Godina v. Resinall Corp. et al

Filing 157

ORDER granting in part and denying in part 139 Defendants' Motion to Dismiss. See the attached Memorandum of Decision. Signed by Judge Vanessa L. Bryant on 12/1/09. (Engel, J.)

UNITED STATES DISTRICT COURT D IS T R IC T OF CONNECTICUT

J O H N M. GODINA, JR., P la in t if f , v. R E S IN AL L INTERNATIONAL INC. ET AL., D e fe n d a n ts .

: : : : : : :

C IV IL ACTION NO. 3 : 0 7 -c v-4 9 7 (V L B ) D e c e m b e r 1, 2009

M E M O R AN D U M OF DECISION AND ORDER GRANTING IN PART AND DENYING IN PART THE DEFENDANTS' MOTION TO DISMISS [DOC. #139] T h e Plaintiff, John M. Godina, Jr. ("Plaintiff"), brings this action for c o m p e n s a to ry and punitive damages against his former employer Resinall Corp. a n d affiliated companies Resinall International, Inc., Resinall Mississippi, Inc., and R e s in a ll Inc. (collectively "Resinall Defendants"), asserting violations of the E m p lo ye e Retirement Income Security Act, 29 U.S.C. §§ 1001 et seq. ("E.R.I.S.A."). In addition, the Plaintiff asserts E.R.I.S.A. claims against Resinall Corp.'s Deferred C o m p e n s a tio n Plan (the "Plan") and Lee Godina as a fiduciary of the Plan. Presently pending before the Court is the Resinall Defendants' motion to dismiss fo r failure to comply with Fed. R. Civ. P. 15, failure to state a claim upon which relief c a n be granted pursuant to Fed. R. Civ. P. 12(b)(6), and lack of jurisdiction pursuant to Fed. R. Civ. P. 12(b)(5). For the reasons set forth below, the Defendants' motion is GRANTED IN PART and DENIED IN PART. I. Factual and Procedural Background O n February 27, 2007, the Plaintiff filed a six-count complaint in Connecticut S u p e rio r Court against the Resinall Defendants, alleging non-payment of retirement

benefits due under a deferred executive compensation plan along with related c la im s . On March 30, 2007, the Defendants removed the case to this Court. On N o v e m b e r 28, 2007, this Court dismissed the Plaintiff's claims for negligent m is re p re s e n ta tio n , breach of the implied covenant of good faith and fair dealing, a n d violation of the Connecticut Unfair Trade Practices Act. See Doc. #34. The R e s in a ll Defendants subsequently filed a motion for judgment on the pleadings as to the remaining three counts, alleging that these claims were preempted by E .R .I.S .A.. The Plaintiff objected and attached a Proposed Amended Complaint to h is memorandum in opposition in an attempt to cure the defects in his original C o m p la in t. On July 22, 2009, the Court denied the Defendants' motion but ordered th e Plaintiff to revise his Complaint to specifically state the sections of E.R.I.S.A. u p o n which he relied. See Doc. #122. The Plaintiff filed an Amended Complaint on J u ly 24, 2009, but that Complaint cited the entirety of E.R.I.S.A. and failed to plead w h ic h specific sections of E.R.I.S.A. were violated by the conduct alleged. Accordingly, on September 4, 2009, the Court granted the Plaintiff one additional o p p o rtu n ity to amend the Complaint to properly specify the legal basis for his c la im s . See Doc. #133. On September 14, 2009, the Plaintiff filed a Second Am e n d e d Complaint alleging three counts and identifying the specific E.R.I.S.A. p ro v is io n s that he claims were violated by each of the Defendants. On October 5, 2 0 0 9 , the Resinall Defendants filed the present motion to dismiss. See Doc. #139. The Second Amended Complaint alleges the following facts relevant to the R e s in a ll Defendants' motion to dismiss. The Plaintiff, a Florida resident, was fo rm e rly the President of Resinall Corp. Resinall Corp. is the parent corporation of 2

