United States Court of Appeals
For the First Circuit
No. 05-2386
KEITH SCHNEIDER, Individually and on Behalf
of all Other Individuals Similarly Situated,
Plaintiff, Appellant,
v.
LOCAL 103 I.B.E.W. HEALTH PLAN; DAVID R. MACKAY; WILLIAM SEAVER;
JOHN A. PENNEY; JOHN DUMAS; MICHAEL MONAHAN; and CHUCK MONAHAN,
Defendants, Appellees,
HARRISON ELECTRICAL WORKERS TRUST FUND,
TIMOTHY GAUTHIER and GRANT ZADOW.
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Howard, Circuit Judge,
Coffin and Campbell, Circuit Judges.
George P. Fisher with whom Susan E. Stenger and Burns &
Levinson LLP were on brief for appellant.
David W. Healey with whom David W. Healey & Associates was
on brief for appellees.
March 21, 2006
PER CURIAM. After reviewing plaintiff-appellant's
arguments in his briefs and during oral argument, we are satisfied
that the district court correctly analyzed the case. We affirm
substantially on the basis of the district court's memorandum and
order. Schneider v. Harrison Elec. Workers Trust Fund, 382 F.
Supp. 2d 261 (D. Mass. 2005).1 We add only the following:
We disagree with Schneider's contention that the Supreme
Court's holding in Local 144 Nursing Home Extension Fund v.
Demisay, 508 U.S. 581 (1993), does not govern this case. He rests
this contention in part on the ground that while in Demisay the
parties were disputing the purpose for which the benefit
contributions "are used," he is now contesting the purpose for
which the fund was "established." This distinction, however, is
not borne out even by Schneider's own complaint. In his amended
complaint, at paragraph 5.2, plaintiff asserted:
Defendants the Local 103 Fund and/or the Trustees of the
Local 103 Fund violated 29 U.S.C. § 186(a) and/or (b)
when they retained the excess portion of contributions
earned by Schneider, thereby becoming a nonqualifying
trust under 29 U.S.C. § 186(c)(5) (emphasis added).
By alleging that the trust became nonqualifying when defendants
retained the excess portion of contributions earned by Schneider,
plaintiff himself suggested that he was contesting only the purpose
1
We note that in the district court's opinion at 382 F. Supp.
2d. at 263, there is a reference to "Section 103" of the Labor
Management Relations Act, as amended, 29 U.S.C. § 186. Though the
statutory citation is correct, we believe the section reference
should be to Section 302, the provision at issue here.
-2-
for which these excess funds were "used" rather than the purpose
for which the trust fund was established. See Demisay, 508 U.S. at
588. The trustees' retention of a portion of the contributions did
not stem from some purported deficiency in the purpose for which
the trust was established. Rather, the trustees' challenged
actions stemmed from collateral agreements entered into long after
establishment of the trust and occurred sometime after the
contributions were "'pa[id], len[t], or deliver[ed]' to the trust
fund...or...'receive[d], or accept[ed]' by the trust fund...." Id.
See also DeVito v. Hemstead China Shop Inc., 38 F.3d 651, 653-54
n.3 (2d Cir. 1994) (holding that Demisay precludes the argument
that payment would be in violation of § 302(c)(5) of the Labor
Management Relations Act because defendant "[did] not contest that
the Benefit Fund was properly established under section 302(c)(5)"
but contended only that "it was subsequently operated in a manner
inconsistent with § 302(c)(5)"); Ladzinski v. MEBA Pension Trust,
951 F. Supp. 570, 573 (D. Md. 1997), aff'd, 120 F.3d 261 (4th Cir.
1997).
Schneider also mischaracterizes the district court as
having erroneously granted summary judgment against him, "because
ERISA did not control Schneider's claim, because Schneider was not
a participant in the Local 103 Fund's heath and welfare plan and
therefore had no standing to sue." We read the district court's
memorandum as holding simply that Schneider abandoned his ERISA
-3-
claim, which, for that reason, the court no longer needed to
analyze.
The district court was on solid ground in holding that
Schneider had abandoned his ERISA and unjust enrichment claims. In
his opposition to the defendants' motion for summary judgment,
Schneider made the following statement:
Schneider now takes the position, following the back and
forth briefing between the parties about the legal theory
in this case, that the ERISA has no application
whatsoever to Schneider's claims against Defendants.
Hence, Schneider's theory of the case is that because
Defendants' conduct violates only § 302 of the LMRA, his
ERISA claim, his signature to the Authorization and
Release, and his unjust enrichment claim become
irrelevant.
It is true, as Schneider now argues, that at the end of his
opposition, he referred to an unjust enrichment claim. But this
reference, standing alone, was insufficient to overcome his prior,
explicit abandonment of the ERISA and unjust enrichment claims, and
even if these claims had remained still viable, he never responded
to any of the arguments against them made by the defendants in
their summary judgment memo. Likewise, he has failed to develop
any argument in favor of his unjust enrichment claim, which he
claims still to maintain, in his brief on appeal. "Even an issue
raised in the complaint but ignored at summary judgment may be
deemed waived." Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667,
678 (1st Cir. 1995). "It is well-established that 'issues adverted
to in a perfunctory manner, unaccompanied by some effort at
-4-
developed argumentation, are deemed waived.'" Nikijuluw v.
Gonzales, 427 F.3d 115, 120 n.3 (1st Cir. 2005) (citation omitted).
"It is not enough merely to mention a possible argument in the most
skeletal way, leaving the court to do counsel's work. . . .
'Judges are not expected to be mindreaders.'" United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990), cert. denied, 494 U.S.
1082 (1990) (citation omitted).
We therefore affirm the judgment of the district court.
-5-