Opinion
C.A. No. 99-1308 (DRD).
May 29, 2001.
Robert H. Jaffe, Esq., Mark B. Watson, Esq., Robert H. Jaffe Associates, P.A., Springfield, N.J., Attorney for Plaintiff.
Jeffrey A. Carr, Esq., Pepper Hamilton LLP, Cherry Hill, N.J., Brian T. Ortolere, Esq., Pepper Hamilton LLP, Philadelphia, PA., Attorneys for Defendants.
OPINION
This matter is before the court on plaintiff's motion for leave to file an amended and supplemental complaint. For the reasons that follow, the motion is granted in part and denied in part.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Allegations and Claims in Plaintiff's Original Complaint
Plaintiff Louise C. Romero ("Romero") commenced this action by filing her complaint with the court on March 23, 1999. Romero makes the following allegations in her complaint.
Romero was born on June 13, 1941. Complaint, Exhibit E. She began working for defendant SmithKline Beecham ("SmithKline") on August 13, 1973. Compl., ¶ 11, at 3. She was promoted to the position of quality insurance component inspector in 1979. Id. ¶ 10, at 3.
On December 7, 1995, Romero received a bulletin informing employees of the impending elimination of certain employment positions at the SmithKline facility where she worked. Id. ¶ 18, at 4-5. That same day, she also received a document summarizing and explaining the enhanced employment severance benefits for which employees who participated in SmithKline's voluntary retirement program would be eligible. Id. at 5. This severance benefits summary, attached to Romero's Complaint as Exhibit B, provided that the listed benefits would apply only to the impending employee reorganization, and would be available only to employees who worked until the end of their assignment and who completed any required documentation prior to leaving. Id. Ex. B. To be eligible to receive severance pay — post-termination monthly salary payments in the amount of an employee's base monthly salary at the time of her termination, made for a period ranging from three months to twenty-two and one-half months, depending upon an employee's length of service to SmithKline — employees had to work through the sixty-day period from final notification of termination through actual termination (the "job elimination date"). Ibid.
At the time she received the severance benefits summary, Romero anticipated working for SmithKline through December 31, 1997. Id. ¶ 19, at 5. As she had begun working for SmithKline on August 13, 1973, Romero would have completed twenty-four years of service had she worked through August 13, 1997; for twenty-four years of service, the enhanced severance schedule provided for monthly payments, in the amount of Romero's salary as of her job elimination date, for a period of seventeen and one-half months after her job elimination date. Id. Ex. B.
The severance benefits summary further provided that employees who participated in SmithKline's voluntary retirement program would be eligible to receive certain vacation pay, pension enhancement, and health benefits post-termination. SmithKline agreed to pay participating employees their unused annual vacation and personal-day pay for the year in which they were terminated, and to pay vacation pay accrued under certain labor agreements. Ibid. To be eligible to receive accrued vacation pay for a year following the year in which they were terminated, participating employees had to have worked into the fourth quarter of the calendar year in which they were terminated. Ibid. A participating employee was also eligible for a special one-time pension enhancement adding three years to age and three years to service in her pension formula, provided she had worked for SmithKline for at least ten years and the sum of her age and her years of service equalled at least seventy as of the end of the year in which she was terminated. Ibid. Finally, all participating employees were eligible to receive medical and dental benefits for the first six months following their termination. Ibid.
Romero met several times with Vincent C. Bruett ("Bruett"), Director of Human Resources at the SmithKline facility where she worked, to discuss her participating in the voluntary retirement program. Id. ¶ 21, at 5-6. In the wake of these meetings, Romero eventually agreed orally to participate in the program, provided that the termination date of her employment would entitle her to a "full year of compensation during 1997." Id. at 6. Romero understood from speaking with Bruett that her job would not be eliminated until December 31, 1997. Ibid.
On April 24, 1996, Bruett sent Romero a letter containing what he termed an "unofficial estimate" of those enhanced severance benefits to which Romero would be entitled were she to terminate her employment during the fourth quarter of 1997. The letter specified that Romero would only be eligible to receive this package of enhanced severance benefits if she completed her work assignment in a satisfactory manner and voluntarily signed and returned a release form at least thirty days prior to her job elimination date. Id. Ex. C, at 2.
