Nordman v. Tadjer-Cohen-Edelson Assocs.

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YEHUDA NORDMAN v. TADJER-COHEN-EDELSON ASSOCIATES, INC., et al.

Civil Action No. DKC 21-1818

United States District Court, D. Maryland

March 1, 2024

MEMORANDUM OPINION

DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE

Presently pending and ready for resolution in this case brought pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., are (1) the motion to allow Plaintiff to file his motion to extend the time for Plaintiff to file his motion for partial summary judgment filed by Plaintiff Yehuda Nordman (“Plaintiff”), (ECF No. 74); (2) Plaintiff's motion for extension of time to file his motion for partial summary judgment, (ECF No. 75); (3) Plaintiff's motion for partial summary judgment, (ECF No 77); (4) the cross-motion for summary judgment filed by Defendants Tadjer-Cohen-Edelson Associates, Inc (“TCE”), Tadjer-Cohen-Edelson Associates, Inc 401(k) Profit Sharing Plan (the “PS Plan”), Mahmoud “Michael” R. Tabassi (“Mr. Tabassi”), Alireza Tahbaz, Sanjay Khanna, and Soolmaz Abooali (“Ms. Abooali”) (collectively, the “Defendants”), (ECF No. 79); (5) Plaintiff's motion for leave to file a surresponse, (ECF No. 84); and (6) Plaintiff's motion for extension of time to file his response to Defendants' opposition to Plaintiff's motion for leave to file a surresponse, (ECF No. 86). The issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, (1) Plaintiff's motion for leave to file his motion to extend the time to file his motion for partial summary judgment will be granted; (2) Plaintiff's motion for extension of time to file his motion for partial summary judgment will be granted; (3) Plaintiff's motion for partial summary judgment will be granted in part and denied in part; (4) Defendants' cross-motion for summary judgment will be granted in part and denied in part; (5) Plaintiff's motion for leave to file a surresponse will be denied; and (6) Plaintiff's motion for extension of time to file his response to Defendants' opposition to Plaintiff's motion for leave to file a surresponse will be denied as moot.

I. Background^[1]

Plaintiff, a former employee of TCE, alleges in the Second Amended Complaint that Defendants committed several violations of ERISA. He seeks corrections in his accounts, damages, his proportionate share of payments that he should have received, penalties, attorneys' fees and costs, and other equitable relief.

TCE has historically sponsored multiple retirement programs. (ECF No. 79-4 ¶ 13). One of the programs is the PS Plan. (ECF Nos. 79-4 ¶ 13; 79-5, at 2-83). On January 1, 2015, the PS Plan merged with the TCE Pension Trust, which included a money purchase benefit (the “MP Plan” or the “Pension Plan”). (ECF Nos. 79-4 ¶ 15; 79-8, at 2-71). As a result of that merger, the PS Plan now offers a traditional 401(k) benefit, profit-sharing benefit, and pension plan benefit. (ECF Nos. 79-4 ¶ 16; 79-7, at 5, 6). TCE employees are eligible to receive the profit-sharing benefit and pension benefit unless certain exceptions apply. (ECF No. 79-7, at 5). One exception to eligibility is an express waiver of the right to receive a benefit or participate in a plan. (ECF No. 796, at 6) (“Opt-Out. An Employee may irrevocably elect not to participate in the Plan: [X] Yes [ ] No”). Waiver was also a feature of the MP Plan prior to the merger. (ECF No. 79-8, at 28) (“3.8 ELECTION NOT TO PARTICIPATE An Employee may, subject to the approval of the Employer, elect voluntarily not to participate in the Plan.”). A second program is the TCE Employee Stock Ownership Plan (the “ESOP”). (ECF Nos. 79-4 ¶ 2; 79-10, at 2).

TCE is the plan administrator of the PS Plan and ESOP. (ECF Nos. 79-6, at 30; 79-7, at 17). Because TCE, as a corporate entity, cannot administer its retirement plans on its own, TCE has primarily administered the PS Plan and ESOP through its former president, Zivan Cohen (“Mr. Cohen”), and later Mr. Tabassi, the managing principal. (ECF No. 79-4 ¶¶ 1, 8, 12, 18). The terms of the PS Plan provide that TCE has “total and complete discretionary power and authority” to administer the PS Plan. (ECF No. 79-5, at 75).

Plaintiff signed waivers of his rights to receive the PS Plan's pension benefit and profit-sharing benefit on November 7, 1988. (ECF No. 79-9, at 2-3). In both waivers, Plaintiff wrote that he has decided not to participate in the Plan because he “choose[s] to get higher salary.” (Id.).

