Flutcher Grimes v. Operative Plasterers' and Cement Masons' International Association of the United States and Canada, an Unincorporated Association

640 F.2d 1066 2 Employee Benefits Ca 1123 Flutcher GRIMES, Plaintiff-Appellant, v. OPERATIVE PLASTERERS' AND CEMENT MASONS' INTERNATIONAL ASSOCIATION OF the UNITED STATES AND CANADA, an unincorporated association et al., Defendants-Appellees. No. 79-4320. United States Court of Appeals, Ninth Circuit. Submitted Jan. 15, 1981. Decided March 30, 1981. Howard Moore, Jr., Oakland, Cal., for plaintiff-appellant. Van Bourg, Allen & Weinberg, San Francisco, Cal., for defendants-appellees. Appeal from the United States District Court for the Northern District of California. Before SKOPIL, ALARCON and BOOCHEVER, Circuit Judges. SKOPIL, Circuit Judge: INTRODUCTION 1 Grimes appeals from the grant of summary judgment for defendants on his claims of violations of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001 et seq., and the denial of his cross motion for summary judgment on count three of his complaint. We affirm. FACTS 2 Grimes filed a five count complaint, alleging violations of ERISA. Count one alleged that the defendants violated 29 U.S.C. § 1023 by failing to file an annual report for their health and welfare trust plan for the year…

INTRODUCTION

Grimes appeals from the grant of summary judgment for defendants on his claims of *1067 violations of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001 et seq., and the denial of his cross motion for summary judgment on count three of his complaint. We affirm.

FACTS

Grimes filed a five count complaint, alleging violations of ERISA. Count one alleged that the defendants violated 29 U.S.C. § 1023 by failing to file an annual report for their health and welfare trust plan for the year ending August 31, 1975. The second count alleged the same violation as to the defendants’ pension plan for that year. Count three alleged that the defendants failed, in violation of 29 U.S.C. §§ 1024 (b)(4) and 1132(c), to furnish Grimes with a copy of the annual reports and pertinent schedules thereto. The fourth count alleged that the defendants’ failures to act constituted a breach of their fiduciary duties under 29 U.S.C. § 1109 (a). Count five claimed that defendant Dillishaw violated 29 U.S.C. § 1140 by interfering with Grimes’ rights of access to the information.

ISSUE

The only point raised on appeal is whether the district court erred in granting…

dissenting;

I respectfully dissent.

Grimes contended that the defendants failed to furnish him with a copy of annual reports and pertinent schedules in violation of 29 U.S.C. §§ 1024 (b)(4) and 1132(c) of the Employee Retirement Income Security Act of 1974 (ERISA). As pointed out in the majority opinion, the ERISA requirements for furnishing the reports were deferred and thus were not applicable at the time Grimes made his request. The parallel requirements 1 of the Welfare and Pension Plans Disclosure Act (WPPDA) for furnishing such reports, however, continued in effect. 29 U.S.C. §§ 306 , 307 and 308. Thus Grimes was entitled to the information he requested, although in his argument to the trial court he referred to the wrong statutory authority.

In Hansen v. Morgan, 582 F.2d 1214 (9th Cir. 1978), a plaintiff had somewhat similarly argued that the wrong section of a statute was applicable. On appeal he asserted that another section applied. This court stated:

582 F.2d at 1217 . 2

Grimes presented evidence which indicates that the defendants failed to furnish him reports to which he was entitled under the provisions of the Welfare and Pension Plan Disclosure Act. Under the…