On April 30, 1996, Romero accepted SmithKline's offer to participate in its voluntary retirement program by signing a document entitled "Formal Signed Commitment To Take Voluntary Termination of Employment." Id. Ex. D. This document stated that Romero had made a final and irrevocable decision to participate in SmithKline's voluntary retirement program; that the estimated enhanced severance benefits package, including her estimated pension benefit entitlement, had been explained to her and outlined in writing; that she would be provided with the exact terms of the enhanced severance benefits package, including her pension benefit entitlement, at the time she was given her official sixty-day notice of termination; that her exact job elimination date had not yet been determined; and that she was charged with completing her work assignment in a satisfactory manner and timely signing a release form before she would become eligible to receive the enhanced severance benefits package. Ibid.
In March of 1997, Romero was informed by SmithKline that her job elimination date was October 3, 1997. Id. ¶ 33, at 8. Having believed she and Bruett had orally agreed that her job elimination date would be December 31, 1997, Romero confronted Bruett, who told her that she could not choose her job elimination date. Id. ¶ 34, at 8. For some reason this greatly upset Romero, who deemed Bruett's statement, and the selection of the October 3, 1997 job elimination date, to be not only a breach of her oral agreement with Bruett but an act of deception. Id. ¶¶ 34, 37, at 9.
The October 3, 1997 job elimination date fell within the fourth quarter of 1997. Accordingly, notwithstanding the alleged change of the job elimination date from December 31, 1997, Romero remained eligible to receive her 1998 vacation pay. Furthermore, as October 3, 1997 fell after Romero's fifty-sixth birthday on June 13, 1997, and after the beginning of her twenty-fourth year of employment on August 13, 1997, she remained eligible to receive seventeen and one-half months of enhanced severance pay, and a one-time pension enhancement adding three years to age and three years to service in her pension formula. In short, the October 3, 1997 job elimination date preserved to her all the enhanced severance benefits Bruett had estimated in his letter of April 24, 1996 that she would be eligible to receive.
On or about April 18, 1997, Romero spoke with Betzaida "Betsy" Boynton ("Boynton"), a Human Resources Specialist at SmithKline. In the course of their conversation, which centered on Romero's perception that Bruett had wronged her, Romero made a statement to the effect that she would not be sorry if someone taught Bruett a lesson. Id. ¶¶ 35-37. She reiterated this sentiment in a telephone message that she left later that day on Boynton's voice-mail system at work. Id. ¶ 39, at 9-10.
A transcription of Romero's telephonic comments, proffered by Romero's counsel, is in the record as Exhibit A to Docket Item No. 16. See infra note 4.
In the wake of these comments, Romero was summoned on April 22, 1997 to a disciplinary hearing at SmithKline, at which Romero was told that Bruett believed Romero had threatened him with bodily harm. Id. ¶¶ 40, 41, at 10. One week later, on April 29, 1997, Arthur L. Perri, Director of Operations at the SmithKline facility where Romero worked, sent her formal written notification that her employment had been terminated as of that date. Id. Ex. F. Romero's comments about Bruett were deemed by SmithKline to have violated a standard of conduct prohibiting "[d]eliberate or reckless action that causes either actual or potential loss to the company or employees, or damage to company or employee property, or physical injury to employees." Id. Ex. F, at 1. Romero was informed that she would receive all appropriate information about benefit entitlements under SmithKline's pension plan and retirement savings plan, that she would be sent all wages due for work performed through April 22, 1997, and that she would be paid for unused 1997 vacation time. Id. Ex. F, at 2. She was also informed that she had thirty calendar days from April 29, 1997 — through May 29, 1997 — within which to appeal her termination by resort to SmithKline's formal grievance procedure outlined in its employee handbook. Id. Ex. F, at 1.
Romero applied to the New Jersey Department of Labor for unemployment benefits. SmithKline opposed her application, contending Romero had been fired for misconduct and was therefore ineligible to receive unemployment benefits. Id. ¶ 49, at 11-12. Eventually, on October 10, 1997, an appellate tribunal of the New Jersey Department of Labor ruled in Romero's favor, holding she had not been discharged for misconduct connected with work and she was therefore eligible to receive unemployment benefits. Id. ¶ 58, at 14.