Resinall International, Inc., Resinall Mississippi, Inc. and Resinall Inc. Resinall In te rn a tio n a l Inc. has it's principal place of business in Connecticut, and the re m a in in g defendants transact business in Connecticut. The Resinall Defendants were formerly a division of Ziegler Chemical and M in e ra l Corporation ("Ziegler"), which was previously known as Carolina P ro c e s s in g Corporation ("Carolina"). The Plaintiff first began working for Carolina in 1966 as a sales representative, eventually rising to the position of Vice President o f sales. In 1981, the Plaintiff helped to found Resinall Corp. and became one of the fiv e original shareholders of the company. He continued in his position as Vice P re s id e n t of Sales and Marketing for Resinall Corp. until 1997, at which time he was e le v a te d to the position of President. The Plaintiff served as President of Resinall C o rp . from 1997 to 2000, during which time he received a salary of $300,000 per ye a r. The Plaintiff alleges that, over the course of his 35 years of employment with th e Resinall Defendants and their predecessors, he as well as other employees a s s u m e d responsibilities and performed extra work that was not immediately c o m p e n s a te d . Given that the Plaintiff and other key employees were not fully c o m p e n s a te d for their efforts, beginning in 1994, the Plaintiff, along with John G o d in a , Sr., Lee Godina, Roger Burke, and Bill Zaccarelli, began planning for the c re a tio n of a deferred compensation plan or other benefit plan to retain and reward k e y employees for their past efforts. An initial draft was prepared by Attorney Arth u r Kroll in August 1999, and was presented by Lee Godina, Executive Vice P re s id e n t and Secretary of Resinall Corp. Also in August 1999, a Pension 3

Committee of the Board of Directors was created. The Pension Committee c o n s is te d of the Plaintiff and Lee Godina. Between August 1999 and November 1 9 9 9 , the plan was amended as a result of the Plaintiff's concern that his and other b e n e fic ia rie s ' heirs would not receive deferred compensation in the event of their d e a th . Accordingly, the Plaintiff had Attorney Kevin O'Grady review the plan and re c o m m e n d the inclusion of a provision for the heirs of the beneficiaries. O n or about November 20, 1999, Arthur Kroll, at Lee Godina's request, drafted th e final version of the Plan. The Plaintiff, Lee Godina, and Bill Zaccarelli, acting as C h ie f Financial Officer for Resinall Corp., each reviewed the Plan and deemed it a p p ro p ria te . On November 23, 1999, the Plaintiff met with Lee Godina and Bill Z a c c a re lli, and they reviewed the Plan a final time, then signed and notarized it. The fid u c ia rie s of the Plan at the time of its creation were the Plaintiff, Lee Godina, and B ill Zaccarelli. After the Plan was signed and became binding, the Plaintiff continued to work fo r the Resinall Defendants as President at a salary of $300,000 per year. In January 2 0 0 0 , the Plaintiff decided to leave his employment with the Resinall Defendants d u e to business and personal differences between himself and John Godina, Sr. Since that time, he has turned down offers of employment in competing businesses. On November 15, 2002, letters signed by Lee Godina entitled "Supplemental E x e c u tiv e Retirement Plan" were sent to key employees William Zaccarelli, John J o h n s o n , Kenneth Parker, Matthew Weston, Kenneth Cooley and Joe LeVine (the " N e w Plan"). The New Plan guaranteed the same level of benefits as those g u a ra n te e d in the original Plan for each of the key employees with the exception of 4

