B. et al v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA et al

Filing 23

OPINION SIGNED BY HONORABLE LOUIS H. POLLAK ON 8/12/09. 8/13/09 ENTERED AND COPIES MAILED TO UNREP AND E-MAILED.(ah)

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I N THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA A L L A N B. COHEN and R O C H E L L E COHEN, P l a i n t if f s , v. P R U D E N T IA L INS. CO., ELECTRONIC DATA SYSTEMS CORP., M E R IT O R PENSION PLAN, and EDS RETIREMENT PLAN, D e f e n d a n ts . C iv il Action No. 08-5319 O P IN IO N A u g u s t 12, 2009 P o l la k , J. P la in tif f s Allan and Rochelle Cohen have brought suit, pursuant to the Employee R e tire m e n t and Income Security Act (ERISA), against defendants Prudential Insurance C o . (Prudential), Electronic Data Systems, Inc. (EDS), and two retirement plans the M e rito r Pension Plan and the EDS Retirement Plan challenging certain alterations to A lle n Cohen's retirement benefits. Prudential has filed a motion to dismiss (docket no. 7) C o u n t II of the plaintiffs' complaint. Plaintiffs have responded (docket no. 9), and P ru d e n tia l has filed a reply (docket no. 22) with leave from the court. Defendants EDS a n d EDS Retirement Plan have filed a motion to dismiss (docket no. 14) the entire 1. c o m p la in t as to them. Plaintiffs have responded (docket no. 16), and EDS and EDS R e tirem e n t Plan have filed a reply (docket no. 17) without leave. The two motions to d is m is s are ripe for disposition. I . Background T h e following factual recital derives from the complaint. As the court is reviewing d e f en d a n ts ' motions to dismiss, I assume the truth of plaintiffs' factual allegations and d ra w all reasonable factual inferences in plaintiffs' favor. DiGiacomo v. Teamsters U n io n Trust Fund of Phila., 420 F.3d 220, 222 n. 4 (3d Cir. 2004). P la in tif f Allen Cohen worked for the Philadelphia Savings Fund Society, later re n a m e d Meritor Bank, from 1961 through 1989. Compl. 9-13. In the spring of 1989, C o h e n became an employee of defendant EDS, when that company bought the Meritor d iv is io n for which Cohen worked. Id. at 13. W h ile with Meritor, Cohen became a participant in two group annuity plans, GA5 5 2 1 and GA-6335, naming his wife, plaintiff Rochelle Cohen, as beneficiary. Id. at 11. Prudential was the plan administrator for the two group annuity plans. Id. at 12. When C o h e n became an EDS employee, he became a participant in the EDS Retirement Plan, w h ic h was administered by EDS itself. Id. at 14-15. In an August 11, 1999 letter, EDS offered Cohen early retirement. Id. 16. The e a rly retirement plan "included an enhancement equal to six times the credits added to his p e rs o n a l pension account between July 1, 1998 and June 30, 1999." Id. 17. Plaintiffs 2. d o not define what account or entity the phrase "personal pension account" refers to a m o n g the group of retirement plans described in the complaint. The complaint does state th a t EDS clarified that the credits amounted to "six years of credit to [Cohen's] age so th a t he would be awarded a pension amount equivalent to age 63." Id. 18. After re c e iv in g the offer, Cohen requested further information from EDS about the early re tir e m e n t plan and "what his monthly benefits would be" if he signed up. Id. 19. At s o m e point after this inquiry, Prudential wrote him a letter stating what his benefits under G A -5 5 2 1 and GA-6335 would be. Id. 20, Exh. B. At a date not specified in the complaint, Cohen opted for early retirement from E D S , and, for some time, he received retirement payments as promised from all d e f en d a n ts . On May 7, 2007, however, Cohen received a letter from Prudential (dated M a rc h 16, 2005) stating that "an error occurred in the calculation of your monthly benefit a m o u n t" as to GA-5521. Id. at Exh. C. Prudential informed him that (1) his monthly p a ym e n t of $1565.00 should have been only $1331.00; (2) his monthly payment would be re d u c ed to the lower amount moving forward; and (3) he was responsible for paying back " a n overpayment of $21,762.00" for the many months he had received the higher amount. Id. Prudential provided a return envelope for Cohen's prompt repayment of the alleged o v e ra g e . Id. T h o u g h it is not described in the complaint, Cohen apparently wrote to Prudential a b o u t the planned