                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
______________________________________
                                       )
                                       )
DAVID STRUMSKY,                        )
            Plaintiff,                 )
                                       )
            v.                         )     Civil Case No. 10-1798 (RCL)
                                       )
WASHINGTON POST COMPANY,               )
            Defendant.                 )
                                       )
______________________________________ )


                                MEMORANDUM OPINION

       Before the Court is defendant Washington Post Company’s Motion [4] to dismiss for

failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil

Procedure 12(b)(6). Upon consideration of defendant’s Motion [4], plaintiff’s opposition [7],

defendant’s reply [8], the applicable law, and the entire record in this case, the Court will

GRANT defendant’s Motion. The Court will explain its reasoning in the analysis that follows.

       I.     FACTUAL BACKGROUND

       The facts alleged in the complaint are taken as true for purposes of this Motion to

dismiss. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). Plaintiff David Strumsky was

employed by the Washington Post newspaper, a wholly-owned subsidiary of defendant

Washington Post Company (“Post”), as a machinist from 1987 through July 15, 2009. Plaintiff

is a participant in the Washington Post Pension Plan for Craft Union Employees (“Craft Plan”)

consistent with the terms of a collective bargaining agreement between his union and the

newspaper.




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       In 2009, the Post offered certain eligible employees, including the plaintiff, the

opportunity to participate in a special early retirement program, called the Voluntary Retirement

Incentive Program for Washington Post Machinists (“VRIP”), contingent on an employee

enrolling prior to June 30, 2009. Plaintiff alleges that he orally contacted Post personnel to

accept the VRIP prior to June 30, 2009, but admits that he did not return the required enrollment

documentation by the June 30 deadline. After the deadline, plaintiff contacted the Post to enroll

in the VRIP, but the Post advised plaintiff that he had missed the enrollment deadline.

       On September 28, 2010, the plaintiff filed a complaint in the District of Columbia

Superior Court against the Post alleging that the Post wrongfully denied him special retirement

benefits when he failed to timely enroll in the VRIP.         Plaintiff pleads four counts in his

complaint. Count I alleges a statutory violation of the Employee Retirement Income Security

Act of 1974, as amended (“ERISA”), 29 U.S.C. §§ 1001, et seq. Counts II, III, and IV state

common law theories of liability: breach of contract, breach of fiduciary duty, and promissory

estoppel, respectively. On October 25, 2010, the Post removed the action to this Court pursuant

to 28 U.S.C. §§ 1331 and 1441. The Post now moves to dismiss plaintiff’s complaint in its

entirety pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon

which relief may be granted.

       II.     LEGAL STANDARD

       A motion to dismiss is appropriate when a complaint fails “to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). To overcome this hurdle, a complaint must

contain “a short and plain statement of the claim showing that the pleader is entitled to relief, in

order to give the defendant fair notice of what the . . . claim is and the grounds upon which it

rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). The



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Court must “accept as true all of the factual allegations contained in the complaint,” Atherton v.

District of Columbia, 567 F.3d 672, 681 (D.C. Cir. 2009), and grant a plaintiff “the benefit of all

inferences that can be derived from the facts alleged,” Kowal v. MCI Commc’ns Corp., 16 F.3d

1271, 1276 (D.C. Cir. 1994). However, the Court may not “accept inferences drawn by plaintiffs

if such inferences are unsupported by the facts set out in the complaint.” Id. In other words,

“only a complaint that states a plausible claim for relief survives a motion to dismiss.” Ashcroft

v. Iqbal, 129 S. Ct. 1937, 1950 (2009); see also Atherton, 567 F.3d at 681.

       Generally, when a court relies upon matters outside the pleadings, a motion to dismiss

must be treated as one for summary judgment and disposed of pursuant to Rule 56. See Fed. R.

Civ. P. 12(d). “However, where a document is referred to in the complaint and is central to the

plaintiff’s claim, such a document attached to the motion papers may be considered without

converting the motion to one for summary judgment.” Vanover v. Hantman, 77 F. Supp. 2d 91,

98 (D.D.C. 1999), aff’d, 38 Fed. Appx. 4 (D.C. Cir. 2002) (citing Greenberg v. Life Ins. Co. of

Va., 177 F.3d 507, 514 (6th Cir. 1999). In such event, “the defendant may submit an authentic

copy to the court to be considered on a motion to dismiss, and the court’s consideration of the

document does not require conversion of the motion to one for summary judgment.” 11 James

Wm. Moore et al., Moore’s Federal Practice § 56.30[4] (3d ed. 1998); see, e.g., Weiner v. Klais

& Co., 108 F.3d 86, 89 (6th Cir. 1997). “Otherwise, a plaintiff with a legally deficient claim

could survive a motion to dismiss simply by failing to attach a dispositive document on which it

relied.” Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.

1993). Moreover, a document need not be mentioned by name to be considered “referred to” or

“incorporated by reference” into the complaint. See Weiner, 108 F.3d at 89.




