Diamond v. Local 807 Labor-Management Pension Fund et al
MEMORANDUM AND ORDER granting 30 Motion to Dismiss for Failure to State a Claim for the reasons stated herein. The Clerk of Court is directed to enter judgment accordingly, and close the case. Ordered by Judge Roslynn R. Mauskopf on 2/7/2014. (Mauskopf, Roslynn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LANCE S. DIAMOND,
MEMORANDUM & ORDER
12-CV-5559 (RRM) (VVP)
- against LOCAL 807 LABOR-MANAGEMENT
PENSION FUND, its Trustees, JOHN
SULLIVAN, ANTHONY STORZ, LUIS
HERRERA, JOHN ZAK, ANTHONY
ZAPULLA, and ALLEN SWERDLICK, and its
Fund Administrator, ALFRED FERNANDEZ,
ROSLYNN R. MAUSKOPF, United States District Judge.
Plaintiff Lance Diamond originally commenced this action in the United States District
Court for the Southern District of New York, alleging multiple violations of the Employee
Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001, et seq. (See Compl. (Doc. No.
1).) On November 9, 2012, the case was transferred to this Court. (Doc. No. 6.) On March 3,
2013, plaintiff filed an amended complaint alleging causes of action under ERISA against
defendants for failing to adhere to the instruments governing plaintiff’s benefits plan, failing to
act solely in the interest of the participants and beneficiaries of the benefits plan, and failing to
make reasonable efforts to remedy those breaches of fiduciary duty. (See Am. Compl. (Doc. No.
25).) The amended complaint also alleged that defendant Fernandez improperly discontinued
plaintiff’s pension benefits in retaliation for conduct protected under ERISA, and sought
statutory penalties for defendants’ failure to produce certain documents plaintiff requested. (Id.)
Before the Court is defendants’ motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for
failure to state a claim. (See Doc. Nos. 30–32.) For the reasons that follow, the motion is
Defendants are fiduciaries who administer a pension plan (“the Plan”) for qualifying
employees working under collective bargaining agreements between Truck Drivers Local
807IBT of Long Island City, New York, and their employers. (Am. Compl. ¶ 4.) The Plan is an
“employee pension benefit plan” and “pension plan” as defined by ERISA. (Id. ¶¶ 7–8.) Both
the Plan and its associated pension fund (“the Fund”) are administered in accordance with an
“Agreement and Declaration of Trust” between Local 807IBT and an association comprised of
employers who are parties to various collective bargaining agreements. (Id. ¶ 6.)
Plaintiff, who is over sixty-five years of age, was employed by defendants as a
“Controller” of the Fund from January 1997 through May 2005. (Id. ¶¶ 3, 16.) Plaintiff reported
directly to defendant Fernandez, the administrator of the Fund. (Id. ¶ 32.) As an employee of
the Fund, plaintiff was eligible for and received benefits under the Plan. (Id. ¶¶ 17, 19.)
Between 2000 and 2005, plaintiff repeatedly cautioned Fernandez that the Plan’s funding was
threatened and recommended several cost-saving measures. (Id. ¶ 33.) Fernandez did not follow
plaintiff’s advice and grew aggravated when plaintiff continued to make suggestions regarding
funding issues. (Id. ¶ 34.) Fernandez eventually terminated plaintiff in May 2005. (Id. ¶ 36.)
Believing that he had been wrongfully terminated in retaliation for his attempts to protect the
At this stage, the Court’s review is limited to facts stated on the face of the amended complaint; facts found in
documents attached to the amended complaint, incorporated in the amended complaint, or integral to the claims
alleged; and matters of which the Court may take judicial notice. See Chambers v. Time Warner, Inc., 282 F.3d 147,
153 (2d Cir. 2002); Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991). The Court takes all factual
allegations in the complaint as true and draws all reasonable inferences in favor of the non-movant. See Harris v.
Mills, 572 F.3d 66, 71 (2d Cir. 2009). However, the Court is “not bound to accept as true a legal conclusion
couched as a factual allegation.” Sharkey v. Quarantillo, 541 F.3d 75, 82–83 (2d Cir. 2008) (quoting Papasan v.
Allain, 478 U.S. 265, 286 (1986)).
Fund, plaintiff accused Fernandez of violating the law. (Id. ¶¶ 35, 38.) These allegations
resulted in both parties retaining legal counsel.2 (Id. ¶ 37.)
On January 9, 2012, plaintiff accepted a consulting position with “the Puerto Rican
Family Institute, Inc. . . . , a non-profit, multi-program family[-]oriented mental health and
human service agency.” (Am. Compl. ¶ 24.) At that time, plaintiff was eligible to receive
pension benefits under the Plan. (Id.) With reference to subsequent employment by Plan
participants, however, the Plan provides that
If the Participant has attained Normal Retirement Age, his monthly benefit shall
be suspended for any month in which he worked or was paid for at least 40 hours
in Totally Disqualifying Employment. “Totally Disqualifying Employment”
means employment or self-employment that is (A) in an Industry Covered by the
Plan when the Participant’s pension payments began, and (B) in a geographic area
covered by the Plan when the Participant’s pension began; and (C) in any
occupation in which the Participant worked under the Plan at any time or (D) any
occupation covered by the Plan at the time the Participant’s pension payments
(Id. ¶ 22; see also Aff. of Alfred Fernandez (“Fernandez Aff.”) (Doc. No. 30-1), Ex. A §
6.7(b)(i).) The Plan defines “Normal Retirement Age” as “age 65, or, if later, the age of the
Participant on the fifth anniversary of his participation.” (Fernandez Aff., Ex. A § 1.12.) An
“Industry Covered by the Plan” means “the trucking, moving and general warehousing industries
and any other industries in which employees covered by the Plan were employed when the
participant’s pension began . . . .” (Am. Compl. ¶ 23; see also Fernandez Aff., Ex. A §
6.7(b)(ii).) On June 14, 2012, defendants suspended plaintiff’s benefit payments under the Plan,
informing plaintiff that his employment with the Puerto Rican Family Institute constituted
“Disqualifying Employment.” (Am. Compl. ¶ 27–29.) Specifically, defendants told plaintiff
The amended complaint contains no allegations concerning the outcome of this dispute.
The terms of the Plan are incorporated by reference in the amended complaint, (see Am. Compl. ¶ 1), and therefore
may be considered by the Court on this motion. See Allen, 945 F.2d at 44.
that, “[w]hile [he] may be working in a different industry,” his current position encompassed
“the same duties and occupation” as his prior position, which would render him ineligible for
benefits under their interpretation of the Plan. (Id. ¶ 28.)
Under such circumstances, the Plan provides that “[a] Participant shall be entitled to a
review of a determination suspending his benefits by written request filed with the Trustees
within 180 days of the notice of suspension.” (Fernandez Aff., Ex. A § 6.7(e).) The Plan also
outlines the procedure for any such review, which in relevant part, provides as follows:4
A claimant may request a formal review by the Trustees of the Fund Office’s
denial of his or her claim for benefits. […] [T]he claimant and/or the claimant’s
authorized representative may review any documents pertinent to the Fund
Office’s decision and may submit written comments.
The Trustees will review their original decision and will advise the claimant in
writing of their decision on review. The Trustees’ decision on review will be
communicated in writing and will contain the specific reason(s) for the decision.