The parties dispute whether Plaintiff applied for membership in the MP Plan (which merged into the PS Plan) at a later date. Mr. Tabassi and Mr. Cohen attest that TCE does not have in its records any request to change, modify, or rescind the waivers. (ECF Nos. 79-3 ¶ 6; 79-4 ¶ 20). Plaintiff stipulated to the admission of Defendants' requests for admissions that Plaintiff signed the PS Plan waivers and that no other document exists in which the waivers were declared null and void, without legal effect, or unenforceable for any other reason. (ECF No. 66 ¶ 2; see also ECF No. 79-2, at 9). Plaintiff, on the other hand, attests that he negotiated with Mr. Cohen to reduce his salary in exchange for joining the MP Plan, applied to Mr. Cohen for membership in May 1990, and joined the MP Plan on June 1, 1990. (ECF No. 87-1 ¶¶ 6, 7, 10).^[2]

In or around January 2019, at the time of his resignation, Plaintiff requested that TCE provide him an election form to receive the PS Plan profit-sharing benefit and pension benefit. (ECF No. 79-4 ¶ 21). On behalf of TCE, as the plan administrator, Mr. Tabassi did not provide Plaintiff with an election form to receive the profit-sharing benefit and pension benefit. (Id. ¶ 22). Mr. Tabassi communicated to Plaintiff that the profitsharing benefit and pension benefit was an employer contribution benefit made to eligible employees and Mr. Tabassi had investigated Plaintiff's claim for benefits and determined that the waivers did not allow him to receive either benefit. (Id.).

Plaintiff filed an eight-count complaint on July 21, 2021, (ECF No. 1), amended complaint on December 8, 2021, (ECF No. 25), and second amended complaint on December 28, 2021 (the “Second Amended Complaint”), (ECF No. 32). Defendants and Mr. Cohen moved to dismiss the Second Amended Complaint on January 28, 2022. (ECF Nos. 33; 34). Plaintiff filed motions for leave to file a surreply to Defendants' and Mr. Cohen's motions to dismiss on April 29, 2022, (ECF Nos. 44; 45), and a motion for leave to file a surreply and for an extension to file a reply to his first motion for leave to file a surreply on July 12, 2022, (ECF No. 47). The undersigned granted Mr. Cohen's motion to dismiss, dismissed six of the eight counts in the Second Amended Complaint, dismissed Mr. Tabassi and Ms. Abooali from one of the remaining counts, and denied Plaintiff's motions to file surreplies and motion to extend time. (ECF No. 51).

The remaining two counts include a claim against TCE, the PS Plan, the Trustees of the Plan, Mr. Tabassi, and Ms. Abooali for failure to distribute benefits from the PS Plan (“Count One”), (ECF Nos. 32, at 10-12; 52, at 10-14), and a claim against TCE for violating ERISA by not providing requested and required documents to Plaintiff, or providing them after their due dates (“Count Four”), (ECF No. 32, at 21-24; 52, at 15-16).

The original deadline for dispositive motions was June 5, 2023. (ECF No. 64). On May 8, 2023, Defendants filed a joint motion for extension of time. (ECF No. 68). On May 30, 2023, Defendants filed a stipulation agreeing that the deadline for Plaintiff to file his motion for summary judgment should be extended to June 30, 2023. (ECF No. 72). The court approved the new briefing schedule. (ECF No. 73). Plaintiff, however, did not file a motion for summary judgment by June 30, 2023. On July 9, 2023, Plaintiff filed a motion for leave to file a motion to extend the time to file his motion for partial summary judgment. (ECF No. 74). He then filed the motion for extension of time on July 10, 2023, requesting that this court extend his deadline to July 14, 2023, (ECF No. 75, at 4), which Defendants opposed, (ECF No. 76). Plaintiff filed his motion for partial summary judgment on July 15, 2023. (ECF No. 77).

Defendants filed an opposition to Plaintiff's motion for partial summary judgment and cross-motion for summary judgment on July 28, 2023. (ECF No. 79). Plaintiff filed an opposition to Defendants' cross motion for summary judgment and a reply to Defendants' opposition to his motion for partial summary judgment on August 21, 2023. (ECF No. 80). After Defendants filed a reply to Plaintiff's opposition to their cross motion for summary judgment, (ECF No. 81), Plaintiff filed an unopposed motion for extension of time to file his motion for leave to file a surresponse, (ECF No. 82). The court granted the motion, providing Plaintiff until October 13, 2023 to file his motion for leave to file a surreply. (ECF No. 83). On October 13, 2023, Plaintiff filed a motion for leave to file a surresponse, (ECF No. 84), which Defendants opposed, (ECF No. 85). On November 11, 2023, Plaintiff filed a motion to extend the time to file his response to Defendants' opposition to his motion for leave to file a surresponse to November 22, 2023. (ECF No. 86). On November 24, 2023, Plaintiff filed a reply memorandum in support of his motion for leave to file a surresponse. (ECF No. 87).

II. Standard of Review

Plaintiff has moved for partial summary judgment and Defendants have filed a cross motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. It is well established that a motion for summary judgment will be granted only if there exists no genuine issue as to any material...