benefit reduction. Id. at Exh. D. (June 1, 2007 letter from Prudential 3. th a t opens "Thank you for your recent letter to our office..."). In a June 1, 2007 response, P r u d e n tia l informed Cohen that the EDS early retirement credit of six years, outlined s u p r a , did not apply to GA-5521: We have reviewed the information you provided with your May 8, 2007 letter. T h e copy of the letter you provided from EDS dated August 11, 1999 is in re g a rd to the EDS Retirement Plan (Personal Pension Account) only. It is not f o r benefits under the Meritor Pension Plan under Prudential Group Annuity C o n tra c t GA-5521. EDS-employed participants continued to earn age and serv ice credit toward qualifying for early retirement under the Meritor Pension P la n , while employed at EDS. T h e re is no reference in Prudential's October 29, 1999 letter that Prudential c o m p lied and agreed to the EDS Retirement Plan (Personal Pension Account) 6 - ye a r addition and increase in benefits. Id . at Exh. D (italics in original). At the end of June 2007, Prudential reduced Cohen's b e n e f its pursuant to the June 1, 2007 letter. Id. at 25. Plaintiffs filed this lawsuit in November 2008 against Prudential, EDS, the Meritor P en sion Plan, and the EDS Retirement Plan.1 Plaintiffs present two grounds for relief. In Plaintiffs have not offered much in the way of information about the Meritor P la n and the EDS Plan. I take it from 11 of the complaint that GA-5521 and GA-6335, th e group annuities started by Meritor, both fall under the Meritor Pension Plan umbrella (" A t all times material hereto, Cohen was a participant in the Meritor Plan, Group A n n u ity Contract Nos. GA-5521 and GA-6335..."). The identifying factual recitals for th e Meritor Pension Plan and the EDS Retirement Plan in the complaint are, in their e n t ir e ty, as follows: 5. P r u d e n tia l is the plan administrator of Defendant, The Meritor Pension P lan (hereinafter the "Meritor Plan"). Prudential, acting through its m a n a g eria l employees, was and is a fiduciary with respect to the M e rito r Plan .... E D S is the plan administrator of Defendant, The EDS Retirement Plan 4. 1 6. C o u n t I of the complaint, plaintiffs seek to recover past and future benefits pursuant to 29 U .S .C . 1132(a)(1)(B), one of the enforcement provisions of ERISA. In Count II, p l a in t if f s appear to seek the same relief, but cite 1132(a) (of which 1132(a)(1)(B) is a s u b p a rt) as the enabling provision. As noted supra, Prudential has filed a motion to d is m is s Count II of the complaint, and EDS and the EDS Retirement Plan have filed a s e p a ra te motion to dismiss the complaint against them in its entirety. II. The Motion of Prudential to Dismiss Count II P r u d e n tia l moves this court, pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss Count II of the complaint as a matter of law because "when a claim for benefits is asserted under 1132(a)(1)(B), plaintiffs cannot pursue the same claim based on breach of fiduciary d u ty under 1132(a)(3)." 2 Prudential Memorandum in Support of Motion to Dismiss (P ru . Mem.) at 2. This issue has been examined, if not conclusively resolved, by the Supreme Court in Varity Corp. v. Howe, 516 U.S. 489 (1996): (hereinafter the "EDS Plan"). EDS, acting through its managerial e m p lo ye e s , was and is a fiduciary with respect to the EDS plan.... 2 Prudential interprets the plaintiffs' claim lodged under 1132(a) as a claim u n d e r the subpart (a)(3). Pru. Mem. at 4. Plaintiffs, in their response, do not contest this intep retatio n , though they themselves continue to refer to Count II as a claim under 1 1 3 2 (a ). Pl. Resp. to Pru. at 3-4. EDS, as part of its motion to dismiss, argues the same grounds for dismissal p u rs u a n t to Rule 12(b)(6). See EDS Memorandum in Support of Motion to Dismiss (EDS M e m .) at 9. 