Miller v. Mellon Long Term Disability Plan (721 F. Supp. 2d 415, 2010)

United States District Court for the Western District of Pennsylvania 2010-06-25

Internal Revenue Code Labor

Citations

Full opinion text

OPINION

LENIHAN, United States Magistrate Judge.

Currently before the Court for disposition are three motions: (1) a Motion to Dismiss (Doc. No. 9) filed by Defendants Mellon Bank, N.A., Mellon Financial Corporation, The Bank of New York Mellon Corporation, Corporate Benefits Committee, and Sheila Miller (the “Mellon Defendants”); (2) a Motion to Dismiss (Doc. No. 23) filed by Life Insurance Company of North America (“LINA”) and CIGNA Corporation (“CIGNA”) (together the “Insurance Defendants”); and (3) a Motion for Leave to File an Amended Complaint (Doc. No. 34) filed by Plaintiff, Arlene Miller. This case is brought pursuant to Section 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), 29 U.S.C. §§ 1001, 1132(a)(1)(B), for review of a denial of long-term disability benefits and determination of her rights to past and future benefits under the terms of her employer’s long-term disability plan. This Court has subject matter jurisdiction over this action pursuant to 29 U.S.C. § 1132(e)(1). Venue in this District is proper under 29 U.S.C. § 1132(e)(2).

For the reasons set forth below, the Court finds it would be futile to allow Plaintiff to file the proposed amended complaint with one exception, and therefore, will grant in part and deny in part Plaintiffs Motion for Leave to File an Amended Complaint (Doc. No. 34). Accordingly, the motions to dismiss are not moot. In consideration of the pleadings, motions and supporting papers filed in this case, the Court will grant the Mellon Defendants’ Motion to Dismiss (Doc. No. 9) as to Mellon Bank, N.A., Mellon Financial Corporation, The Bank of New York Mellon Corporation, the Corporate Benefits Committee, and Sheila Miller, on all Counts. In addition, the Court will grant the Insurance Defendants’ Motion to Dismiss (Doc. No. 23). Finally, the Court will grant the Motions to Dismiss Plaintiffs Demand for a Jury Trial filed by all of the Defendants.

I. FACTUAL BACKGROUND/PROCEDURAL HISTORY

Because this action comes before the Court on a motion to dismiss, the Court must accept as true all of Plaintiffs allegations of fact and must view the facts in the light most favorable to her. The relevant facts are as follows.

Arlene Miller (hereinafter “Plaintiff’) is a participant in the Defendant Mellon Long-Term Disability Plan (hereinafter “Plan”), an employee welfare benefit plan that provides disability benefits. (Mellon Long-Term Disability Plan Summary Plan Description dated January 2004 (“SPD”) at 25.) Thus, the Plan constitutes an “employee welfare benefit plan” within the meaning of 29 U.S.C. § 1002(1). The Plan is funded through a trust established by Mellon Bank, N.A., to make long-term disability (“LTD”) benefit payments. (SPD at 26; Plan at Preamble.) The trust constitutes the sole source of benefits under the Plan. (Plan at Preamble.)

Defendant Corporate Benefits Committee (hereinafter “CBC”) was the Plan Administrator of the Mellon Long-Term Disability Plan until July 2009, when it was dissolved. (Plan at § 5.1; SPD at 25.) Defendant Sheila Miller acted as the “Plan Manager” and, as such, was responsible for the day-to-day administration of the Plan. (Plan at § 1.25.)

Defendant Mellon Bank, N.A., is named as the “Plan Sponsor” in § 1.3 of the Plan, as well as in the SPD. Defendant Mellon Financial Corporation is described in the Plan Document as a Pennsylvania Corporation of which the CBC is a part. (Plan at §§ 1.9, 1.12.) Defendant The Bank of New York Mellon Corporation (“BNY Mellon Corp.”) was created in May 2007 as a result of a merger between Mellon Financial Corporation and The Bank of New York Company, and, by virtue of which, is the successor-in-interest to Mellon Financial Corporation. Thus, Mellon Financial Corporation ceased to exist on July 1, 2007 when BNY Mellon Corp. was formed. In addition, Mellon Bank, N.A. changed its name to BNY Mellon, National Association, effective July 1, 2008. Thus, the Plan Sponsor at the time this litigation was commenced appears to be BNY Mellon, N.A., which is not named as a defendant in this litigation.