The Trustees shall be the sole judges of the standard of proof required in any case.
The Trustees have discretion to apply and interpret the rules of the Fund.
Furthermore, the Trustees have sole authority and discretion to determine whether
an individual is eligible for benefits under the Plan and the amount of benefits, if
any to which an individual is entitled. The Trustees’ determination with respect
to the application and interpretation of any of the provisions of the Fund’s rules
shall be final and binding on all parties.
(Id. § 6.4.)
Following the suspension of his benefits, plaintiff submitted a request for review by the
Plan’s trustees.5 (See Certification of Richard S. Meisner (“Meisner Aff.”) (Doc. No. 31-1), Ex.
By its terms, section 6.4 of the Plan outlines the review procedure for a denial of an application for benefits. (See
Fernandez Aff., Ex. A § 6.4.) However, the section pertaining to a suspension of benefits provides that “[t]he same
right of review set forth in Section 6.4 shall apply, under the same terms, to a determination by or on behalf of the
Pension Fund that contemplated employment will be disqualifying.” (Id., Ex. A § 6.7(e).)
This information was omitted from plaintiff’s amended complaint. It was, however, included in a letter plaintiff
submitted as an exhibit to a declaration in opposition to defendants’ motion. On a motion to dismiss, the Court may
consider extrinsic documents to which the amended complaint “make[s] a clear, definite and substantial reference.”
D.) Plaintiff’s case was scheduled to be considered during a meeting of the Board of Trustees on
September 11, 2012, at which plaintiff was entitled to appear personally. (See id.) However, on
July 30, 2012, plaintiff withdrew his request for review. (Id.) In the letter withdrawing his
request, plaintiff sought to “reserve his right to reinstate his appeal for benefits or utilize the
administrative claim procedure at a later date” while also indicating his intent to “seek
reinstatement of his pension benefit in Federal Court without exhausting the administrative
appeal process.” (Id.) This action followed.
Plaintiff alleges several violations under ERISA. First, plaintiff alleges that defendants
violated their fiduciary duties under ERISA by failing to adhere to the instruments governing the
Plan, failing to act solely in the interest of the participants and beneficiaries of the Plan, and
neglecting to make reasonable efforts to remedy those breaches. (See Am. Compl. ¶¶ 48–68.)
Second, plaintiff alleges that Fernandez improperly suspended plaintiff’s benefits under the Plan
in retaliation for plaintiff’s challenge to his 2005 termination. (Id. ¶¶ 69–71.) Finally, plaintiff
alleges that defendants’ failure to produce certain documents entitles him to statutory penalties
under ERISA. (Id. ¶¶ 72–75.)
Plaintiff also seeks several forms of relief. As to defendants’ alleged breaches of
fiduciary duty, plaintiff seeks an injunction or declaratory judgment compelling defendants to
operate the Plan in accordance with the Plan documents, as well as an award of all benefits not
provided to plaintiff, plus interest from the date of nonpayment, costs, and attorneys’ fees. (Id. at
Helprin v. Harcourt, Inc., 277 F. Supp. 2d 327, 330–31 (S.D.N.Y. 2003). Moreover, “[e]ven where a document is
not incorporated by reference, the court may nevertheless consider it where the complaint ‘relies heavily upon its
terms and effect,’” such that it “renders the document ‘integral’ to the complaint.” Chambers, 282 F.3d at 153
(quoting Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)); see also Madu, Edozie
& Madu, P.C. v. SocketWorks Ltd. Nigeria, 265 F.R.D. 106, 123 (S.D.N.Y. 2010). Because the letter is crucial to
plaintiff’s allegations of exhaustion and futility, (see Am. Compl. ¶¶ 46–47), it is properly considered by the Court
on this motion.
13–14.) With regard to defendant Fernandez, plaintiff seeks “to have [d]efendant Fernandez
removed as a fiduciary” of the Plan and, again, an award of all benefits not provided, plus
interest, costs, and attorneys’ fees. (Id. at 14.) Lastly, plaintiff seeks an order compelling
defendants to furnish him with “a copy of each and every document and instrument requested,”
as well as statutory civil penalties, costs, and attorneys’ fees. (Id. at 14–15.)
To withstand defendants’ motion to dismiss, the amended complaint “must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)). The amended complaint need not contain “‘detailed factual allegations,’” but
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
Breaches of Fiduciary Duty (Claims One, Two, and Three)
Plaintiff’s first three causes of action are all premised on alleged actions or omissions
committed by all defendants as fiduciaries of the Plan. (See Am. Compl. ¶¶ 48–68.)
Specifically, plaintiff alleges that defendants breached their duties as fiduciaries by operating the
Plan in such a manner as to suspend his benefits. (Pl.’s Opp’n (Doc. No. 31) at 15–17.) The
parties dispute the statutory basis for these claims. Plaintiff purports to proceed under section
502(a)(3) of ERISA, which, in relevant part, provides that such an action may be brought
[B]y a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which
violates any provision of this subchapter or the terms of the plan, or (B) to obtain
other appropriate equitable relief (i) to redress such violations or (ii) to enforce
any provisions of this subchapter or the terms of the plan . . . .
29 U.S.C. § 1132(a)(3).6 Defendants, however, insist that “[i]n reality, [p]laintiff is seeking to
recover benefits allegedly due to him under the terms of the plan, a claim only cognizable under
ERISA [s]ection 502(a)(1) . . . .” (Defs.’ Mem. in Supp. (Doc. No. 30-1) at 9.) According to
defendants, plaintiff’s attempt to bring his claims under section 502(a)(3) is an improper gambit
to avoid deferential review of a benefits determination by the trustees of the Plan.7 (Id. at 15.)
Put another way, defendants urge that by dodging review by the trustees in the first instance,
plaintiff is seeking a heartier bite at the apple in federal court – one with more teeth.
Whatever plaintiff’s motivation, although it is true that claims for monetary relief
generally are not available under section 502(a)(3), see, e.g., Great-West Life & Annuity Ins. Co.
v. Knudson, 534 U.S. 204, 210 (2002), his fiduciary claims in this case are indeed cognizable
under that provision. “[T]he Supreme Court has indicated that monetary relief is, in fact,
available under [section] 502(a)(3) in certain circumstances.” D’Iorio v. Winebow, Inc., 920 F.
Supp. 2d 313, 320 (E.D.N.Y. 2013) (citing CIGNA Corp. v. Amara, 131 S. Ct. 1866, 1880
The amended complaint is unclear as to which provision of ERISA ostensibly authorizes this action, citing both
sections 502(a)(2) and 502(a)(3). (See Am. Compl. ¶ 13.) In his opposition, however, plaintiff clarified that he
claims only section 502(a)(3) as a basis for relief. (Pl.’s Opp’n at 7 & n.1.) Indeed, plaintiff could not bring this
action under section 502(a)(2), for to do so “a plan participant is required to sue ‘in a representative capacity on
behalf of the plan as a whole.’” Mcguigan v. Local 295/Local 851 I.B.T. Employer Grp. Pension Plan, No. 11-CV2004 (JG) (MDG), 2011 WL 3421318, at *3 (E.D.N.Y. Aug. 4, 2011) (quoting Mass. Mut. Life Ins. Co. v. Russell,
473 U.S. 134, 142 n.9 (1985)).
ERISA itself does not establish a standard of review for administrators’ decisions concerning the payment of
benefits. See Zarringhalam v. United Food & Commercial Workers Int’l Union Local 1500 Welfare Fund, 906 F.