While her application for unemployment benefits was pending, Romero contacted SmithKline and asked for information about her pension benefits, which she believed she would begin to receive on February 1, 1999. Id. ¶ 50, at 12. In response to her request, Romero received a letter dated July 7, 1997 from Gwen Ubil ("Ubil"), a Retiree Benefits Representative at SmithKline, summarizing the annual pension benefits Romero would receive beginning February 1, 1999, including a special annual supplemental payment to be made to Romero until she turned sixty-two. Id. ¶ 51; Ex. G. Romero's annual noncontingent pension benefit amounted to nine thousand seven hundred twenty-five dollars and four cents ($9,725.04). Ibid.
This letter was supplanted by a letter dated August 29, 1997 from Kim Nelson ("Nelson"), another Retiree Benefits Representative at SmithKline, informing Romero that because her employment had been terminated for cause, she was no longer eligible to receive the special one-time pension enhancement adding three years to age and three years to service in her pension formula. Accordingly, Romero's annual noncontingent pension benefit was reduced to six thousand six hundred ninety-one dollars and forty-one cents ($6,691.41). Compl. ¶¶ 52-53, at 12-13; Ex. H.
Romero eventually learned that SmithKline had taken the position that Romero had, through her conduct, rendered herself ineligible to receive the enhanced employee severance benefits, pension benefits, and retirement benefits for which she had been eligible under the terms of the April 24, 1996 unoffficial estimate of enhanced employee severance benefits and the April 30, 1996 document evincing Romero's acceptance of SmithKline's offer to participate in its voluntary retirement program. Id. ¶¶ 54, 55, at 13.
On January 2, 1999 — more than nineteen months after the May 29, 1997 deadline for appealing her firing under SmithKline's formal grievance procedure had passed — Romero's attorney wrote to Nelson, offering to have Romero sign SmithKline's release in exchange for Romero's receiving the full complement of enhanced employee severance, pension, and retirement benefits for which she had previously been eligible. Id. ¶¶ 61, 62, at 15; Ex. K. That same day, Romero wrote to Nelson requesting copies of the SmithKline pension plan (the "SmithKline Pension Plan") as amended through January 1999 and of employee booklets issued through December 31, 1998. Id. Ex. L. Though Romero's attorney wrote a second letter to Ubil on January 17, 1999 requesting that Romero's benefits be reinstated, as of the date she filed her complaint, March 23, 1999, Romero had not received a response to her requests. Id. ¶¶ 63, at 15-16; 64, at 16.
Based on the foregoing allegations, Romero brought five claims in her complaint against the original defendants. These claims are as follows.
The first claim was brought against SmithKline and the SmithKline Pension Plan under sections 502(a)(1)(B) and 502(a)(3) of the Employee Retirement Insurance Security Act of 1974 ("ERISA"), 29 U.S.C. § 1032(a)(1)(B), 1032(a)(3) (1974, as amended through 1997), to recover the enhanced employee severance, pension, and retirement benefits to which Romero claims she is entitled and to obtain other appropriate equitable relief. Id. ¶¶ 69-72, at 17.
The second claim was brought against SmithKline and the SmithKline Pension Plan under section 502(c)(1) of ERISA, 29 U.S.C. § 1132(c)(1), for imposition of a daily civil penalty of one hundred dollars ($100.00) until the information Romero requested from Nelson in her January 2, 1999 letter was provided to Romero. Id. ¶¶ 75-78, at 18-19; 20.
The third claim was brought against SmithKline and the SmithKline Pension Plan under the common law of breach of contract for pecuniary damages stemming from those defendants' breach of the contract allegedly formed by the April 24, 1996 unofficial estimate of enhanced employee severance benefits sent to Romero and her April 30, 1996 acceptance of SmithKline's offer to participate in the voluntary retirement program. Id. ¶¶ 80-82, at 20-21.
The fourth claim was brought against SmithKline and Bruett under the common law of malicious interference with prospective economic advantage for compensatory and punitive damages stemming from Bruett's allegedly having "maliciously incited management at defendant SmithKline to discharge plaintiff Romero and to cause her to forfeit the enhanced employment severance benefits promised her in exchange for her execution of the April 30, 1996 commitment letter for having uttered words of anger and criticism directed towards him [sic]." Id. ¶ 84, at 22; see id. ¶¶ 85-91, at 22-23.
The fifth claim was brought against SmithKline and Bruett under the common law of intentional infliction of emotional distress for compensatory and punitive damages stemming from Bruett's aforementioned alleged conduct. Id. ¶¶ 92-95, at 24.
