Roma Malkani v. Clark Consulting, Inc.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-2008

ROMA P. MALKANI; INFORMATION SYSTEMS & NETWORKS
CORPORATION,

Plaintiffs - Appellants,

v.

CLARK CONSULTING, INCORPORATED; STRATFORD ADVISORY GROUP,
INCORPORATED; CLARK & WAMBERG, LLC,

Defendants – Appellees,

and

INFORMATION SYSTEMS AND NETWORKS CORPORATION EMPLOYEES’
PENSION PLAN,

Defendant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:09-cv-02875-AW)

Submitted: June 30, 2011 Decided: August 1, 2011

Before WILKINSON, GREGORY, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Norman H. Singer, SINGER & ASSOCIATES, PC, Bethesda, Maryland,
for Appellants. Sara Pikofsky, JONES DAY, Washington, D.C.;
Christopher C. Posteraro, Gregory L. Skidmore, Kathryn L.
Einspanier, KIRKLAND & ELLIS LLP, Washington, D.C., for
Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Plaintiffs Roma P. Malkani (“Malkani”) and Information

Systems and Networks Corporation (“ISN”) brought an action

against Clark Consulting, Inc., Stratford Advisory Group, Inc.,

and Clark & Wamberg, LLC (“Clark Group”), the administrators,

for an alleged breach of their fiduciary duties to ISN’s

Employees’ Pension Plan (“Plan”) under the Employment Retirement

Income Security Act of 1974 (“ERISA”). Malkani and ISN brought

their claims under ERISA § 502(a). See 29 U.S.C. § 1132(a)

(2006).

The district court granted the Clark Group’s motion to

dismiss for lack of subject matter jurisdiction under Fed. R.

Civ. P. 12(b)(1). The court further found that Malkani lacked

standing to sue the Clark Group because she failed to show an

injury in fact, as required for standing under Article III of

the Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555,

560-61 (1992). The court found that ISN lacked jurisdiction to

sue under § 502(a)(2) of ERISA, as it was Plan sponsor — not a

fiduciary of the Plan. An employer, such as ISN, has standing

under § 502(a)(2) only if it is a fiduciary under ERISA and is

asserting a claim in its fiduciary capacity. Sonoco Prods.

Co. v. Physicians Health Plan, Inc., 338 F.3d 366, 372 (4th Cir.

2003); see 29 U.S.C. § 1132(a)(2).

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 We review de novo a district court’s decision to

dismiss for lack of standing. Bishop v. Bartlett, 575 F.3d 419,

423 (4th Cir. 2009). The Supreme Court has made it clear that

“standing is an essential and unchanging part of that case-or-

controversy requirement of Article III,” Lujan, 504 U.S. at 560,

one that “state[s] fundamental limits on federal judicial power

in our system of government.” Allen v. Wright, 468 U.S. 737,

750 (1984).

We find no reversible error in the district court’s

opinion and affirm for the reasons stated by the district court.

See Malkani v. Clark Consulting, Inc., 727 F. Supp. 2d 444 (D.

Md. 2010). Moreover, we note that this is Appellants’ fourth

appeal related to this dispute. Several of the issues raised in

this appeal appear to have previously been rejected by this

court in our two prior published opinions on the matter. See

Solis v. Malkani, 638 F.3d 269 (4th Cir. 2011) (regarding the

appeal of action brought by the Secretary of Labor); Chao v.

Malkani, 452 F.3d 290 (4th Cir. 2006) (same).

Accordingly, we affirm. We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process.

AFFIRMED

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