5. ... what will happen, ask amici, if a beneficiary can repackage his or her " d e n i a l of benefits" claim [under (a)(1)(B)] as a claim for "breach of f id u c iar y duty [under (a)(3)]?" Wouldn't a court, they ask, then have to f o rg o deference and hold the administrator to the "rigid level of conduct" e x p e c te d of fiduciaries? And, as a consequence, would there not then be "two in c o m p a t ib l e legal standards for courts hearing benefit claim disputes" d e p e n d in g upon whether the beneficiary claimed simply "denial of benefits," o r a virtually identical "breach of fiduciary duty?" See [Amicus Brief].... T h e concerns that amici raise seem to us unlikely to materialize, h o w e v e r .... [T]he statute authorizes "appropriate" equitable relief [under (a )(3 )]. We should expect that courts, in fashioning "appropriate" equitable re lief , will keep in mind the "special nature and purpose of employee benefit p lan s," and will respect the "policy choices reflected in the inclusion of certain re m e d ie s and the exclusion of others." Pilot Life Is. Co., 481 U.S. at 54.... T h u s, we should expect that where Congress elsewhere provided adequate re lief for a beneficiary's injury, there will be no need for further equitable re lie f , in which case such relief normally would not be "appropriate." Id . at 513-15. Courts of appeals have not been uniform in their address of this issue f o llo w in g Varity Corp. Compare Devlin v. Empire BlueCross and BlueShield, 274 F.3d 7 6 , 89-90 (2d Cir. 2001) ("We therefore hold that Varity Corp. did not eliminate a private c a u se of action for breach of fiduciary duty when another potential remedy is available; in s te a d , the district court's remedy is limited to such equitable relief as is considered ap p rop riate. ") with Korotynska v. Metro. Life Ins. Co, 474 F.3d 101, 106 (4th Cir. 2006) (a d o p tin g the view of a "great majority of circuit courts [that] have interpreted Varity to h o ld that a claimant whose injury creates a cause of action under 1132(a)(1)(B) may not p roc ee d with a claim under 1132(a)(3)").3 The Third Circuit does not appear to have spoken directly on this issue, and p la in tif f s' reliance on a footnote in Int'l Union v. Skinner Engine Co., 188 F.3d 130, 148 n .6 (3d Cir. 1999) ("... even if a court rejects a breach of contract claim, a party may 6. 3 T h e First Circuit, in LaRocca v. Borden, Inc., 276 F.3d 22 (1st Cir. 2002), offers u sef u l guidance that appears logically to bridge the gap between these two positions. In L a R o c c a , the First Circuit showed that a plaintiff can proceed under both (a)(1)(B) and (a )(3 ) when the facts of the case suggest that the plaintiff cannot achieve an adequate re m e d y under the former provision alone: F o llo w in g [the guidance of Varity], federal courts have uniformly concluded that, if a plaintiff can pursue benefits under the plan pursuant to Section a(1), th e re is an adequate remedy under the plan which bars a further remedy under S e c tio n a(3). ... Here, the district court faced a situation similar to that presented in V a rity and adopted a comparable remedy. In Varity, the Supreme Court a f f irm e d a lower court's reinstatement of plaintiffs who had been improperly te rm in a te d from their Plan. 516 U.S. at 515, 116 S. Ct. 1065. The Supreme C o u rt observed that "[t]he plaintiffs in this case could not proceed under [ S e c tio n a(1)] because they were no longer members of [their] plan and, th e re f o re , had no benefits due [them] under the terms of [the] plan [pursuant to Section a(1)]," and that "[t]hey must rely on [Section a(3)] or they have no re m e d y at all." Id. (internal citations and quotation marks omitted). Here, once th e district court mandated the plaintiffs' constructive reinstatement (and o p p o rtu n ity for actual reinstatement) to the Plan pursuant to Section a(3), the p la in tif f s' claims were governed by the terms of the Plan, as Section a(1) provides. Id . at 28-29 (alterations in original, except the first set of brackets). Thus, it seems apparent, after Varity, that a district court addressing a challenge to a plaintiff's pleading of claims under both 1132(a)(1)(B) and (a)(3) can only permit th e (a)(3) claim to progress if the plaintiff can demonstrate that (a)(1)(B) alone may nevertheless pursue a breach of fiduciary duty cause of action."), strikes me as unavailing. The question at issue here was not before the Third Circuit in Skinner. 