Metzgar et al v. U.A. Plumbers and Steamfitters Local No. 22 Pension Fund et al

Filing 29

ORDER: Adopting Magistrate Judge H. Kenneth Schroeder, Jr.'s Report and Recommendation as filed on February 4, 2014. The defendant's partial motion to dismiss 13 is hereby denied. The case is recommitted to Magistrate Judge Schroeder for further proceedings. Signed by Hon. Richard J. Arcara on 5/2/14. (LAS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

GARY METZGAR, et al.,
Plaintiffs,
ORDER
13-CV-0085-A

v.
U.A. PLUMBERS & STEAMFITTERS
LOCAL 22 PENSION FUND, et al.,

Defendants.

The above-referenced case was referred to Magistrate Judge H. Kenneth
Schroeder, Jr., for conduct of pretrial proceedings pursuant to 28 U.S.C. § 636(b)(1).
On February 4, 2014, Magistrate Judge Schroeder filed a Report and Recommendation
(Dkt. No. 20) recommending that defendants’ partial motion to dismiss pursuant to Fed.
R. Civ. P. 12(b)(6) (Dkt. No.13) be denied.
The Court has carefully reviewed the Report and Recommendation, the
pleadings submitted by the parties, and, after oral argument on April 29, 2014, it is
hereby
ORDERED, upon de novo review of defendants’ objections pursuant to 28
U.S.C. § 636(b)(1) (Dkt. No. 20) to the Report and Recommendation, and for the
reasons stated in the Report and Recommendation, defendants’ partial motion to
dismiss (Dkt. No. 13) is hereby denied. Defendants do not establish pursuant to Fed.
R. Civ. P. 12(b)(6) that plaintiffs state no cognizable violation of 29 U.S.C. § 1054(g) in
plaintiffs’ first cause of action. The circumstances of plaintiffs’ receipt of early-

retirement benefits before the “benefits” were changed, as alleged in plaintiffs’
complaint, will have to be developed before the parties’ dispute whether plaintiffs’ anticutback rule claim has merit can be meaningfully addressed. See Alcantara et al., v.
Bakery Confectionary Union and Industry International Pension Fund Pension Plan, et
al., Nos. 12-4834-cv, 12-4839-cv, 12-4851-cv, 12-4861-cv, 12-4912-cv, slip op. at pp.
12-13 (2d Cir. May 1, 2014).
The case is recommitted to Magistrate Judge Schroeder pursuant to the terms of
the Court’s prior referral order for further proceedings.
IT IS SO ORDERED.
____Richard J. Arcara____________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT

Dated: May 1, 2014

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