[Cite as Machlup v. TIAA-CREF Individual & Inst. Serv., 2013-Ohio-2704.]




                   Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA



                             JOURNAL ENTRY AND OPINION
                                      No. 99298


                                MARILYN MACHLUP
                                                 PLAINTIFF-APPELLANT

                                                   vs.

            TIAA-CREF INDIV. & INST. SERV., ET AL.
                                                 DEFENDANTS-APPELLEES


                                          JUDGMENT:
                                           AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-782861

             BEFORE:          Blackmon, J., Celebrezze, P.J., and McCormack, J.

             RELEASED AND JOURNALIZED:                            June 27, 2013
ATTORNEYS FOR APPELLANT

Richard N. Selby, II
Angela D. Krupar
Dworken & Bernstein Co., L.P.A.
60 South Park Place
Painesville, Ohio 44077


ATTORNEYS FOR APPELLEES

Matthew D. Golish
Vincent T. Norwillo
Gonzales Saggio & Harlan, L.L.P.
526 Superior Avenue
Suite 620
Cleveland, Ohio 44114




PATRICIA ANN BLACKMON, J.:
       {¶1} In this accelerated appeal, appellant Marilyn Machlup (“Machlup”) appeals

the trial court’s dismissal of her complaint for lack of jurisdiction and assigns the

following error for our review:

       The trial court erred in determining that plaintiff/ appellant’s

       complaint was preempted by the Federal Employee Retirement Income

       Security Act and improperly dismissed plaintiff/appellant’s complaint.

       {¶2} Having reviewed the record and pertinent law, we affirm the trial court’s

decision. The apposite facts follow.

                                         Facts

       {¶3} Machlup is the widow of Professor Stefan Machlup, a former physics

professor at Case Western Reserve University (“University”).     Professor Machlup was

employed at the University for 44 years and participated in the University’s

ERISA-governed Section 403(b) retirement plan. Retirement annuity contracts issued by

TIAA-CREF (Teachers Insurance & Annuity Association of America and College

Retirement Equities Fund) fund the plan. When he enrolled in the plan, he was issued

deferred annuity contracts. The annuities provided for retirement and post-retirement

death benefits on a tax deferred basis until the account holders attain the age where the

Internal Revenue Service mandates they take the required distributions to fulfill tax law

obligations.

       {¶4} On August 24, 2002, Professor Machlup was 70 and one-half years old,

thus he requested his retirement benefits be converted into minimum distribution income
streams (“MDO”) based on mandatory tax obligations. At this time, Professor Machlup

also exercised his contractual option to provide death benefits for each contract,

instructing that his wife receive one-half of any death benefits available upon his passing

and that his two sons divide the other half. He restricted each beneficiary to lifetime

monthly annuity payouts.

       {¶5} Professor Machlup died on August 16, 2008. TIAA-CREF’s Release and

Indemnification letter proposed a valuation of Machlup’s property as of August 16, 2008,

of $1,033, 313.18.      The beneficiaries were provided applications to separate the

accumulated death benefits into self-directed individual accounts and initiate their

lifetime monthly annuity payouts as Professor Machlup had directed. Machlup accepted

the distribution; however, her sons rejected the distribution arrangement, questioning both

the value of the accumulated death benefits as well as their father’s restriction that

benefits be paid monthly for life.1       Although Machlup had been receiving the

annuity payments, on May 17, 2012, she filed a complaint in the common pleas court

alleging conversion, breach of fiduciary duty, breach of duty for accounting, breach of

duty to act in good faith and fair dealing, unjust enrichment, fraud in the inducement, and

breach of contract. Underlying these claims are her contentions that TIAA-CREF failed

to pay her the full value of her husband’s pension and mismanaged the fund.




       1
        The sons have a separate complaint pending in the court of common pleas.
       {¶6} TIAA-CREF filed a motion to dismiss pursuant to Civ.R. 12(B)(1) and (6),

claiming the action was preempted by ERISA. The trial court granted the motion to

dismiss, stating in pertinent part:

       To survive preemption a state claim must only relate to an employer
       benefit plan “tangentially.” Halley v. The Ohio Co., 107 Ohio App.3d
       518 (1995). However, when a state claim is based on a promise
       affecting the amount or calculation of benefits, even if the promise is
       made in writing separate from the pension plan, the claim “relates to”
       the pension plan and is preempted. Great Lakes Bancorp v. Holbrook,
       1996 U.S. Dist. LEXIS 4668. The court finds that in the instant
       matter, plaintiff’s claims “relate to” an employer benefit plan and are
       therefore preempted by ERISA. Therefore, plaintiff’s complaint is
       dismissed with prejudice. There is no just case for delay. Journal Entry,
       Nov. 30, 2012.

