Rodrigues v. Bank of America, NA et al

Filing 21

ORDER ON MOTION TO DISMISS AND MOTION TO STRIKE by Judge Claudia Wilken granting 8 Motion to Dismiss; granting 8 Motion to Strike. (napS, COURT STAFF) (Filed on 7/1/2016)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL L. RODRIGUES,

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Plaintiff,

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No. C 16-1390 CW
ORDER ON MOTION TO
DISMISS AND MOTION
TO STRIKE

v.

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BANK OF AMERICA, NA; BANK OF
AMERICA PENSION PLAN and DOES 150,

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Defendants.

United States District Court
For the Northern District of California

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(Docket No. 8)

________________________________/

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Defendants Bank of America, NA (BOFA) and Bank of America

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Pension Plan (Plan) filed this motion to dismiss Plaintiff Michael

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L. Rodrigues's Complaint and to strike his request for a jury

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trial.

The Court vacates the hearing and GRANTS this motion.

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BACKGROUND
I.

Rodrigues's Allegations
Rodrigues worked at BOFA from July 5, 1982 to June 30, 1988.

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Under the terms of his employment, Defendants "provided" Rodrigues

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with a pension plan, which granted him retirement benefits,

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including shares of BOFA stock.

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"beneficiary" of the Plan.

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Complaint ¶ 9.

He is a

Id. ¶ 7.

On November 9, 2015, Rodrigues requested the following

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documents from Defendants: a summary plan description, all

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financial information showing the balance of Rodrigues's interest

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in the Plan, and Rodrigues's vested and unvested balances in the

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Plan, both in number of shares and dollar value.

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one provided the requested information or documents relating to

Id. ¶ 10.

No

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the Plan.

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Rodrigues that they "can't locate any record of your employment

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with the bank."

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Id. ¶ 11.

Instead, “representatives at BOFA” told

Id.

Rodrigues filed this Complaint on March 22, 2016.

It

contains three causes of action, all under the Employment

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Retirement Income Security Act (ERISA), 29 U.S.C. § 1001, et seq.:

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denial of benefits, breach of fiduciary duty and failure to

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provide requested documents.

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interests, the documents he requested, statutory damages,

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United States District Court
For the Northern District of California

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restitution, a “declaration of Plaintiff's and Defendants’

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respective rights and duties” and attorneys’ fees.

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6-7.

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II.

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He seeks payment of his vested

Complaint at

The Plan

The Bank of America Pension Plan for Legacy Bank of America

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is the Bank of America Corporation's pension plan.1

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Plan at 7.

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Committee is the Plan Administrator.

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71.

RJN Ex. A,

The Bank of America Corporation Corporate Benefits
RJN Ex. B, Summary at 69,

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Under the "incorporation by reference" doctrine, the Court
may consider documents of undisputed authenticity on which a
plaintiff's claim depends. Knievel v. ESPN, 393 F.3d 1068, 1076
(9th Cir. 2005) (citing Parrino v. FHP, Inc., 146 F.3d 699, 706
(9th Cir. 1998) (holding that the district court properly
considered undisputed documents attached to a motion to dismiss
that described terms of a group health insurance plan where
plaintiff alleged membership in the plan)). Rodrigues does not
dispute the authenticity of the documents attached to Defendants'
Request for Judicial Notice (RJN), Docket No. 8-1. The Court
GRANTS the request as to Exhibits A and B, following Knievel, and
as to Exhibit C as a matter of public record, see MGIC Indem.
Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986).
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The Plan contains a procedure that claimants must follow

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before filing suit in any other forum.

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23-24.

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for benefits.

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decision, a claimant has a right to appeal.

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claimant has one year following a final decision to file a civil

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suit.

Under this procedure, a claimant must file a written claim
Plan at 82.

After the Committee renders a
Id.

From there, a

Id. at 84.

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Plan at 82-84; Summary at

LEGAL STANDARD
A complaint must contain a “short and plain statement of the

United States District Court
For the Northern District of California

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claim showing that the pleader is entitled to relief.”

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Civ. P. 8(a).

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state a claim, dismissal is appropriate only when the complaint

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does not give the defendant fair notice of a legally cognizable

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claim and the grounds on which it rests.

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Twombly, 550 U.S. 544, 555 (2007).

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complaint is sufficient to state a claim, the court will take all

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material allegations as true and construe them in the light most

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favorable to the plaintiff.

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896, 898 (9th Cir. 1986).

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to legal conclusions.

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cause of action, supported by mere conclusory statements,” are not

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taken as true.

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(citing Twombly, 550 U.S. at 555).

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Fed. R.

On a motion under Rule 12(b)(6) for failure to

Bell Atl. Corp. v.

In considering whether the

NL Indus., Inc. v. Kaplan, 792 F.2d

However, this principle is inapplicable

“Threadbare recitals of the elements of a

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

When granting a motion to dismiss, the court is generally

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required to grant the plaintiff leave to amend, even if no request

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to amend the pleading was made, unless amendment would be futile.

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Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911

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F.2d 242, 247 (9th Cir. 1990).

