Waxman v. LunaWaxman v. Luna
Jean Waxman, pro se.
Michael L. Waxman, pro se.
Thomas M. Pinckney, Jr., Douglas Fisher, Howell, Fisher & Branham, Nashville, Tenn., for Hardaway Const. Co., Inc., Charles Hardaway, Donald Luna, L. Hall Hardaway, Sr., and L. Hall Hardaway, Jr.
Hertz & Schram, Bloomfield Hills, Mich., for Corporation.
T. Patrick Freydi, Freydi & Associates, Birmingham, Mich., for Rick Kay, Robert Fox, Charles Forbes, Olympia Stadium Corp., Prophet Productions, Ltd., Michael Tinik, Vincent Bannon and Building Group.
Tova Shaban, Alan M. Gershel, Alan C. Harnisch, Seyburn, Kahn, Ginn, Bess & Hоward, Southfield, Mich., for Robert Cavalieri, and Michael Illitch.
Charles A. Moore, William M. Wolfson, Alan M. Gershel, Detroit, Mich., for City of Detroit and Olympia Arenas, Inc.
Before KENNEDY, GUY, and NORRIS, Circuit Judges.
PER CURIAM.
Plaintiffs filed this action pursuant to the Employee Retirement Income Security Act of 1974 (ERISA),
I.
Waxman did loan brokering work for Luna on an independent contractor basis. In early 1982, Hall Hardaway, Jr., agreed to allow Luna and some of his business associates to use office space owned by Hardaway Construction Company. At that time, Luna was attempting to secure finanсing for construction projects in which Hardaway was involved. Luna was paid a fee or a percentage from loans that he procured for Hardaway. Neither Luna nor Waxman was ever on the regular payroll of any Hardaway entity.
In the early summer of 1982, Luna asked Hall Hardaway, Jr., if Luna and one or two of his associates could participate in the Hardaway Plan, which provided hospitalization and medical coverage to participants. Luna agreed to pay the premiums for himself and his associates and, as a result, Hall Hardaway, Jr., permitted them to join. Waxman was subsequently enrolled and was given a booklet outlining benefits аnd an enrollment card. Waxman testified at trial that he viewed his participation in the Hardaway Plan as a gift or perk, and that he was not interested in who specifically made the gift. Waxman additionally enrolled his wife and his dependent son, Michael.
For the five months of June through October 1982, the Hardaway Plan paid claims submitted by Waxman. However, Waxman‘s premiums were not paid for this time period. Charles Hardaway, who was the Hardaway Plan‘s coordinator, relied on Luna to pay the premiums, and sent Luna notices that payments were delinquent. Waxman denied receiving these notices from Luna, but did acknowledge that he knew his payments were overdue.
On October 31, 1982, Charles Hardaway terminated Waxman from the plan for delinquent payments. Charles Hardaway did not immediately notify Waxman that his coverage was terminated, but, beginning in January of 1983, Waxman received four notices that he no longer had coverage under the Hardaway Plan. Waxman testified that he never received two оf the notices that were mailed to his home address. He stated that he did not accord much significance to the notices that he did receive because both Luna and Hall Hardaway, Jr., were simultaneously telling him that the problems were being worked out.
In February of 1983, Luna‘s corporation, LHC & Associates, became entitled to a fee from a Hardaway development corporation. Charles Hardaway determined that Luna and his associates owed the Hardaway Plan the sum of $3,260.60, which included Waxman‘s unpaid premiums from June through October 1982. Hardaway deducted this sum prior to paying the balance to Luna. This was the only instance in which payments were made to the Hardaway Plan on Waxman‘s behalf.
In June of 1984, Luna called Hall Hardaway, Jr., and asked if Hardaway could help get Michael Waxman admitted into a Memphis hospital. Luna said that he would take care of the payments. Hall Hardaway, Jr., said that he did not think that Waxman had any coverage under the Hardaway Plan, but would check to see. Luna later talkеd to Charles Hardaway and told Hardaway to send the bills for Michael Waxman‘s hospitalization to Luna. When a representative from the Memphis hospital called Charles Hardaway to verify coverage, Hardaway told the representative to send the bills to him. Hardaway forwarded the bills to Luna, but Luna did not pay them.
II.
