                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 12-4585
                                     ____________

                       PHILIP A. DIX, Individually and on behalf
                            of all others similarly situated,

                                                                Appellant

                                           v.

              TOTAL PETROCHEMICALS USA, INC., PENSION PLAN
                             ____________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                                 (D.C. No. 10-cv-03196)
                    District Judge: Honorable Jerome B. Simandle
                                      ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 26, 2013

             Before: AMBRO, FISHER, and HARDIMAN, Circuit Judges.

                              (Filed: September 30, 2013)

                                     ____________

                              OPINION OF THE COURT
                                   ____________

HARDIMAN, Circuit Judge.

      Appellant Philip A. Dix brought a putative class action against Appellee Total

Petrochemicals USA, Inc., Pension Plan (the Plan) on June 23, 2010, alleging that the
Plan violated the Employee Retirement Income Security Act (ERISA) when it failed to

include the present value of cost-of-living adjustments (COLAs) in its lump sum

calculations. The District Court determined that Dix’s claim was time-barred and entered

summary judgment in favor of the Plan. We will affirm.

                                             I

       Because the District Court thoroughly described Dix’s pension plan, the

documents that he received, and the history of this case in its opinion below, see Dix v.

Total Petrochemicals USA, Inc., Pension Plan, No. 10-3196, 2012 WL 6005011, at *1−4

(D.N.J. Nov. 30, 2012), and because we write for the parties, we provide only a brief

explanation of the relevant dates and documents in this case.

       Dix began working for Rohm & Haas Company in 1967, and participated in the

Rohm & Haas Pension Plan (R&H Plan) throughout his employment there. He received

the R&H Plan Summary Plan Description (SPD) in 1994. According to the SPD, when

Dix chose to retire, he could choose from several different types of monthly annuity

payments, or he could elect to receive a lump sum payment. The document explained that

these different options were available so that “you can arrange to have your pension paid

in the way that best meets your individual needs,” and that “the equivalent lifetime value

of your pension is the same under all forms.” App. 59. The document also provided that

participants who chose monthly annuity payments would receive annual cost-of-living

increases, but noted that those increases “apply only to monthly pension benefits,” and

                                             2
informed the reader: “You forgo cost-of-living increases if you take a lump sum pension.”

App. 61 (emphasis in original).

       As a result of corporate transactions and name changes, Dix subsequently became

employed by Elf Atochem, N.A., Inc., and then by ATOFINA Chemicals, Inc., and the

Plan assumed responsibility for the R&H Plan’s obligations to Dix.

       In 2003, Dix was given the option to participate in his company’s Early Retirement

Incentive Plan. Between August and November 2003, Dix received several Statements of

Estimated Benefits that described his payment options. These documents provided

estimates of the amount that Dix would receive per month under the different annuity

payment options, and an estimate of the amount that Dix would receive if he selected the

lump sum payment. Like the SPD, these documents explained that Dix would receive

annual COLAs if he selected to receive monthly annuity payments, but further provided:

“You will not be entitled to this cost-of-living adjustment if you elect (with your

spouse’s written consent) to receive your RandH accrued benefit in the form of a

lump sum.” App. 136, 139, 142, 169 (emphasis in original).

       No later than November 14, 2003, Dix received a letter dated November 10, which

informed him that if he chose to receive a lump sum payment, he would receive $505,495.

To elect the lump sum payment, Dix and his wife had to sign a consent form, stating that

Dix elected to receive “a single payment of the actuarial equivalent present value of the

benefit that [he] would otherwise be entitled to receive in the form of monthly annuity

                                             3
payments” and acknowledging that they would have “no right or entitlement to any future

benefits from the Plan” after the $505,495 payment. App. 50. The consent form also

referenced Article IV of the Atofina Plan, the document governing Dix’s pension

coverage, which, in an appendix, provided a description of COLAs similar to the ones

found in the Statements of Estimated Benefits and the 1994 SPD.

       Dix and his wife signed the consent form before a notary on November 14, 2003.

(Id.) Dix’s application to participate in the early retirement program was accepted on

December 18, 2003, and $505,495 was credited to Dix’s individual retirement account on

January 12, 2004.