In determining whether amendment
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would be futile, the court examines whether the complaint could be

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amended to cure the defect requiring dismissal "without

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contradicting any of the allegations of [the] original complaint."

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Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990).

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DISCUSSION
I.

Denial of Benefits
Rodrigues first alleges a claim for denial of benefits.

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claimant must avail himself of a plan’s own internal review

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procedures before bringing suit in federal court.

A

Diaz v. United

United States District Court
For the Northern District of California

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Agric. Emp. Welfare Benefit Plan & Trust, 50 F.3d 1478, 1483 (9th

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Cir. 1995).

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Rodrigues does not argue that he followed the Plan’s review

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procedures.

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claimed administrative procedures had BOFA responded to his

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requests and provided him with the procedures he was required to

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follow.”

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duty to inform themselves of the details of their plan.

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Fed. Express Corp., 116 F.3d 1005, 1016 (3d Cir. 1997); Emerson v.

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Bank of Am., N.A., 2011 WL 3844105, at *3 (N.D. Cal.).

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Rodrigues’s lack of knowledge about the Plan’s review procedures

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does not negate the exhaustion requirement.

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Rather, he argues that he “would have followed the

Docket No. 19, Opp. Br. at 3.

Plan participants have a
Jordan v.

Additionally, BOFA, Rodrigues's former employer, is not the

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proper defendant for Rodrigues' claim for benefits.

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ITT Long Term Disability Plan for Salaried Emps., 914 F.2d 1279,

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1287 (9th Cir. 1990) (explaining that ERISA permits suits to

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recover benefits only against the plan and dismissing claim

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against plaintiff's employer).

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See Madden v.

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Rodrigues appears to believe that he can exhaust his

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administrative remedies by July 19, 2016.

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procedure, Rodrigues cannot exhaust this quickly.

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reason, the Court will give Rodrigues 180 days to amend his

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Complaint.

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Given the Plan's
For this

The Court dismisses this claim against BOFA, without leave to

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amend, because amendment against BOFA would be futile.

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Rodrigues has not exhausted his administrative remedies, the Court

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GRANTS Defendants' motion to dismiss this claim against the Plan,

United States District Court
For the Northern District of California

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Because

with leave to amend.
II.

Breach of Fiduciary Duties

Defendants argue that the allegations supporting this claim

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are deficient for several reasons: Defendants are not Rodrigues's

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fiduciaries; Defendants’ alleged actions cannot support a breach

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of fiduciary duty claim; and Rodrigues could not obtain the relief

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he seeks in this claim under any of ERISA’s relief provisions.

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A. Fiduciaries

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“ERISA permits suits for breach of fiduciary duty only

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against persons who act as a fiduciary with respect to a plan

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. . . covered by ERISA.”

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617 (9th Cir. 1992) (as amended).

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anyone who exercises discretionary authority over the plan’s

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management, anyone who exercises authority over the management of

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its assets, and anyone having discretionary authority or

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responsibility in the plan’s administration.”

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Assocs., 948 F.2d 607, 610 (9th Cir. 1991) (citing 29 U.S.C.

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§ 1002(21)(A)).

Acosta v. Pac. Enters., 950 F.2d 611,
An ERISA fiduciary “includes

Mertens v. Hewitt

A person’s “actions, not the official designation

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of his role, determine whether he enjoys fiduciary status.”

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Acosta, 950 F.2d at 618.

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The Plan cannot be liable for breach of fiduciary duty here.

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See id. (“A plan covered by ERISA cannot, as an entity, act as a

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fiduciary with respect to its own assets.

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itself cannot be sued for breach of fiduciary duty.”).

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Therefore, a plan

Nor are Rodrigues’s allegations sufficient to hold BOFA

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liable.

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liable as an ERISA fiduciary.”

Its “status as employer does not automatically make it
Lea v. Republic Airlines, Inc.,

United States District Court
For the Northern District of California

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903 F.2d 624, 631 (9th Cir. 1990).

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interaction between BOFA and the Plan that would warrant labeling

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BOFA a fiduciary of the Plan.

The Complaint alleges no

See Mertens, 948 F.2d at 610.

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B. Alleged Breaches of Fiduciary Duty

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The Complaint alleges that Defendants breached their

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fiduciary duties in two ways: failing to provide Rodrigues with

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information and withholding his vested interest in the Plan.

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ERISA's fiduciary duty provisions are "primarily concerned with

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protecting the integrity of the plan, which in turn protects all

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beneficiaries, rather than remedying each wrong suffered by

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individual beneficiaries."

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757, 768 (9th Cir. 1995) (citation omitted).

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breaches cannot serve as bases for a breach of fiduciary duty

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claim because any recovery would not benefit the plan as a whole.

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See id. ("Although individual beneficiaries may bring a breach of

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fiduciary duty claim against an ERISA plan administrator, they

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must do so for the benefit of the plan.").

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//

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//

Parker v. BankAmerica Corp., 50 F.3d

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Rodrigues's alleged

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C. Relief for Breach of Fiduciary Duty Claim

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Rodrigues alleges that he is entitled to relief under 29

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U.S.C. § 1132(a)(1)(B) and (a)(3) for his breach of fiduciary duty

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claim.