the Plaintiff and Lee Godina. Around the same time in 2002, an escrow account c o n ta in in g approximately $100,000 that had been set aside to fund the Plaintiff's d e fe rre d compensation account was closed and the funds were returned to Resinall C o rp .'s general fund. On August 22, 2006, the Plaintiff reached age 60, and the Plaintiff's initial d e fe rre d compensation payment of $200,000 came due pursuant to the Plan. Shortly after that date, the Plaintiff met with John Godina, Sr., Lee Godina and other k e y employees of the Defendants and orally requested payment. He was told at that tim e that he would not be receiving any payment pursuant to the Plan. Subsequently, on November 3, 2006, the Plaintiff sent a letter to John Godina, Sr. fo rm a lly requesting the first payment due under the Plan. To date, no payment has b e e n made to the Plaintiff. II. Discussion T h e Resinall Defendants first argue that the Plaintiff has failed to comply with F e d . R. Civ. P. 15 because the Plaintiff's Second Amended Complaint makes drastic c h a n g e s beyond what was contemplated by the Court's July 22, 2009 Order. They a s s e rt that, rather than amending the Complaint simply to reflect the specific s ta tu to ry provisions upon which the Plaintiff relies for relief as ordered by the C o u rt, the Plaintiff instead added several defendants and claims and altered several k e y facts. Fed. R. Civ. P. 15(a) provides that district courts freely give leave to amend a p le a d in g "when justice so requires." The Supreme Court has qualified this p rin c ip le , however, stating that leave should not be freely given where there is good 5

reason to withhold it, such as "undue delay, bad faith or dilatory motive on the part o f the movant, repeated failure to cure deficiencies by amendments previously a llo w e d , undue prejudice to the opposing party by virtue of allowance of the a m e n d m e n t, [or] futility of the amendment." Foman v. Davis, 371 U.S. 178, 182 (1 9 8 2 ). Here, the Resinall Defendants argue that they are unduly prejudiced by the c h a n g e s to the Complaint because they have undertaken two years of discovery on th e Plaintiff's original claims. They further argue that the amendments are futile b e c a u s e they fail to pass the scrutiny of a Rule 12 motion. The Court's July 22, 2009 Order directed the Plaintiff to revise his Complaint to "specify the section or sections of E.R.I.S.A. on which he relies" and also to " s p e c ify the facts relevant to each count he plans to allege." See Doc. 122. Therefore, contrary to the assertion of the Resinall Defendants, the Court did grant th e Plaintiff leave to plead additional facts necessary to support his claims under E . R . I .S . A. . In addition to identifying his E.R.I.S.A. claims, the Plaintiff's Second Amended C o m p la in t also adds two Defendants not originally named in his original Complaint - the Plan itself and Lee Godina as fiduciary of the Plan.1 However, the Court need n o t address the appropriateness of permitting amendment of the Complaint to add

The Resinall Defendants state that certain additional parties appear to have b e en "implicitly" added as Defendants, namely the New Plan, Bill Zaccarelli, and the P e n s io n Committee. However, these parties were not specifically named as D e fe n d a n ts in the Second Amended Complaint and the Court will not assume that the Plaintiff intended to add them as Defendants. 6

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these Defendants because, as the Resinall Defendants argue, all counts against th e s e Defendants must be dismissed pursuant to Fed. R. Civ. P. 12(b)(5) since they h a v e not been served with process and therefore the Court lacks personal ju ris d ic tio n over them. The Plaintiff does not contest the fact that he failed to serve L e e Godina and the Plan. Instead, he merely claims that he has properly served the R e s in a ll Defendants and it is therefore "unnecessary" to make service on the newly a d d e d Defendants. The Plaintiff cites no authority in support of this proposition. "[S]ervice of process is the means by which a court obtains personal ju ris d ic tio n over a defendant. Accordingly, if service of process has not been p ro p e rly effected, the court lacks personal jurisdiction over the defendant." Bernadin v. I.N.S., No. 01 MISC 153, 2002 WL 1267992, at *2 (E.D.N.Y. Apr. 22, 2002) (in te rn a l citations omitted). Because the Plaintiff has failed to serve Lee Godina and th e Plan, this Court currently lacks personal jurisdiction over these Defendants. Pursuant to Fed. R. Civ. P. 4(m), a Defendant must be served within 120 days after th e complaint is filed, or the action must be dismissed against that defendant. The S e c o n d Amended Complaint naming Lee Godina and the Plan as Defendants was file d on July 24, 2009. Therefore, the time for serving these Defendants expired on N o v e m b e r 21, 2009, and they must be dismissed from this action. T h e Resinall Defendants further argue that this case must be dismissed p u rs u a n t to Fed. R. Civ. P. 12(b)(6) because the Plaintiff fails to state a claim upon w h ic h relief can be granted. The Supreme Court clarified the standard governing a m o tio n to dismiss for failure to state a claim in Ashcroft v. Iqbal, 129 S. Ct. 1937