                                      Jurisdiction

       {¶7} Machlup argues in her sole assigned error that the trial court erred by

dismissing her claims for lack of jurisdiction. She contends that her state claims were

not preempted by ERISA.

       {¶8} In order to prevail on a motion to dismiss pursuant to Civ.R. 12(B)(6), it

must appear “beyond doubt that the plaintiff can prove no set of facts in support of his

claim which would entitle him to relief.” Byrd v. Faber, 57 Ohio St.3d 56, 60, 565

N.E.2d 584 (1991). A motion to dismiss for failure to state a claim upon which relief

can be granted is procedural and tests the sufficiency of the complaint. State ex rel.

Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 1992-Ohio-73, 605 N.E.2d

378. A similar standard applies to Civ.R. 12(B)(1) motions: the court must dismiss if the

complaint fails to allege any cause of action cognizable in the forum. Blankenship v.
Cincinnati Milacron Chems., Inc., 69 Ohio St.2d 608, 611, 433 N.E.2d 572 (1982). An

appellate court reviews rulings on both types of motions under a de novo standard of

review. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d

44, ¶ 5 (reviewing a Civ.R. 12(B)(6) motion under a de novo standard); Revocable Living

Trust of Stewart I. Mandel v. Lake Erie Util. Co., 8th Dist. No. 97859, 2012-Ohio-5718, ¶

17 (holding that an appellate court reviews a Civ.R. 12(B)(1) motion de novo).

      {¶9} Additionally, in considering a motion to dismiss pursuant to Civ.R.

12(B)(1), the court is not confined to the allegations of the complaint, and may consider

material pertinent to the inquiry without converting the motion into one for summary

judgment. Southgate Dev. Corp. v. Columbia Gas Transm. Corp., 48 Ohio St.2d 211,

358 N.E.2d 526 (1976), at paragraph one of the syllabus. At oral argument, appellant’s

counsel argued that the court erred by considering evidence outside the complaint because

preemption does not involve subject matter jurisdiction.       However, this court has

previously held that if a claim is federally preempted, the common pleas court does not

have subject matter jurisdiction over the matter.      Chenevey v. Greater Cleveland

Regional Transit Auth., 8th Dist. No. 99063, 2013-Ohio-1902; Cannon v. CSX Transp.,

Inc., 8th Dist. No. 84373, 2005-Ohio-99; Kulak v. Mail-Well Envelope Co., 8th Dist. No.

76974, 2000 Ohio App. LEXIS 3949 (Aug. 31, 2000). Thus, the trial court did not err by

considering evidence attached to TIAA-CREF’s motion to dismiss.

      {¶10} The federal Employment Retirement Income and Securities Act (“ERISA”),

29 U.S.C. 1001 et seq., is a comprehensive federal law governing employee benefits. In
pertinent part, ERISA defines an “employee benefit welfare plan” as any plan established

or maintained by an employer for the purpose of providing for its participants or their

beneficiaries, through the purchase of insurance or otherwise, benefits in the event of

death. 29 U.S.C. 1002(1).

       {¶11} ERISA’s provisions “supersede any and all State laws insofar as they may

now or hereafter relate to any employee benefit plan [covered by ERISA].” 29 U.S.C.

1144(a). “ERISA preempts state law and state law claims that ‘relate to’ any employee

benefit plan as that term is defined therein.” Cromwell v. Equicor-Equitable HCA Corp.,

944 F.2d 1272, 1275 (6th Cir.1991); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107

S.Ct. 1549, 95 L.Ed.2d 39 (1987).

       {¶12} “The phrase ‘relate to’ is given broad meaning such that a state law cause of

action is preempted if ‘it has connection with or reference to that plan.’” Metro. Life Ins.

Co. v. Massachusetts, 471 U.S. 724, 730, 105 S.Ct. 2380, 885 L.Ed.2d 728 (1985).

Congress’s intent in enacting ERISA was to completely preempt the area of employee

benefit plans and to make regulation of benefit plans solely a federal concern. Pilot at

46. “Thus, only those state laws and state law claims whose effect on employee benefit

plans is merely tenuous, remote or peripheral are not preempted.” Cromwell at 1276.

One rationale for the broad application of the preemption clause is to avoid conflicting

state rules on ERISA-related matters. Internatl. Resources, Inc. v. New York Life Ins.

Co., 950 F.2d 294, 299 (6th Cir.1991), citing Ingersoll-Rand Co. v. McClendon, 498 U.S.
133, 141, 111 S.Ct. 478, 112 L.Ed.2d 474 (1991); FMC Corp. v. Holliday, 498 U.S. 52,

58, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990).

      {¶13} Machlup argues that her claims are not preempted because her state law

claims do not conflict with ERISA law. This court in Halley, 107 Ohio App.3d 518, 669

N.E.2d 70 (8th Dist. 1995), set forth the situations in which conflict preemption applied:

(1) when state and common law claims are for recovery of an ERISA plan benefit and (2)

when state law claims seek remedies for misconduct allegedly growing out of ERISA

plan administration. Id. at 522.

