United States District Court, D. Minnesota
Robert Bonczek, P.O. Box 18782, Minneapolis, MN 55418, pro se.
Thomas C. Atmore and Thomas R. Haugrud, LEONARD, O'BRIEN, SPENCER, GALE & SAYRE, LTD, 100 South Fifth Street, Suite 2500, Minneapolis, Minnesota 55402, and Librado Arreola, ASHER, GITTLER & D'ALBA, LTD., 200 West Jackson Boulevard, Suite 1900, Chicago, IL 60606, for defendants.
MEMORANDUM OPINION AND ORDER ON REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
JOHN R. TUNHEIM, District Judge.
Robert Bonczek filed this pro se action under the Employee Retirement Income Security Act ("ERISA"), against the Board of Trustees National Roofing Industry Pension Plan ("National Roofing Industry Pension Plan"), Zenith Administrators, and Agent for Service of Legal Process, Wilson-McShane Corporation (together, "Defendants"). Bonczek did not pay the filing fee for this matter, but instead filed an application to proceed in forma pauperis ("IFP"). Based on a review of Bonczek's IFP application and complaint, United States Magistrate Judge Leo I. Brisbois issued a Report and Recommendation ("R&R") on October 2, 2014, recommending that the Court dismiss Bonczek's claims against defendant Agent for Service of Legal Process, Wilson-McShane Corporation ("Agent for Service of Legal Process" or "Wilson-McShane").
This matter is before the Court on Bonczek's objections to the R&R recommending dismissing with prejudice all claims against Wilson-McShane. Pursuant to Federal Rule of Civil Procedure 72(b)(3) and D. Minn. LR 72.2(b)(3), the Court has reviewed de novo the portions of the R&R to which Bonczek objects. Because the Court concludes that Bonczek fails to state a claim against Agent for Service of Legal Process/Wilson-McShane, the Court will dismiss any claims against Agent for Service of Legal Process. The Court will sustain Bonczek's objections, however, to the extent they object to dismissal with prejudice. Thus, the Court will dismiss Bonczek's claims against Agent for Service of Legal Process without prejudice.
I. Bonczek's Claim
Bonczek alleges that defendants National Roofing Industry Pension Plan and Zenith Administrators breached their fiduciary duty when they deprived him of pension benefits in which he had become vested. (Compl., Attach. 1 ¶¶ 7-10, 14(k), (l), 18, Sept. 23, 2014, Docket No. 1.) Bonczek turned 65 on January 19, 2008, at which point he became eligible to retire and receive full retirement benefits from the National Roofing Industry Pension Plan. (Id. at 16.) On May 25, 2010, Bonczek received a letter from the National Roofing Industry Pension Plan stating that their "records indicate that you are approaching or have attained age 65 and have participated in the Fund at least 5 years without a loss of service." (Id. at 75.) The letter explained:
You may be eligible to begin receiving pension benefits whenever you wish to stop working. If you continue to work after your Normal Retirement Date (NRD), your retirement benefit payments will not begin until you decide to actually retire and apply for them. The Plan is required to commence benefit payments no later than April 1st following the year in which you attain 70½.
When you are an active employee, you will continue to accrue a benefit under the Plan in accordance with its terms.... The Plan does not, however, make up or otherwise adjust your benefit for months you could have received a Plan payment but chose not to do so.
In addition to National Roofing Industry Pension Plan and Zenith Administrators, Bonczek also named Wilson-McShane as a defendant in part of his complaint. (Compl. ¶ 2(c).) But, in the attachment to the complaint in which Bonczek explains the nature of his claim, Bonczek does not list Wilson-McShane as a defendant and does not raise any claims against them.
Upon a review of Bonczek's complaint and the documents attached to it, Wilson-McShane appears to be a third-party administrator of National Roofing Industry Pension Plan's pension fund. (Compl., Attach. 1, Ex. E at 50.) Chris Reitmeier, a pension specialist at Wilson-McShane, corresponded with Bonczek about his retirement benefits. (Id. at 50, 55-56.) Reitmeier does not appear to be a decision-maker with respect to Bonczek's benefits; it appears that Reitmeier's role - and, in turn, Wilson McShane's role - was solely to convey information to Bonczek from the National Roofing Industry Pension Plan's Fund Office. (Id. ) In Bonczek's description of the nature of his case, he explains that he met ...