     13-3105-cv
     Hardy v. Adam Rose Retirement Plan

                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
     BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
     WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
     MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
     NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
     OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


 1           At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
 3   19th day of August, two thousand fourteen.
 4
 5   Present:    ROSEMARY S. POOLER,
 6               PETER W. HALL,
 7               SUSAN L. CARNEY,
 8                           Circuit Judges.
 9   _____________________________________________________
10
11   THOMAS HARDY,
12
13                                   Plaintiff-Appellant,
14
15                             -v-                                                13-3105-cv
16
17   ADAM ROSE RETIREMENT PLAN, ADAM ROSE, INDIVIDUALLY
18   AND AS PLAN ADMINISTRATOR,
19
20                           Defendants-Appellees.
21   _____________________________________________________
22
23   Appearing for Appellant:        William D. Frumkin, Frumkin & Hunter LLP, White Plains, N.Y.
24
25   Appearing for Appellee:         Leonard I. Spielberg, Harold, Salant, Strassfield & Spielberg,
26                                   White Plains, N.Y.
27
28
29           Appeal from the United States District Court for the Southern District of New York
30   (Seibel, J.).
31
32        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
33   AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
34
 1           Plaintiff Adam Hardy appeals from the July 16, 2013 judgment, entered pursuant to a
 2   July 16, 2013 opinion and order of the United States District Court for the Southern District of
 3   New York (Seibel, J.). This opinion and order granted defendants’ Adam Rose Retirement Plan,
 4   and Adam Rose, individually and as plan administrator (collectively, “Rose”) motion for
 5   summary judgment, and denied Hardy’s cross-motion for summary judgment, on the question of
 6   whether an annuity created by Rose for the benefit of Hardy was a pension plan within the
 7   meaning of the Employment Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq.
 8   We assume the parties’ familiarity with the underlying facts, procedural history, and
 9   specification of issues for review.
10
11           We review the grant of summary judgment de novo. Westport Bank & Trust Co. v.
12   Gerahty, 90 F.3d 661, 668 (2d Cir. 1996). A grant of summary judgment is appropriate where
13   “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
14   matter of law.” Fed. R. Civ. P. 56(a).
15
16          “To prevail on a claim under 29 U.S.C. § 1132(a)(1)(B), a plaintiff must establish the
17   existence of an employee benefit plan.” Hardy v. Adam Rose Ret. Plan, 957 F. Supp. 2d 407, 413
18   (S.D.N.Y. 2013). Hardy asserts that an annuity which was established and owned by Rose, but
19   which originally named Hardy as a beneficiary, was a pension plan within the meaning of 29
20   U.S.C. § 1002(2)(A). This provision provides, in relevant part, that a pension plan is:
21
22          any plan, fund, or program which . . . is hereafter established or maintained by an
23          employer . . . to the extent that by its express terms or as a result of surrounding
24          circumstances, such plan, fund, or program [] provides retirement income to
25          employees . . . regardless of . . . the method of calculating the benefits under the
26          plan or the method of distributing benefits from the plan.
27
28   29 U.S.C. § 1002(2)(A). In determining whether a plan is a pension plan for the purposes of
29   ERISA, we have required district courts to consider, among other factors, (1) “whether the
30   employer’s undertaking or obligation requires managerial discretion in its administration;” (2)
31   the question of “whether a reasonable employee would perceive an ongoing commitment by the
32   employer to provide some employee benefits;” and (3) the level of administrative analysis
33   required “to analyze the circumstances of each employee’s termination separately in light of
34   certain criteria.” Schonholz v. Long Island Jewish Med. Ctr., 87 F.3d 72, 76 (2d Cir. 1996)
35   (internal quotation marks omitted); see also Kosakow v. New Rochelle Radiology Assocs., 274
36   F.3d 706, 737 (2d Cir. 2001). In determining whether an arrangement constitutes a plan under
37   ERISA, “no one [factor] is determinative.” Hardy, 957 F. Supp. 2d at 414 (citing Tischmann v.
38   ITT/Sheraton Corp., 145 F.3d 561, 566 (2d Cir. 1998)).
39
40            We affirm the district court’s determination that the annuity, owned by Rose and naming,
41   in the first instance, Hardy as beneficiary, was not a plan under ERISA. Rose wrote to Hardy on
42   two separate occasions regarding this annuity, in April and November of 2005. In April he
43   indicated that he would be purchasing the annuity and “retaining ownership of this annuity so
44   that you are prevented from the temptation of selling or liquidating it. As you know, the intent is
45   to start to provide a retirement program and this is part of it.” Hardy, 957 F. Supp. 2d at 410
46   (internal quotation marks omitted). Later, in November, Rose wrote again to state that the
47   annuity “is intended to be a retirement benefit.” Id. (internal quotation marks omitted). Thus,

                                                      2
 1   with respect to the second Schonholz factor, which requires us to look to the expectations of the
 2   employee, the district court rightly observed that “[t]he second Schonholz factor weighs in favor
 3   of finding an ERISA plan.” Id. at 416 (internal quotation marks omitted).
 4
 5           However, this is the only factor that weighs in favor of the determination that the annuity
 6   is a plan under ERISA. With respect to the first Schonholz factor, which requires evaluation of
 7   the administrative complexity of the program, the district court correctly noted that “[i]n the
 8   context of the annuity, absolutely no managerial discretion is required. . . . After [Rose’s] initial
 9   transaction . . . no further managerial involvement was required.” Id. at 415. Further, as for the
10   third Schonholz factor, which requires us to look to the individualized determinations for the
11   distribution of plan benefits, the district court correctly pointed out that “[n]o individualized
12   analysis of an employee’s individual circumstances is required” by the annuity. Id. at 416. Even
13   drawing all justifiable inferences in favor of Hardy, which we are required to do at this stage,
14   Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986), we do not disrupt the district court’s
15   conclusion that because the annuity was the result of a single discrete act by Rose, despite its
16   potential long-term benefits, it lacks the administrative complexity necessary to bring it in the
17   realm of ERISA plans. Hardy’s remedy for Rose’s decision to change the beneficiary of the
18   annuity to himself, rather than Hardy, lies, if at all, outside of an action under ERISA. We affirm
19   the district court’s determination that the annuity does not constitute an ERISA plan.1
20
21          We have considered the remainder of Hardy’s arguments on appeal and find them to be
22   without merit. Accordingly, the orders and judgment of the district court hereby are
23   AFFIRMED.
24
25                                                         FOR THE COURT:
26                                                         Catherine O’Hagan Wolfe, Clerk
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            1
              Because we affirm the district court’s determination that the annuity was not a plan as
     defined by ERISA, we do not reach the alternative basis for its holding, namely that “[e]ven
     assuming that the annuities constitute a ‘plan’ under ERISA, I would still dismiss [Hardy’s] case
     because the ostensible ‘plan’ was not ‘designed primarily for the purpose of providing retirement
     income[.]’” Hardy, 957 F. Supp. 2d at 416 (quoting Williams v. Wright, 927 F.2d 1540, 1547
     (11th Cir. 1991)).

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