On March 26, 1999, three days after Romero had filed her complaint, Stanley J. Serocca Jr. ("Serocca"), SmithKline's Vice President and Director of Human Resources Services, wrote a letter to Romero's attorney in response to the January 2, 1999 letters sent to Nelson requesting reinstatement of benefits and pension plan information. In response to the latter request, Serocca enclosed with his letter the summary plan description for the SmithKline Pension Plan that was included in the employee guidebook.
This letter is in the record as Exhibit A to Docket Item No. 15.
In response to the former request, Serocca stated that the January 2, 1999 letter seeking reinstatement of benefits had been construed as a claim by Romero for severance benefits under the SmithKline Beecham Separation Pay Plan (the "SmithKline Severance Plan") and for enhanced pension benefits under the SmithKline Pension Plan. Serocca went on to explain that Romero's claim had been denied for two reasons: (i) the termination of her employment on April 29, 1997 meant that Romero was not actively employed by SmithKline as of October 3, 1997, her job elimination date — a prerequisite to her eligibility to receive any severance or enhanced pension benefits; and (ii) Romero's termination for having allegedly threatened Bruett with bodily harm, in violation of company standards of conduct, meant that Romero had not completed her work assignment in a satisfactory manner — a further prerequisite to her eligibility to receive severance or enhanced pension benefits. See supra pp. 2-4. Serocca specified that Romero could appeal the denial of her claim by submitting a written request for review to the Plan Administrator within sixty days of receipt of Serocca's letter.
On June 2, 1999, presumably more than sixty days after Romero's attorney received Serocca's letter of March 26, 1999, defendants moved collectively to stay proceedings in this action on the ground that Romero had not exhausted her administrative remedies. Defendants further moved to dismiss part of Romero's first claim on the ground that Romero could not pursue her claim for other appropriate equitable relief under section 502(a)(3) of ERISA because she had also brought a claim to recover benefits based upon the same alleged wrongdoing of SmithKline and the SmithKline Plan under section 502(a)(1)(B) of ERISA. Defendants further moved to dismiss her third, fourth, and fifth claims on the ground that these claims sounded under state law and were preempted by ERISA.
On September 29, 1999, an opinion and order were filed granting defendants' motion in part and denying it in part. Defendants' motion to stay proceedings was granted pending Romero's untimely exhaustion of her administrative remedies under the SmithKline Pension Plan or the SmithKline Severance Plan. Opinion, 9/29/99, Docket Item No. 13, at 8. Defendants' motion to dismiss part of Romero's first claim was denied because Romero alleged that Bruett engaged in prohibited conduct undertaken for the purposed of interfering with Romero's attainment of certain rights to severance, pension, and retirement benefits under the SmithKline Severance Plan and the SmithKline Pension Plan, and so she made out a prima facie claim under section 510 of ERISA, 29 U.S.C. § 1140, for which relief might be awarded under section 502(a)(3) that would not duplicate an award of benefits under section 502(a)(1)(B). Opinion at 9-11.
Significantly, defendants' motion to dismiss Romero's third, fourth, and fifth claims was granted. Romero's state common-law claims of breach of contract, malicious interference with prospective economic advantage, and intentional infliction of emotional distress were all held to be preempted by section 514(a) of ERISA, 29 U.S.C. § 1144(a), under controlling Third Circuit case law. Opinion at 11-13 (relying in part on Pane v. RCA Corp., 868 F.2d 631, 635 (3rd Cir. 1989)). Specifically, the dismissal of the claim for intentional infliction of emotional distress was warranted because to the extent that claim was "based upon allegations that Bruett encouraged SmithKline to discharge plaintiff, thereby causing her to lose the enhanced employment severance benefits, it is preempted by plaintiff's ERISA claim under § 502(a)(3)." Opinion at 13. As the only two claims against Bruett — the malicious-interference and intentional-infliction tort claims — were dismissed, Bruett was dismissed as a party defendant.
In the wake of the disposition of defendants' motion, Romero's attorney wrote to Serocca on October 26, 1999 reiterating Romero's claim for severance and pension benefits. On November 29, 1999, Serocca responded by denying Romero's adminstrative appeal on the same grounds expressed in his letter of March 26, 1999. On December 7, 1999, Romero's attorney wrote to Serocca asking him to reconsider his denial of Romero's adminstrative appeal; on January 4, 2000, Serocca responded by refusing to reconsider his denial of Romero's adminstrative appeal.
