George et al v. CNH Health & Welfare Benefit Plan et al

Filing 28

ORDER signed by Judge J.P. Stadtmueller on 5/22/2017 GRANTING in part and DENYING in part 22 Defendants' Motion for Judgment on the Pleadings. Count One of the Amended Complaint (Docket #21) DISMISSED to the extent based upon 29 U.S.C. § 1132(a)(2); Count One REMAINS as to 29 U.S.C. § 1132(a)(3). See Order for further details. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BRENTEN GEORGE and DENISE
VALENTE-MCGEE,
Plaintiffs,
v.

Case No. 16-CV-1678-JPS

CNH HEALTH & WELFARE
BENEFIT PLAN, CNH EMPLOYEE
GROUP INSURANCE PLAN, CASE
NEW HOLLAND, INC., and BLUE
CROSS BLUE SHIELD OF
WISCONSIN,

ORDER

Defendants.

1.

INTRODUCTION
In this action, Plaintiffs allege that Defendants used improper

payment methodology in processing health insurance claims on the
employee benefit plans they manage, in violation of the Employee
Retirement Income Security Act (“ERISA”). (Docket #1). On March 13,
2017, Defendants collectively moved for judgment on the pleadings.
(Docket #22). Plaintiffs opposed the motion on March 31, 2017, and
Defendants replied in support on April 14, 2017. (Docket #26 and #27). For
the reasons explained below, the motion must be granted in part and
denied in part.

2.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(c) permits a party to seek

judgment once each side has filed its pleadings. Fed. R. Civ. P. 12(c). The
Court reviews such motions
by employing the same standard that applies when
reviewing a motion to dismiss for failure to state a claim
under [Fed. R. Civ. P.] 12(b)(6)[.] . . . Thus, we view the facts
in the complaint in the light most favorable to the
nonmoving party and will grant the motion only if it
appears beyond doubt that the plaintiff cannot prove any
facts that would support his claim for relief.
Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)
(citations and quotations omitted). The Court must “draw all reasonable
inferences and facts in favor of the nonmovant, but need not accept as true
any legal assertions.” Wagner v. Teva Pharm. USA, Inc., 840 F.3d 355, 358
(7th Cir. 2016).
3.

RELEVANT FACTS
The following facts are gleaned from viewing the factual

allegations of the amended complaint in a light most favorable to
Plaintiffs.1 Plaintiff Brenten George (“George”) is an employee of
Defendant Case New Holland, Inc. (“CNH”). Plaintiff Denise ValenteMcGee (“Valente-McGee”) is the spouse of a retired CNH employee. Each
is a beneficiary of Defendants CNH Health & Welfare Benefit Plan and the
CNH Employee Group Insurance Plan, respectively (collectively, the
“Plans”). CNH is the ERISA fiduciary for the Plans and Defendant Blue
Cross Blue Shield of Wisconsin (“Anthem”) is the claims administrator.

All facts are drawn from the amended complaint (Docket #21) unless otherwise
noted.
1