7. n o t provide an adequate remedy. A plaintiff's demonstration, and a court's decision, will b e based on the facts of the case as well as the stage of the pleadings. See Tannenbaum v. U n u m Life Ins. Co., Civ. No. 03-1410, 2004 WL 1084658, *4 (E.D. Pa. Feb. 27, 2004) (d e n yin g a motion to dismiss plaintiff's (a)(3) claim and stating, based on the c irc u m s ta n c es of the particular case, that "[a]t this stage, we cannot know whether P lain tiff will be able to prove his entitlement to benefits under 1132(a)(1)(B)."); Powell v . Greater Media Inc., Civ. No. 07-726, 2008 WL 5188789, * 4 (E.D. Pa. Dec. 10, 2008) (a f f irm in g court's grant of summary judgment dismissing plaintiff's (a)(3) claim b e c a u s e the pleadings and record showed that plaintiff was merely pursuing the same relief under both provisions and (a)(1)(B) could provide an adequate remedy). H e re , plaintiffs' pleading of their two claims is nearly identical, and the relief so u g h t under each count is verbatim the same.4 Plaintiffs have not presented, either in th e ir complaint or their response to Prudential's motion to dismiss, any reasons why (a )(1 )(B ) would not, or might not, furnish them an adequate remedy, nor have they d e sc rib e d what additional remedy they might seek under (a)(3) that cannot be afforded b y (a)(1)(B). Plaintiff's argument that they seek restitution in no way differs from their The ad damnum language of Count I (demanding "(a) an award of compensatory d a m a g es for the deductions and benefits taken from the Cohens; (b) an order for EDS, P r u d e n tia l Insurance and/or Prudential Investments to reinstate the pension benefit to the s ta te it was in prior to the reduction by Defendants; (c) an award to the Cohens for costs, a tto rn e ys ' fees and such other and further relief as this Court deems just and a p p ro p ria te ." ) is the same as that in Count II. See Compl. 36, 47. 8. 4 q u e s t for reinstatement of past and future benefits under (a)(1)(B). Accordingly, I will grant Prudential's motion and dismiss Count II of the c o m p lain t as to Prudential. I I I . The Motion of EDS and EDS Retirement Plan to Dismiss the Entire Complaint E D S and EDS Retirement Plan present two grounds, distinct from the issues raised b y Prudential, to dismiss plaintiffs' complaint as to them.5 First, EDS and EDS R e tir e m e n t contend that the plaintiffs have stated compensable claims only against P r u d e n tia l and have failed even to offer any allegations of wrongful conduct by EDS or E D S retirement. Second, EDS and EDS Retirement argue that the plaintiffs failed to e x h a u s t available administrative remedies, as required under ERISA. As the first argument advanced by EDS and EDS Retirement relies primarily on th e core language of Fed. R. Civ. P. 12(b)(6), failure to state a claim in the complaint, ra th e r than on a legal proposition established pursuant to ERISA, it may be helpful to q u o te the submissions at some length. I will begin with the pertinent paragraphs from the c o m p lain t: 1 6 . On or about August 11, 1999, EDS offered Allan Cohen an Early R e tir e m e n t Offer ("ERO").... 1 7 . The Early Retirement Plan offered to Cohen included an In a different argument, EDS and EDS Retirement state that, pursuant to Cox v. K e y sto n e Carbon Co., 894 F.2d 647, 649-50 (3d Cir. 1990), plaintiffs are not entitled to a tria l by jury as their complaint demands. EDS Mem. at 15. In their response, the p la in tif f s concede the point and withdraw their jury demand. See Pl. Resp. to EDS (d o c k e t no. 16) at 8. This will be noted in the order accompanying this memorandum. 9. 5 e n h a n ce m e n t equal to six times the credits added to his personal pension a c co u n t between July 1, 1998 and June 30, 1999. 1 8 . Cohen contacted EDS and inquired about the ERO. He was told th a t the ERO entitled him to add six credit years to his age so that he would be a w a rd e d a pension amount equivalent to age 63. 1 9 . Cohen requested additional information from EDS regarding the E R O and what his monthly benefits would be if he accepted the ERO. 2 0 . On October 29, 1999, Cohen received a letter from Prudential In v e stm e n ts stating that his monthly retirement check would be in the amount o f $1,435.80 ($1,565.00 less $85.38 Federal Income Tax and $43.82 State In c o m e Tax). This letter referenced both Group Annuity Contract GA-5521 a n d GA-6335.... 21. On May 7, 2007, Cohen received a letter from Prudential Insurance (d a te d March 16, 2005) stating that Prudential made an error in calculating the b e n e f its for Group Annuity Contract GA-5521.... 2 2 . Prudential stated it would lower Mr. Cohen's payments.... 2 3 . Prudential also requested that Mr. Cohen remit $21,762.00.... 