This letter is in the record as Exhibit A to Docket Item No. 16.
This letter is in the record as Exhibit B to Docket Item No. 16.
This letter is in the record as Exhibit C to Docket Item No. 16.
This letter is in the record as Exhibit D to Docket Item No. 16.
On February 2, 2000, Romero moved to restore her case to the court's active trial calendar. This motion was granted, and an order to that effect was filed on February 29, 2000.
On April 12, 2000, SmithKline and the SmithKline Pension Plan moved to strike Romero's demand for a jury trial. On May 9, 2000, an opinion and order were filed granting this motion, as Romero's ERISA claims were not triable before a jury.
Romero now seeks leave to file an amended and supplemental complaint. The allegations, claims, and prayers in her proposed amended and supplemental complaint are as follows.
Romero's motion was unitary: she simply moved for leave to file an amended complaint, so-called, and attached to her notice of motion a copy of the proposed "Amended Complaint and Demand for Jury Trial." However, as will soon be seen, her proposed complaint contains two types of new allegations: amendments and supplements. To the extent her proposed complaint asserts claims based on conduct, transactions, occurrences, or events that happened on or before May 23, 1999, the date Romero's original complaint was filed, it shall be termed, for ease of reference, a proposed amended complaint. See Fed.R.Civ.P. 15(a), (c) (1937, as amended). To the extent her proposed complaint asserts claims based on conduct, transactions, occurrences, or events that happened after May 23, 1999, it shall be termed a proposed supplemental complaint. See Fed.R.Civ.P. 15(d).
Allegations, Claims, and Prayers in Plaintiff's Proposed Amended Complaint State Common-Law Claim for Intentional Infliction of Emotional Distress
Notwithstanding the express dismissal on preemption grounds of her state common-law intentional-infliction-of-emotional-distress claim against SmithKline and Bruett, Romero seeks to reinstate this claim in her amended complaint. To that end, and in accordance with the elements of this tort under New Jersey common law, she alleges SmithKline and Bruett's intentional, malicious, extreme, and outrageous conduct caused her emotional distress and physical injuries, including pain and suffering, that no reasonable person should be asked to endure. See Proposed Amended and Supplemental Complaint ¶ 53, at 13; ¶ 55, at 14; ¶¶ 60-61, at 15; ¶ 94, at 24; ¶¶ 123-130, at 33-35.
Federal Common-Law Claims for Breach of Contract, for Breach of the Implied Covenant of Good Faith and Fair Dealing, and for Malicious Interference with Contract and with Prospective Economic Advantage
Romero seeks to revivify her dismissed common-law breach of contract claim, lodged in her amended complaint against original defendants SmithKline and the SmithKline Pension Plan and against Serocca, whom she seeks to add as a new party defendant. See Proposed Am. Supplemental Compl. ¶¶ 99-103, at 25-26; ¶ 105, at 27. She also seeks to revivify her dismissed common-law claim of malicious interference with contract and with prospective economic advantage, lodged in her amended complaint against SmithKline and against Bruett, whom she seeks to reconscript as a party defendant. See id. ¶¶ 113-122, at 30-33. She further seeks to add a common-law claim against these defendants, based on Bruett's alleged conduct, for breach of the implied covenant of good faith and fair dealing. See id. ¶ 103, at 26. As will soon be shown, these claims cannot sound in state common law, lest they be preempted under ERISA; accordingly they must, in the first instance, be deemed to sound in federal common law. As will also be shown, however, this avails Romero nothing.
Claims under ERISA Sections 502(a)(1)(B), 502(a)(3), 502(c)(1)(B), and 510
Romero reiterates her claim for severance, pension, and retirement benefits under section 502(a)(1)(B) of ERISA, lodged in her amended complaint against SmithKline, the SmithKline Pension Plan, and Serocca. See id. ¶¶ 96-106, at 25-28. She reiterates her claim for other appropriate equitable relief under section 502(a)(3) of ERISA. See ibid. She reiterates her claim under section 502(c)(1)(B) of ERISA, lodged in her amended complaint against SmithKline, the SmithKline Pension Plan, and Serocca, for the imposition of a daily civil penalty based upon the failure of plan administrators to comply with her repeated requests for information. See id. ¶¶ 107-111, at 28-29. Finally, she seeks to add a claim under section 510 of ERISA, remediable under section 502 of ERISA, that she was discharged from her employment and discriminated against for the purpose of interfering with her attainment of certain severance, pension, and retirement benefits to which she was entitled under the SmithKline Pension Plan, the SmithKline Severance Plan, or ERISA. She has lodged this claim in her amended complaint against SmithKline, the SmithKline Pension Plan, Bruett, and Serocca. See Proposed Am. Supplemental Compl. ¶ 105, at 27; ¶¶ 112-122, at 30-33.
