    10-3737-cv
    Guerero v. FJC Security Services Inc.


                            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 TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals for the Second Circuit, held
    at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 23rd day of May, two thousand eleven.

    PRESENT:
                ROSEMARY S. POOLER,
                BARRINGTON D. PARKER,
                RAYMOND J. LOHIER, JR.,
                      Circuit Judges.
    _____________________________________

    Donnell Guerrero,

                                            Plaintiff-Appellant,

                       v.                                                       10-3737-cv

    FJC Security Services Inc., New York City Human
    Resources Administration, Local 32BJ, SEIU,
    Allied International Union, Sentinel Health Fund,

                            Defendants-Appellees.
    _____________________________________

                                            Donnell Guerrero, pro se, Bronx, N.Y.

                                            Scott A. Weiss, Weiss & Weiss LLC, White Plains, NY (Clifford
                                            J. Ingber, Ingber Law Firm, PLLC, White Plains, NY, on the
                                            brief), for Defendants-Appellees FJC Security Services Inc. and
                                            Sentinel Health Fund.
                               Deborah A. Brenner, Senior Counsel, New York City Law
                               Department, New York, NY, for Defendant-Appellee New York
                               City Human Resources Administration,

                               Judith I. Padow, Deputy General Counsel, SEIU Local 32BJ, New
                               York, NY, for Defendant-Appellee Local 32BJ, SEIU,

                               Sumanth Bollepalli, Weissman & Mintz LLC, New York, NY, for
                               Defendant-Appellee Allied International Union.


       Appeal from a judgment of the United States District Court for the Southern District of

New York (Rakoff, J.; Ellis, M.J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Donnell Guerrero, proceeding pro se, appeals the district court’s

judgment, in which it adopted the magistrate judge’s report and recommendations, granted the

motions to dismiss filed by three of the defendants — Allied International Union (“AIU”), Local

32BJ of the Service Employees International Union (“Local 32BJ”), and the New York City

Human Resources Administration (“HRA”) — and dismissed his amended complaint with

prejudice with respect to all defendants. In his amended complaint, Guerrero had asserted claims

pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”) against all five

defendants. We assume the parties’ familiarity with the underlying facts, the procedural history

of the case, and the issues on appeal.

       This Court reviews de novo the district court’s dismissal of a complaint under Federal

Rule of Civil Procedure 12(b)(6), “construing the complaint liberally, accepting all factual

allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff’s

favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). The complaint must

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plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007). Although all allegations contained in the complaint are

assumed to be true, this tenet is “inapplicable to legal conclusions.” Ashcroft v. Iqbal, 129 S. Ct.

1937, 1949 (2009). A claim will have “facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id.

       First, to the extent that Guerrero’s amended complaint could be construed as asserting

claims against AIU and Local 32BJ for a breach of the duty of fair representation, the magistrate

judge correctly concluded that Guerrero failed to state a cognizable claim. To establish that a

union has breached its duty of fair representation, a union member must show: (1) that the

union’s “actions or inactions are either arbitrary, discriminatory, or in bad faith”; and (2) “a

causal connection between the union’s wrongful conduct and their injuries.” Vaughn v. Air Line

Pilots Ass’n, Int’l, 604 F.3d 703, 709 (2d Cir. 2010) (internal quotation marks omitted). A

union’s actions are “arbitrary only if . . . the union’s behavior is so far outside a wide range of

reasonableness as to be irrational.” Airline Pilots Ass’n Int’l v. O’Neill, 499 U.S. 65, 67 (1991)

(internal citation and quotation marks omitted). Here, Guerrero’s allegations did not suggest that

he had a plausible fair representation claim against AIU or Local 32BJ. Guerrero’s allegation

that the defendants denied him health insurance coverage was vague and conclusory. Even

assuming that Guerrero sufficiently identified particular inactions on the part of AIU or Local

32BJ, his allegations did not suggest that those inactions were “so far outside a wide range of

reasonableness as to be irrational.” Id. Guerrero’s allegation that AIU failed to send him a copy

of a new health insurance plan suggested that AIU was at most negligent in performing an action


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tangentially related to its duties of representing union members, but “‘even negligence on the

union’s part does not give rise to a breach.’” Vaughn, 604 F.3d at 709 (quoting Barr v. United

Parcel Serv., Inc., 868 F.2d 36, 43 (2d Cir. 1989)). Because Guerrero’s failure to state

cognizable fair representation claims was an adequate basis for dismissing these claims, we do

not reach the issue of whether the magistrate judge correctly concluded that the claims were also

time-barred.

