Simon v. Hartford Life, Inc. ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONNIE J. SIMON, 
Plaintiff-Appellant,
No. 06-56368
v.
HARTFORD LIFE, INC., HARTFORD  D.C. No.
CV-06-3340-GHK
LIFE AND ACCIDENT INSURANCE
OPINION
COMPANY,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding
Argued and Submitted
July 18, 2008—Pasadena, California
Filed September 30, 2008
Before: Cynthia Holcomb Hall and Pamela Ann Rymer,
Circuit Judges, and Stephen M. McNamee,1 District Judge.
Opinion by Judge McNamee
1
The Honorable Stephen M. McNamee, United States District Judge for
the District of Arizona, sitting by designation.
13895
13898 SIMON v. HARTFORD LIFE, INC.
COUNSEL
Derrick F. Coleman, Daniel L. Alexander, Coleman Frost
LLP, Santa Monica, California, for the appellant.
Michael B. Bernacchi, Keiko J. Kojima, Burke Williams &
Sorenson LLP, Los Angeles, California, for the appellee.
Dan Marmalefsky, Benjamin J. Fox, Morrison & Foerster
LLP, Los Angeles, California, for the appellee.
OPINION
MCNAMEE, District Judge:
Acting pro se, Ronnie J. Simon (“Simon”) brought a claim
under the Employee Retirement Income Security Act of 1974,
29 U.S.C. § 1001 et seq. (“ERISA”) against Hartford Life Inc.
and Hartford Life and Accident (hereinafter referred to collec-
tively as “Hartford”) alleging a single cause of action for
breach of fiduciary duty under 29 U.S.C. § 1109(a). The dis-
trict court dismissed the complaint without prejudice. In its
dismissal, the court found that a pro se plaintiff, under 29
U.S.C. §1109(a)2, as authorized by §1132(a)(2)3, may not pur-
2
29 U.S.C. § 1109 provides:
(a) Any person who is a fiduciary with respect to a plan who
breaches any of the responsibilities, obligations, or duties
imposed upon fiduciaries by this subchapter shall be personally
SIMON v. HARTFORD LIFE, INC. 13899
sue claims in a representative capacity on behalf of an ERISA
plan. The court concluded that these sections of ERISA, as
well as relevant binding authority, mandate that the party
seeking to bring forth claims under section § 1109(a) must be
represented by counsel and may not proceed with such claims
as a pro se litigant. The court declined to grant Simon leave
to amend his complaint on the grounds that no set of facts
exist which would enable Plaintiff to proceed with his claim
in his pro se capacity. We agree that, while Simon may assert
a cause of action for breach of fiduciary duty, he may not
prosecute his claims on behalf of the plan pro se. Accord-
ingly, we affirm.
I. FACTS AND PROCEEDINGS4
liable to make good to such plan any losses to the plan resulting
from each such breach, and to restore to such plan any profits
of such fiduciary which have been made through use of assets of
the plan by the fiduciary, and shall be subject to such other equi-
table or remedial relief as the court may deem appropriate,
including removal of such fiduciary. A fiduciary may also be
removed for a violation of section 1111 of this title.
(Emphasis added).
3
29 U.S.C. § 1132(a)(2) provides:
(a) Persons empowered to bring a civil action
A civil action may be brought— ***
(2) by the Secretary, or by a participant, beneficiary or
fiduciary for appropriate relief under section 1109 of this
title; ***
4
Simon filed a previous ERISA lawsuit wherein he asserted claims on
his own behalf under 29 U.S.C. §§§ 1024(b)(4), 1132(a)(1)(B), and
1132(c). Simon sought individual recovery of plan benefits. A critical dis-
tinction between the previous lawsuit and the current lawsuit is that none
of the claims asserted in the previous lawsuit were alleged under 29
U.S.C. §§ 1109(a) and 1132(a)(2). With the assistance of a magistrate
judge, the parties were able to reach a settlement in the previous lawsuit,
and a dismissal with prejudice.