Prayers for Extracontractual and Punitive Damages
Romero prays for awards of extracontractual damages, i.e. damages not flowing from rights under an employee pension or welfare benefit plan protected by ERISA, against SmithKline, the SmithKline Pension Plan, Bruett, and Serocca. See id. at 27-28, 33, 35. She further prays for an award of punitive damages against SmithKline and Bruett. See id. at 35.
Demand for Jury Trial
Romero demands a jury trial on her state common-law claim of intentional infliction of emotional distress lodged against SmithKline and Bruett. See id. at 35.
Allegations in Plaintiff's Proposed Supplemental Complaint Exhaustion of Administrative Remedies
In her supplemental complaint, Romero alleges facts in support of her position that she has exhausted her administrative remedies that occurred after the filing of her original complaint. See id. ¶¶ 84-89, at 21-23.
DISCUSSION
State Common-Law Claim for Intentional Infliction of Emotional Distress
Romero's claim for intentional infliction of emotional distress has been reframed to conform to the elements of this intentional tort under New Jersey law. See Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 366-67, 544 A.2d 857, 863 (1988), quoted in Opinion at 13 n. 4. Be that as it may, Romero's reframed claim, founded on allegations that Bruett devised and orchestrated a false scenario of events (including Bruett's malicious allegations that Romero terroristically threatened Bruett) designed to result in plaintiff's termination, relates to her claim to recover benefits under an ERISA plan or plans and therefore is preempted by section 514(a) of ERISA. Pane, 868 F.2d at 635. See generally Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47-48, 56-57, 107 S.Ct. 1549, 1553, 1558, 95 L.Ed.2d 39 (1987); Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 62-63, 66-67, 107 S.Ct. 1542, 1546, 1548, 95 L.Ed.2d 55 (1987).
In this connection, it is noted that Romero need not show the sole reason for her termination was interference with her ERISA-protected rights in order to prevail on her claim under section 510 of ERISA; she need only prove that a specific intent to violate ERISA partly motivated the defendants. Nero v. Indus. Molding Co., 167 F.3d 921, 927 (5th Cir. 1999).
Romero cannot recover damages for mental anguish or emotional distress under ERISA. Nero, 167 F.3d at 932; Zimmerman v. Sloss Equip., Inc., 72 F.3d 822, 827, 829 (10th Cir. 1995); Werner v. Am. Bakeries Co., 646 F. Supp. 1100, 1103 n. 3 (M.D.Fla. 1986). Even though New Jersey common law offers a cause of action and a remedy for intentional infliction of emotional distress and ERISA does not, this does not prevent Romero's repleaded claim from being preempted by ERISA. Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 144-45, 111 S.Ct. 478, 485-86, 112 L.Ed.2d 474 (1990); Wood v. Prudential Ins. Co. of Am., 20 F.3d 674, 679 (3rd Cir. 2000).
Federal Common-Law Claims for Breach of Contract, for Breach of the Implied Covenant of Good Faith and Fair Dealing, and for Malicious Interference with Contract and with Prospective Economic Advantage
In general, federal common-law claims arising from conduct or events encompassed by an ERISA provision are subsumed by ERISA claims. E.g. Bond v. Gen. Motors Acceptance Corp., 142 F.3d 432 (table), 1998 WL 58256, at *5 n. 6 (6th Cir. Feb. 5, 1998) (unpublished disposition) (quoting and relying on Muse v. Int'l Bus. Machs., Inc., 103 F.3d 490, 495 (6th Cir. 1996)). Specifically, all three of Romero's federal common-law claims are subsumed by her ERISA claims: (i) her claim for breach of contract, Lindenmeier v. Siemens Power Corp., 69 F.3d 544 (table), 1995 WL 623756, at *3 (9th Cir. Oct. 24, 1995 (unpublished disposition); Ludwig v. NYNEX Serv. Co., 838 F. Supp. 769, 793 (S.D.N.Y. 1993); Cal. Digital Defined Benefit Pension Fund, 705 F. Supp. 489, 490 (C.D.Cal. 1989); (ii) her claim for breach of the implied covenant of good faith and fair dealing, Cal. Digital, 705 F. Supp. at 490; and (iii) her claim for malicious interference with contract and with prospective economic advantage, ibid. Claims under ERISA Sections 502(a)(1)(B), 502(a)(3), 502(c)(1)(B), and 510
Though Romero's federal common-law claim for breach of contract is subsumed by her ERISA claims, her assertion that the relevant employee pension or welfare benefit plans should be construed according to the federal common-law doctrine of contra proferentem is well-founded. Heasley v. Belden Blake Corp., 2 F.3d 1249, 1257-58 (3rd Cir. 1993).