         Second, the district court did not err in dismissing Guerrero’s action with respect to all of

the defendants, including the two defendants that did not move to dismiss, FJC Security Services

Inc. (“FJC”) and Sentinel Health Fund (“Sentinel”). “ERISA section 502(a)(1)(B) . . . permits a

participant or beneficiary of an ERISA-covered benefits plan to bring a civil action ‘to recover

benefits due to him under the terms of his plan.’” Krauss v. Oxford Health Plans, Inc., 517 F.3d

614, 622 (2d Cir. 2008) (quoting 29 U.S.C. § 1132(a)(1)(B)). “A claim for recovery of benefits

under ERISA § 501(a)(1)(B) can be brought only against a covered plan, its administrators, or its

trustees.” Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 108 n.2 (2d Cir. 2008). To

prevail under § 502(a)(1)(B), a plaintiff must show that: (1) the plan is covered by ERISA;

(2) the plaintiff is a participant or beneficiary of the plan; and (3) the plaintiff was wrongfully

denied a benefit owed under the plan. See Giordano v. Thomson, 564 F.3d 163, 168 (2d Cir.

2009).

         ERISA section 502(a)(3) authorizes, in relevant part, plan beneficiaries to bring a civil

action: “(A) to enjoin any act . . . which violates any provision of this subchapter, or (b) to obtain

other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of

this subchapter or the terms of the plan.” 29 U.S.C. § 1132(a)(3). This Court has explained that


                                                   4
“when an ERISA fiduciary deals unfairly with a plan’s beneficiaries, a claim for breach of

fiduciary duty may lie under ERISA § 502(a)(3).” Krauss, 517 F.3d at 630.

       Here, Guerrero’s amended complaint was unclear as to whether he was seeking a

recovery of benefits due or enforcement of the terms of a covered plan. In either case, Guerrero

failed to plausibly suggest a basis for relief. To the extent that Guerrero may have sought to

enforce the terms of a covered plan under § 502(a)(3), he did not identify anything in the plans

as that entitled him to a particular benefit he sought to enforce, and his allegations were so vague

that it is impossible to infer which terms, or even which plan, he might be seeking to enforce.

Moreover, any enforcement claim also failed because Guerrero sought only money damages —

relief that was not cognizable under § 502(a)(3). See Krauss, 517 F.3d at 630.

“Claims for money damages are . . . not cognizable under section 502(a)(3).” Id.

       Similarly, to the extent that Guerrero sought to recover benefits owed to him under a plan

pursuant to § 502(a)(1)(B), his allegations were so vague that he did not suggest any basis for

relief. Guerrero alleged that he had been “denied services in medical clinics,” but his amended

complaint was devoid of factual allegations suggesting any instance in which a defendant failed

to provide him with a benefit he was due. Thus, Guerrero’s allegations failed to suggest a

plausible basis for relief under § 502(a)(1)(B).

       In opposing dismissal, Guerrero stated that he “went to the doctor” in July 2008 and

“[his] bill was not paid for,” and he submitted, without explanation, a debt collection notice that

appears to be medically related. However, even if Guerrero had incorporated these items into a

new amended complaint, he still would not state a facially plausible claim for relief under

§ 502(a)(1)(B). Guerrero provided no factual basis to suggest that FJC, HRA, AIU, or Local


                                                   5
32BJ are covered plans or administrators or trustees of a covered plan — the only types of

defendants that could be liable under § 502(a)(1)(B). See Paneccasio, 532 F.3d at 108 n.2. Even

assuming that Sentinel was a covered plan, Guerrero’s allegations fail to suggest that Sentinel is

liable under § 502(a)(1)(B). Guerrero did not allege facts from which one can infer that Sentinel

made any decision -- a denial or otherwise -- related to a claim for benefits owed to him as a

result of the July 2008 doctor’s visit. Additionally, Guerrero’s failure to provide any context for

the debt collection notice makes it irrelevant to his claim, because the notice itself does not

provide any information about underlying services rendered or benefits-related decisions.

       We have considered all of Appellant’s arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.


                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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