Plaintiffs assert numerous claims on appeal in their pro se brief, but the only issue before us is whether the district court erred in dismissing this action for lack of subject matter jurisdiction.2 In Taylor and Gaskin, Inc. v. Chris-Craft Industries, 732 F.2d 1273 (6th Cir.1984), we set forth the applicable standards of review of а trial court‘s findings. We explained that factual findings must be upheld unless clearly erroneous; however, we review de novo “findings of ultimate facts which result from the application of legal principles to subsidiary factual determinations.” Id. at 1277 (citation omitted). Conclusions of law are also subject to de novo review. Therefore, whenever the trial court arrives at its conclusion by application of statutory law to the facts, such holding becomes a conclusion of law reviewable under the de novo standard. Id. In the case before us, the district court has applied ERISA statutory law to the facts of the case, and, therefore, we will undertake a de novo review of the district court‘s conclusions of law.
The sole jurisdictional basis asserted for this action is ERISA,
A civil action may be brought--
(1) by a participant or beneficiary--
(A) for the relief provided for in subsection (c) of this section, or
(B) to recovеr benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan;
(2) by the Secretary, or by a participant, beneficiary or fiduciary for appropriate relief under section 1109 of this title;
(3) by a participant, beneficiary, or fiduciary (A) to enjoin аny act or practice which violates any provision of this subchapter or the terms of the plan, 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;
(4) by the Secretary, or by a participant, or beneficiary for appropriate relief in the case of a violation of 1025(c) of this title....
(8) The term “beneficiary” means a person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a benefit thereunder.
(5) The term “employer” means any person acting directly as an emplоyer, or indirectly in the interest of an employer, in relation to an employee benefit plan; and includes a group or association of employers acting for an employer in such capacity.
(6) The term “employee” means any individual employed by an employer.
Waxman does not argue that he was an “employee.” In the joint stipulation of facts submitted by the parties to the district court, Waxman agreed that he was “never an employee of any of the Hardaway defendants,” and that he was an “independent contractor” to Donald Luna and LHC & Associates, Inc. Waxman instead argues that the Hardaway Plan is an “Employee Welfare Benefit Plan” within the meaning of ERISA and is subject to the provisions of ERISA; therefore, the federal court has jurisdiction to hear this dispute.
Although the parties have agreed that the Hardaway Plan is an ERISA plan, the question remains as to whether one who is not an employee has standing to sue under ERISA. No agreement or aсtion of the parties can establish the jurisdiction of the federal court if subject matter jurisdiction does not otherwise exist. “It is well established that parties cannot somehow waive jurisdictional objections, nor can they consent to the jurisdiction of a court when that court lacks jurisdiction over the subject matter of their dispute.” In re Rini, 782 F.2d 603, 608 (6th Cir.1986); see also Insurance Corporation of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 2104, 72 L.Ed.2d 492 (1982).
In resolving the issue of whether a plaintiff is an employee within the terms of ERISA, courts have turned to two sources. The first source involves common law rules of agency in determining whether an individual is an employee or an independent contractоr. See Holt v. Winpisinger, 811 F.2d 1532, 1538 n. 44 (D.C.Cir.1987); Short v. Central States, Southeast and Southwest Areas Pension Fund, 729 F.2d 567, 572-73 (8th Cir.1984); Wardle v. Central States, Southeast and Southwest Areas Pension Fund, 627 F.2d 820, 824-25 (7th Cir.1980), cert. denied, 449 U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981). This test involves an analysis of all factors relevant to the employment relationship, including the intent of the parties, and the right of one party to control the other party‘s means and manner of performance. See Holt, 811 F.2d at 1538-40; see also RESTATEMENT (SECOND) OF AGENCY Sec. 220 (1957). In the case before us, the district court concluded that the Hardaway defendants exercised no control over Waxman‘s activities, and that the parties regarded Waxman as, at most, an independent contractor.
Other courts have rejected a common-law analysis of “employee” under the terms of ERISA and have, instead, turned to a second source for defining “employee.” This source looks to congressional purpose in enacting ERISA and asks whether the purported plaintiff is within the class that Congress sought to protect with ERISA legislation. See Darden v. Nationwide Mutual Ins. Co., 796 F.2d 701, 706 (4th Cir.1986); Wolcott v. Nationwide Mutual Ins. Co., 664 F.Supp. 1533, 1536-37 (S.D.Ohio 1987). In Darden, the court was determining whether the plaintiff had standing to bring an ERISA action for pension benefits. The court stated that the focus of congressional concern in enacting ERISA was financial hardship resulting from a forfeiture of accrued benefits during retirement. Darden, 796 F.2d at 706; see also