2 4 . On or about June 1, 2007, Prudential Insurance sent a letter to Mr. C o h e n stating that the ERO Enhancement applied only to Group Annuity C o n tra c t GA-6335 and not to GA-5521, and that Prudential never complied or a g re e d to the ERO Enhancement plan.... 2 5 . On or about June 30, 2007, Mr. Cohen's direct deposit for his p e n s io n plan was reduced.... ... 2 7 . During the period of Cohen's employment and subsequent re tirem e n t, EDS, Prudential Insurance and/or Prudential Investments m ain tain e d the Pension Plan, an "employee benefit plan" under [ERISA]. 2 8 . EDS, Prudential Insurance and/or Prudential Investments are proper D e f e n d a n ts as they are fiduciaries of the Pension Plan [under ERISA].... 2 9 . EDS, Prudential Insurance and Prudential Investments, by their co n d u ct described more fully above, have materially breached their fiduciary o b lig a tio n s to properly administer the Pension Plan and to accurately convey in f o r m a tio n regarding the Plan by materially misrepresenting and by inten tio n ally providing incomplete, inconsistent and/or contradictory d isclo su res to Cohen regarding the scope, nature, and extent of Cohen's p a rtic ip a tio n in and benefits under the Pension Plan. 3 0 . At all material times hereto, EDS, Prudential Insurance and/or P r u d e n tia l Investments, intentionally, knowingly and willfully represented and a c tiv e ly manipulated Cohen's participation in the Pension Plan. 10. N e x t, I turn to the EDS/EDS Retirement memorandum in support of their motion: P lain tiff s' claims are only for a gross $1,565 monthly retirement benefit (in s te a d of the reduced gross $1331 benefit that was made effective July 1, 2 0 0 7 by a letter from Prudential) under Prudential Group Annuity Contracts p ro v id e d under the Meritor Plan. The only act about which Plaintiffs complain is the Prudential letter (Complaint at Exhibit C) received in May 2007 that re d u c ed the monthly benefit (Complaint at 21-22) -- a letter that does not re f ere n c e the EDS Defendants. While Plaintiffs insert some allegations about a 1999 EDS early retirement offer (Complaint 16-19), Plaintiffs do not c o n n e ct that offer or anything about the EDS Plan to the Meritor/Prudential a n n u ity contracts that are at issue, nor can they. The relief demanded in the C o m p la in t -- a restoration of the $1,565 Prudential annuity contract payment a n d an award of the difference between the Prudential $1,565 and $1,331 gross a m o u n ts since July 2007 -- can only be provided by Prudential. For their E R IS A Section 502(a)(1)(B)/Count I claim to recover a benefit, Plaintiffs do n o t allege that any benefit is owed from the EDS Plan. For their ERISA f id u c ia r y duty breach/Count II claim, Plaintiffs do not allege any particular f id u c ia ry duty breach by the EDS Defendants. Consequently, Plaintiffs have n o t stated a claim against the EDS Defendants.... E D S ' Mem. at 6. Finally, I reproduce plaintiffs' response: M o v in g Defendants claim that the only act about which the Cohens complain is the Prudential letter that reduced Mr. Cohen's monthly benefit. [citation o m itte d ] However, the Cohens have pled that the EDS Defendants breached th e ir fiduciary obligations to properly administer the pension plan and failed to accurately convey information regarding the plan by misrepresenting and inten tio n ally providing incomplete, inconsistent and/or contradictory d is c lo s u re s to the Cohens regarding the scope, nature and extent of the C o h e n 's participation in the plan. See Complaint at 29. The Cohens pled that the EDS Defendants, through their agents and E D S ' Early Retirement Offer ("ERO"), promised the Cohens certain benefits a n d /o r enhanced benefits under the pension plan. See Complaint at 19-9 [ sic ] and Exhibit "A" to the Complaint. Prudential stated that it never agreed o r complied with the EDS Retirement Plan credits and enhanced benefits, the s p e c if ic credits and enhanced benefits that were offered by EDS. See Exhibit " D " to the Complaint. If that is the case, what the Cohens pled in 29 of their C o m p la in t can only be true and the EDS Defendants violated ERISA. 