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The Plans provide health insurance coverage to many participants,
including Plaintiffs. The benefits provided depend on whether the
participants seek coverage for services from an in-network medical
provider or an out-of-network provider. If a provider is out-of-network,
individual participants are personally responsible for paying any amounts
not paid by the Plans. Thus, if a Plan improperly underpays claims for
out-of-network services, the participant suffers because they must make
up the difference.
For out-of-network providers, the Plans state that they will
reimburse the participant for a percentage of “reasonable” charges. A
“reasonable” charge is “[t]he charge for a service or a supply which is the
lower of the provider’s usual charge or the prevailing charge in the geographic
area where it is furnished—as determined by the claims administrator. The
claims administrator takes into account the complexity, degree of skill
needed, type or specialty of the provider, range of services provided by a
facility, and the prevailing charge in other areas.” (Docket #21 at 5)
(emphasis in original). Plaintiffs both claimed coverage for surgeries
conducted by out-of-network providers. The Plans paid only about twenty
percent of the total charges in each case because that was the amount they
determined was “reasonable.”
FAIR Health, Inc. (“FAIR”) is a company that maintains a database
on healthcare provider charges “to support the adjudication of healthcare
claims and to promote sound decision-making by all participants in the
healthcare industry.” Id. at 6. FAIR was created as a result of the
settlement of a lawsuit in 2009 involving Ingenix, a company which
previously maintained a similar database. Ingenix was shut down because
its database led to systematic underpayments on out-of-network claims.
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FAIR’s database, by contrast, is an objective, third-party source for
determining average provider charges. Using FAIR’s data, the prevailing
charges for Plaintiffs’ surgeries were more than double the amounts paid
by the Plans.
Plaintiffs appealed their claims with Anthem. Anthem told
Plaintiffs that CNH had directed it to use a methodology for out-ofnetwork claims that was different than the above-quoted “prevailing
charge” language. CNH had asked Anthem to set payments on out-ofnetwork claims using a percentage of Medicare reimbursement rates.
Plaintiffs then appealed directly to the CNH and cited the FAIR
data. CNH responded that with the shutdown of the old Ingenix database,
it needed a new system to assess reasonable charges. Anthem had offered
CNH two options: 1) use local network fees, or 2) use a percentage of the
Medicare fee schedule. CNH chose the latter “because it most closely
approximated the level of ‘reasonable charges’ as determined under the
Ingenix database.” Id. at 8.
Plaintiffs allege that this approach is contrary to the Plans’
language. The Medicare reimbursement rates have no relationship to the
prevailing charges by providers. The definition of “reasonable” charges
quoted above was never amended to reflect CNH’s new methodology.
Further, despite the elimination of Ingenix’s flawed database, CNH
nevertheless tried to approximate the reasonable charges determinations
that had been founded on that database. Rather than using the Medicare
reimbursement rates, CNH could have simply used the new FAIR
database.
Plaintiffs informed CNH that they believed its out-of-network
payment methodology was improper. CNH nevertheless issued a final
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determination upholding its payments on Plaintiffs’ claims. Plaintiffs
allege that CNH and Anthem knowingly and systematically used their
improper methodology to the detriment of all Plan participants who
sought out-of-network services. Plaintiffs seek certification of a class of
these persons.
Plaintiffs’ claims are presented in three counts. The first count is for
“violation of fiduciary obligations” pursuant to 29 U.S.C. § 1132(a)(2) and
(3). Id. at 12. Count One states that CNH and Anthem violated their duties
as ERISA fiduciaries by implementing their improper claim payment
scheme, which attempted to save them money by underpaying out-ofnetwork claims. Plaintiffs’ second count is for “improper denial of
benefits” pursuant to Section 1132(a)(1)(B). Id. at 13. Count Two asserts the
straightforward claim that Defendants wrongfully denied Plaintiffs the
full benefits to which they were entitled under the Plans. The final count is
for injunctive and declaratory relief pursuant to Section 1132(a)(3) to stop
Defendants’ allegedly unlawful payment practices. Plaintiffs pray for,
inter alia, “an award of benefits due,” an injunction against CNH and
Anthem to cease their current payment practice, disgorgement of all
amounts Defendants improperly withheld, assessment of “an appropriate
surcharge under principles of equity” against Anthem, and removal of
Anthem and CNH as fiduciaries of the Plans. Id. at 15.
4.