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       Here, plaintiff’s entire complaint centers on the retirement benefits that he contends he is

entitled to receive under the VRIP. Hence, plaintiff cannot claim that the VRIP Notice is not

referred to in the complaint. Moreover, the VRIP cannot be considered alone without the Craft

Plan’s applicable provisions or the Summary Plan Description because these additional

documents form the basis for the relief the plaintiff seeks. Therefore, defendant’s attachments to

its Motion to dismiss can be properly considered by the Court without converting defendant’s

motion into one for summary judgment. See, e.g., Nat’l Shopmen Pension Fund v. Disa, 583 F.

Supp. 2d 95, 99 (D.D.C. 2008).

       III.    STATUTORY FRAMEWORK

       The Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq.,

was enacted as a comprehensive regulation of private employee benefit plans for the purpose of

protecting their participants and beneficiaries. See Aetna Health Inc. v. Davila, 542 U.S. 200

(2004); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987). ERISA applies to any “employee

benefit plan” that is established or maintained by an employer engaged in commerce. 29 U.S.C.

§ 1003(a). An “employee benefit plan” includes an “employee pension benefit plan.” 29 U.S.C.

§ 1002(2)(A). An “employee pension benefit plan” is “any plan, fund, or program” which is

“established or maintained by an employer” that “provides retirement income.” Id.

       Congress intended for ERISA to be expansive. With minor exceptions, state law relating

to employee benefit plans is preempted by ERISA. Pilot Life Ins., 481 U.S. at 54. ERISA’s

preemption clause explicitly states that ERISA “shall supersede any and all State laws insofar as

they may now or hereafter relate to any employee benefit plan . . .” 29 U.S.C. § 1144(a). A state

law cause of action “relates” to an ERISA plan when it makes reference to, or is premised upon,

the existence of a plan, or requires a court to focus its inquiry on the plan in order to resolve the



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claim. See Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 140 (1990); Pilot Life Ins., 481 U.S.

at 54.    ERISA’s preemption provision was enacted to “ensure that employee benefit plan

regulation would be ‘exclusively a federal concern.’” Aetna Health, 542 U.S. at 208 (citation

omitted). Therefore, any state law cause of action that “duplicates, supplements, or supplants

[an] ERISA civil enforcement remedy” is preempted. Id. at 209.

         IV.     ANALYSIS

                 A. Count I

         Plaintiff alleges in his complaint that the benefits described in the VRIP were pursuant to

a “program,” Compl. ¶ 4, established by his employer, id. ¶¶ 3, 4, that provided “retirement

benefits,” id. ¶¶ 15, 21, 26, 30. Accordingly, plaintiff has alleged all essential elements of

ERISA coverage in this case. Furthermore, the documents attached to defendant’s Motion to

dismiss establish that the benefits described in the VRIP Notice are pension benefits to which

ERISA applies.      See Def.’s Mot. to Dismiss [4] Ex. 1, at 4; id. Ex. 2; id. Ex. 3, at 10.

Nonetheless, in his response to the defendant’s Motion to dismiss, the plaintiff voluntarily

dismisses his ERISA claim under Count I, which is the plaintiff’s only federal claim in the

complaint. Pl.’s Opp. [7] at 2 n.1. This Court has discretion to decline to exercise supplemental

jurisdiction over plaintiff’s remaining common law claims because the claim over which the

Court had original jurisdiction has been dismissed. See 28 U.S.C. § 1367(c)(3). However, the

sufficiency of the remaining counts in plaintiff’s complaint turns on the issue of whether these

claims are preempted by ERISA. As this preemption issue is a federal question, the Court will

address defendant’s Motion to dismiss as to the remaining counts in the complaint. See 28

U.S.C. § 1331.




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              B. Counts II, III, and IV

       In Counts II, III, and IV, plaintiff asserts state common law claims of breach of contract,

breach of fiduciary duty, and promissory estoppel, respectively. The plaintiff’s entire complaint

focuses on the retirement benefits described in the VRIP Notice, and each common law cause of

action claims that those benefits were wrongfully denied. Each claim seeks a declaration that

plaintiff is entitled to the special retirement benefits provided by the VRIP amendments to the

Craft Plan. These causes of action all clearly attempt to “duplicate, supplement, or supplant”

section 502(a)(1)(B) of ERISA’s civil enforcement scheme which governs claims for benefits.

The Court therefore finds that Counts II, III, and IV of the complaint are preempted by ERISA

and are accordingly dismissed.

       V.     CONCLUSION

       For the foregoing reasons, the Court concludes that on all counts, the plaintiff has failed

to state a claim on which relief may be granted pursuant to Rule 12(b)(6).        The Court will

therefore GRANT defendant’s Motion [4] to dismiss and will dismiss the plaintiff’s complaint

with prejudice. A separate Order consistent with this Memorandum Opinion will issue this date.


       Signed by Royce C. Lamberth, United States District Judge, on February 7, 2012.




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