11. P l. Resp. to EDS at 5-6.6 F e d . R. Civ. P. 8(a)(2) establishes that a "pleading that states a claim for relief m u s t contain... a short and plain statement of the claim showing that the pleader is entitled to relief...." The Third Circuit recently elucidated the contours of this rule in the wake of r e c e n t Supreme Court decisions: In Bell Atlantic Corp. v. Twombly, the Supreme Court confirmed that F e d . R. Civ. P. 8(a)(2) "`requires only a short and plain statement of the claim s h o w in g that the pleader is entitled to relief,' in order to `give the defendant f a ir notice of what the . . . claim is and the grounds upon which it rests,'" and th a t this standard does not require "detailed factual allegations." 550 U.S. 544, 1 2 7 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 ( 1 9 5 7 ) ). However, "a plaintiff's [Rule 8] obligation to provide the `grounds' o f his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." [ P h illip s v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)] (quoting T w o m b ly , 127 S.Ct. at 1964-65). In other words, Rule 8 "requires a `showing,' ra th e r than a blanket assertion, of entitlement to relief" that rises "above the s p e c u la tiv e level." Id. at 231-32 (quoting Twombly, 127 S.Ct. at 1965 & n. 3). " R u le 8(a)(2) requires that the `plain statement' possess enough heft to `sho[w] th a t the pleader is entitled to relief.'" Id. at 231 (quoting Twombly, 127 S.Ct. at 1966). A complaint may not be dismissed merely because it appears unlikely th a t the plaintiff can prove those facts or will ultimately prevail on the merits. Id . (quoting Twombly, 127 S.Ct. at 1964-65). The Supreme Court's Twombly f o rm u latio n of the pleading standard "`does not impose a probability re q u ire m e n t at the pleading stage,'" but instead "`simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence' of the n e c es s a ry element." Id. at 234 (quoting Twombly, 127 S.Ct. at 1965). McTernan v. City of York, 564 F.3d 636, 646 (3d Cir. 2009). EDS and EDS Retirement have also submitted a reply brief, but, in contravention o f Local Rule 7.1(c), they did not request leave of court to submit this document. I have n o t considered it. 12. 6 P la in tif f s have not made a showing, speculative or otherwise, that they are entitled to relief from EDS and EDS Retirement. The complaint, as to these defendants, appears to consist of "labels and conclusions" and "blanket assertions" rather than factual a lle g a tio n s that begin to show how EDS and EDS Retirement harmed the plaintiffs and v io la te d ERISA. The complaint recites that EDS offered Cohen an early retirement p a c k ag e , one that clearly implicated the retirement plan EDS managed. The complaint re c ites that Prudential, a different defendant, described particular retirement payments to p la in tif f s in 1999 regarding the plans that it managed; the complaint also recites that P r u d e n tia l changed the payments for one of its plans in 2007. What the complaint lacks a re allegations of fact that might implicate EDS and EDS Retirement in the reduction in b e n e f its effectuated by Prudential. Plaintiffs' response to the EDS/EDS Retirement motion to dismiss does not re m e d y these deficiencies. In fact, it demonstrates with greater clarity the factual gaps a n d the conclusory nature of the pleadings against these defendants. The assertion that " th e Cohens have pled that the EDS Defendants breached their fiduciary obligations to p ro p e rly administer the pension plan and failed to accurately convey information re g a rd in g the plan by misrepresenting and intentionally providing incomplete, in c o n s is te n t and/or contradictory disclosures to the Cohens," Pl. Resp. to EDS at 5, seems little more than "a formulaic recitation of the elements of a cause of action," McTernan, 5 6 4 F.3d at 646 (quoting Phillips, 515 F.3d at 231, quoting Twombly, 127 S.Ct. at 1964- 13. 6 5 ), because the Cohens offer no factual allegations that tend to suggest that the cause of a c tio n could be proved. Accordingly, I will grant EDS and EDS Retirement's motion to dismiss because p la in tif f s' complaint falls short of the minimum standards required to present a proper c la im against these defendants. I V . Conclusion F o r the reasons stated above, the complaint will be dismissed in its entirety as to E D S and EDS Retirement, and Count II of the complaint will be dismissed as to P r u d e n tia l. Plaintiffs' jury demand has been withdrawn, see note 5 supra, and thus will b e stricken from the complaint. An appropriate order accompanies this opinion. 14.

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