Supp. 2d 140, 155 (E.D.N.Y. 2012). Nonetheless, “[i]n reviewing a trustee’s denial of plan benefits, Supreme Court
precedent makes clear that courts must apply a de novo standard ‘unless the plan provides to the contrary.’” Id.
(quoting Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 111 (2008)). Where a plan “grant[s] ‘the administrator or
fiduciary discretionary authority to determine eligibility for benefits,’” however, “trust principles make a deferential
standard of review appropriate.” Glenn, 554 U.S. at 111 (internal citations and alterations omitted) (emphases in
original); see also Zarringhalam, 906 F. Supp. 2d at 155. Under this deferential standard, a “plan administrator’s
interpretation of the plan ‘will not be disturbed if reasonable.’” Conkright v. Frommert, 559 U.S. 506, 521 (2010)
(quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111 (1989)). The Plan in this case explicitly provides
that “the Trustees have sole authority and discretion to determine whether an individual is eligible for benefits under
the Plan and the amount of benefits, if any to which an individual is entitled,” and further states that “the Trustees
have discretion to apply and interpret the rules of the Fund.” (Fernandez Aff., Ex. A § 6.4.) Such language would
invite deference to the trustees’ determinations under the Plan. See, e.g., Fuller v. J.P Morgan Chase & Co., 423
F.3d 104, 107 (2d Cir. 2005).
(2011)). In CIGNA, employees challenged their employer’s conversion of a pension plan from
an annuity calculated on the basis of the employees’ preretirement salary and length of service to
lump sum cash payments based on a defined annual contribution, claiming that the beneficiaries
had not received proper notice and that the new plan provided less generous benefits. See 131 S.
Ct. at 1870. The district court ruled for the plaintiffs and ordered relief that included
“injunctions requir[ing] the plan administrator to pay to . . . beneficiaries money owed them
under the plan as reformed” by the court. Id. at 1880. Ultimately, the Supreme Court held that
“the fact that th[e] relief t[ook] the form of a money payment d[id] not remove it from the
category of traditionally equitable relief.” Id.
CIGNA clarified that “not all relief in the form of a money payment is categorically
unavailable in [section] 502(a)(3) actions; a plaintiff proceeding pursuant to that section may, for
example, seek a ‘surcharge remedy’ for a ‘loss resulting from a trustee’s breach of duty, or to
prevent the trustee’s unjust enrichment.’” Mcguigan v. Local 295/Local 851 I.B.T. Employer
Grp. Pension Plan, No. 11-CV-2004 (JG) (MDG), 2011 WL 3421318, at *4 n.6 (E.D.N.Y. Aug.
4, 2011) (quoting CIGNA, 131 S. Ct. at 1880); see also Laurent v. PriceWaterhouseCoopers
LLP, No. 06-CV-2280 (JPO), 2013 WL 4028181, at *16 (S.D.N.Y. Aug. 8, 2013) (quoting
Skinner v. Northrop Grumman Ret. Plan B, 673 F.3d 1162, 1165 (9th Cir. 2012)) (“Exploring the
historic powers of equity courts, CIGNA held that ‘under appropriate circumstances, [section]
502(a)(3) may authorize three possible equitable remedies: estoppel, reformation, and
surcharge.’”). The Court explained that this is so because, traditionally, “[e]quity courts
possessed the power to provide relief in the form of monetary ‘compensation’ for a loss resulting
from a trustee’s breach of duty, or to prevent the trustee’s unjust enrichment.” CIGNA, 131 S.
Ct. at 1880.
In reaching that conclusion, the Court in CIGNA focused primarily on the relationship of
the parties in the litigation. Specifically, the Court distinguished Mertens v. Hewitt Associates,
508 U.S. 248 (1993), which concerned a claim for money damages brought by a beneficiary
against a private firm that provided services to the plan’s trustee, and Great-West Life & Annuity
Insurance Company v. Knudson, 534 U.S. 204 (2002), which involved a lien sought by a
fiduciary against the general assets of a beneficiary, emphasizing that CIGNA “concern[ed] a suit
by a beneficiary against a plan fiduciary (whom ERISA typically treats as a trustee) about the
terms of a plan (which ERISA typically treats as a trust).” CIGNA, 131 S. Ct. at 1879 (citing
LaRue v. DeWolff, Boberg & Assocs., Inc., 552 U.S. 248, 253, n.4 (2008); Varity Corp. v. Howe,
516 U.S. 489, 496–97 (1996)); see also D’Iorio, 920 F. Supp. 2d at 321. In such a case, the
Court said, monetary relief may be available under section 502(a)(3). CIGNA, 131 S. Ct. at
1879–80. The parties here have a relationship analogous to that in CIGNA – i.e. plaintiff is a
beneficiary suing the Plan fiduciaries about the terms of Plan. Following the guidance in
CIGNA, this Court likewise concludes that monetary compensation may be a permissible
component of any equitable relief awarded under section 502(a)(3). Accord D’Iorio, 920 F.
Supp. 2d at 321–22. Consequently, the Court finds that plaintiff’s fiduciary claims are
cognizable under section 502(a)(3). This, however, is not the end of the story.
A. Exhaustion of Remedies
Defendants also ask the Court to dismiss these claims because ERISA requires plaintiff to
exhaust his administrative remedies under the Plan before seeking redress in federal court.
(Defs.’ Mem. in Supp. at 9–10; Defs.’ Reply (Doc. No. 32) at 4–5.) In response, plaintiff
acknowledges the general rule requiring exhaustion, but insists that this case is exempt from that
prerequisite. (Pl.’s Opp’n at 12–20.) The Court disagrees. Plaintiff’s fiduciary claims must be
dismissed because he failed to exhaust his remedies under the Plan and the need to exhaust
cannot be excused.
Under ERISA, following “adequate notice in writing to any participant or beneficiary
whose claim for benefits under the plan has been denied,” all covered benefit plans must provide
“a reasonable opportunity . . . for a full and fair review by the appropriate named fiduciary of the
decision denying the claim.” 29 U.S.C. § 1133. The Second Circuit has consistently
“recognized ‘the firmly established federal policy favoring exhaustion of administrative remedies
in ERISA cases.’” Kennedy v. Empire Blue Cross & Blue Shield, 989 F.2d 588, 594 (2d Cir.
1993) (quoting Alfarone v. Bernie Wolff Constr., 788 F.2d 76, 79 (2d Cir.), cert. denied, 479 U.S.
915 (1986)). Most challenges to a denial of benefits are thus made in accordance with a plan’s
administrative review procedures, and a failure to exhaust those remedies is an affirmative
defense in a federal action, see Paese v. Hartford Life & Acc. Ins. Co., 449 F.3d 435, 446 (2d
Cir. 2006), “provid[ing] grounds for dismissal or summary judgment in favor of the opposing
party.” Zarringhalam v. United Food & Commercial Workers Int’l Union Local 1500 Welfare
Fund, 906 F. Supp. 2d 140, 152 (E.D.N.Y. 2012) (citing Quigley v. Citigroup Supp. Plan for
Shearson Transfers, No. 09-CV-8944 (PGG), 2011 WL 1213218, at *7 (S.D.N.Y. Mar. 29,
2011)). Requiring exhaustion serves “the primary purposes” of
(1) uphold[ing] Congress’ desire that ERISA trustees be responsible for their
actions, not the federal courts; (2) provid[ing] a sufficiently clear record of
administrative action if litigation should ensue; and (3) assur[ing] that any judicial
review of fiduciary action (or inaction) is made under the arbitrary and capricious
standard, not de novo.
Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 102 (2d Cir. 2005) (quoting Davenport v.
Harry N. Abrams, Inc., 249 F.3d 130, 132–34 (2d Cir. 2001)).
Consonant with these principles, “[c]ourts uniformly require exhaustion for claims based
on violations of contractual rights protected by ERISA, such as [a] denial of benefits.” Shamoun
v. Bd. of Trustees, 357 F. Supp. 2d 598, 603 n.3 (E.D.N.Y. 2005). Plaintiff argues, however, that
he was not required to exhaust his administrative remedies because he alleges a statutory
violation of ERISA under section 502(a)(3). (Pl.’s Opp’n at 12–15.) The Second Circuit has yet
to decide whether exhaustion is required for claims alleging violations of the ERISA statute
itself. See Nechis, 421 F.3d at 102 (stating that the court “need not here decide whether
administrative exhaustion is a prerequisite to a statutory ERISA claim”); De Pace v. Matsushita
Elec. Corp. of Am., 257 F. Supp. 2d 543, 558 (E.D.N.Y. 2003) (“The Second Circuit has yet to
address the specific question of whether exhaustion is required for statutory-based claims under
ERISA . . . .”). As a breach of fiduciary duty under ERISA is typically viewed as a statutory
claim, whether claims alleging violations of ERISA’s statutory protection against breaches of
fiduciary duty are subject to the administrative exhaustion requirement is similarly unclear. See
Role v. Johns Hopkins Bayview Med. Ctr., No. 06-CV-2475 (DLI) (LB), 2008 WL 465574, at *3
(E.D.N.Y. Feb. 15, 2008) (“The Second Circuit has not addressed the question of whether
ERISA fiduciary claims are subject to the administrative exhaustion requirement.”).
Nevertheless, there is a distinct trend among the district courts in this circuit. In general,
“[d]istrict courts in the Second Circuit have routinely dispensed with the exhaustion prerequisite
where plaintiffs allege a statutory ERISA violation,” Nechis, 421 F.3d at 102 (quoting De Pace,
257 F. Supp. 2d at 558), while continuing to require exhaustion for claims alleging violations of
the terms of a benefit plan. See Role, 2008 WL 465574, at *3 (“[D]istrict courts within this
circuit have drawn a distinction between claims relating to violations of the terms of a benefit
plan, and claims relating to statutory violations of ERISA, finding that the former, but not the
latter, claims must be administratively exhausted.”); Park v. Trustees of 1199 SEIU Health Care
Employees Pension Fund, 418 F. Supp. 2d 343, 358 (S.D.N.Y. 2005) (“District courts within this
Circuit, however, have permitted claims for statutory violations of ERISA even though
administrative remedies were not exhausted.”); Shamoun, 357 F. Supp. 2d at 603 n.3 (“The
Second Circuit has yet to address the issue, but courts in this circuit hold that there is no
exhaustion requirement for statutory claims under ERISA.”).8
This Court joins that trend. Declining to require exhaustion where a plaintiff alleges a
statutory ERISA violation – as opposed to a violation of the terms of a plan – makes sense, as
“statutory interpretation is the province of the judiciary” while “plan fiduciaries may have
expertise in interpreting the terms of the plan itself.” De Pace, 257 F. Supp. 2d at 557 (citing
Amaro v. Cont’l Can Co., 724 F.2d 747, 749–50 (9th Cir. 1984)). And although the Second
Circuit has yet to rule definitively, it has tacitly permitted district courts to continue applying this
distinction in a manner consonant with the principles underlying exhaustion. See Nechis, 421
F.3d at 102 (citing De Pace, 257 F. Supp. 2d at 558, and declining to decide the question but
noting the trend in the district courts). As such, the Court will first determine whether plaintiff’s
claims allege statutory violations of ERISA or violations of the terms of the Plan.
Whether a claim relates to violations of the ERISA statute or the terms of a plan turns on
what the Court is called upon to interpret. See Am. Med. Ass’n v. United HealthCare Corp., No.
00-CV-2800 (LMM), 2007 WL 1771498, at *15 (S.D.N.Y. June 18, 2007), adhered to on
recons., 2007 WL 2457358 (S.D.N.Y. Aug. 23, 2007). Thus, it is not dispositive that plaintiff
Other circuits have drawn a similar distinction. See, e.g., Milofsky v. Am. Airlines, Inc., 442 F.3d 311, 313 (5th
Cir. 2006); Harrow v. Prudential Ins. Co. of Am., 279 F.3d 244, 252 (3d Cir. 2002); Smith v. Sydnor, 184 F.3d 356,
364–65 (4th Cir. 1999), cert. denied, 528 U.S. 1116 (2000); Richards v. General Motors Corp., 991 F.2d 1227, 1235
(6th Cir. 1993); Held v. Manufacturers Hanover Leasing Corp., 912 F.2d 1197, 1205 (10th Cir. 1990); Amaro v.
Cont’l Can Co., 724 F.2d 747, 749–50 (9th Cir. 1984). But see Counts v. Am. Gen. Life and Accident Ins. Co., 111
F.3d 105, 109 (11th Cir. 1997); Lindemann v. Mobil Oil Corp., 79 F.3d 647, 650 (7th Cir. 1996).
casts his claims as statutory violations. “[T]he essence of a cause of action is found in the facts
alleged . . . by the plaintiff, not the particular legal theories articulated.” Oneida Indian Nation of
New York v. County of Oneida, 617 F.3d 114, 139 (2d Cir. 2010); see also D’Iorio, 920 F. Supp.
2d at 322. In particular, “a claim for breach of fiduciary duty is actually a claim for benefits
where the resolution of the claim rests upon an interpretation and application of an ERISAregulated plan rather than upon an interpretation and application of ERISA.” Am. Med. Ass’n,
2007 WL 1771498, at *15 (S.D.N.Y. June 18, 2007) (quoting Smith, 184 F.3d at 362) (emphasis
in original); cf. Spann v. AOL Time Warner, Inc., 219 F.R.D. 307, 322 (S.D.N.Y. 2003)
(rejecting the plaintiffs’ claim “that the [d]efendants breached their fiduciary duty to administer
the [p]lans according to their terms” because the claim was “not independent of the [c]omplaint’s
primary claim for recalculation of individual benefits for participants in the [p]lans”).
As indicated above, plaintiff frames his claims as alleging statutory violations of ERISA.
