, 271 Fed.Appx. 258 (3d Cir. 2008); Kalksma
v. Konica Minolta Bus. Sols. U.S.A., Inc., No. CIV.
10-2829 DRD, 2011 WL 3703471, at *5 (D.N.J. Aug. 22, 2011).
does not require [an employer] to define its benefits plans
in such a way as to provide coverage for all
employees…. [A]n employee may be a common law employee
for some purposes, yet not entitled to benefits under a
benefit plan.” MacLachlan v. ExxonMobil Corp.,
350 F.3d 472, 482 (5th Cir. 2003).
motion to dismiss the ERISA and COBRA claims is granted (Dkt.
motion to dismiss
Defendant Superior Healthplan has brought a counterclaim
alleging that Plaintiffs Martinez and Silva were overpaid
commissions of $8, 000 and $2, 250 respectively. Superior
alleges that “[a]ach of them received their final
commission payout twice due to a simple mistake on the part
of Superior” and “[t]he overpayment in equity and
good conscience belongs to Defendant. Defendant seeks
imposition of a constructive trust, and recoupment of such
sums that belong to it.” Dkt. No. 38 (Counterclaim).
They also pray for recoupment of all money wrongfully
obtained or possessed by Plaintiffs.
in their motion to dismiss under Rule 12(b)(6) argue that
Defendant has failed to articulate its claims with specific
the Defendant did not use the phrases “claim for money
had and received” or “unjust enrichment, ”
it is clear from its counterclaim that it is asserting such a
claim and it does so in compliance with
Twombly/Iqbal. See Hunter v.
PriceKubecka, PLLC, 339 S.W.3d 795, 807 (Tex.
App.--Dallas 2011, no pet.) (“To recover on a claim for
money had and received, a plaintiff must show that the
defendant holds money that in equity and good conscience
belongs to him. A cause of action for money had and received
is not based on wrongdoing, but, instead, ‘looks only
to the justice of the case and inquires whether the defendant
has received money which rightfully belongs to another.'
In short, it is an equitable doctrine applied to prevent
motion to dismiss ...