Urological Surgery v. Fecteau Benefit

• Court: District Court, D. New Hampshire
• Decided: March 2, 2005
• Docket: CV-04-422-JD
• Status: Published

Opinion

Urological Surgery v . Fecteau Benefit CV-04-422-JD 03/02/05 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Urological Surgery Professional Association, et a l . v. Civil N o . 04-422 JD Opinion N o . 2005 DNH 037 Fecteau Benefits Group, Inc. and William Mann Company

O R D E R

Urological Surgery P.A. (“USPA”), USPA Money Purchase

Pension Plan and Trust, USPA Profit Sharing Plan and Trust, and

Edward A . Chibaro, M.D., collectively USPA, bring an action

against Fecteau Benefits Group, Inc., and William Mann Company,

alleging that they breached fiduciary duties owed under the

Employee Retirement Income Security Act (“ERISA”) and are liable

under both ERISA and state law for contribution and indemnity.

The plaintiffs’ claims arise from a separate action brought

against them by a former employee, John J. Janeiro, M.D., that is

currently pending in this court. The defendants move to dismiss

the claims against them on the grounds that the claims are not

ripe and the state law claims are preempted by ERISA. The

plaintiffs object to the motions to dismiss and move to

consolidate this case with the underlying suit brought against

them by D r . Janeiro. Standard of Review

In considering a motion to dismiss, pursuant to Federal Rule

of Civil Procedure 12(b)(6), the court accepts the facts alleged

in the complaint as true and draws all reasonable inferences in

favor of the plaintiff. Citibank v . Grupo Cupey, Inc., 382 2 9 , 31 (1st Cir. 2004). The court must determine whether the

complaint, construed in the proper light, “alleges facts

sufficient to make out a cognizable claim.” Carroll v . Xerox

Corp., 294 F.3d 2 3 1 , 241 (1st Cir. 2002). All that is required

is a short and plain statement of the claim. See Gorski v . N.H.

Dep’t of Corr., 290 F.3d 466, 473 (1st Cir. 2002) (citing

Swierkiewicz v . Sorema N.A., 534 U.S. 506 (2002)).

Discussion

In their response to the defendants’ motions to dismiss, the

plaintiffs state that their suit is “an action for contribution

and indemnity arising under [ERISA].” They further explain that

they seek contribution and indemnification to the extent that

they may be found liable to plan participant John J. Janeiro,

M.D., in the pending case of John J. Janeiro, M.D., v . Urological

Surgery P.A., et a l . , Civil N o . 03-325-PB. The defendants argue

that the claims are not ripe for adjudication.

2 USPA mistakenly relies on Federal Rule of Civil Procedure 14

to support its argument that its contribution and indemnification

claims are properly raised here. Rule 14(a) provides that “a

defending party, as a third-party plaintiff, may cause a summons

and complaint to be served upon a person not a party to the

action who is or may be liable to the third-party plaintiff for all or part of the plaintiff’s claim against the third-party

plaintiff.” Rule 14(a) merely provides a procedure to bring a

third-party claim in an existing action; the rule does not

provide a substantive cause of action for indemnification or

contribution. See 6 Charles A . Wright, et a l . , Federal Practice

and Procedure § 1448 (1990); see also Z.B. ex rel. Kilmer v .

Ammonoosuc Comty. Health Servs., Inc., 225 F.R.D. 6 0 , 61 (D. M e .

2004); Brown v . Shredes, Inc., 69 F. Supp. 2d 7 6 4 , 767 (D.S.C.

1999). Therefore, Rule 14(a) is inapposite to this case. Generally, a cause of action for contribution or indemnity

is not ripe until the plaintiff’s obligation to pay in the

underlying dispute has been established. See Lear Corp. v .

Johnson Elec. Holdings Ltd., 353 F.3d 5 8 0 , 583 (7th Cir. 2003);

Lincoln House, Inc. v . Dupre, 903 F.2d 845, 847-48 (1st Cir.

1990) (same principle applied in context of contingent RICO

claim); Oxford Shipping Co., Ltd. v . N.H. Trading Corp., 697 F.2d

1 , 7 (1st Cir. 1982); Pardee v . Consumer Portfolio Servs., Inc.,

3 344 F. Supp. 2d 823, 836 (D.R.I. 2004). In the underlying suit,

Dr. Janeiro brought claims against USPA under ERISA, which remain

pending. Therefore, USPA’s ERISA contribution and indemnifica-

tion claims against the defendants are premature and are

dismissed without prejudice.

USPA also brings a claim for contribution under New Hampshire law. New Hampshire Revised Statutes Annotated §

507:7-f provides that “a right of contribution exists between or

among 2 or more persons who are jointly and severally liable upon

the same indivisible claim, or otherwise liable for the same

injury, death or harm, whether or not judgment has been recovered

against all or any of them.” Because USPA’s ERISA claims, which

are the basis of subject matter jurisdiction in this case, are

dismissed, the court declines to exercise supplemental

jurisdiction over the state claim. 28 U.S.C. § 1367(c)(3); see also O’Connor v . Commonwealth Gas Co., 251 F.3d 2 6 2 , 272-73 (1st

Cir. 2001).

Conclusion

The defendants’ motions to dismiss (documents n o . 6 and 17)

are granted. The case is dismissed without prejudice. The

plaintiff’s motion to consolidate (document n o . 13) is terminated

as moot.

4 5 The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

^ 2 ^ d Cfrt (jgw:u>, fli Joseph A DiClerico, J r . United States District Judge March 2 , 2005 cc: Thomas M . Closson, Esquire Danielle Leah Pacik, Esquire William B . Pribis, Esquire Alexander J. Walker, Esquire