      {¶14} In the instant case, Machlup’s claims are based on her contention that she is

entitled to more accumulated death benefit distributions from her husband’s annuities

than TIAA-CREF is distributing.       She also contends the alleged deficiency in her

husband’s   annuities   are   the   result   of   TIAA-CREF’s    alleged   administrative

mismanagement. Thus, resolving Machlup’s state law claims for conversion, breach of

fiduciary duty, breach of duty of good faith and fair dealing, and unjust enrichment will

require the review of the investment allocations and the administration of the annuity

contracts to confirm the account balances. Such review will require an interpretation of

the ERISA plan terms and assessment of the administration of the plan.

      In enacting ERISA, Congress’ primary concern was with the
      mismanagement of funds accumulated to finance employee benefits and
      the failure to pay employees benefits from accumulated funds. To that
      end, it established extensive reporting, disclosure, and fiduciary duty
      requirements to insure against the possibility that the employee’s
      expectation of the benefit would be defeated through poor management
      by the plan administrator.
Massachusetts v. Morash, 490 U.S. 107, 115, 104 L.Ed.2d 98, 109 S.Ct. 1668

(1989).

      {¶15} Therefore, Machlup’s claims are more than tenuously related to the ERISA

plan. As the court in Cromwell, 944 F.2d at 1276, stated,

      It is not the label placed on a state law claim that determines whether it

      is preempted, but whether in essence such a claim is for the recovery of

      an ERISA plan benefit. Appellants’ complaint alleged promissory

      estoppel, breach of contract, negligent misrepresentation, and breach

      of good faith as grounds for the recovery of benefits * * *. Thus,

      appellants’ state law claims are at the very heart of issues within the

      scope of ERISA’s exclusive regulation and, if allowed, would affect the

      relationship between plan principals by extending coverage beyond the

      terms of the plan.      Clearly, appellant’s claims are preempted by

      ERISA.

      {¶16} Likewise, here, Machlup’s claims, although couched in state law terms, are

seeking the recovery of accumulated pension benefits.

      {¶17} Machlup also argues that her claims are not preempted because her annuity

contracts with TIAA-CREF were purchased separately from her husband’s retirement

plan and, therefore, are unrelated to his pension plan. We disagree. In August 2002,

Professor Machlup was required to take a minimum distribution from his retirement plan.

Therefore, at his direction, he specified the required amounts from his original annuity
contracts be transferred to new minimum distribution contracts. He instructed that upon

his death his accumulated pension benefits be transferred to new annuity contracts in

Machlup’s and their sons’ names to be paid in monthly amounts. Thus, these were not

new purchases, but transfers from the pension fund.

      {¶18} Machlup cites to the decision in Waks v. Blue Cross/Blue Shield, 263 F.3d

872 (9th Cir. 2001), to support her contention that her annuity contracts were separate

from Machlup’s pension fund. However, Waks is distinguishable. In Waks, the plaintiff

was covered by her employer group health insurance policy that was subsequently

terminated and converted to an individual plan. Thereafter, plaintiff accrued medical

costs, which the individual policy refused to cover. The plaintiff sued the insurance

company, which argued her claims were preempted. However, the court concluded that

ERISA did not preempt the plan because the individual policy was purchased separately

from the terminated group plan. This is different from the instant case where Machlup is

referring to wrongdoing regarding the management of her husband’s pension fund.

Moreover in Waks, the ERISA policy was terminated. In the instant case, the pension

plan was never terminated.    Instead, upon the professor’s death, the pension amounts

were transferred into annuity contracts.   Thus, in the instant case, there is no separate

purchase.

      {¶19} Machlup also cites to the recent decision by the Sixth Circuit in Gardner v.

Heartland Indus. Partners, L.P., 2013 U.S. App. LEXIS 9470 (6th Cir.2013). Gardner is

distinguishable. In Gardner, the plaintiffs’ employer sold the company to a buyer. As
part of the deal to sell the company, the employer terminated the executives’ pension plan

in order to avoid payment of a 13 million dollar “change of control” fee to the executives

set forth in the retirement plan. In the instant case, the pension fund was not terminated.

Also, in Gardner, the sales agreement between the company and buyer was at issue

because it sought to void the pension plan.       Therefore, resolution of the case was

dependent on the terms of the sales contract, not the pension plan. In this case, the

resolution of the claims is dependent on the terms of the pension plan that were

incorporated into the annuity contracts. Accordingly, Machlup’s sole assigned error is

overruled.

      {¶20} Judgment affirmed.

      It is ordered that appellees recover from appellant their costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
TIM McCORMACK, J., CONCUR