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(2009). "Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a `s h o rt and plain statement of the claim showing that the pleader is entitled to re lie f.'" Id. at 1949. While Rule 8 does not require detailed factual allegations, "[a] p le a d in g that offers labels and conclusions or a formulaic recitation of the elements o f a cause of action will not do. Nor does a complaint suffice if it tenders `naked a s s e rtio n [s ]' devoid of `further factual enhancement.' To survive a motion to d is m is s , a complaint must contain sufficient factual matter, accepted as true, to `s ta te a claim to relief that is plausible on its face.' A claim has facial plausibility w h e n the plaintiff pleads factual content that allows the court to draw the re a s o n a b le inference that the defendant is liable for the misconduct alleged." Id. (in te rn a l citations omitted). Count One of the Second Amended Complaint alleges violations of the fo llo w in g sections of E.R.I.S.A. as a result of the Defendants' failure to pay benefits to which the Plaintiff was entitled under the Plan: 29 U.S.C. § 1103(a), 29 U.S.C. § 1 1 0 3 (c ), 29 U.S.C. § 1104(a), 29 U.S.C. § 1106(b)(1), 29 U.S.C. § 1106(b)(2), 29 U.S.C. § 1109, and 29 U.S.C. § 1132(a)(1). The Resinall Defendants argue that all a lle g a tio n s in Count One implicating fiduciary misconduct must be dismissed b e c a u s e the Plan is a "top hat" plan and therefore the Plan and its fiduciaries are s p e c ific a lly exempted from E.R.I.S.A.'s fiduciary obligations. E.R.I.S.A. exempts so-called "top hat" plans from it's fiduciary responsibility p ro v is io n s . See 29 U.S.C. § 1101(a)(1). A top hat plan is defined as "a plan which is u n fu n d e d and is maintained by an employer primarily for the purpose of providing

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deferred compensation for a select group of management or highly compensated e m p lo ye e s ." Demery v. Extebank Deferred Compensation Plan (B), 216 F.3d 283, 2 8 7 (2d Cir. 2000). The Preamble to the Plan describes the Plan as "an unfunded d e fe rre d compensation arrangement for a select group of management to highlyc o m p e n s a te d employees . . ." Plan ¶ 1. However, this is not dispositive of the C o u rt's inquiry at this stage. The Second Circuit has instructed district courts to e n g a g e in a "fact-specific inquiry, analyzing quantitative and qualitative factors in c o n ju n c tio n " to determine whether a plan is a top hat plan. Demery, 216 F.3d at 2 8 3 . These factors include the percentage of employees invited to join the plan, the n a tu re of their employment, and their negotiating power. Id. at 288-90. Proper c o n s id e ra tio n of these factors requires evidentiary proof and cannot be done at the m o tio n to dismiss stage on the pleadings before the Court in this case. See F e n w ic k v. Merrill Lynch & Co., No. 3:06-cv-880, 2007 WL 703613, at *5 (D. Conn. M a r. 5, 2007). Moreover, the Plaintiff has also alleged that the Plan was in fact fu n d e d . See Second Amended Complaint, ¶ 29 ("[I]n 2002, approximately $ 1 0 0 ,0 0 0 .0 0 in funds that had been set aside in an escrow account to fund the P la in tiff's Deferred Compensation Account was closed and the funds were returned to the Defendant Resinall Corp.'s general fund."). Accordingly, the Court declines to dismiss the Plaintiff's fiduciary misconduct claims. H o w e v e r, the Court concludes that these claims may proceed against R e s in a ll Corp. only. The United States Supreme Court has held that an employer m a y qualify as a plan fiduciary if the employer exercises authority or control over