Romero's claims under sections 502(a)(1)(B), 502(a)(3), 502(c)(1)(B), and 510 are properly pleaded. As she alleges Serocca was an administrator of the SmithKline Pension Plan, see Proposed Am. Supplemental Compl. ¶ 85, at 22, he is properly added as a party defendant on Romero's ERISA claims brought under these sections. Similarly, as she alleges Bruett discriminated against her for the purpose of interfering with her attainment of certain severance, pension, and retirement benefits to which she was entitled under the SmithKline Pension Plan, the SmithKline Severance Plan, or ERISA, and as Bruett is a "person" under sections 3(9) and 510 of ERISA, see 29 U.S.C. § 1102(9), 1140, he is properly added as a party defendant on Romero's claim under section 510 of ERISA.
Prayers for Extracontractual and Punitive Damages
Romero's prayers for extracontractual and punitive damages on her ERISA claims are jejune, as she can be awarded neither extracontractual damages, Mertens v. Hewitt Assocs., 508 U.S. 248, 255, 263, 113 S.Ct. 2063, 2068, 2072, 124 L.Ed.2d 161 (1993); Nero, 167 F.3d at 931; Zimmerman, 72 F.3d at 828-29, nor punitive damages, Zimmerman, 72 F.3d at 828; Pane, 868 F.2d at 635, on those claims.
Demand for Jury Trial
Romero reiterates her demand for a jury trial only on her repleaded state common-law claim of intentional infliction of emotional distress. As Romero will not be allowed to reassert this claim in an amended complaint, she will likewise not be allowed to demand a jury trial on this claim (or on any of her remaining claims under sections 502(a)(1)(B), 502(a)(3), or 510 of ERISA; see Cox v. Keystone Carbon Co., 894 F.2d 647, 649-50 (3rd Cir. 1990); Pane, 868 F.2d at 635-36)).
Exhaustion of Administrative Remedies
Romero has sought leave to file a supplemental complaint detailing those actions she undertook after she filed her original complaint in order to exhaust her administrative remedies under SmithKline's formal grievance procedure. This is entirely proper, and will be permitted. See Lodge 1858, Am. Fed'n of Gov't Employees v. Paine, 436 F.2d 882, 898 n. 103 (D.C. Cir. 1970); Katzman v. Sessions, 156 F.R.D. 35, 39 (S.D.N.Y. 1994); Detroit Zoological Soc'y v. United States, 630 F. Supp. 1350, 1354 (Ct. Int'l Trade 1986); Campbell v. United States, 534 F. Supp. 762, 764 (D.Haw. 1982); Jeffers v. Whitley, 165 F. Supp. 951, 954 (M.D.N.C. 1958).
Exhaustion of administrative remedies is required on claims under section 502(a)(1)(B) of ERISA, but not on claims under section 502(a)(3) of ERISA. Zipf v. Am. Tel. Tel. Co., 799 F.2d 889, 891 (3rd Cir. 1986).
CONCLUSION
Romero's motion for leave to file an amended and supplemental complaint shall be denied to the extent that Romero seeks to assert a state common-law claim for intentional infliction of emotional distress, to assert federal common-law claims of breach of contract, breach of the implied covenant of good faith and fair dealing, and malicious interference with contract and with prospective economic advantage, and to allege facts in support of these claims. Romero's motion shall further be denied to the extent that Romero prays for extracontractual or punitive damages, and to the extent that Romero demands a jury trial. The remainder of Romero's motion shall be granted: Romero shall be allowed to assert her reformulated claims under ERISA, and to supplement her complaint as proposed in order to demonstrate that she has exhausted her administrative remedies.
An appropriate order shall enter.