CourtListener opinion 10095241

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UNITED STATES DISTRICT COURT 
 DISTRICT OF CONNECTICUT 

MERY ANN ASTUDILLO, 
 No. 3:18-cv-394 (MPS) 

 Plaintiff, 

 v. 

UNITED FOOD & COMMERCIAL WORKERS 
INTERNATIONAL UNION INDUSTRY PENSION 
FUND 

 Defendant. 

 RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 
 Mery Ann Astudillo ("Astudillo") brought this civil action pro se against United Food & 
Commercial Workers International Union Industry Pension Fund (the "Fund") for wrongfully 
denying her payment of her deceased husband's pension in violation of the Employee Retirement 
Income Security Act of 1974 ("ERISA"). The Fund filed a motion for summary judgment. For 
the reasons discussed below, the motion for summary judgment is GRANTED. 
I. FACTS 
 The following facts are taken from UFCW's Local Rule 56(a) statement and supporting 
exhibits.1 

1 Local Rule 56(a)2 requires the party opposing summary judgment to submit a Local Rule 
56(a)2 Statement which indicates whether the opposing party admits or denies the facts set forth 
by the moving party in its Local Rule 56(a)1 Statement. Although the Fund informed Astudillo 
of this requirement in the manner required by the Local Rule, ECF No. 44-2; D. Conn. L. Civ. R. 
56(b), and the Court specifically directed her to file a response to the motion for summary 
judgment, ECF No. 52, she has not submitted any opposition papers. Accordingly, the Fund's 
facts are deemed admitted. See D. Conn. L. Civ. R. 56(a)1 ("Each material fact set forth in the 
 The Fund is a multiemployer pension benefit plan within the meaning of Section 3(37)(a) 
of ERISA that provides pension benefits for eligible employees who work primarily in the retail 
food and manufacturing industries. ECF No. 44-3 at ¶ 1. The rights and benefits of participants 
and beneficiaries of the Fund are established by the Fund's Amended and Restated Future 
Service Plan (the "Plan"). Id. at ¶ 5. Section 11.12 of Article XI of the Plan provides that the 

Fund's Trustees shall have complete authority to interpret and apply the provisions of the Plan, 
and to make factual determinations regarding eligibility for benefits under the Plan. Id. at ¶ 12. 
Section 11.12 further provides that the Fund's Trustees may delegate responsibility to others, id. 
at ¶ 13, and that any decision of the Trustees or their delegates shall be final and binding and 
accorded the maximum deference permitted by law, id. at ¶ 14. The Fund's Trustees have 
delegated the review of the appeals of the Fund's denial of benefits to a committee ("Appeals 
Committee") that is authorized to review and act on behalf of the Trustees; the full Board of 
Trustees reviews and ratifies the actions of the Appeals Committee at its regularly scheduled 
meetings. Id. at ¶ 15. 

 An individual's right to a benefit payable under the Plan depends on whether the 
individual is a participant in the Plan or has a recognized relationship with a participant. Id. at ¶ 
6. The Plan defines "participant" as an employee who is eligible to participate in the Plan, id. at ¶ 
7, and defines a "spouse" as the spouse of a participant as "recognized under applicable law," id. 
at ¶ 8. One of the benefits that may be payable to the spouse of a participant is the Preretirement 
Surviving Spouse Benefit Upon Death Before Age 65 under Section 8.03 of Article VIII of the 
Plan ("Surviving Spouse Benefit"). Id. at ¶ 9. A qualified surviving spouse of a participant is 

Local Rule 56(a)1 Statement and supported by the evidence will be deemed admitted . . . unless 
such fact is controverted by the Local Rule 56(a)2 Statement required to be filed and served by 
the opposing party in accordance with this Local Rule."). 
eligible for the Surviving Spouse Benefit if the participant "dies prior to the earlier of the 
commencement of his pension under the Plan or his attaining age 65." Id. at ¶ 10. To qualify as a 
surviving spouse for purposes of the Surviving Spouse Benefit, "the surviving spouse and the 
[p]articipant must have been married to each other throughout the one-year period ending on the 
date of the [p]articipant's death." Id. at ¶ 11. 

 Pedro Antonio Peñaloza ("Peñaloza") was a participant in the Fund who earned nine 
years and three months of Future Service Pension Credit. Id. at ¶ 16. Astudillo married Peñaloza 
for the first time on November 5, 1973, in Lima, Peru. Id. at ¶ 18; ECF No. 30-2 at 27-29. They 
divorced in Miami-Dade County, Florida, on October 1, 2004. Id. at ¶ 19; ECF No. 30-2 at 39-
40. Then, on August 23, 2013, they remarried in Middletown, Connecticut. ECF No. 44-3 at ¶ 
20; ECF No. 32-2 at 22. Peñaloza died on May 1, 2014 at the age of 59. ECF No. 44-3 at ¶ 21; 
ECF No. 30-2 at 23. 