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the plan or its assets as described in 29 U.S.C. § 1002(21)(A).2 See Varity Corp. v. H o w e , 516 U.S. 489, 498 (1996). The Plaintiff alleges that, since its founding, " R e s in a ll Corp. has had decision making authority as to substantive policy d e c is io n s of all other Defendants including policy decisions as to any and all d e fe rre d compensation plans." Second Amended Complaint, § 15. Viewing the fa c ts in the light most favorable to the Plaintiff, the Court finds that the Plaintiff has s u ffic ie n tly alleged that Resinall Corp. exercised discretionary authority over m a n a g e m e n t of the Plan or its assets, and therefore is a fiduciary of the Plan. However, there are no allegations in the Second Amended Complaint suggesting th a t the remaining Resinall Defendants exercised any authority over the Plan or o th e rw is e qualify as a fiduciary of the Plan pursuant to 29 U.S.C. § 1002(21)(A). Therefore, the fiduciary misconduct claims are dismissed as against Resinall In te rn a tio n a l, Inc., Resinall Mississippi, Inc., and Resinall, Inc. The Resinall Defendants further argue that the one claim asserted in Count O n e that does not implicate fiduciary misconduct, violation of 29 U.S.C. § 1132(a)(1), m u s t be dismissed as against the Resinall Defendants because claims under E .R .I.S .A. for benefits may not be brought directly against an employer. "In claims fo r recovery of benefits pursuant to E.R.I.S.A. Section 502(a), 29 U.S.C. § 1132(a) . . .

29 U.S.C. § 1002(21)(A) states: "[A] person is a fiduciary with respect to a p la n to the extent (i) he exercises any discretionary authority or discretionary c o ntro l respecting management of such plan or exercises any authority or control res p e c ting management or disposition of its assets, (ii) he renders investment a d vic e for a fee or other compensation, direct or indirect, with respect to any m o n e ys or other property of such plan, or has any authority or responsibility to do s o , or (iii) he has any discretionary authority or discretionary responsibility in the a d m in is tra tio n of such plan." 10

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`only the plan and the administrators and trustees of the plan in their capacity as s u c h may be held liable.'" Fenwick, 2007 WL 703613 at *2 (quoting Leonelli v. P e n n w a lt Corp., 887 F.2d 1195, 1199 (2d Cir. 1989)). E.R.I.S.A. defines the term " a d m in is tra to r" as (1) "the person specifically so designated by the terms of the in s tru m e n t under which the plan is operated;" (2) "if an administrator is not so d e s ig n a te d , the plan sponsor;" or (3) "in the case of a plan for which an a d m in is tra to r is not so designated and a plan sponsor cannot be identified, such o th e r person as the Secretary may by regulation prescribe." 29 U.S.C. § 1 0 0 2 (1 6 )(A). The Plaintiffs argue that the Resinall Defendants were the a d m in is tra to rs of the Plan because there was no separate entity created to a d m in is te r the Plan. However, this argument is contradicted by the express terms o f the Plan, which states, "The Plan shall be administer [sic] by the committee c o m p o s e d of such members as shall be appointed from time to time by the Board. The initial members shall be John M. Godina, Jr. and Lee Godina." Plan ¶ 5.01. Because the Plan unambiguously designates the Committee as the plan a d m in is tra to r, the Resinall Companies cannot be considered the proper defendants fo r the Plaintiff's claim pursuant to 29 U.S.C. § 1132(a)(1). See Fenwick, 2007 WL 7 0 3 6 1 3 at *2 ("In this instance, the AE Plan unambiguously designates the C o m m itte e as the plan administrator and therefore the named defendants cannot be c o n s id e re d the proper defendants. Courts following Second Circuit precedent have re je c te d plaintiffs' argument that the employer company is a proper defendant w h e re members of the plan administrator Committee are appointed by the Board of