Defendant LINA was retained by the Plan to provide ministerial services, such as information collection on an as-requested basis. (Comply 7.) Defendant CIGNA Corporation was designated as the claims administrator and, as such, performed certain claims administrative functions for the Plan. (SPD at 25.)

On or about February 2004, the Plaintiff began receiving short-term disability benefits. Upon the expiration of her eligibility for short-term benefits, the Plaintiff applied to the Plan for long-term disability (“LTD”) benefits. Plaintiffs claim was initially denied. However, on June 20, 2005, the Plaintiff was advised by letter, that the CBC had reversed the denial, and directed that monthly benefits be paid in the amount of $2,210.83. The monthly benefits would continue for a period of two years, retroactive to August 30, 2004. The letter also advised the Plaintiff that CIGNA would be conducting a subsequent review of her claim to determine whether she would be entitled to receive benefits as of August 30, 2006, the two year anniversary of her initial benefit eligibility date.

Section 2.3 of the Plan provides that a participant is considered “Totally Disabled” following the two year anniversary if she is “wholly and continuously unable” to engage in any occupation or perform any work for compensation or profit for which he is or may become reasonably fitted by education, training, or experience. (Plan at 8.)

On September 22, 2006, CIGNA recommended that the Plan deny further benefits because of a purported failure by the Plaintiff to provide further medical evidence. Defendant Sheila Miller, by letter dated October 12, 2006, advised the Plaintiff that no benefits were payable as of October 15, 2006, based on her failure to provide further medical evidence indicating that as of August 30, 2006, she was disabled within the meaning of the “any occupation” standard set forth in § 2.3(b) of the Plan. In response, on March 15, 2007, Plaintiff appealed the determination to the CBC. By letter dated April 17, 2007, Sheila Miller indicated that the CBC had received the Plaintiffs appeal. On October 29, 2007, the CBC advised the plaintiff that her appeal was denied and that her claim for benefits was deemed terminated as of October 12, 2007.

On August 28, 2009, Plaintiff instituted the present litigation, pursuant to Section 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B), seeking payment of monies allegedly due to her under the terms of the Plan, and judgment directing Defendants to honor the Plaintiffs alleged entitlement to future disability benefits under the terms of the Plan. The Plaintiff specifically contends that Defendants’ determination terminating disability benefits ignored lay and medical evidence in Plaintiffs administrative file; contradicted defendants’ own previous determination that the medical evidence was sufficient to establish that Plaintiff was entitled to benefits; ignored and disregarded the debilitating effect plaintiffs disability had on her ability to respond to requests for medical information and to provide medical information; ignored medical evidence establishing that plaintiff was disabled within the meaning of the “any occupation” standard set forth in § 2.3(b) in the Plan Document; failed to request Plaintiff submit to medical, psychological, or functional capacity examinations; and, ignored additional indicia of disability as evidenced by the award of social security disability benefits in August of 2005. (Compl., ¶¶ 39, 44-45.)

In response, the Mellon Defendants filed a Motion to Dismiss and supporting brief on January 12, 2010. The Insurance Defendants also responded by separately filing a Motion to Dismiss and supporting brief on February 12, 2010. In essence, the Mellon Defendants and Insurance Defendants (collectively, the “non-Plan Defendants”) contend that they are improper parties in a denial of benefits claim under 29 U.S.C. § 1132(a)(1)(B), and therefore, request that the Complaint as to them be dismissed with prejudice. The non-Plan Defendants, as well as Defendant Mellon Long Term Disability Plan, also move the Court to dismiss the Plaintiffs demand for a jury trial, contending that Plaintiff has no right to a jury trial under ERISA. The Plaintiff filed briefs in opposition to both motions to dismiss on March 3, 2010. The Defendants filed reply briefs in support of their respective motions to dismiss on March 23, 2010.

While the motions to dismiss were pending, Plaintiff filed a Motion for Leave to File an Amended Complaint (Doc. No. 34) on April 2, 2010, which attempts to address the arguments raised by the Defendants in their motions to dismiss. Defendants have filed a response objecting on the basis that it would be futile to allow the proposed amendments. The motions, having been fully briefed and responded to, are now ripe for disposition.

II. MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT

A. Standard of Review

Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend a pleading “shall be freely given when justice so requires.” In Foman v. Davis, the Supreme Court delineated the grounds that would justify denying leave to amend: “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment”. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). The grant or denial of leave to amend is within the sound discretion of the district court; however, failure to provide a reason for denying leave to amend is considered an abuse of that discretion. Id.; see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.1997) (citing Foman, supra). In determining whether the proposed amendment would be futile, courts apply the same standard as that applied to motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir.2000) (citation omitted). The Rule 12(b)(6) standard is discussed, infra, at Part III, Section A.

B. Analysis

Plaintiff seeks leave of Court to file an amended complaint to address the arguments raised in the two motions to dismiss. Specifically, Plaintiff seeks to plead additional facts to further demonstrate that each of the non-Plan Defendants acted in a fiduciary capacity with regard to her claim for denial of LTD benefits. Plaintiff also seeks to plead additional facts to demonstrate the liability of Defendant CIGNA Corporation as the alter ego of its subsidiary, LINA. Plaintiffs proposed amended complaint adds four new claims: (1) a

claim for injunctive relief under 29 U.S.C. § 1132(a)(3) against all Defendants, requesting an order directing the payment of future benefits; (2) a claim for breach of fiduciary duty against the Expanded Mellon Defendants for imprudent investment and management of Plan assets under 29 U.S.C. §§ 1104(a)(1), 1109, and 1132(a)(2); (3) a claim for breach of fiduciary duty against the Expanded Mellon Defendants for failure to act in accordance with documents and instruments governing the Plan under 29 U.S.C. §§ 1104(a)(1), 1109, and 1132(a)(2); and (4) vicarious liability against Defendants Mellon Bank, N.A., Mellon Financial Corporation, and its suceessor-in-interest, BNY Mellon Corp. (collectively, the “Bank Defendants”), under the doctrine of respondeat superior, on Plaintiffs claims to recover benefits under Section 1132(a)(1)(B), for equitable relief under Section 1132(a)(3), and for breach of fiduciary duty under Sections 1104(a)(1), 1109, and 1132(a)(2). Finally, the amended complaint seeks to add four new parties: (1) Connecticut General Corporation; (2) CIGNA Holdings, Inc.; (3) John Doe, an unidentified employee of Defendant BNY Mellon Corp.; and (4) the Benefits Investment Committee of BNY Mellon Corp. (“BIC”).

For the reasons that follow, the Court finds that the proposed amendments would not establish plausible claims against the non-plan Defendants, nor is there any support under either ERISA or federal common law for adding the four new claims and four new parties proposed by Plaintiff. Thus, permitting the proposed amendments would be futile.

1. Plaintiffs Proposed Third Claim for Equitable Relief Under 29 U.S.C. § 1132(a)(3)

Plaintiff seeks to assert four new claims in her proposed amended complaint, the first of which is a claim for equitable relief against all Defendants in the form of an order directing the payment of future benefits under 29 U.S.C. § 1132(a)(3), designated as “A Third Claim For Which Relief Can Be Granted” in the proposed amended complaint. The factual allegations offered in support of this claim consist of the assertion that the administrative record establishes that she was disabled at all relevant times and continues to be disabled under the “any occupation” standard. Prop. Am. Compl., ¶ 99. Plaintiff further asserts that pursuant to sections 2.3 and 3.1 of the Plan, she is entitled to continue receiving LTD benefits until she reaches age 65. Id. at ¶ 101. Consequently, Plaintiff asserts that under Section 1132(a)(3), she is entitled to “injunctive, equitable and remedial relief (a) directing defendants, as fiduciaries of the Plan, to continue to pay to plaintiff Plan benefits based on plaintiffs’ [sic] ongoing disability and entitlement to benefits within the meaning of the Plan; until such time as there has been a determination by the defendants, in accordance with the procedures set forth in the Plan for rendering such determinations, that plaintiff is no longer disabled.” Id. at ¶ 102.

