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Perez v. Silva

United States District Court, D. Maryland

February 21, 2017

THOMAS E. PEREZ, Secretary of Labor, United States Department of Labor, Plaintiff
RICARDO SILVA et al., Defendants


          James K. Bredar United States District Judge

         Now before the Court are two motions:

• Defendant AmeriGuard Security Services, Inc.'s Motion for Leave to Amend to Include a Cross-Claim (ECF No. 53), and
• Plaintiff Secretary Thomas E. Perez's Motion to Deem Admitted Plaintiff's Requests for Admissions (ECF No. 78).

         AmeriGuard's motion has been opposed by Plaintiff and Defendants Charles Ezrine and State Employee Benefits, Inc. (“SEBI”) (ECF Nos. 57 & 58), and AmeriGuard has filed replies to both responses in opposition (ECF Nos. 61 & 62). Plaintiff's motion was opposed by Defendants Ezrine and SEBI (ECF No. 79); no reply was filed. No hearing is required. Local Rule 105.6 (D. Md. 2016). AmeriGuard's motion will be granted, and Plaintiff's motion will be granted in part and denied in part.

         I. AmeriGuard's Motion to Amend

         A. Standard for Motion to Amend

         In the circumstances presented here, when a party's motion to amend pleadings is filed within the deadline that has been set in a scheduling order for filing motions for amendment of pleadings, a motion for permission to amend is governed by Rule 15(a), which directs the Court to “freely give leave when justice so requires.” The Fourth Circuit has stated that leave to amend under Rule 15(a) should be denied only in three situations: when the opposing party would be prejudiced, when the amendment is sought in bad faith, or when the proposed amendment would be futile. Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006). A proposed amendment is considered futile if it cannot withstand a motion to dismiss. Perkins v. United States, 55 F.3d 910, 917 (4th Cir. 1995).

         B. Analysis

         This action was brought by Plaintiff against seven Defendants, alleging violations of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq. Specifically, Plaintiff alleges the Maryland Association of Correctional & Security Employees, Inc. (“MACSE”) (a union of correctional and security employees), Ricardo Silva (president and chief executive officer of MACSE and of Ricardo Silva & Associates, Inc.), AmeriGuard (a security services company that provided security guards at the Centers for Medicare and Medicaid Services), State Employee Benefits, Inc. (“SEBI”) (owned by Ezrine), and Ezrine were fiduciaries with respect to the Maryland Association of Correctional Security Employees Health & Welfare Plan (“Health Plan”) and the Maryland Association of Correctional & Security Employees Retirement Plan (“Retirement Plan”). Plaintiff alleges Defendants breached their fiduciary duties to the Health Plan and the Retirement Plan, inter alia, by not providing proper documentation for the Plans, by not establishing or maintaining proper procedures for funding and administering the Plans, by improperly commingling MACSE's assets with the Plans' assets, by charging improper administrative fees, by using one Plan's assets to pay another Plan's expenses, and by improperly transferring Plan assets to MACSE's general operating account. (Compl., ECF No. 1.) Plaintiff seeks various forms of relief including requiring “MACSE, Silva, SEBI, Ezrine, and AmeriGuard to jointly and severally restore all losses caused to the Plans as a result of their fiduciary breaches.” (Id. Prayer for Relief.)

         AmeriGuard is alleged to never have signed a plan document for the Health Plan (id. ¶ 25), to “have never appointed or even attempted to appoint a separate employer trustee to administer the Plans” (id. ¶ 27), to have never taken “any actions to monitor the Health Plan trustee or administrators” (id. ¶ 28), and to have never taken “any actions to monitor the Retirement Plan trustee or administrators” (id. ¶ 29). Otherwise, the allegations are largely focused on the actions or inactions of MACSE, Silva, SEBI, and Ezrine.

         Within the time set by the Court's scheduling order (ECF No. 47), AmeriGuard moved to amend its answer by adding a cross-claim against Silva, MACSE, Ezrine, and SEBI. (ECF No. 53.) Its basic gist is that AmeriGuard's conduct in relation to the Plans was, at best, tangential to the much greater involvement of the other co-Defendants. Consequently, AmeriGuard seeks indemnification by and contribution from its four co-Defendants.

         Taking first the opposition by Ezrine and SEBI, the Court is unpersuaded that they will be prejudiced or suffer undue delay by the Court's allowance of the cross-claim in the case. They claim they had no fiduciary responsibilities-a determination that cannot be made at this juncture of the case-and, therefore, it would be unfair to require them to defend AmeriGuard's cross-claim. The scheduling order has been amended more than once, and time remains for the parties to engage in appropriate discovery on the cross-claim. Ezrine and SEBI also contend that AmeriGuard should have known of the basis for its cross-claim sooner, but AmeriGuard responds that it was only in the litigation of this case that it became aware of the facts giving rise to the cross-claim. The Court perceives no unnecessary delay by AmeriGuard in seeking to bring this cross-claim, especially since its motion was timely filed according to the scheduling order. Ezrine's and SEBI's objections are without merit.

         The Court has also considered Plaintiff's opposition, but finds it, too, is unmeritorious. The Court notes that Plaintiff's filing is captioned, “Secretary of Labor's Opposition to Defendant AmeriGuard Security Services, Inc.'s Motion to Amend Answer and Motion to Dismiss Cross-Claims”; however, the filing was not properly docketed as a motion. Beyond that, the Court sees two problems with Plaintiff's “motion to dismiss”: first, it was filed speculatively while the amended answer and cross-claim is, as yet, undocketed; second, AmeriGuard's filing is a cross-claim against co-Defendants, not a counterclaim against Plaintiff. Plaintiff fails to explain how he has standing to file a motion under Federal Rule of Civil Procedure 12(b)(6)-the stated basis for Plaintiff's “motion” (Pl.'s Opp'n Supp. Mem. 9, ECF No. 58-1)-when that rule is clearly addressed to the procedure for a ...

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