Defendants predictably insist that they do not, maintaining that plaintiff seeks simply to recover
benefits he believes are owed under the terms of the Plan. The amended complaint itself
specifically alleges that defendants “violated the express terms and conditions of the Pension
Plan and the Pension Plan Rules” and, in so doing, breached their “fiduciary duties under
[s]ection 404 of ERISA because, at this time, they have knowledge that they are not operating
the Pension Plan ‘in accordance with the documents and instruments’ governing the Pension
Plan . . . .” (See Am. Compl. ¶ 29, 31.) On their face, these allegations would appear to require
the Court to interpret the documents and instruments governing the Plan. Undaunted, plaintiff
argues that the suspension of his benefits was so flagrantly violative of the terms of the Plan that
no interpretation is required. Plaintiff maintains that defendants’ decision to suspend his benefits
so plainly contravened the terms of the Plan that it constituted a direct violation of the statutory
requirement that the trustees discharge their duties “in accordance with the documents and
instruments governing the plan,” (Pl.’s Opp’n at 15–17 (quoting 29 U.S.C. § 1104(a)(1)(d))), and
cannot be considered an exercise of reasoned interpretation or discretion.9
This somewhat circular logic fails to obscure the true nature of plaintiff’s claims.
Although plaintiff insists that “[t]his is not a situation where there is a dispute over the
fiduciaries’ interpretation of the Plan,” (Pl.’s Opp’n at 17), that is precisely the issue presented in
this case. Since the sole statutory violation alleged by plaintiff is a breach of fiduciary duty
premised on the trustees’ suspension of his benefits, the Court cannot evaluate whether the
trustees violated the statute without first determining whether the suspension was warranted; and
the Court cannot possibly ascertain whether the suspension was proper without analyzing the
terms of the Plan. Plaintiff himself implicitly recognizes this fact. Indeed, he devotes ten
paragraphs of his amended complaint – and a substantial portion of his brief – to interpreting the
terms of the Plan and explaining why defendants’ actions contravened those terms. (See Am.
Compl. ¶¶ 19–29; Pl.’s Opp’n at 8–11.) Moreover, plaintiff directly disputes defendants’
interpretation of the Plan, which looked to “the nature of the [p]laintiff’s work” instead of merely
“examining the industry in which the [p]laintiff was employed.” (Am. Compl. ¶ 27.) This is a
significant exercise in interpretation for a Plan that plaintiff argues requires no interpretation at
Plaintiff argues that defendants’ alleged disregard of the plain terms of the Plan “is further evidenced by a recent
letter which [d]efendants sent to [plaintiff] . . . containing a summary plan document that communicates an incorrect
recitation of what the Plan actually stated.” (Pl.’s Opp’n at 9; Meisner Aff., Ex. E.) The amended complaint,
however, contains no allegations that relate to this letter, nor was the letter attached to plaintiff’s pleadings. (See
Doc. No. 25.) Moreover, it is unclear how the letter – which was sent six months after this action was filed – could
bear on the conduct forming the basis of this suit. “Courts in this Circuit have made clear that a plaintiff may not
shore up a deficient complaint through extrinsic documents submitted in opposition to a defendant’s motion to
dismiss.” SocketWorks, 265 F.R.D. at 122 (citing Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998)).
The letter referenced by plaintiff is extrinsic to the pleadings and the Court declines, at this stage in the litigation, to
convert the motion to dismiss to a motion for summary judgment. See Fonte v. Bd. of Managers of Cont’l Towers
Condo., 848 F.2d 24, 25 (2d Cir. 1988); Tand v. Solomon Schechter Day Sch. of Nassau Cnty., 324 F. Supp. 2d 379,
382 (E.D.N.Y. 2004).
Claims that require such close analysis of the terms of a plan to determine an individual
entitlement to benefits allege a violation of the plan’s terms, not ERISA. See Am. Med. Ass’n,
2007 WL 1771498, at *15 (observing that the “prevailing rule” holds that “bona fide breach of
fiduciary duty claims” do not include “claims for benefits artfully pled as claims for breach of
fiduciary duty”). Because plaintiff “advances a breach of fiduciary duty claim by which he
clearly seeks only to receive benefits under his  Plan,” Role, 2008 WL 465574, at *4, plaintiff
was required to exhaust his administrative remedies prior to bringing suit in federal court. Cf.
Spann, 219 F.R.D. at 322. Indeed, all of the Nechis factors weigh in favor of requiring
exhaustion in this case. See 421 F.3d at 102. The trustees of the Plan cannot fairly be held
accountable for final decisions regarding plaintiff’s benefits where they have not been given an
opportunity to review plaintiff’s claim in accordance with the established procedures under the
Plan. Moreover, plaintiff’s withdrawal of his appeal means that this Court must proceed with no
administrative record, let alone one that is “sufficiently clear.” Id. And judicial review would
subject fiduciary action to de novo review, bypassing determinations concerning plaintiff’s claim
that are committed to the discretion of the Plan’s trustees.
Plaintiff’s argument also assumes both that defendants interpreted the Plan erroneously
and that the correct interpretation in this case is so straightforward as to preclude the exercise of
discretion on the part of the trustees. The Court notes, however, that those assumptions fly in the
face of governing authority. Where a plan grants fiduciaries discretionary authority to determine
eligibility for benefits, as this Plan does, the Court must instead apply a deferential standard of
review. See Glenn, 554 U.S. at 111; Zarringhalam, 906 F. Supp. 2d at 155. Such deference
protects the interests of employers “by permitting an employer to grant primary interpretive
authority over an ERISA plan to the plan administrator,” “promotes efficiency by encouraging
resolution of benefits disputes through internal administrative proceedings rather than costly
litigation,” and “promotes predictability, as an employer can rely on the expertise of the plan
administrator rather than worry about unexpected and inaccurate plan interpretations that might
result from de novo judicial review.” Conkright, 559 U.S. at 517. As such, the Court would be
bound to accept the trustees’ interpretation of the plan unless it was unreasonable. See id. at 521;
McCauley v. First Unum Life Ins. Co., 551 F.3d 126, 130 (2d Cir. 2008); Zarringhalam, 906 F.
Supp. 2d at 155. For the reasons explained above, however, the Court need not reach that issue.
Plaintiff’s final argument is that this action cannot be reduced to a claim for benefits
because he seeks equitable relief. Specifically, plaintiff requests an injunction ordering
defendants to comply with all Plan documents and awarding him all benefits withheld, as well as
interest, costs, and attorneys’ fees.10 (Am. Compl. at 13–14.) But although “district courts in
this Circuit have interpreted the Supreme Court’s ruling in CIGNA to permit monetary relief
under [section] 502(a)(3) in certain cases,” D’Iorio, 920 F. Supp. 2d at 321, the mere availability
of such relief under section 502(a)(3) does not immunize plaintiff’s failure to exhaust his
administrative remedies.11 Plaintiff also cites Sereboff v. Mid Atlantic Medical Services, Inc.,
Merely including a prayer for injunctive relief does not obfuscate the fact that plaintiff essentially seeks a money
judgment. See Coan v. Kaufman, 457 F.3d 250, 264 (2d Cir. 2006) (“[T]he alternative relief [plaintiff] seeks under
section 502(a)(3), an injunction requiring the defendants to restore funds to the defunct 401(k) plan to be distributed
to former participants, ‘does not transform what is effectively a money damages request into equitable relief.’”).