13900 SIMON v. HARTFORD LIFE, INC.
Effective January 1, 2003, Hartford issued Group Policy
Numbers to NPTest, LLC.5 (NPTest), as well as the Plan
Sponsor and Plan Administer of the Group Long Term Dis-
ability Plan for Employees and the Group Life and Supple-
mental Life Plan for Employees of NPTest. Simon was
employed by NPTest as an information system senior man-
ager and was a participant in the plans, both funded through
the group insurance policies issued by Hartford.
Simon filed this complaint on May 31, 2006. In it, he
alleges that Hartford uses claims management policies, proce-
dures and practices, including failure to maintain proper
reserves and improper fund transfers between its general and
ERISA special accounts that put its own interests ahead of the
plans’ interests. He seeks equitable relief ordering Hartford to
stop using those practices, or to stop serving as claims fidu-
ciaries for ERISA plans that are funded by insurance policies
that it issued; and ordering Hartford to make good to the
ERISA plan any losses resulting from its breach of fiduciary
duty.
Subsequently, Hartford filed a Motion to Dismiss Simon’s
Complaint under Fed. R. Civ. P. 12(b)(6) on the ground that
Simon had to be represented by licensed counsel to proceed
with a claim under § 1109(a). The district court agreed with
Hartford that a plaintiff acting pro se may not proceed with
a claim under 29 U.S.C. §§ 1109(a) and 1132(a)(2), and dis-
missed the action without prejudice to refiling should Simon
obtain counsel.
Simon filed a motion for additional fact findings under
Fed.R.Civ.P. 52(b) and reconsideration under Fed.R.Civ.P.
59(e) and 60(b) on the theory that he is the plan’s only benefi-
ciary. The district court denied the motion on August 31,
2007, concluding that, even assuming Simon is the plan’s
5
NPTest, LLC was Simon’s employer at all times relevant to this law-
suit.
SIMON v. HARTFORD LIFE, INC. 13901
only beneficiary, the plan remains an entity apart from the
person of the plaintiff. Therefore, acting pro se, Simon is not
entitled to bring a suit on the plan’s behalf. Simon timely
appealed.
Thus, the issue before us is whether a pro se litigant may
proceed with a cause of action for breach of fiduciary duty
brought under 29 U.S.C. § 1109(a).
II. STANDARD OF REVIEW
This court conducts a de novo review of dismissals for fail-
ure to state a claim under Fed. R. Civ. P. 12(b)(6). Hearns v.
Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). All allegations
of material fact shall be taken as true and construed in the
light most favorable to the nonmoving party. Cervantes v.
United States, 330 F.3d 1186, 1187 (9th Cir. 2003).
III. DISCUSSION
The causes of action on which civil litigants may proceed
without counsel are limited by statute. More specifically, 28
U.S.C. § 1654 provides that in federal court, “parties may
plead and conduct their own cases personally or by counsel
as, by the rules of such courts, respectively, are permitted to
manage and conduct causes therein.” Significant is the lan-
guage contained in the statute that limits the authorization of
civil litigants to “plead and conduct their own cases personal-
ly.” Id. (Emphasis added).
Section 1132(a)(2) authorizes an ERISA plan participant
(as well as the Secretary of Labor, a beneficiary, or a fidu-
ciary) to bring a civil action for violations of § 1109(a). This
case requires us to decide whether an ERISA plan participant,
proceeding pro se, may bring an action for breach of fiduciary
duty under § 1109(a).
The general rule establishing the right of an individual to
represent oneself in all federal courts of the United States is
13902 SIMON v. HARTFORD LIFE, INC.
contained in 28 U.S.C. § 1654. Section 1654 is intended to
provide individuals with equal access to the courts by permit-
ting individuals to represent themselves.
[1] It is well established that the privilege to represent one-
self pro se provided by § 1654 is personal to the litigant and
does not extend to other parties or entities. See McShane v.
United States, 366 F.2d 286, 288 (9th Cir. 1966)(citation
omitted). Consequently, in an action brought by a pro se liti-
gant, the real party in interest must be the person who “by
substantive law has the right to be enforced.” C.E. Pope
Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir.