       In August 2007, the Court of Appeals for the Seventh Circuit issued an opinion

holding that the R&H Plan’s failure to include the present value of COLAs in pensioners’

lump sum distributions violated ERISA. See Williams v. Rohm & Haas Pension Plan,

497 F.3d 710 (7th Cir. 2007). On December 7, 2009, Dix filed an administrative claim

with the Plan based on the Plan’s failure to include the present value of expected COLAs

in his lump sum payment. The claim was denied on April 5, 2010. Dix then filed an

internal administrative appeal, which was denied on June 18, 2010. Dix received

notification of this denial on June 21, 2010, and he filed suit in the District Court for the

District of New Jersey on June 23, 2010, alleging that the Plan violated ERISA by failing

to include the present value of COLAs in its lump sum calculation. After completing

limited discovery, the Plan filed a motion for summary judgment on the basis that the

                                              4
claim was untimely.

       The District Court determined that New Jersey’s six-year statute of limitations for

breach of contract was applicable to Dix’s claim. It explained that a non-fiduciary claim

for benefits under ERISA accrues when there has been a clear repudiation of benefits, and

held that Dix’s claim accrued no later than November 14, 2003. By that date, Dix had

received the letter informing him that he would receive a lump sum payment of $505,495,

he had acknowledged that he would not receive any future benefits by signing the consent

form, and he had received multiple documents discussing the receipt of COLAs. Because

Dix did not file his administrative claim until December 7, 2009, the District Court

dismissed his claim as untimely. He appealed.

                                             II1

       Although Dix argued below that his claim was not governed by any statute of

limitations,2 neither party now disputes that New Jersey’s six-year statute of limitations

applies. They disagree, however, as to when Dix’s claim accrued. The Plan argues that

Dix’s claim accrued no later than November 14, 2003, when Dix signed the consent form



       1
         The District Court had jurisdiction in this case under 29 U.S.C. § 1132(e). We
have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise de novo review over a grant
of summary judgment, Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007),
and we will affirm if “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law,” Fed. R. Civ. P. 56(a).
       2
       As noted by the District Court, this claim is contrary to established precedent.
See Romero v. Allstate Corp., 404 F.3d 212, 221 (3d Cir. 2005).

                                             5
required to receive a lump sum payment. Dix contends, primarily, that his claim did not

accrue until June 18, 2010, when his administrative claim was denied. He also argues in

passing that equitable tolling is appropriate in this case. We address each argument in

turn.

                                              A

        In the ERISA context, a non-fiduciary cause of action will generally accrue when a

party’s claim for benefits has been formally denied. See Romero v. Allstate Corp., 404

F.3d 212, 222−23 (3d Cir. 2005). Under the “clear repudiation” rule, however, claims

will accrue before a formal denial when there has been “a repudiation of the benefits by

the fiduciary which was clear and made known [to] the beneficiary.” Miller v. Fortis

Benefits Ins. Co., 475 F.3d 516, 520−21 (3d Cir. 2007) (emphasis in original). In Miller,

for example, we found that the underpayment of a disability award triggered the relevant

statute of limitations because: (1) the plan’s determination that the beneficiary should

receive less than his full entitlement was “effectively a partial denial of benefits,” and

thus a “repudiation,” id. at 521; and (2) a reasonable person in the beneficiary’s position

would have been put on notice of the repudiation when he received his first miscalculated

benefit award, id. at 521−22.

        The Plan repudiated Dix’s claim when it informed him in the November 10 letter

and consent form that, if he elected to receive a lump sum payment, he would receive a

one-time payment of $505,495 and he would not receive any future benefits. This was

                                              6
“effectively a partial denial of benefits” that Dix now claims he was owed. To the extent

that Dix argues that there was no “repudiation” because the Plan did not follow the formal

procedures for denying a claim, this argument is foreclosed by Miller. See id. at 520−21.

