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Gearheart v. Clickspeed Marketing, Inc.

United States District Court, Tenth Circuit

August 20, 2013

ROBIN L. GEARHEART, Plaintiff,
v.
CLICKSPEED MARKETING, INC., and CLICKSPEED MARKETING 401K PROFIT SHARING PLAN AND TRUST 353481, Defendants.

MEMORANDUM AND ORDER

Sam A. Crow, U.S. District Senior Judge

This case comes before the Court on Defendants’ motion to dismiss the complaint pursuant to Fed.R.Civ. Pro 12(b)(6) and 12(b)(1). Defendants ClickSpeed Marketing, Inc., (ClickSpeed) and ClickSpeed Marketing 401(K) Profit Sharing Plan and Trust 353481 contend that the Complaint’s ERISA claim fails to state a claim for relief, and that the court lacks subject matter jurisdiction over all other counts.

Undisputed Facts

The relevant facts are undisputed. Plaintiff, a Kansas resident, was employed by ClickSpeed as Vice President of Business Development at ClickSpeed’s office in Overland Park, Kansas from approximately December of 2008 through November of 2012.

After Plaintiff’s separation from employment, she filed her original Complaint against Clickspeed in the U.S. District Court, asserting only diversity jurisdiction and state law causes of action. On April 24, 2013, defense counsel called Plaintiff’s counsel to request the case be dismissed from federal court and refiled in state court due to lack of federal subject matter jurisdiction. Defense counsel repeated that request to Plaintiff’s counsel the next day by email. Plaintiff maintained that the parties are diverse.

The day after the email was sent, Plaintiff filed an Amended Complaint, which adds the ERISA Plan as a defendant and adds an ERISA claim for benefits due. Plaintiff contends that she had planned to add the ERISA claim even before defense counsel contacted her. Defendants then filed this motion to dismiss. In response to the motion, Plaintiff contends that both diversity and federal question jurisdiction are proper.

Documents Attached to the Motion

Defendants have attached two documents to their memorandum in support of their motion to dismiss: a prototype ERISA plan document and the Adoption Agreement. See Dk. 10, Exhs. 1, 2. Together these documents constitute ClickSpeed’s entire ERISA plan and trust document. Plaintiff contends that these documents are improperly attached because neither is central to her ERISA claim or is referenced in her Complaint. Plaintiff argues that any references to “the Plan” in her Complaint refer to the party to this case and not to a document, that the Complaint’s singular reference to the “plan terms” is insufficient to incorporate by reference all 165 pages of the Plan, and that the exhibits have not been authenticated, implying they are not “indisputably authentic, ” as required. Plaintiff asks the Court to disregard the exhibits, or to convert the motion into a summary judgment motion and permit discovery before ruling.

In response, Defendants note that Plaintiff did not specify any reason to doubt the authenticity of the plan. Nonetheless, Defendants attach a declaration under penalty of perjury from the President of ClickSPeed, properly attesting to the authenticity of the two exhibits. Dk. 17, Exh. A.

The law regarding this issue is well established.

Generally, a court considers only the contents of the complaint when ruling on a 12(b)(6) motion. Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Exceptions to this general rule include the following: documents incorporated by reference in the complaint; documents referred to in and central to the complaint, when no party disputes its authenticity; and “ ‘matters of which a court may take judicial notice.’ ” Id. (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007)). This court has explained that
if a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff's claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss.

Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1146 (10th Cir. 2013), (quoting GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997)). The declaration by ClickSpeed’s President dispels any doubt that the documents are “indisputably authentic.” Further, the Court finds that the Amended Complaint repeatedly refers to the documents, as follows:

7. Plaintiff participated in the Clickspeed Marketing 401(k) Profit Sharing Plan and Trust 353481 (the “Plan”). As Plan Sponsor, Defendant Clickspeed makes contributions to the Plan in an amount based upon a percentage of the Plan participant’s compensation. The Plan does not exclude bonus/commission payments from the definition of compensation. Clickspeed’s failure to pay plaintiff for all compensation due and owing led to reduced Plan contributions in direct violation of the Plan and ERISA. 29 U.S.C. § 1104(a)(1)(D). Plaintiff seeks payment of all amounts due under the Plan, interest, attorneys’ fees, costs, and expenses incurred in this action.
20. Clickspeed Marketing 401(k) Profit Sharing Plan and Trust 353481 is an employee benefit plan as defined in 29 U.S.C. ยง 1002(3) that is ...

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