1987). It is clear under Mass. Mut. Life Ins. Co. v. Russell that
Simon is not the real party in interest as he brought claims
under 29 U.S.C. § 1109(a) on behalf of the Plan itself. 473
U.S. 134, 140 (1985). Simon concedes that the party whose
interests he is alleged to be representing is his employer bene-
fit plan. As such, Simon is representing a person or entity
other than himself, which he may not do. Because Simon is
not the actual beneficial owner of the claims being asserted,
he cannot be viewed as a “party” conducting his “own case
personally” within the meaning of Section 1654. Pope, 818
F.2d at 697-698.
[2] As the district court accurately pointed out, courts have
routinely adhered to the general rule prohibiting pro se plain-
tiffs from pursuing claims on behalf of others in a representa-
tive capacity.6 Id. (Trustee attempting to represent a trust pro
se was not, pursuant to 28 U.S.C. §1654, a “party” conducting
his “own case personally” as he was not the beneficial owner
of the claims being asserted); Stoner et al v. Santa Clara
County Office of Education, et al, 502 F.3d 1116, 1126-27
(9th Cir. 2007)(qui tam action brought “for the person and for
the United States government” cannot be pursued pro se);
6
The caveat to this general rule, when statutory authorization exists per-
mitting plaintiff to prosecute an action on behalf of others than himself,
is not implicated here.
SIMON v. HARTFORD LIFE, INC. 13903
Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir.
1997) (a guardian or parent may not bring suit in federal court
on behalf of a minor without first retaining an attorney); In re
America West Airlines, 40 F.3d 1058, 1059 (9th Cir. 1994)
(per curiam) (holding that a non-attorney may not appear on
behalf of a partnership); United States v. High Country
Broadcasting Co., 3 F.3d 1244, 1245 (9th Cir. 1993) (per
curiam) (pro se litigant shareholder may not represent the cor-
poration and was properly precluded from intervening and
representing himself where his “interests [were] identical to
the corporation’s”); United States of America ex rel. Mergent
Servs. v. Flaherty, __ F.3d__, 2008 WL 3840769 at *1 (2nd
Cir. Aug. 19, 2008) (holding that pro se litigants may not
prosecute False Claims qui tam actions without retaining
licensed counsel); Iannaccone v. Law, 142 F.3d 553, 559 (2nd
Cir. 1998) (administrator of estate may not appear pro se on
behalf of estate); Pridgen v. Andresen, 113 F.3d 391, 393
(2nd Cir. 1997) (executrix may not appear pro se on behalf of
estate); Phillips v. Tobin, 548 F.2d 408, 415 (2nd Cir. 1976)
(pro se litigant may not prosecute a shareholder’s derivative
action); Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir.
1975) (pro se prisoner may not bring a class action on behalf
of fellow prisoners); Jones v. Corr. Med. Servs., 401 F.3d
950, 951-52 (8th Cir. 2005) (non-attorney administrator of
decedent’s estate may not proceed pro se on behalf of estate);
United States v. Onan, 190 F.2d 1, 6 (8th Cir. 1951) (pro se
litigant may not represent the United States in a qui tam
action despite the specific wording of the False Claims Act
permitting a suit to “be brought and carried on by any per-
son”).
Simon argues that the district court’s comparison of the
current case to other representative cases is flawed because he
has not filed a putative class action, does not seek to enforce
rights belonging to a corporation, did not sue on behalf of a
trust, and is not a qui tam relator. He also points out that the
plan itself cannot be a party. However, the Supreme Court
concluded in Russell that a plaintiff filing a claim under
13904 SIMON v. HARTFORD LIFE, INC.
§ 1109(a)(2) is doing so in a representative capacity and not
in an individual capacity. 473 U.S. at 140.
[3] In Russell, the Court found that recovery for a violation
of §1109(a) “inures to the benefit of the [ERISA] plan as a
whole.” Id. at 140. In reaching its conclusion, the Russell
Court explained, inter alia, that the inclusion in § 1132(a)(2)
of the Secretary of Labor among the four classes of plaintiffs
who may bring claims under § 1109(a) demonstrates “Con-
gress intent that actions for breach of fiduciary duty be
brought in a representative capacity on behalf of the plan as
a whole.” Id. at 142. Accordingly, we agree with the district
court that, because Simon brought an ERISA claim pursuant
to 29 U.S.C. § 1109(a), he was acting in a representative
capacity by requesting relief on behalf of a legal entity other
than himself.