       The issue, then, is whether the repudiation was “clear” by November 14; that is,

whether Dix “kn[ew] or should [have known] he ha[d] a cause of action.” Id. at 521. Dix

claims at the time he signed the consent form he did not know, and had no reason to

know, that the present value of COLAs was not included in the lump sum figure. Dix

asserts that the Plan’s statements about cost-of-living adjustments and increases were, at

best, ambiguous—particularly in light of its promise that the lump sum payment and the

annuities would have the same actuarial value. Dix recognizes that, under the plain

language of the SPD and the Statements of Estimated Benefits, he was not entitled to any

cost-of-living payments after he received the lump sum payment—that is, he would not

receive future “adjustments” or “increases.” However, he argues that the documents he

received could be interpreted to mean that the present value of COLAs that he would

receive should have been included in the lump sum figure. The Plan, in contrast, argues

that the language in the SPD, the Statements of Estimated Benefits, and the Atofina Plan

(which was never sent to Dix, but was referenced in the consent form that he signed)

lends itself to only one interpretation: COLAs would not be included in any form if he

chose a lump sum payment.

       We agree with the District Court that Dix knew or should have known about his

                                             7
injury by November 14, 2003, at the latest. Given its “broad, beneficiary-protective

goals,” we have recognized that “ERISA does not require plan participants and

beneficiaries likely unfamiliar with the intricacies of pension plan formulas and the

technical requirements of ERISA, to become watchdogs over potential plan errors and

abuses.” Miller, 475 F.3d at 522 (quoting Romero, 404 F.3d at 224) (internal quotation

marks omitted). Nevertheless, we require claimants to exercise reasonable diligence in

investigating the accuracy of a benefit determination because, as we explained in Miller,

“a statute of limitations not based on reasonable discovery is effectively no limitation at

all.” Id.

       Here, Dix received notification that his lump sum payment would be $505,495 in a

letter dated November 10, 2003. He knew, based on the consent form that he received

with the letter and signed in front of a notary on November 14, 2003, that by choosing the

lump sum payment he would have “no right or entitlement to any future benefits from the

Plan.” App. 50. The Statement of Estimated Benefits that he received along with the

letter described the COLAs that he would receive if he were to elect a monthly annuity,

and explained: “You will not be entitled to this cost-of-living adjustment if you elect

(with your spouse’s written consent) to receive your RandH accrued benefit in the

form of a lump sum).” App. 169 (emphasis in original). This warning was similar to

warnings in the 1994 SPD, see App. 61 (“You forgo cost-of-living increases if you take a

lump sum pension.” (emphasis in original)), and to the warnings in the Atofina Plan.

                                              8
       Although Dix argues that the consent form renders these warnings ambiguous, the

statements—which were conspicuously displayed in italics and boldface type in the

original documents—raise significant red flags at the very least. We recognize that

despite the District Court’s conclusion that the language in the documents that Dix

received was “clear and . . . only susceptible to one reasonable interpretation” in this case,

Dix, 2012 WL 6005011, at *10, the same judge acknowledged some “arguable

ambiguity” in the plan language in a subsequent case. See Lightfoot v. Arkema, Inc.

Retirement Benefits Plan, No. 12-773, 2013 WL 3283951, at *7 (D.N.J. June 27, 2013).

But even if this language could be subject to two different interpretations, the most

reasonable interpretation of the emphasized text is that a person selecting the lump sum

payment will not receive any compensation for COLAs at all. A reasonably diligent

person, who had received a calculation of his lump sum award and was deciding whether

to accept it, easily could have investigated whether that estimate included the actuarial

value of expected COLAs by calling the phone number provided in the November 10

letter. See App. 147 (providing a number to call “[i]f any of this information is not clear,

or you have any questions”). There is no evidence that Dix conducted any such

investigation before signing the consent form.3


       3
         Although Dix presents several pieces of additional evidence that he claims
demonstrate ambiguity, none of it affects our analysis. First, Dix claims that the SPD
distributed in 2002—which he did not receive—states more clearly that lump sum
recipients would not receive the value of expected COLAs. He suggests that the
“revisions to [the] Plan and SPD to address, specifically, whether COLAs are included in
                                              9
       Contrary to Dix’s suggestion, there is also no evidence that Plan employees would

have misled him or avoided answering his question had he asked whether the present

value of COLAs was included in his lump sum payment. The SPD distributed by the

R&H Plan in 2002 stated in no uncertain terms that the actuarial value of expected

