Minima v.

OJU S. MINIMA, Plaintiff, v. NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM ("NYCERS");JOSEPH MANGANO, Director of Client Services; MRS. H. BASTAWROSE,Assistant Deputy Director, Retirement Benefits; THEA CENIZA, Retirement Benefit Examiner, Defendants.

11-CV-2191 (CBA)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

August 17, 2012

REPORT & RECOMMENDATION

GOLD, STEVEN M., United States Magistrate Judge:

INTRODUCTION

Plaintiff Oju Minima, pro se, claims in this case that the New York City Employees' Retirement System ("NYCERS") wrongfully suspended payment of his pension benefits. Defendant NYCERS contends that plaintiff's benefits were suspended because plaintiff failed to provide NYCERS with the birth and marriage certificates of Joyce Minima, plaintiff's wife and designated beneficiary. The parties agree that plaintiff did provide these certificates when he was earlier asked to do so. Defendant contends, however, that the certificates were misplaced, and that it asked plaintiff for additional copies. Moreover, defendant NYCERS states that it is willing to restore plaintiff's pension benefits, and make all retroactive payments due, as soon as plaintiff provides replacement copies of the required certificates. Plaintiff has declined to provide the required certificates and has opted instead to pursue this lawsuit.

In his first complaint, plaintiff sued NYCERS and several of its officers for breach of fiduciary duty.¹ Compl. at 1, Docket Entry 1. Defendants moved to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See generally Defs. Mem. Plaintiff responded to defendants' motion by filing a "petition for writ of mandamus" and a new complaint asserting a violation of his constitutional due process rights. See Pl. Supp. Mem., Docket Entry 19.² I treated this submission as both opposition to the motion to dismiss and as an amended complaint.³ Defendants subsequently submitted a reply to plaintiff's filing ("Defs. Reply," Docket Entry 23). The Honorable Carol B. Amon referred defendants' motion to dismiss and plaintiff's additional petition to me for report and recommendation. See Dec. 9, 2011 Order.

Following an examination of plaintiff's due process claims in particular, I ordered the parties to supplement their filings. See Docket Entry 28. In response, defendants filed a supplemental affidavit with attached exhibits and a supplemental memorandum ("Defs. Supp. Aff.," "Defs. Exs." and "Defs. Supp. Mem.," Docket Entries 30, 31). Plaintiff submitted an additional memorandum with attached exhibits ("Pl. Supp. Mem. 2d," Docket Entry 32).

By Order dated January 20, 2012, I scheduled a conference to be held on January 31, 2012. I directed the parties to be prepared to address whether defendants' Rule 12 motion should be converted to one for summary judgment and, if so, whether either party sought to take discovery before the motion was submitted. Plaintiff failed to appear for the conference. I then rescheduled the conference for February 16, 2012. Docket Entry 33. Plaintiff again failed to appear. Although he was then reached by telephone, plaintiff declined to stay on the line and participate in the conference. Docket Entry 35.

After reviewing the parties' submissions, I ruled that defendants' motion to dismiss be converted to one for summary judgment under FED. R. CIV. P. 12(d). When the Court converts a motion to dismiss to one for summary judgment, the "parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." FED. R. CIV. P. 12(d); see also Krijn v. Pogue Simone Real Estate Co., 896 F.2d 687, 689 (2d Cir. 1990) (describing the notice to the parties required). Further, Local Civil Rule 12.1 mandates that pro se plaintiffs be served with notice of the conversion and with a copy of FED. R. CIV. P. 56. See id.

Both parties have had the opportunity to supplement their submissions and plaintiff has been provided with the notice required by the Local Rules. See Order dated Feb. 17, 2012, Docket Entry 34. Plaintiff has filed an additional memorandum, "Pl. Supp. Mem. 3d," Docket Entry 39, and defendants have elected not to file a reply. Having considered all the abovesubmissions, I respectfully recommend that the motion for summary judgment be granted and the claims against defendants be dismissed.

BACKGROUND

According to the defendants, and without contradiction by the plaintiff, plaintiff joined NYCERS in 1998 after beginning work for the City the previous year. See Defs. Supp. Mem. at 3; Defs. Ex. 1. In November 2008, plaintiff filed a Designation of Beneficiary form, naming Joyce Minima, his wife, as the beneficiary of his Ordinary Death Benefit, as well as a Retirement Option Election Form, electing to have a reduced amount of benefits paid to him during his life and, after his death, to Joyce Minima, if she survived him.⁴ Defs. Supp. Mem. at 5; Defs. Ex. 11. As defendants note, the Retirement Option Election Form states that NYCERS "require[s] proof of date of birth for [the] designated beneficiary, as well as a marriage certificate, if [the] beneficiary is a married woman." Defs. Supp. Mem. at 5; Defs. Ex. 11; see also Defs. Mem. at 5 n.6 (stating that this documentation is necessary because, "[i]n order to properly make [the actuarial] calculation, the actuary needs proof of what a member states on his or her form," and "once [this form] is finalized, it cannot be changed").⁵