ANALYSIS
4.1

Duplicative Claims

Defendants’ primary argument is that Plaintiffs attempt to obtain
redress three times for one injury. According to Defendants, the sole basis
for Plaintiffs’ complaint is the underpayment of benefits. The remedy for
this injury is contained in Section 1132(a)(1)(B), which allows plan
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beneficiaries to sue “to recover benefits due to [them] under the terms of
[their] plan, to enforce [their] rights under the terms of the plan, or to
clarify [their] rights to future benefits under the terms of the plan.” 29
U.S.C. § 1132(a)(1)(B). In this regard, Defendants take no issue with Count
Two, which asserts such a claim.
However, Defendants object to Counts One and Three, which seek
injunctive and declaratory relief for the same underlying injury. Those
counts are brought pursuant to Section 1132(a)(2) and (3). Section
1132(a)(2) permits beneficiaries to seek relief on behalf of a plan if the plan
fiduciaries violated their duties to the plan. Id. §§ 1109(a), 1132(a)(2). This
can include making good any losses to the plan, restoring any profits to
the plan which were made through the fiduciary’s improper use of plan
assets, and “other equitable . . . relief as the court may deem appropriate,”
including removal of a fiduciary. Id. § 1109(a). Section 1132(a)(3) is a catchall which allows beneficiaries to “(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.”
Id. § 1132(a)(3).
Defendants maintain that if relief is available to Plaintiffs under
Section 1132(a)(1)(B), they are precluded from bringing additional claims
for relief under Sections 1132(a)(2) and (3). They primarily rely on the
Supreme Court’s Varity opinion, which held that when beneficiaries can
obtain adequate monetary relief under Section 1132(a)(1)(B), the equitable
relief available under Section 1132(a)(3) would not be “appropriate,” as
that Section requires. Varity Corp. v. Howe, 516 U.S. 489, 515 (1996). When
the Seventh Circuit considered the issue in the Mondry case, it agreed with
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“a majority of the circuits [which] are of the view that if relief is available
to a plan participant under subsection (a)(1)(B), then that relief is un
available under subsection (a)(3).” Mondry v. Am. Fam. Mut. Ins. Co., 557
F.3d 781, 805 (7th Cir. 2009) (emphasis in original). As Defendants put it, a
claim for denial of benefits may not be “repackaged” as one for breach of
fiduciary duty or seeking equitable relief. (Docket #23 at 9).
Plaintiffs respond that they are entitled to bring alternative claims
and seek alternative remedies for Defendants’ wrongful scheme. Section
1132(a)(1)(B) claims are for recovering unpaid benefits, and must be
brought against the ERISA-governed plan, not a plan fiduciary. Larson v.
United Healthcare Ins. Co., 723 F.3d 905, 913 (7th Cir. 2013). Count Two is
thus directed at the Plans themselves. Plaintiffs explain that they “join this
claim with the breach of fiduciary duty claim because it arises from the
same series of transactions and a common core of facts.” (Docket #26 at 8).
Section 1132(a)(2) claims are directed at the fiduciary themselves for
breach of their duties. Plaintiffs state that Anthem and CNH did not “meet
the loyalty, prudence, and competence standards ERISA imposes on
fiduciaries,” and so Count One seeks various forms of equitable relief,
including their removal as fiduciaries. Finally, Section 1132(a)(3) acts as a
catch-all for equitable relief to redress any injuries not remedied by the
other Sections. Count Three supports Plaintiffs’ requests for disgorgement
of profits, a surcharge, and an injunction against continuing to use the
improper payment methodology. Plaintiffs maintain that this relief is not
available under Section 1132(a)(1)(B).
Plaintiffs argue that at the pleading stage, the potential for
overlapping remedies is not a basis for dismissal. Varity and Mondry dealt
with cases beyond the pleading stage, Plaintiffs contend, and so their
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holdings merely state the unremarkable proposition that a party cannot
double-recover for one injury. The Supreme Court’s Amara opinion, issued
after Varity and Mondry, allowed for the imposition of equitable relief
under Section 1132(a)(3), even that which appears monetary, if Section
1132(a)(1)(B) does not permit such relief. CIGNA Corp. v. Amara, 563 U.S.
421, 435-442 (2011).2 Various circuit courts have opined, since Amara, that
pleading claims under both sections simultaneously is permissible, again
with the caveat that a plaintiff cannot use the guise of equitable relief to
obtain duplicative remedies for a single injury. Moyle v. Liberty Mut. Ret.
Benefits Plan, 823 F.3d 948, 959-62 (9th Cir. 2016); Silva v. Metro. Life Ins.
Co., 762 F.3d 711, 726 (8th Cir. 2014); cf. Rochow v. Life Ins. Co. of N. Am.,
780 F.3d 364, 370 (6th Cir. 2015) (an individual plaintiff cannot recover
under both Sections for one injury, namely the arbitrary and capricious
denial of benefits).
Defendants reply that even at this early stage, Plaintiffs’ complaint
confirms that they have only one injury—the denial of benefits. This can
be remedied by Count Two, making Counts One and Three duplicative.
Defendants argue that Plaintiffs’ equitable claims for disgorgement or
removal of fiduciaries are simple re-labelings of the same relief for that
injury.