Thus, it is unclear that equitable relief would be available in this case. See Nechis, 421 F.3d at 103 (finding that a
plaintiff could not “satisfy the conditions required for injunctive relief” because “any harm to her can be
compensated by money damages, and she could have pursued an alternative and effective remedy under [section]
502(a)(1)(B) of ERISA to recover the value of benefits wrongly denied”); Gates v. United Health Grp. Inc., No. 11CV-3487 (KBF), 2012 WL 2953050, at *10 n.10 (S.D.N.Y. July 16, 2012) (stating that “because any harm plaintiff
suffered as a result of defendants’ determination of her benefits may be adequately compensated by the monetary
relief she seeks under ERISA [s]ection 502(a)(1)(B), the equitable portion of her first cause of action is dismissed”).
Plaintiffs in comparable cases appear to have either exhausted their administrative remedies or alleged statutory
violations independent of an individual benefits determination. See, e.g., D’Iorio, 920 F. Supp. 2d at 322 (alleging a
breach of fiduciary duty based on a “failure to disclose plan documents and  affirmative and/or negligent
misrepresentation of benefits”); Laurent, 2013 WL 4028181, at *16–17 (alleging fiduciary violations premised on
the statutory requirements to provide a summary plan description); Miller v. Int’l Paper Co., No. 12-CV-7071
(LAK) (JLC), 2013 WL 3833038, at *2 (S.D.N.Y. July 24, 2013) (bringing an action for fiduciary violations after
exhausting administrative remedies); Osberg v. Foot Locker, Inc., 907 F. Supp. 2d 527, 534 (S.D.N.Y. 2012)
547 U.S. 356 (2006), to suggest that his “case for characterizing [his] relief as equitable . . . does
not falter because of the nature of the recovery [he] seeks.” Id. at 363. That case is inapposite
here. Sereboff did not involve a dispute over a beneficiary’s entitlement to benefits under the
terms of a plan. Moreover, the respondent in Sereboff “sought its recovery through a
constructive trust or equitable lien on a specifically identified fund, not from the [petitioner]s’
assets generally . . . .” Id. Thus, unlike plaintiff, the respondent in Sereboff did not seek to “to
impose personal liability for a contractual obligation to pay money.” Id. at 363 (quoting
Knudson, 534 U.S. at 210) (internal alteration omitted).
The Court next considers whether plaintiff’s failure to exhaust may be excused. Plaintiff
argues that he should be excused from the requirement because any attempt to obtain review
under the Plan would have been futile.12 (See Am. Compl. ¶ 47; Pl.’s Opp’n at 17–20.) “Where
claimants make a ‘clear and positive showing’ that pursuing available administrative remedies
would be futile, the purposes behind the requirement of exhaustion are no longer served, and
thus a court will release the claimant from the requirement.” Kennedy, 989 F.2d at 594 (citing
Fizer v. Safeway Stores, 586 F.2d 182, 183 (10th Cir. 1978)). Futility is generally pled by
alleging (1) “an unambiguous application for benefits,” (2) “a formal or informal administrative
decision denying benefits,” and (3) that “it is clear that seeking further administrative review of
the decision would be futile.” Barnett v. Int’l Bus. Machines Corp., 885 F. Supp. 581, 588
(S.D.N.Y. 1995) (citing Ludwig v. NYNEX Serv. Co., et al., 838 F. Supp. 769, 782 (S.D.N.Y.
(alleging fiduciary violations premised on faulty statutory disclosures); Gates, 2012 WL 2953050, at *3–5 (bringing
an action for fiduciary violations after exhausting administrative remedies); Mcguigan, 2011 WL 3421318, at *4
(alleging fiduciary violations of statutory disclosure provisions).
Defendants are curiously adamant that plaintiff never mentioned futility in his pleadings. (Defs.’ Mem. in Supp.
at 17 n.18; Defs.’ Reply at 6.) However, futility was clearly (albeit cursorily) alleged in the amended complaint.
(See Am. Compl. ¶ 47.)
1993)). When considering whether to excuse a failure to exhaust under this exception, the Court
must remain mindful of the primary purposes of exhaustion that the Second Circuit identified in
Nechis. 421 F.3d at 102; see also Kennedy, 989 F.2d at 594 (quoting Denton v. First Nat’l Bank
of Waco, Texas, 765 F.2d 1295 (5th Cir.), reh’g denied, 772 F.2d 904 (5th Cir. 1985)).
Plaintiff has failed to plead futility in this case. In most cases, “some record for review
has been established” that “excuses the plaintiff from clearly unproductive efforts because no
further purpose would be served by requiring further exhaustion.” Barnett, 885 F. Supp. at 588.
Here, plaintiff’s decision to withdraw his appeal prior to any hearing or other formal
administrative review, however, leaves this Court bereft of “a sufficiently clear record of
administrative action to support effective judicial review and it is difficult, if not impossible, for
a court to apply an arbitrary and capricious standard of review rather than engaging in review de
novo.” Id. Cases involving “an informal or unsubstantiated denial of a ‘claim’ that was never
filed or formally presented,” therefore, improperly make “the courts and not ERISA trustees . . .
primarily responsible for deciding claims for benefits.” Id.
So it is here. Plaintiff’s amended complaint does not allege anything approaching a
clear and positive showing that pursuing his administrative remedies would have been futile.
Instead, it contains a single pro forma allegation. (See Am. Compl. ¶ 47.) Indeed, the facts of
this case – even viewed in the light most favorable to plaintiff – undercut his claim of futility.
Plaintiff did, in fact, request a formal review of the trustees’ decision to suspend his benefits but
chose to withdraw his appeal before presenting his case at a meeting of the Board of Trustees.13
In his letter, plaintiff gave three reasons for withdrawing his appeal: (1) defendants’ refusal to provide plaintiff
with certain documents that he had requested; (2) Fernandez’s allegedly impermissible involvement in the process;
and (3) the Board of Trustees’ alleged “disregard” of the terms of the Plan. (See Meisner Aff., Ex. D.) These
conclusory and self-serving reasons, however, are not alleged anywhere in the amended complaint. Likewise,
plaintiff failed to allege any facts tending to support his stated reasons or explain why those reasons justified
withdrawal of his appeal.
(See Meisner Aff., Ex. D.) In doing so, plaintiff stated his intention to “seek reinstatement of his
pension benefit in Federal Court without exhausting the administrative appeal process,” while
still contemplating an “appeal for benefits . . . at a later date.” (Id.) A bare preference for federal
review does not demonstrate the futility of the administrative remedies under the Plan, and
plaintiff’s attempt to reserve his right to avail himself of those same remedies in the future
implies that he did not consider the administrative process to be futile. Exhaustion serves to
“help reduce the number of frivolous lawsuits under ERISA; to promote the consistent treatment
of claims for benefits; to provide a nonadversarial method of claims settlement; and to minimize
the costs of claims settlement for all concerned.” Kennedy, 989 F.2d at 594 (quoting Amato v.