[4] Simon’s next contention is that § 1132(a)(2) expressly
authorizes plan participants to bring claims for breach of fidu-
ciary duty. Although correct in his assertion that § 1132(a)(2)
authorizes him to bring a § 1109(a) claim for breach of fidu-
ciary duty, it does not expressly authorize Simon to do so in
a pro se capacity. 29 U.S.C. § 1132(a)(2). Consequently, 28
U.S.C. § 1654 applies, requiring the claim Simon brought for
violations of § 1109(a) to be prosecuted by a plaintiff repre-
sented by licensed counsel. 28 U.S.C. § 1654.
Simon argues that the Supreme Court’s recent opinion in
Winkelman v. Parma City School District, ___U.S.___, 127
S.Ct. 1994, 2004 (2007), rendered after the district court’s
decision in this case, opened the door to pro se representation
of others by holding that parents who enjoy rights under the
Individuals with Disabilities Education Act (IDEA) are enti-
tled to prosecute IDEA claims on their own behalf. Id. While
the Court’s holding is clear, Simon’s reliance on Winkelman
is misplaced.
[5] Based on the statutory scheme, Winkelman held that
parents have their own, enforceable right under the IDEA to
SIMON v. HARTFORD LIFE, INC. 13905
the substantive adequacy of their child’s education; therefore,
parents may prosecute IDEA claims on their own behalf. See
Stoner v. Santa Clara County Office of Educ., 502 F.3d 1116,
1127 (9th Cir. 2007) (so noting in qui tam case). The Supreme
Court elaborated that parents enjoy enforceable rights at the
administrative stage, and it would be inconsistent with the
IDEA statutory scheme to prohibit them from continuing to
assert these rights in federal court. Id. at 2005. The Court also
explained, inter alia, that pursuant to the statutory structure of
IDEA, the rights of parents and their children are inextricably
intertwined. The same cannot be said of ERISA, where recov-
ery for a violation of § 1109(a)(2) — unlike other sections —
“inures to the benefit of the [ERISA] plan as a whole” Rus-
sell, 473 U.S. at 140; United States ex rel. Mergent Servs. v.
Flaherty, __ F.3d__, 2008 WL 3840769, *5, n.2. (distinguish-
ing qui tam situation from Winkelman as the parents in an
IDEA suit have rights distinct from those afforded their chil-
dren).
[6] Simon also contends that he has enforceable rights inde-
pendent of his suit for the benefit of the plan, but fails to
explain what they may be. However, he cites Comer v. Micor,
Inc., 436 F.3d 1098 (9th Cir. 2006) and Landwehr v. DuPree,
72 F.3d 726 (9th Cir. 1995). In Comer, the participant in
employee pension and profit-sharing plans sued the invest-
ment manager, alleging breach of fiduciary duty under
ERISA. The question before us was “whether an ERISA-plan
participant can be compelled to arbitrate an ERISA claim
brought on behalf of the plan where the plan—but not the par-
ticipant—had signed an arbitration agreement.” Comer, 436
F.3d 1098. Citing Landwehr,7 the Comer court explained “an
7
In Landwehr, we considered whether the statute of limitations for an
ERISA claim ran from when the individual plaintiff, rather than the plan,
became aware of the claim. Citing, inter alia, the “unfairness” that would
inevitably result from a rule that extinguished a plaintiff’s claim where the
plan became aware of the claim yet did nothing long before the individual
plaintiff had notice of it, we held that the statute of limitations ran from
the time when the individual plaintiff had actual knowledge of the claim.
Comer, 463 F.3d at 1103 (citing Landwehr, 72 F.3d at 732).
13906 SIMON v. HARTFORD LIFE, INC.
ERISA claimant also sues in a non-derivative capacity,” such
that the cause of action belongs to the individual plaintiff.