One form of equitable relief involving the payment of money is “surcharge,”
which Plaintiffs plead here. Amara observed that “[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. . . . [This] surcharge remedy extended to a breach of trust committed
by a fiduciary encompassing any violation of a duty imposed upon that
fiduciary.” Amara, 563 U.S. at 441-42; see also Kenseth v. Dean Health Plan, Inc., 722
F.3d 869, 878-79 (7th Cir. 2013).
2

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In light of recent precedent from various Courts of Appeals, the
Court must agree with Plaintiffs that dismissal is inappropriate on this
ground. The Ninth Circuit explained Varity’s precise holding in this way:
In Varity, plaintiffs sought relief under ERISA §
409(a), 29 U.S.C. § 1109(a), which authorizes recovery to
benefit plans for breaches of fiduciary duty. Varity, 516 U.S.
at 508–09, 116 S.Ct. 1065. The Varity court found that §
1109(a) provided relief only for benefit plans and not
individuals, but held that § 1132(a)(3) could provide
individualized relief. Id. at 509–12, 515, 116 S.Ct. 1065. Thus,
a key holding in Varity was that § 1132(a)(3) extends to other
sections of the statute, even when § 1132 does not expressly
provide a remedy for those sections. Varity did not explicitly
prohibit a plaintiff from pursuing simultaneous claims
under § 1132(a)(1)(B) and § 1132(a)(3).
Moyle, 823 F.3d at 960-61. The Eighth Circuit applied this holding to a case
like ours, where the defendant accused the plaintiff of seeking duplicative
remedies:
Contrary to Defendants’ argument, Varity does not
limit the number of ways a party can initially seek relief at
the motion to dismiss stage. The case Black v. Long Term
Disability Insurance summarizes our views well:
Varity Corp. does not hold that when an ERISA
plaintiff alleges facts supporting both a § 1132(a)(1)(B) and a
§ 1132(a)(3) claim, a court must or should grant a
defendant’s Rule 12(b)(6) motion to dismiss the latter claim.
Varity Corp. did not deal with pleading but rather with
relief....
Further, nothing in Varity Corp. overrules federal
pleading rules. And, under such rules, a plaintiff may plead
claims hypothetically or alternatively. To dismiss an ERISA
plaintiff’s § 1132(a)(3) claim as duplicative at the pleading
stage of a case would, in effect, require the plaintiff to elect a
legal theory and would, therefore, violate [the Federal Rules
of Civil Procedure].
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373 F.Supp.2d 897, 902–03 (E.D. Wis. 2005) (internal citations
omitted).
Silva, 762 F.3d at 726. Plaintiffs are entitled to plead alternative theories of
recovery at this early stage of the lawsuit. If more than one theory is
ultimately successful, the Second Circuit teaches that the Court must then
carefully consider whether the available remedies are inappropriately
duplicative. N.Y. State Psychiatric Ass’n, Inc. v. UnitedHealth Group, 798
F.3d 125, 134 (2d. Cir. 2015) (“[W]e have instructed [that] if a plaintiff
succeed[s] on both claims . . . the district court’s remedy is limited to such
equitable relief as is considered appropriate.”) (quotation omitted).
Defendants’ citations to the contrary are either to district court
opinions, which this Court finds less persuasive than circuit authority, or
they are distinguishable. See, e.g., Rochow, 780 F.3d at 370-76; Roque v.
Roofers’ Unions Welfare Trust Fund, 12-C-3788, 2013 WL 2242455, at *5-9
(N.D. Ill. May 21, 2013).3 For instance, Rochow did not permit the plaintiff

Roque, an example of one of the numerous district court opinions on this issue
arising from the Northern District of Illinois, is distinguishable and provides a
helpful contrast to the instant case. There, the plaintiff requested the following
relief:
3

In Count I, Roque invokes section § 502(a)(1)(B) and
requests monetary relief in the form of all past due benefits on his
claims for his second surgery. . . . In Counts III, IV, and V, Roque
relies on § 502(a)(3) and seeks monetary relief “in an amount
equal to the cost of services Roque incurred because of the
breaches of fiduciary duty.”
Roque, 2013 WL 2242455, at *7 (Section “502” is the pre-enactment title of Section
1132). The court held that “the monetary relief that Roque seeks for his §
502(a)(3) claims is the same relief he seeks for his § 502(a)(1)(B) claim.” Id. The
court further explained:

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to pursue a Section 1132(a)(3) remedy because it represented a
“repackaging” of a Section 1132(a)(1)(B) claim. Rochow, 780 F.3d at 375.
Moyle, however, noted Rochow’s key factual distinction: “[t]he plaintiff in
Rochow had already received his remedy under § 1132(a)(1)(B)[.]” Moyle,
823 F.3d at 961. The Rochow opinion cited here was actually the second
appellate opinion in that case. The first appellate decision affirmed the
plaintiff’s award of benefits made pursuant to Section 1132(a)(1)(B).
Rochow, 780 F.3d at 370. The second Rochow opinion addressed whether
the plaintiff could also seek disgorgement of profits pursuant to Section
1132(a)(3) for the same wrongful denial of benefits that underlay the
earlier recovery. Id. Moyle found that “the [Rochow] court essentially
enjoined [the plaintiff’s] § 1132(a)(3) claim, because, if successful, it would
result in a double recovery for the same injury.” Moyle, 823 F.3d at 961.
Rochow is thus entirely consistent with the fundamental fault in
Defendants’ motion: the Court cannot state with certainty the ultimate
nature of Plaintiffs’ injuries or the appropriateness of any particular
remedy at this time. Silva observed that “[a]t the motion to dismiss stage, .
. . it is difficult for a court to discern the intricacies of the plaintiff’s claims
to determine if the claims are indeed duplicative, rather than alternative,

By arguing that he seeks monetary relief for the cost of the
surgery as a remedy for the breaches of fiduciary duty, Roque
makes clear that he is, though under a different label, seeking the
same relief sought for his denial-of-benefits claim, namely the
costs of the second surgery.
Id. at *8. Unlike Roque, Plaintiffs do not seek purely monetary relief for the same
injury under different theories. Rather, their plea for equitable relief includes
removal of CNH and Anthem as fiduciaries, disgorgement of profits arising from
the benefits those fiduciaries did not properly pay, and a surcharge to address
other possible unjust enrichment afforded to CNH and Anthem.

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and determine if one or both could provide adequate relief.” Silva, 762
F.3d at 727 (citing Black, 373 F. Supp. 2d at 901-02). By contrast, when an
action reaches the summary judgment stage, “a court is better equipped to
assess the likelihood for duplicate recovery, analyze the overlap between
claims, and determine whether one claim alone will provide the plaintiff
with ‘adequate relief.’” Id. Put another way, Plaintiffs’ “[Section
1132](a)(3) claims are for breach of fiduciary duty, [they] ha[ve] not yet
succeeded on [their] [Section 1132](a)(1)(B) claim, and it is not clear at the
motion-to-dismiss stage of the litigation that monetary benefits under
[Section 1132](a)(1)(B) alone will provide [them] a sufficient remedy. In
other words, it is too early to tell if [their] claims under [Section 1132](a)(3)
are in effect repackaged claims under [Section 1132] (a)(1)(B).” N.Y. State
Psychiatric Ass’n, 798 F.3d at 134. Unlike the Rochow plaintiff, Plaintiffs
here have not succeeded on their Section 1132(a)(1)(B) claim, and it is not
clear whether their injuries and remedies are truly coterminous.
The Seventh Circuit has not weighed in on the issue of duplicative
remedies at the pleadings stage. Mondry was decided on summary
judgment and made no mention of pleading. Mondry, 557 F.3d at 803-06.
Other post-Amara opinions are of limited assistance. Kenseth noted that
Amara broadened the forms of equitable relief available under Section
1132(a)(3) for a breach of fiduciary duty, including “make-whole money
damages[,] . . . if [the plaintiff] can in fact demonstrate that [the fiduciary]
breached its fiduciary duty to her and that the breach caused her
damages.” Kenseth, 722 F.3d at 880. Sumpter confirmed that “a denial of
benefits, without more, does not constitute a breach of fiduciary duty that
can be remedied under the equitable-relief provision.” Sumpter v. Metro.
Life Ins. Co., No. 16-2012, 2017 WL 1379191, at *2 (7th Cir. Apr. 18, 2017). It
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further cited Rochow for its prohibition on “repackaging,” noting that “[t]o
the extent that Sumpter’s claims for breach of a fiduciary duty are not his
wrongful-denial claim by another name, they are frivolous.” Id. at *3.
While not directly on-point, these rulings are not inconsistent with
the position of the other Circuits on the pleading issue. Kenseth allows
Plaintiffs to seek monetary relief in equity under Section 1132(a)(3), even
that which appears identical to what they may recover under Section
1132(a)(1)(B). Sumpter, though addressing a pro se case which the court
described as frivolous, confirms that “repackaging” is impermissible.
When and if it comes time to determine Plaintiffs’ remedies in this matter,
the Court will be aware (and the Defendants will no doubt remind it) of
the “repackaging” principle. As of today, however, the Court must agree
with Moyle, Silva, and New York State Psychiatric Association, and deny
Defendants’ motion as it relates to duplicative claims.
4.2