II. PROCEDURAL HISTORY 
 After Peñaloza's death, Astudillo applied to the Fund for the Surviving Spouse Benefit, 
claiming she was entitled to benefits under the terms of the Plan. ECF No. 44-3 at ¶ 22. The 
Fund reviewed the application and denied benefits on the basis that Astudillo and Peñaloza were 
not legally married for the full one-year period ending on the date of Peñaloza's death. Id. at ¶¶ 
23-24. The Fund notified Astudillo of its initial determination of her claim by letter dated August 
11, 2015. Id. at ¶ 25. The letter also notified Astudillo of the opportunity to submit additional 
materials in support of her application within 30 days of the letter. Id. at ¶ 26. Astudillo did not 
provide additional information in support of her application within 30 days. Id. at ¶ 27. By letter 
dated September 11, 2015, the Fund notified Astudillo that her claim was denied because she did 

not qualify as a surviving spouse, id. at ¶ 28, and that she had the right to appeal the denial to the 
Appeals Committee, id. at ¶ 29. On February 4, 2016, Astudillo appealed the denial with the 
assistance of an attorney. Id. at ¶ 30. She submitted additional documents with her appeal that 
purported to show that she lived with Peñaloza for more than one year prior to May 1, 2014, id. 
at ¶ 33, but she did not submit a Qualified Domestic Relations Order, id. at ¶ 34. On April 13, 
2016, the Appeals Committee considered the appeal and acted on behalf of the Trustees to deny 

it because Astudillo did not meet the requirements of a surviving spouse under Section 8.03 of 
Article VIII of the Plan. Id. at ¶¶ 31-32, 35. The Fund's Board of Trustees ratified this decision. 
Id. at ¶ 36. Astudillo was notified of the decision by letter addressed to her attorney dated April 
19, 2016. Id. at ¶ 37. 
III. LEGAL STANDARDS 
 The court must grant a motion for summary judgment if the moving party shows "that 
there is no genuine dispute as to any material fact and [that it] is entitled to judgment as a matter 

of law." Fed. R. Civ. P. 56(a). A fact is "material" if it "might affect the outcome of the suit 
under the governing law," and a dispute is "genuine" if "a reasonable jury could return a verdict 
for the nonmoving party" based on it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 
If a motion for summary judgment is supported by documentary evidence and sworn affidavits 
and "demonstrates the absence of a genuine issue of material fact," the nonmoving party must do 
more than assert the existence of some unspecified disputed material facts or "rely on conclusory 
allegations or unsubstantiated speculation." Robinson v. Concentra Health Servs., Inc., 781 F.3d 
42, 44 (2d Cir. 2015) (citation omitted). The party opposing the motion for summary judgment 
"must come forward with specific evidence demonstrating the existence of a genuine dispute of 
material fact." Id. In reviewing the record, the court "must construe the evidence in the light 
most favorable to the non-moving party and draw all reasonable inferences in its favor." Gary 
Friedrich Enterprises, LLC v. Marvel Characters, Inc., 716 F.3d 302, 312 (2d Cir. 2013). 

IV. DISCUSSION 
 Under ERISA, a participant or beneficiary may bring a civil action "to recover benefits 
due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to 
clarify his rights to future benefits under the terms of the plan." 29 U.S.C. § 1132(a)(1)(B). "[A] 
denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard 
unless the benefit plan gives the administrator or fiduciary discretionary authority to determine 
eligibility for benefits or to construe the terms of the plan." Firestone Tire and Rubber Co. v. 
Bruch, 489 U.S. 101, 115 (1989). "[W]here the written plan documents confer upon a plan 
administrator the discretionary authority to determine eligibility, we will not disturb the 
administrator's ultimate conclusion unless it is ‘arbitrary and capricious.'" Pagan v. NYNEX 

Pension Plan, 52 F.3d 438, 441 (2d Cir. 1995) (internal citation and quotation marks omitted). 
"The administrator bears the burden of showing that this deferential review applies." Kirk v. 
Readers Dig. Ass'n, Inc., 57 Fed. Appx. 20, 23 (2d Cir. 2003). Here, the arbitrary and capricious 
standard applies because Section 11.12 of Article XI of the Plan provides that the Fund's 
Trustees shall have complete authority to interpret and apply the provisions of the Plan, and to 
make factual determinations regarding eligibility for benefits under the Plan. ECF No. 44-3 at ¶ 
12. 
 The undisputed facts show that the Fund's decision was not arbitrary and capricious.2 
Section 8.03 of Article VIII of the Plan requires that the surviving spouse and the participant be 