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"to recover benefits due to him under the terms of his plan, to

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enforce his rights under the terms of the plan, or to clarify his

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rights to future benefits under the terms of the plan."

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1132(a)(3) permits a participant or beneficiary to bring a civil

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action for injunctive or equitable relief.

Section 1132(a)(1)(B) permits a participant or beneficiary

Section

These sections do not

United States District Court
For the Northern District of California

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relate to claims for breach of fiduciary duty to the Plan.

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Section 1109(a), which establishes liability for breach of

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fiduciary duty, permits relief only for a plan itself and not for

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beneficiaries of the plan.

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473 U.S. 134, 139-44 (1985) ("the entire text of § [1109]

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persuades us that Congress did not intend that section to

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authorize any relief except for the plan itself").

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Mass. Mut. Life Ins. Co. v. Russell,

The Court GRANTS Defendants' motion to dismiss this claim

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against BOFA, with leave to amend to allege, if true, that BOFA is

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a fiduciary of the Plan and to seek a remedy that would benefit

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the Plan as a whole.

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the Plan, without leave to amend, because amendment would be

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futile--the Plan cannot be sued for breach of fiduciary duty to

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itself.

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The Court also dismisses this claim against

III. Failure to Provide Plan Documents under 29 U.S.C.
§§ 1024(b)(4) and 1132(c)(1)
Title 29 U.S.C. § 1132(c)(1) provides that any

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“administrator” who fails or refuses to comply with a request for

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information “which such administrator is required by this
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subchapter to furnish to a participant or beneficiary” is

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personally liable for up to one hundred dollars per day.

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1024(b)(4) requires an administrator to furnish a copy of the

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“latest updated summary” and “the latest annual report,” among

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other documents, upon written request of any participant or

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beneficiary.

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Section

As explained above, neither Defendant is the Plan’s

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administrator; the administrator is the Committee.

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Complaint fails to allege that Rodrigues submitted any written

Moreover, the

United States District Court
For the Northern District of California

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request to the Plan’s administrator.

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clear from the Complaint or the briefing that an administrator

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would be required to give to Rodrigues each document he requested

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aside from the summary plan document.

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Additionally, it is not

For these reasons, the Court GRANTS Defendants' motion to

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dismiss this claim against both BOFA and Bank of America Pension

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Plan, without leave to amend, because amendment would be futile.

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Leave to amend is granted to bring this claim against the Plan

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Administrator, if the facts support such a claim.

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IV.

Jury Trial

Defendants argue that Plaintiff is not entitled to a jury

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trial under ERISA.

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available to a participant or beneficiary under ERISA are

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equitable in nature and the Seventh Amendment does not require

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that a jury trial be afforded for claims made by participants or

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beneficiaries.”

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(9th Cir. 2000).

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Under Ninth Circuit law, the “remedies

Thomas v. Or. Fruit Prods. Co., 228 F.3d 991, 997

Rodrigues argues that he is entitled to a jury trial for his
breach of fiduciary duty claim, citing Hellman v. Cataldo, 2013 WL
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4482889 (E.D. Mo.), and Minnesota Power & Affiliated Cos.

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Retirement Plan A v. Capital Guardian Trust Co., 2008 WL 2891057

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(D. Minn.).

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the Ninth Circuit, which holds that jury trials are not required

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for ERISA claims.

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were “Plans, their administrators, and the trustee,” who “filed

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suit against a co-fiduciary for damages caused by breach of

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fiduciary duty.”

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which was legal in nature and therefore gave rise to a jury trial

Unlike those courts, however, this Court is bound by

Further, in Minnesota Power, the plaintiffs

Id. at *5.

The court distinguished that suit,

United States District Court
For the Northern District of California

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right, from suits in which claimants seek benefits, that is,

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equitable claims.

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This analysis undermines Rodrigues’s argument.

The Court GRANTS Defendants’ motion to strike Rodrigues’s
demand for a jury trial.

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CONCLUSION

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The Court GRANTS Defendants' motion to dismiss all three

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claims and GRANTS their motion to strike the request for a jury

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trial.

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benefits claim against BOFA, the breach of fiduciary claim against

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the Plan and the plan documents claim against both Defendants.

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The Court grants leave to amend the claim for benefits against the

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Plan, after exhaustion, and the breach of fiduciary duty claim

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against BOFA, and to allege the documents claim against the Plan

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Administrator, if Rodrigues makes a request for documents from the

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Plan Administrator and it is denied.

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It dismisses, without leave to amend, the denial of

Rodrigues may file an amended complaint within 180 days of

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the date of this order.

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pleading or a motion to dismiss within fourteen days of the date

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an amended complaint is filed.

Defendants must file a responsive

If Defendants file a motion to
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dismiss, Rodrigues will have fourteen days from the date the

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motion is filed to respond.

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Defendants will have seven days to file a reply.

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Management Conference set for July 19, 2016 is vacated, to be

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reset if needed.

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If Rodrigues files a response,
The Case

IT IS SO ORDERED.

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Dated: July 1, 2016
CLAUDIA WILKEN
United States District Judge

United States District Court
For the Northern District of California

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