Free Motion to Dismiss - District Court of Connecticut - Connecticut

Case 3:03-cv-00383-WIG

Document 92

Filed 04/19/2004

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

GREGORY PRENTISS, et al., Plaintiffs, v. WASLEY PRODUCTS, INC, et al., Defendants/Third Party Plaintiffs, v. PROVIDENT MUTUAL LIFE INSURANCE COMPANY, et al., Third Party Defendants. APRIL 19, 2004 MASTER CIVIL ACTION NO. 3:03CV0383 (DJS) THIS PLEADING PERTAINS TO CIVIL ACTION NO. 3:03 CV 1790 (DJS)

MOTION TO DISMISS THIRD-PARTY PLAINTIFFS' COMPLAINT AS IT APPLIES TO THIRD PARTY DEFENDANT NATIONWIDE LIFE INSURANCE COMPANY OF AMERICA (F/K/A PROVIDENT MUTUAL LIFE INSURANCE COMPANY) Pursuant to Fed. R. Civ. P. 12(b)(6), Third-Party Defendant Nationwide Life Insurance Company of America f/k/a Provident Mutual Life Insurance Company ("Provident Mutual") hereby moves to dismiss the claims asserted against it by Third-Party Plaintiffs Wasley Products, Inc. and Trustees Alan Wasley, Andrew Brady, Sandi Dumas- Laferriere and Barry Connell ("TP Plaintiffs") in their Third Party Complaint dated March 3, 2004. The TP Plaintiffs' claims against Provident Mutual under the Employment Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001 et. seq. are properly dismissed because the courts have repeatedly rejected attempts to interject common law doctrines to expand liability under ERISA. The TP Plaintiffs' state law claims against Provident fail because they relate to an

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Case 3:03-cv-00383-WIG

Document 92

Filed 04/19/2004

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ERISA plan and are, therefore, preempted by ERISA. For these reasons, Provident's Motion to Dismiss should be granted. In support of this Motion, Provident Mutual submits the Group Annuity Contract GR 3094-101 (the "GAC") issued by Provident Mutual to Trustees of the Walsley Products, Inc. 401(k) Plan referenced by TP Plaintiffs at paragraph 25 of their TP Complaint, a copy of which is annexed hereto. Provident Mutual also submits is memorandum of law in support of this Motion, filed contemporaneously herewith. NATIONWIDE LIFE INSURANCE COMPANY OF AMERICA f/k/a PROVIDENT MUTUAL LIFE INSURANCE COMPANY /s/ Bryan D. Short Deborah S. Freeman [ct 05257] Bryan D. Short [ct 24374] Bingham McCutchen LLP One State Street Hartford, CT 06103 Tel: (860) 240-2700 Fax: (860) 240-2818 [email protected]

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Case 3:03-cv-00383-WIG

Document 92

Filed 04/19/2004

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CERTIFICATE OF SERVICE I hereby certify that on this 19th date of April, 2004 a copy of the foregoing was sent by first class mail, postage pre-paid, to the following counsel of record in this case: Theodore J. Tucci Jean E. Tomoasco Robinson & Cole LLP 280 Trumbull Street Hartford, CT 06103-3597 Thomas G. Moukawasher, Esq. Ian O Smith, Esq. Moukawsher & Walsh 21 Oak Street, Suite 209 Hartford, CT 06106 Maurice FitzMaurice, Esq. Peter K. Rydel, Esq. Reid and Riege, P.C. One State Street Hartford, CT 06103 Albert Zakarian, Esq. Victoria Woodin Chavey, Esq. Eric Sussman, Esq. Day, Berry & Howard LLP CityPlace I Hartford, CT 06103 and a copy sent to the following: Mary E.R. Bartholic, Esq. Thomas W. Witherington, Esq. Cohn Birnbaum & Shea P.C. 100 Pearl Street Hartford, CT 06103

/s/ Bryan D. Short Bryan D. Short

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