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the Directors and serve as agents of the Board."); see also Crocco v. Xerox Corp., 1 3 7 F.3d 105, 107 (2d Cir. 1998) (reversing district court's ruling and holding that e m p lo ye r could not be held liable as an administrator where employer designated a p la n administrator, even though designated administrator was a company e x e c u tiv e , was compensated by the company, served at the pleasure of the CEO of th e company, would be reimbursed by the company in the event of a successful suit a g a in s t her based upon her actions on behalf of the plan, the company retained the rig h t to appoint claims administrators, and a separate agreement with an entity that w a s contracted to provide case management of mental health treatment covered by th e plan named the employer as the party with final, independent responsibility for d e te rm in in g benefit payments). Accordingly, Count One is dismissed insofar as it a s s e rts a claim for violation of 29 U.S.C. § 1132(a)(1). F in a lly, the Resinall Defendants argue that Count One in its entirety fails as a m a tte r of law because the Plaintiff has failed to exhaust all administrative remedies. The Plaintiff responds by stating that the Plan does not call for any specific appeals p ro c e s s , and that he has exhausted his administrative remedies by making an oral re q u e s t for payment upon John Godina, Sr., Lee Godina and other key employees of th e Resinall Defendants as well as a written request for payment in a letter sent to J o h n Godina, Sr. See Second Amended Complaint ¶¶ 31 and 32. E.R.I.S.A. re g u la tio n 29 C.F.R. § 2560.503-1(l) provides: In the case of the failure of a plan to establish or follow claims p ro c e d u re s consistent with the requirements of this section, a claimant s h a ll be deemed to have exhausted the administrative remedies under s e c tio n 502(a) of the Act on the basis that the plan has failed to provide 12

a reasonable claims procedure that would yield a decision on the merits o f the claim. T h e Plan at issue in this case does not set forth any specific claims procedures. Rather, it merely states as follows: "The Committee shall handle all appeals from d e c is io n s or interpretations and such appeals shall be handled in the manner p ro v id e d in the Employee Retirement Income Security Act of 1974, as amended or th e regulations issued thereunder." However, E.R.I.S.A. and its regulations do not s p e c ify default claims procedures, but instead require all E.R.I.S.A. plans to " e s ta b lis h and maintain reasonable procedures governing the filing of benefit c la im s , notification of benefit determinations, and appeal of adverse benefit d e te rm in a tio n s " in compliance with certain enumerated "minimum requirements." 2 9 C.F.R. § 2560.503-1. Since the Plan lacked a specific claims procedure p re s c rib in g the administrative remedies that the Plaintiff was required to exhaust b e fo re bringing suit, the Court finds that the Plaintiff is deemed to have exhausted h is administrative remedies in accordance with 29 C.F.R. § 2560.503-1(l). See F e n w ic k , 2007 WL 703613 at *4 (denying motion to dismiss for failure to exhaust a d m in is tra tiv e remedies where E.R.I.S.A. plan "prescribes no procedural remedies fo r plaintiffs to exhaust prior to bringing suit in district court") (citing Eastman K o d a k Co. v. STWB, Inc., 452 F.3d 215 (2d Cir. 2006)). Count Two of the Second Amended Complaint alleges violations of the fo llo w in g sections of E.R.I.S.A. as a result of the creation of the New Plan excluding th e Plaintiff to his detriment: 29 U.S.C. § 1103(a), 29 U.S.C. § 1104(a), 29 U.S.C. § 1 1 0 6 (b )(1 ), and 29 U.S.C. § 1109. The Resinall Defendants first argue that this Count 13

