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Howe v. The Embassy of Italy

United States District Court, D. Columbia.

September 11, 2014

SIMONA HOWE, Plaintiff,
v.
THE EMBASSY OF ITALY, Defendant

Filed September 10, 2014.

For SIMONA HOWE, Plaintiff: Mariam Wagih Tadros, REES BROOME, PC, Tysons Corner, VA.

For EMBASSY OF ITALY, Defendant: Jonathan G. Rose, Richard S. Siegel, LEAD ATTORNEYS, ALSTON & BIRD LLP, Washington, DC.

Page 27

MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge.

The plaintiff, Simona Howe (the " plaintiff" ), brings this action against her employer, the Embassy of Italy (the " defendant" ), seeking $141,134.00 in damages under the Employee Retirement Income Security Act (" ERISA" ), 29 U.S.C. § 1132(a),

Page 28

for the defendant's alleged underfunding of the plaintiff's retirement benefits. See Compl. ¶ ¶ 5, 9-10, 25, ECF No. 1. Pending before the Court is the defendant's Motion to Dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction; 12(b)(2) for lack of personal jurisdiction; 12(b)(5) for insufficient service of process; and 12(b)(6) for failure to state a claim upon which relief can be granted. See Def.'s Mot. Dismiss (" Def.'s Mot." ) at 1, ECF No. 10. For the following reasons, the defendant's motion is granted and this case is dismissed under Federal Rules of Civil Procedure 12(b)(2) and (5).

I. BACKGROUND

The defendant is located in Washington, D.C., Compl. ¶ 2, and the plaintiff is a Virginia resident, who has worked for the defendant since 1988 " as a press secretary and translator," id. ¶ ¶ 1, 6. When the plaintiff was first hired, she was a Canadian citizen " working in the United States as a Green Card holder." Id. ¶ 7.[1] For employees like the plaintiff, " who were neither citizens of the United States nor Italy," the defendant, in 1988, established a pension plan [the " Plan" ] with Aetna Life Insurance and Annuity Company that was designed to approximate Social Security benefits. Id. ¶ ¶ 9-12. The defendant and the plaintiff were to contribute equally to the Plan. See id. ¶ ¶ 11-12.

When the plaintiff first began participating in the Plan, she signed a " Participation Agreement in the Deferred Compensation Plan" (the " Participation Agreement" ) that set out the " amount of contribution to the Plan by both [the plaintiff] and [the defendant]." Id. ¶ ¶ 13-14. The plaintiff avers that the " calculations used to arrive at the contribution amount in the Participation Agreement were calculated, incorrectly, by the Head of Administration at the Embassy of Italy," id. ¶ 15, and that this miscalculation resulted in the plaintiff and defendant each contributing only " 50% of the[] required amounts," id. ¶ 16. The plaintiff alleges that she became " aware of the miscalculation and resulting shortfall" in " August 2010," id. ¶ 18, but that the defendant " knew or should have known of the shortfall immediately by looking at the differences in contribution between what was contributed to [the plaintiff's] account and the accounts of other employees," id. ¶ 19.

On August 24, 2010, the plaintiff " requested that the [defendant] remedy the shortfall," id. ¶ 21, but the defendant " did not comply with her request and failed to provide her with relevant documents, claiming that they had been lost," id. ¶ 22. The plaintiff arranged for the administrator of the plaintiff's retirement benefits plan to " perform calculations necessary to determine the shortfall amount," id. ¶ 23, and, based on those calculations, the plaintiff alleges she " has been damaged in the amount of $141,134.00, which represents the $117,134.00 shortfall and the 20% penalty as authorized by [ERISA]," id. ¶ 25.

The plaintiff filed this action on August 20, 2013, making two claims: Count I for violation of ERISA, 29 U.S.C. § 1132, based on the defendant's alleged " fail[ure] to fund the Plan in accordance with its agreement with [the plaintiff]," id. ¶ ¶ 26-35; and Count II, styled a " Request for Clarification of Future Benefits Pursuant to [29] U.S.C. § 1132," pursuant to which the plaintiff " seeks to have her future benefits under the Plan clarified, including the specific contribution amounts the Embassy of Italy is required to contribute to the Plan," id. ¶ ¶ 36-39.

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II. LEGAL STANDARD

A. Federal Rule of Civil Procedure ...


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