Bernard, 618 F.2d 559, 567 (9th Cir. 1980)). Endorsing plaintiff’s circumvention of the Plan’s
administrative process would undermine those goals and frustrate the framework envisioned by
Congress. Plaintiff’s allegations that defendants did not respond to his missives “alerting” them
of their supposed breaches also fail to demonstrate futility, (see Pl.’s Opp’n at 18–19), as such
informal notifications do not constitute an unambiguous application for benefits and a failure to
respond cannot be deemed an administrative denial. See Shamoun, 357 F. Supp. 2d at 606–07
(citing Davenport, 249 F.3d at 133) (finding that a plaintiff had failed to demonstrate futility
“based on letters between his counsel and the Fund concerning the alleged unfair administration
of the Plan”); cf. Preston v. Am. Fed’n of Television & Radio Artists, No. 90-CV-7094 (RJW),
2002 WL 1009458 (S.D.N.Y. May 16, 2002), aff’d sub nom. Preston v. Am. Fed’n of Television
& Radio Artists Health Fund, 63 F. App’x 536 (2d Cir. 2003).
“Although a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
‘detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to
relief requires more than labels and conclusions . . . .’” Pearson v. Pathmark Stores, Inc., No.
07-CV-2183 (NG) (LB), 2008 WL 2439713, at *1 (E.D.N.Y. June 17, 2008) (quoting Twombly,
550 U.S. at 555). Here, plaintiff has failed to allege that any attempt to pursue an administrative
remedy would have been “clearly unproductive” or served “no further purpose.” Barnett, 885 F.
Supp. at 588. Moreover, excusing plaintiff’s failure to exhaust would encourage other “plaintiffs
to sue upon the mere pleading of a de facto denial of an unfiled claim, would discourage
settlement of claims, and would likely increase the costs of claims settlement.” Id. The Court
therefore concludes that plaintiff has failed to demonstrate that pursuing his administrative
remedies under the Plan would have been futile. As such, plaintiff’s failure to exhaust those
remedies cannot be excused and his fiduciary claims must be dismissed.14
Retaliation by Defendant Fernandez (Claim Four)
Plaintiff next alleges that Fernandez discontinued plaintiff’s pension benefits in
retaliation for plaintiff’s previous attempts to protect the Plan from funding failures and for
plaintiff’s challenge to his termination in 2005. (See Am. Compl. ¶¶ 48–71.) According to the
amended complaint, sometime during the period from 2000 to 2005, Fernandez developed a
dislike of plaintiff that led Fernandez to cause or bring about the suspension of plaintiff’s
benefits in 2012. Plaintiff urges that this conduct violates section 510 of ERISA, which
provides, in relevant part, that
It shall be unlawful for any person to discharge, fine, suspend, expel, discipline,
or discriminate against a participant or beneficiary for exercising any right to
which he is entitled under the provisions of an employee benefit plan . . . or for
the purpose of interfering with the attainment of any right to which such
participant may become entitled under the plan . . . [or] to discharge, fine,
suspend, expel, or discriminate against any person because he has given
information or has testified or is about to testify in any inquiry or proceeding
relating to this chapter . . . .
In appropriate cases, the exhaustion requirement may also be subject to waiver, estoppel, and other “similar
equitable considerations.” Paese, 449 F.3d at 439. Plaintiff, however, did not advance any other bases for excusing
his failure to exhaust, and the Court does not discern any other equitable considerations applicable in this case.
29 U.S.C. § 1140.
“Section 510 was designed primarily to prevent ‘unscrupulous employers from
discharging or harassing their employees in order to keep them from obtaining vested pension
rights.’” Dister v. Cont’l Grp., Inc., 859 F.2d 1108, 1111 (2d Cir. 1988) (quoting West v. Butler,
621 F.2d 240, 245 (6th Cir. 1980)). Defendants argue, therefore, that no claim for retaliation can
lie where the employer-employee relationship has ceased. But other courts have held that in
some cases “[s]ection 510 should be read to cover post-employment retaliation.” Kreinik v.
Showbran Photo, Inc., No. 02-CV-1172 (RMB) (DF), 2003 WL 22339268, at *5 (S.D.N.Y. Oct.
14, 2003); see also Thompson v. Morris Heights Health Ctr., No. 09-CV-7239 (PAE) (THK),
2012 WL 1145964, at *6 (S.D.N.Y. Apr. 6, 2012). Additionally, contrary to defendants’
assertions, ERISA does confer upon the Court the authority to remove a plan fiduciary under
certain circumstances. See 29 U.S.C. § 1109(a) (providing for “equitable or remedial relief . . .
including removal of [a] fiduciary”); see also Chao v. Merino, 452 F.3d 174, 185 (2d Cir. 2006).
The Court need not reach these issues, however, as plaintiff has failed to plead a plausible
section 510 claim.
Unlike the first three claims, plaintiff’s claim as to Fernandez does implicate a true
statutory violation of ERISA.15 The Court notes, however, that plaintiff does not allege a
traditional retaliation claim. See Nicolaou v. Horizon Media, Inc., 402 F.3d 325, 326 (2d Cir.
2005) (alleging wrongful termination after an employee participated in internal investigation of
possible ERISA violations by her employer and informed her employer of her belief that its
ERISA plan was underfunded). Plaintiff does not allege, for instance, that the conduct at issue
Because it concerns a statutory violation of ERISA and seeks injunctive relief, this claim would be exempt from
the exhaustion requirement if properly pled. See De Pace, 257 F. Supp. 2d at 558 (noting that courts in the Second
Circuit “have repudiated the exhaustion doctrine as a prerequisite to statutory ERISA claims in the context of § 510
violations”); Novak v. TRW, Inc., 822 F. Supp. 963, 969 (E.D.N.Y. 1993) (same).
culminated in any adverse employment consequence, such as termination or demotion, in
retaliation for plaintiff’s exercise of rights protected under ERISA. Rather, plaintiff argues that
Fernandez retaliated against him by suspending his benefits several years after plaintiff was
actually terminated. In other words, Fernandez’s dispute with plaintiff in 2005 allegedly led
Fernandez to suspend plaintiff’s benefits in 2012 – more than seven years after plaintiff’s
termination and the alleged dispute.16 (See Am. Compl. ¶¶ 32–39.)
Plaintiff’s theory of retaliation is implausible, to say the least. To succeed on this claim,
plaintiff must show that his employer was motivated, at least in part, by a specific intent to
engage in activity prohibited by section 510. Dister, 859 F.2d at 1111 (citing Gavalik v.
Continental Can Co., 812 F.2d 834, 851 (3d Cir.), cert. denied, 484 U.S. 979 (1987)); Titsch v.
Reliance Group, Inc., 548 F. Supp. 983, 985 (S.D.N.Y. 1982), aff’d, 742 F.2d 1441 (2d Cir.
1983)). Plaintiff attempts to sustain his burden as to this element by alleging that Fernandez felt
“animosity” toward plaintiff in 2005, and that “this hatred may have carried forward to today.”
(Pl.’s Opp’n at 22.) But plaintiff fails to allege anything beyond the barest facts of his 2005
termination, resting solely “[u]pon information and belief.” (Am. Compl. ¶ 39.) Indeed, plaintiff
fails even to allege any facts concerning the dispute over his termination, the actions either party
took to resolve that dispute, or the eventual outcome – all of which are facts crucial to plaintiff’s
theory of retaliation.
The seven-year period between plaintiff’s termination and the alleged retaliatory conduct
also severely undermines the plausibility of plaintiff’s claim. See Perry v. NYSARC, Inc., 424 F.