Failure to Allege Injury to the Plans

Defendants’ motion presents a secondary argument for dismissal of
Count One. They contend that the amended complaint seeks relief for
Plaintiffs and the proposed class, not the Plans, in contravention of Section
1132(a)(2)’s requirements. Kenseth v. Dean Health Plan, Inc., 610 F.3d 452,
481-82 (7th Cir. 2010) (“Pursuant to section 1132(a)(2), a plan participant or
beneficiary (among others) may commence a civil action for appropriate
relief under section 1109(a), but she may do so only in a representative
capacity on behalf of the plan, not in her own behalf.”); 29 U.S.C. § 1109(a)
(“Any person who is a fiduciary with respect to a plan who breaches any
of the responsibilities, obligations, or duties imposed upon fiduciaries by
this subchapter shall be personally liable to make good to such plan any
losses to the plan resulting from each such breach[.]”) (emphasis added).
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Plaintiffs’ entire opposition to this argument is found in two
sentences. First, they state that “[t]he language of the statute does not limit
recovery only ‘for the plan,’ but to the extent that is required, removal of a
fiduciary can be relief ‘for the plan.’” (Docket #26 at 7). Plaintiffs further
opine that “[they] are entitled to bring this breach of fiduciary duty claim
under § 1132(a)(2) or (a)(3), depending on whether harm to the Plan as a
whole is proven, or just harm to the individual beneficiaries of the Plan.”
Id. at 8. Neither sentence is supported by citation to any authority. This is
woefully inadequate to resist Defendants’ request for dismissal. Mahaffey
v. Ramos, 588 F.3d 1142, 1146 (7th Cir. 2009) (“Perfunctory, undeveloped
arguments without discussion or citation to pertinent legal authority are
waived.”); see also John v. Barron, 897 F.2d 1387, 1393 (7th Cir. 1990) (“This
court is not obligated to research and construct legal arguments open to
parties, especially when they are represented by counsel as in this case.”);
Gold v. Wolpert, 876 F.2d 1327, 1333 (7th Cir. 1989).
Without meaningful argument to the contrary, the Court agrees
with Defendants that the amended complaint fails to allege any injury to
the Plans. Its allegations are directed at unpaid benefits to Plaintiffs and
the prospective class members. (Docket #21 at 2) (“Defendants knowingly
and systematically used an improper payment methodology . . . in
violation of their fiduciary obligations to Plaintiffs and all other
participants and beneficiaries of the benefit plans sponsored by CNH.”);
id. at 13 (“Defendants favored their own financial interests over the rights
and interests of the members of the Class, who are entitled to payment of
out-of-network

claims

based

on

a

prevailing

provider

charge

methodology. . . . Plaintiffs and members of the class were harmed by
Defendants’ breaches of fiduciary duty and are entitled to appropriate
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equitable relief.”). By failing to allege an injury to the Plans themselves,
Plaintiffs cannot proceed on a Section 1132(a)(2) claim.
One final problem remains: Defendants’ request for dismissal of
Count One is inconsistent. Recall that Count One is advanced not only
pursuant to Section 1132(a)(2), but also Section 1132(a)(3). See supra at 5. In
their opening brief, Defendants state that “Plaintiffs’ § 1132(a)(2) [claim] in
Count I fails to state a claim under that subsection.” (Docket #23 at 16).
They go further in their reply brief, asking that the Court dismiss Count
One completely. (Docket #27 at 11). The Court finds it prudent to grant the
more limited form of dismissal. It will, therefore, strike Section 1132(a)(2)
as a basis for Count One, leaving the count intact as to Section 1132(a)(3).
If Count One is now duplicative of Count Three (also brought under
Section 1132(a)(3)), Plaintiffs should stipulate to dismissal of one of those
counts.
5.

CONCLUSION
In light of the foregoing, the Court will deny Defendants’ request to

dismiss Counts One and Three as duplicative. The Court will, however,
grant Defendants’ motion as it pertains to the Section 1132(a)(2) claim
contained in Count One.
Accordingly,
IT IS ORDERED that Defendants’ motion for judgment on the
pleadings (Docket #22) be and the same is hereby GRANTED in part and
DENIED in part; and
IT IS FURTHER ORDERED that the 29 U.S.C. § 1132(a)(2) claim
alleged in Count One of the amended complaint (Docket #21 at 12-13) be
and the same is hereby DISMISSED.
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Dated at Milwaukee, Wisconsin, this 22nd day of May, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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