Comer, 463 F.3d at 1103 (emphasis in original) (citing Land-
wehr, 72 F.3d at 732.) However, this simply means that rights
which turn on the plaintiff’s knowledge or relationship to a
plan depend on the plaintiff, not the plan. There was no issue
in those cases about whether Comer or Landwehr could pros-
ecute the action pro se. Nor is there any issue here that Simon
is the plaintiff whose own knowledge and status would deter-
mine matters relating to those issues. For example, in the
underlying case, when considering the statute of limitations,
the time at which Simon became aware of the alleged viola-
tions of fiduciary duty would dictate when the statute of limi-
tations commenced and expired. However, that does not
foreclose the conclusion, nor overturn current authority hold-
ing, that an ERISA action brought pursuant to §§ 1109(a) and
1132(a)(2) is brought in a representative capacity and thus
requires plaintiff to be represented by counsel. Russell, 473
U.S. at 140.
We recently addressed an issue similar to that in the case
sub judice in Stoner. 502 F.3d at 1127. Faced with the ques-
tion of whether a pro se relator may prosecute a qui tam
action on behalf of the government in federal court, we held
that the relator’s capacity as a plaintiff was representative in
nature. Id. Consequently, we concluded that the plaintiff had
to secure legal counsel in order to proceed with the claims. Id.“[B]ecause qui tam relators are not prosecuting their ‘own
case’ but also representing the United States and binding it to
any adverse judgment the relators obtain,” the Stoner court
refused to interpret 28 U.S.C. § 1654 as authorizing qui tam
relators to proceed pro se. Id. Because the general pro se pro-
vision, 28 U.S.C. § 1654, did not authorize Stoner to proceed
pro se on behalf of the government, Stoner was obligated to
identify an alternate source of authority granting him such a
privilege. Id. The court found that, while the False Claims
Act, 31 U.S.C.A. §§ 3729(a), 3730(b)(1), provides a relator
the right to bring the action, the statute did not authorize him
SIMON v. HARTFORD LIFE, INC. 13907
to pursue that violation in a pro se capacity. Stoner was
unable to point to any language in the statute that would
enable a relator to proceed with the action without a licensed
attorney. Likewise, in the matter before us, § 1132(a)(2)
authorizes a plan participant, such as Simon, to bring a cause
of action for a violation of § 1109(a). However, just as in
Stoner, there is no statutory language enabling Simon to file
a cause of action for a violation of § 1109(a) without the rep-
resentation of licensed counsel. Therefore, just as we found in
Stoner, absent statutory authority stating otherwise, the gen-
eral rule against permitting pro se litigants from representing
others is applicable in the current case.
[7] Although we reach this conclusion as a matter of statu-
tory construction, there also are significant policy consider-
ations that would be implicated in the event a pro se litigant
were permitted to represent the interests of the plan. Other
participants would inevitably be affected by the judgment in
this case, thus by their representation by a pro se litigant.
Accountability is accordingly a serious concern. Any judg-
ment attained by Simon could have a significant impact on the
ERISA plan itself, in addition to the binding effect it would
have on other participants and beneficiaries of the plan. See
Flaherty, 2008 WL 3840769 at *4. This underscores our
reluctance to approve the prosecution of an action of this sort
pro se absent specific Congressional authorization. As Stoner
explained: “Given the fact that Congress did not expressly
authorize a qui tam relator to proceed pro se when acting on
behalf of the United States, it ‘must have had in mind that
such a suit would be carried on in accordance with the estab-
lished procedure which requires that only one licensed to
practice law may conduct proceedings in court for anyone
other than himself.’ ” 502 F.3d at 1127 (quoting United States
v. Onan, 190 F.2d 1, 6 (8th Cir. 1951)).
In reviewing the ERISA legislation, it is clear that the stat-
ute authorizes a suit for individual redress; however, it does
not authorize representative appearance by a pro se plaintiff
13908 SIMON v. HARTFORD LIFE, INC.
for claims brought under § 1109(a). This follows from Russell
and Stoner.
We therefore agree with the district court’s conclusion that
Simon is not entitled to proceed with his § 1109(a) claim in
a pro se capacity.
AFFIRMED.