COLAs was not included in the lump sum payment. See App. 119 (“The COLA only

applies to monthly payments; it does NOT apply if you receive your benefit in the form of

a cash lump sum. The COLA is a benefit enhancement which is not part of your Accrued




the ‘accrued benefit’ clearly support the conclusion that the 1994 SPD did not ‘clearly
repudiate’ plaintiff’s claim.” Dix Br. at 62. Although we agree that the 2002 SPD
discusses the issue in more detail, this does not alter our conclusion that the language in
the documents that Dix did receive was clear enough to put him on notice of the
repudiation.

        Second, Dix claims that the 1994 R&H SPD was judicially determined not to have
clearly repudiated plaintiff’s claim in Williams v. Rohm & Haas Pension Plan, No. 4:04-
cv-0078, 2008 WL 4628114 (S.D. Ind. Oct. 17, 2008). This argument, however,
mischaracterizes the Williams opinion; there, the district court found that the defendant
was estopped from arguing clear repudiation because that argument was inconsistent with
prior theories that it had advanced. Id. at *4.

        Finally, Dix suggests that the Plan’s actuary, Towers Perrin, stated in a letter “that
the COLA provisions in the R&H Plan provided ‘no clear guidance’ on the COLAs and
lump sums.” Dix. Br. at 62. This argument mischaracterizes the Perrin letter, which was
prepared because the treatment of employees who become disabled was not clearly
addressed in the R&H Plan. Perrin explained that “[i]t appears that these employees are
treated as terminated participants (or early retirees, if applicable).” App. 102. In
considering whether disabled employees should receive a COLA benefit, Perrin explained
that there was “no clear guidance”—because the plan does not address disabled
employees—but that disabled employees who elected to take a lump sum probably should
not receive a COLA benefit. App. 104.

                                             10
Benefit under the Plan and is not required by law.”).4 Although Dix presented some

evidence that the Plan delayed answering questions about COLAs between 2007 and

2009, App. 148−53, this occurred only after the Seventh Circuit issued its opinion in

Williams, which held that plans were required to include COLAs in lump sum

distributions under ERISA. See App. 149 (email asking, in September 2007, whether the

ruling in Williams “affects our pension lump sum distribution”). There is no reason to

believe, as Dix suggests, that he would have had to hire an attorney or an actuary to

discover the purported mistake in 2003.

       Because the Plan repudiated Dix’s claim to any additional benefits beyond the

$505,495 figure in the November 10 letter, and requiring Dix to read the plan documents

by the time that he signed the consent form and inquire into whether his lump sum

payment was accurately calculated “does not impose on him a burdensome oversight

role,” Miller, 475 F.3d at 523, we agree with the District Court that Dix’s claim accrued

no later than November 14, 2003.

                                             B

       Dix also argues that, because the Plan misled him into believing that it had granted

his claim in full and did not provide him with the notice required when formally denying

a claim, the statute of limitations should have been equitably tolled. However, Dix has


       4
        Dix did not receive a copy of this document because he was no longer an R&H
Plan participant. See Doc. 62-1 at 20−21 ¶ 30.

                                            11
not shown that extraordinary circumstances exist here, and, as discussed above, if Dix had

exercised reasonable diligence he would have discovered his cause of action no later than

November 14, 2003. Thus, equitable tolling is inappropriate. Cf. Ortega Candelaria v.

Orthobiologics LLC, 661 F.3d 675, 679−80 (1st Cir. 2011) (“Equitable tolling suspends

the running of the limitations period if the plaintiff, in the exercise of reasonable

diligence, could not have discovered information essential to his claim.” (citation, internal

quotation marks, and alteration omitted)); Veltri v. Bldg. Serv. 32B-J Pension Fund, 393

F.3d 318, 322 (2d Cir. 2004) (“Equitable tolling is an extraordinary measure that applies

only when plaintiff is prevented from filing despite exercising that level of diligence

which could reasonably be expected in the circumstances.”).

                                              III

       For the foregoing reasons, we will affirm the District Court’s summary judgment.




                                              12