must be dismissed because the Plan is a top hat plan and is therefore exempted fro m these provisions by 29 U.S.C. § 1101(a)(1). As discussed above, the Court is u n a b le to determine on the basis of the pleadings whether the Plan is a top hat plan, a n d therefore declines to dismiss Count Two on this basis. The Resinall Defendants further argue that the Plaintiff has no standing to s u e for inclusion into the New Plan because it was created over two years after the P la in tiff left the company. It is undisputed that the New Plan was created in 2002, m o re than two years after the Plaintiff terminated his employment with the Resinall D e fe n d a n ts , and that he is not named as a beneficiary of the New Plan. However, th e Plaintiff argues that the New Plan constitutes an illegal modification of the o rig in a l Plan intended to eliminate the Plaintiff as a beneficiary. In Fenwick, 2007 W L 703613 at *5, the Court (Eginton, J.) held that amending a plan does not c o n s titu te a fiduciary act, and therefore dismissed a claim alleging breach of fid u c ia ry duty based upon a plan amendment. The Fenwick Court relied upon U n ite d States Supreme Court precedent holding that E.R.I.S.A.'s fiduciary duty re q u ire m e n t was not implicated when an employer or plan sponsor makes an a m e n d m e n t regarding the plan's form or structure relative to who is entitled to re c e iv e benefits or how such benefits are calculated. See Hughes Aircraft Co. v. J a c o b s o n , 525 U.S. 432, 443-44 (1999); see also Lockheed Corp. v. Spink, 517 U.S. 8 8 2 , 890 (1996) (holding that an employer does not act as a fiduciary when it e s ta b lis h e s , modifies or terminates an E.R.I.S.A.-covered pension plan). This p re c e d e n t also compels the dismissal of Count Two in this case.

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Count Three of the Second Amended Complaint asserts that the Defendants v io la te d 29 U.S.C. §§ 1021, 1023, and 1024(b) by failing to provide the Plaintiff with a s u m m a ry plan description and annual report. Under E.R.I.S.A., an "administrator s h a ll, upon written request of any participant or beneficiary, furnish a copy of the la te s t updated summary plan description, plan description, and the latest annual re p o rt, any terminal report, the bargaining agreement, trust agreement, contract, or o th e r instruments under which the plan is established or operated." 29 U.S.C. § 1 0 2 4 (b )(4 ). If the administrator fails to provide the requested information within th irty days, it may be "personally liable to such participant or beneficiary in the a m o u n t of up to $100 per day from the date of such failure or refusal, and the court m a y in its discretion order such other relief as it deems proper." 29 U.S.C. § 1 1 3 2 (c ). The Resinall Defendants contend that Count Three must be dismissed b e c a u s e the Plaintiff has failed to identify an Administrator of the Plan, let alone n a m e it as a Defendant or serve it with process. As discussed above, the Plan u n a m b ig u o u s ly names the Pension Committee as the plan administrator. See Plan § 5.01. However, the Pension Committee has not been named as a Defendant in this a c tio n or served with process, and therefore the Court has no jurisdiction over the P e n s io n Committee. The Resinall Defendants are not administrators of the Plan and th e re fo re cannot be held liable under 29 U.S.C. § 1132(c). Accordingly, Count Three is dismissed.

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III. Conclusion B a s e d on the above reasoning, the Defendants' motion to dismiss [Doc. # 1 3 9 ] is GRANTED IN PART and DENIED IN PART. Counts Two and Three are d is m is s e d in their entirety. In addition, Defendants Resinall International, Inc., R e s in a ll Mississippi, Inc., and Resinall, Inc. are dismissed from this case, as there a re no surviving claims asserted against them. Defendants Lee Godina and R e s in a ll Corp.'s Deferred Compensation Plan are also dismissed from this case b e c a u s e they have not been served with process within 120 days from the date the Am e n d e d Complaint was filed naming them as Defendants as required by Fed. R. C iv . P. 4(m). Count One may proceed only insofar as it alleges fiduciary misconduct c la im s against Resinall Corp. If the Plaintiff seeks to amend his Complaint yet again to name additional D e fe n d a n ts or assert additional claims, in addition to complying with Fed. R. Civ. P. 5 , he must explain in his motion to amend why such claims would not be barred by th e applicable statute of limitations, including, without limitation, 29 U.S.C. § 1113.

IT IS SO ORDERED.

/s/ Vanessa L. Bryant U n ite d States District Judge

D a te d at Hartford, Connecticut: December 1, 2009.

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