2 The Court notes that, for the reasons discussed in this decision, the motion for summary 
judgment would be granted even if the Fund's decision was reviewed under a de novo standard. 
married to each other throughout the one-year period ending on the date of the participant's 
death to entitle the surviving spouse to benefits. Id. at ¶ 11; Article VIII, Section 8.03 of the Plan 
("[I]n order to be a qualified surviving spouse eligible to receive the Preretirement Surviving 
Spouse Benefit, the surviving spouse and the Participant must have been married to each other 
throughout the one-year period ending on the date of the Participant's death."). Here, the 

undisputed facts show that although Astudillo and Peñaloza were married for decades, they 
ended their marriage and did not re-marry until approximately nine months before Peñaloza's 
death. ECF No. 43-3 at ¶¶ 18-21; ECF No. 30-2 at 27-29 (marriage certificate showing that 
Astudillo and Peñaloza were married on November 5, 1973); id. at 39-40 (final judgment of 
dissolution of marriage showing that Astudillo and Peñaloza ended their marriage on October 1, 
2004); id. at 22 (license and certificate of marriage showing that Astudillo and Peñaloza were 
remarried on August 23, 2013); id. at 23 (Peñaloza's certificate of death showing that he died on 
May 1, 2014). 
 The documents Astudillo submitted to the Fund to show that she and Peñaloza lived 

together for more than one year prior to his death do not alter this outcome. The Plan defines 
"spouse" as a "spouse recognized under applicable law." ECF No. 44-3 at ¶ 8; Article VIII, 
Section 8.01 of the Plan. Because Connecticut does not recognize common law marriage, 
McAnerney v. McAnerney, 165 Conn. 277, 285 (Conn. 1973) (holding that "although two 
persons cohabit and conduct themselves as a married couple, [Connecticut] law neither grants to 
nor imposes upon them marital status"), Astudillo did not become a "spouse" as defined by the 
Plan until she remarried Peñaloza on August 23, 2013. So, even if she and Peñaloza lived 
together for more than one year prior to his death, she would not be entitled to the Surviving 
Spouse Benefit. 
 Finally, ERISA provides that "the former spouse of a participant shall be treated as a 
surviving spouse" to the extent provided in any qualified domestic relations order. 29 U.S.C. § 
1056(d)(3)(F). A domestic relations order means any judgment, decree, or order that "relates to 
the provision of child support, alimony payments, or marital property rights to a spouse, former 
spouse, child, or other dependent of a participant" and "is made pursuant to a State domestic 

relations law." Id. at § 1056(d)(3)(B)(ii). A qualified domestic relations order means a domestic 
relations order that "creates or recognizes the existence of an alternate payee's right to, or assigns 
to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a 
participant under a plan." Id. at § 1056(d)(3)(B)(i). Astudillo did not submit a qualified domestic 
relations order. ECF No. 44-3 at ¶ 34. 
 In sum, the undisputed facts show that Astudillo and Peñaloza were not married for the 
full one-year period ending on the date of Peñaloza's death and that Astudillo did not submit a 
qualified domestic relations order. Far from being arbitrary and capricious, the Fund's decision 
was the only conclusion that could be reached in light of these undisputed facts. The Fund is 

therefore entitled to judgment as a matter of law. 
V. CONCLUSION 
 For the reasons discussed above, the Fund's motion for summary judgment is 
GRANTED. 
 Although the Local Rules of this Court allow only 7 days to file a motion for 
reconsideration, the Court will afford the plaintiff 21 days to file such a motion in this case based 
on the following circumstances. The plaintiff's complaint indicates that her address is 21 
Flanders Road, East Hampton, Connecticut, ECF No. 1, and all Court orders and other mailings 

have been sent to that address, including this Court's order directing the plaintiff to file a 
response to the defendant's motion for summary judgment and directing her to review the notice 
to pro se litigants filed with the defendant's motion. ECF No. 52. Nonetheless, the defendant's 
motion papers indicate on the certification pages that those papers were sent to the plaintiff at 24 
Flanders Road, East Hampton, Connecticut. See, e.g., ECF No. 44 at 3. This raises a possibility 
that she did not receive those papers, although the Court notes that that possibility appears to be 

remote given the proximity of the address used by the defendant to the plaintiff's given address 
and given the Court's order at ECF No. 52 (which was sent to plaintiff's given address) 
expressly referring to those papers. The plaintiff has shown in this case that she has previously 
responded to court orders sent to her given address. See, e.g., ECF Nos. 12-16. In an abundance 
of caution, however, the Court will extend the deadline for filing a motion for reconsideration. 
 If any such motion is filed and any such motion contends that the plaintiff did not receive 
the defendant's motion papers, it must be accompanied by a declaration or affidavit, made under 
oath, (1) attesting that the plaintiff did not receive the defendant's motion for summary 
judgment, (2) attesting that she did not otherwise review or obtain a copy of the defendant's 

motion papers from the online docket, (3) indicating whether or not there is a dwelling or other 
building located at 24 Flanders Road, and (4) explaining why the plaintiff did not raise the 
problem of non-receipt of any papers sooner, especially after the Court sent an order referring to 
those papers, ECF No. 52, to her at her given address. Failure to include a declaration or 
affidavit complying with this order will lead the Court to conclude that the plaintiff did receive 
the defendant's motion papers. In addition, any such motion for reconsideration must otherwise 
comply with Local Rule 7(c), including by pointing to controlling decisions or facts the court 
overlooked in this ruling. 
 The Court notes that even if the plaintiff did receive the defendant's motion papers, she 
still may, if she wishes, file a motion for reconsideration, provided any such motion complies 
with Local Rule 7(c). 
IT IS SO ORDERED. 
 /s/ 
 Michael P. Shea, U.S.D.J. 
Dated: Hartford, Connecticut 
 September 23, 2019