Although this is the theory set forth in the amended complaint, plaintiff’s opposition papers present a more
muddled argument that could be read to suggest that plaintiff was terminated for the purpose of interfering with his
rights under ERISA. (See Pl.’s Opp’n at 22–23.) Such a theory is flawed, however, as plaintiff does not allege any
loss of rights prior to 2012. In any event, a plaintiff “cannot amend [his] complaint by asserting new facts or
theories for the first time in opposition to [d]efendants’ motion to dismiss.” Thomas v. City of New York, No. 12CV-5061 (FB) (SMG), 2013 WL 3810217, at *3 (E.D.N.Y. July 23, 2013) (quoting Miley v. Hous. Auth. of City of
Bridgeport, No. 12-CV-519 (VLB), 2013 WL 676105, at *9 (D. Conn. Feb. 25, 2013)).
App’x 23, 26 (2d Cir. 2011) (observing that “a four-month interval between protected activity
and alleged retaliation” could not support an inference of causality); Dillon v. Suffolk Cnty. Dep’t
of Health Servs., 917 F. Supp. 2d 196, 214 (E.D.N.Y. 2013) (quoting Flood v. UBS Global Asset
Mgmt., No. 10-CV-374, 2012 WL 288041, at *17 (S.D.N.Y. Feb. 1, 2012)) (“[C]ourts in this
Circuit have consistently held that a passage of more than two months between the protected
activity and the adverse employment action does not allow for an inference of causation.”). The
amended complaint does not contain any allegations concerning any actions by any defendant
during the seven-year interim period. Thus, plaintiff’s retaliation claim is grounded entirely on a
supposed grudge held by Fernandez for seven years following a cryptic employment dispute, the
facts of which were not provided, but which was allegedly so serious as to motivate Fernandez
purposefully to violate ERISA. “[T]he Federal Rules do not require courts to credit a
complaint’s conclusory statements without reference to its factual context.” Iqbal, 556 U.S. at
686. At best, plaintiff’s speculative allegations are “merely consistent with” Fernandez’s
liability, stopping far short of “the line between possibility and plausibility of ‘entitlement to
relief.’” Twombly, 550 U.S at 557; see also Iqbal, 556 U.S. at 678.
Although allegations need only “contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face,’” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570), the federal rules do “oblige a pleader to amplify a claim with some factual
allegations in those contexts where such amplification is needed to render the claim plausible.”
Boykin v. KeyCorp, 521 F.3d 202, 213 (2d Cir. 2008) (internal citation omitted) (emphasis in
original). In light of plaintiff’s tenuous theory of retaliation, the utter lack of any factual
allegations to support that theory, and the significant temporal gap between plaintiff’s
termination and the alleged retaliatory conduct, plaintiff’s “[t]hreadbare recitals . . . , supported
by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 555). Accordingly, plaintiff’s fourth cause of action must be dismissed.
Request to Compel Discovery (Claim Five)
Finally, the amended complaint seeks an order compelling discovery of “certain
documents and instruments relating to the Pension Plan” that were identified in “a letter sent to
the Trustee Defendants” on July 2, 2012. (Am. Compl. ¶ 40.) Plaintiff alleges that defendants
refused to provide “certain of the requested documents, including certain documents that
[p]laintiff is entitled to obtain” under section 104(b)(4), and he seeks statutory penalties pursuant
to section 502(c). (Id. ¶ 41; see also id. pp. 14–15.) Plaintiff alleges that defendants have
ignored multiple requests for these documents. (Id. ¶ 43.) Defendants respond that ERISA does
not require them to produce the documents demanded by plaintiff.
Section 104(b)(4) provides that
The administrator [of a fund] shall, upon written request of any participant or
beneficiary, furnish a copy of the latest updated summary plan description, and
the latest annual report, any terminal report, the bargaining agreement, trust
agreement, contract, or other instruments under which the plan is established or
29 U.S.C. § 1024(b)(4). Plaintiff laments defendants’ failure to provide “[i]tems 4, 5, and 6 of
[p]laintiff’s requests” for production. (Pl.’s Opp’n at 25.) Unhelpfully, plaintiff never states
what documents were withheld. Defendants fill in the blanks by referring to a letter dated July 2,
2012, which was appended to the affidavit submitted by Fernandez.17 (See Fernandez Aff., Ex.
B.) Items 4 through 6 reference, respectively, “[c]opies of the Board minutes for any meeting at
which [plaintiff’s] claim for benefits was discussed,” “[p]roof that the Fund Administrator has
communicated and/or sent to the Board of Trustees . . . the entire contents of [plaintiff’s] letter
Once again plaintiff failed to attach this letter to his amended complaint, but his obvious reliance on its contents
allows its consideration by the Court on this motion. See Allen, 945 F.2d at 44.
dated June 26, 2012,” and “[c]opies of all prior benefit claims and appeals and all Board of
Trustees minutes in which a determination of what constitutes ‘Disqualifying Employment’ was
made.” (Id.; see also Defs.’ Reply at 9.) Plaintiff has failed to demonstrate any entitlement to
“Congress intentionally fashioned [section] 104(b)(4) to limit the categories of
documents that administrators must disclose on demand of plan participants.”
JPMorgan Chase Ret. Plan, 649 F. Supp. 2d 142, 168 (S.D.N.Y. 2009) (quoting Board of
Trustees of the CWA/ITU Negotiated Pension Plan v. Weinstein, 107 F.3d 139, 147 (2d Cir.
1997)). Consequently, “ERISA does not require plan officials to furnish information other than
that specified by statute.” Gruby v. Brady, 838 F. Supp. 820, 832 (S.D.N.Y. 1993). None of the
withheld items are explicitly listed in section 104(b)(4), and plaintiff does not cite any case that
otherwise establishes an entitlement to the documents. Additionally, “[n]either ERISA nor the
federal regulations issued thereunder make any mention of any requirement that plan participants
be allowed to see the minutes of trustees’ meetings or prior decisions by the trustees.”
Chambless v. Masters, Mates & Pilots Pension Plan, 571 F. Supp. 1430, 1456 (S.D.N.Y. 1983).
Plaintiff does cite to 29 C.F.R. § 2560.503-1, which “sets forth minimum requirements for
employee benefit plan procedures pertaining to claims for benefits by participants and
beneficiaries . . . .” Id. § 2560.503-1(a). Plaintiff is presumably referring to the section of that
regulation that provides
In the case of an adverse benefit determination . . . [i]f an internal rule, guideline,
protocol, or other similar criterion was relied upon in making the adverse
determination, either the specific rule, guideline, protocol, or other similar
criterion; or a statement that such a rule, guideline, protocol, or other similar
criterion was relied upon in making the adverse determination and that a copy of
such rule, guideline, protocol, or other criterion will be provided free of charge to
the claimant upon request . . . .
Id. § 2560.503-1(g)(v). On its face, however, that regulation does not establish an entitlement to
any of the documents plaintiff requested. Nor does plaintiff cite any authority so interpreting the
regulation. As such, plaintiff has no entitlement to the requested documents under section
104(b)(4), and his fifth cause of action is dismissed.
For the foregoing reasons, the amended complaint fails to state a claim for which relief
can be granted. Accordingly, defendants’ motion to dismiss (Doc. No. 30) is granted. The Clerk
of Court is directed to terminate the motion and to close this case.
Roslynn R. Mauskopf
Dated: Brooklyn, New York
February 7, 2014
ROSLYNN R. MAUSKOPF
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?