Around November 2008, plaintiff had a number of interactions with NYCERS regarding the submission of the documentation necessary to effectuate his selected benefit plan. Plaintiff states in his complaint that he first submitted Joyce Minima's birth and marriage certificates in person on November 18, 2008, during a visit to NYCERS' office. Compl. at 2.⁶ Defendants'records reflect a customer service visit on November 19, during which defendant Joseph Mangano told plaintiff that he must submit his wife's birth certificate and a marriage certificate. See Defs. Ex. 12. Plaintiff apparently faxed the documentation on November 20, but the copy was not legible. Defs. Ex. 13; see also Pl. Supp. Mem. 2d, Ex. 3 (a copy of a fax cover sheet stating that a copy of plaintiff's wife's birth certificate was attached with a fax confirmation report dated November 19).

Plaintiff and defendants appear to agree that plaintiff resubmitted the necessary documents on November 21, 2008.⁷ See, e.g., Pl. Supp. Mem. 3d at 8; Defs. Supp. Mem. at 6. Defendant Mangano's records indicate that he received the birth and marriage certificates on November 21, 2008. Defs. Ex. 14. However, defendants state that they are now unable to find these documents or a record of their being entered into NYCERS' system. Defs. Supp. Mem. at 6.

Plaintiff subsequently applied for payment of his retirement benefits effective December 2009.⁸ Defs. Supp. Mem. at 6; Defs. Ex. 15. Mr. Minima states that he began receiving partial payments from his pension approximately a year before the payments were suspended in April 2011. See Pl. Supp. Mem. 3d at 2.

Defendants aver that, after plaintiff applied to receive his pension, they attempted on numerous occasions to obtain another copy of the two certificates they could not find in theirsystem. According to defendants, on April 27, 2010, Hanan Bastawrose, the Assistant Deputy Director of Retirement Benefits at NYCERS, informed plaintiff (apparently by phone) that NYCERS required the two documents; defendants have provided what appears to be an internal record of this interaction. See Defs. Supp. Mem. at 6; Defs. Ex. 16. Thea Ceniza, a Retirement Benefit Examiner, then wrote to plaintiff on May 28, 2010, describing the documents he could use to satisfy their requirements and warning him that any pension payment would be suspended if the documents were not received within fifteen days. See Defs. Supp. Mem. at 6; Defs. Ex. 17. Plaintiff states that he sent a "letter of protest" to defendant Ceniza on May 10, 2010 in response. See Pl. Supp. Mem. 3d at 2-4; Pl. Exs. F (copy of letter to NYCERS dated May 1, 2010), B (email confirming delivery of letter, sent by certified mail to NYCERS, on May 4, 2010).⁹

A number of letters from defendants to plaintiff followed during the next year. Defendant Bastawrose wrote Mr. Minima on February 7, 2011, again giving him 15 days to submit documents. See Defs. Ex. 18. Plaintiff responded with a letter on February 12, 2011, reiterating that he had previously sent the requested documents. See Pl. Ex. E; Defs. Supp. Mem. at 7, Defs. Ex. 19. Ms. Bastawrose wrote to plaintiff on March 10, 2011 requesting the documents and stating that processing of his pension would be delayed without the certificates. See Defs. Ex. 20. On April 12, 2011, Ms. Bastawrose wrote for the last time to plaintiff informing him that his benefits would be suspended approximately two weeks later if the documents were not supplied to NYCERS and asking him to contact her by phone or to provide telephone contact information. See Defs. Supp. Mem. at 7-8; Defs. Ex. 21.

Plaintiff appears not to contest the majority of these facts. He adds, however, that he communicated by telephone with various people at NYCERS approximately twenty times between April 2010 and April 2011. Pl. Supp. Mem. 3d at 2, 9-10.

Plaintiff is still not receiving his pension payments; however, defendants' counsel has represented that "[a]s soon as plaintiff provides NYCERS with a copy of his alleged wife's birth certificate and his marriage certificate, NYCERS is ready, willing and able to re-insistituted [sic] plaintiff's pension and retroactively pay him for the time in which his pension has been suspended." Defs. Supp. Mem. at 8. Plaintiff has not directly responded to this offer. See id. at 8 n.9 (describing defendants' counsel's attempts to reach plaintiff).

DISCUSSION

A party is entitled to summary judgment where "the movant shows that there is no genuine dispute as to any material fact and ...