In support of her motion for leave to amend the complaint to add this Third Claim against all Defendants, Plaintiff argues that while the language in Section 1132(a)(1)(B) clearly contemplates a declaratory judgment with regard to determining future rights to benefits, no court has held that Section 1132(a)(1)(B) provides a mechanism for actually ordering a plan to pay such benefits, and the Mellon Defendants do not contend otherwise. For that relief, Plaintiff submits the courts have held that recourse to Section 1132(a)(3) is appropriate. In support of this argument, Plaintiff relies on Reinert v. Giorgio Foods, Inc., No. 97-CV-2379, 1997 WL 364499, *5 (E.D.Pa. June 25, 1997) (citing Varity Corp. v. Howe, 516 U.S. 489, 116 S.Ct. 1065, 1077-78, 134 L.Ed.2d 130 (1996)); Benamara v. Plan Administrators of Mellon Long Term Disability Plan, No. Civ.A. 05-1433, 2006 WL 279101 (W.D.Pa. Feb. 3, 2006) (citing Hoagland v. Erin Group Administrators, Inc., No. 05CV0099, 2005 WL 1528383 (M.D.Pa. June 28, 2005)).

In response, Defendants counter that the relief requested in paragraph 102 of the proposed amended complaint, on its face, is the very relief that a claim under Section 1132(a)(1)(B) already authorizes solely from an ERISA plan. Defendants further contend that Plaintiffs attempt to distinguish between legal relief, in the form of an award of benefits, or equitable relief, in the form of an injunction ordering the payment of benefits, is unavailing based on the Supreme Court’s decision in Great-West Life & Annuity Company v. Knudson, 534 U.S. 204, 221, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002) (In Section 1132(a)(1)(B), “Congress authorized ‘a participant or beneficiary’ to bring a civil action ‘to enforce his rights under the terms of the plan,’ without reference to whether the relief sought is legal or equitable.”) Because Section 1132(a)(1)(B) expressly authorizes equitable and injunctive relieve from the ERISA plan in enforcing rights under the plan, clarifying rights to future benefits under the plan, and for benefits due under the plan, and thus, an adequate remedy exists under that section, Defendants submit that Plaintiff may not assert a claim under the catch-all provision under Section 1132(a)(3) for “other appropriate” equitable relief. Defendants rely on Varity Corporation v. Howe, 516 U.S. 489, 515, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996), as support for this argument. Defendants further contend that Benamara, upon which Plaintiff relies, is not controlling here because the district court in that case failed to give proper weight to the Varity decision and also failed to consider that the relief requested was really indistinguishable.

The Court agrees with the Defendants that under Varity and Knudson, Plaintiffs proposed Third Claim for equitable relief under Section 1132(a)(3) is inappropriate. In Varity, the Supreme Court explained:

[Section 502(a)(3)] of ERISA authorizes “appropriate” equitable relief. We should expect that courts, in fashioning “appropriate” equitable relief, will keep in mind the “special nature and purpose of employee benefit plans,” and will respect the “policy choices reflected in the inclusion of certain remedies and the exclusion of others.” Pilot Life Ins. Co. [v. Dedeaux, 481 U.S. 41, 54, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987) ]. See also [Mass. Mut. Life Ins. Co. v.] Russell, 473 U.S. [134, 147, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985)]; Mertens [v. Hewitt Assoc., 508 U.S. 248, 263-264, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993)]. Thus, we should expect that where Congress elsewhere provided adequate relief for a beneficiary’s injury, there will likely be no need for further equitable relief, in which case such relief normally would not be “appropriate.” Cf. Russell, supra, at 144, 105 S.Ct. 3085.

516 U.S. at 515, 116 S.Ct. 1065. In determining whether the requested relief is appropriately framed in equity for purposes of Section 1132(a)(3), the Supreme Court has cautioned that a court must look past the label attached by the plaintiff. In this regard, the Supreme Court further explained:

“Almost invariably ... suits seeking (whether by judgment, injunction, or declaration) to compel the defendant to pay a sum of money to the plaintiff are suits for ‘money damages,’ as that phrase has traditionally been applied, since they seek no more than compensation for loss resulting from the defendant’s breach of legal duty.”

Knudson, 534 U.S. at 210, 122 S.Ct. 708 (quoting Bowen v. Massachusetts, 487 U.S. 879, 918-19, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) (Scalia, J., dissenting)).

When the Court looks past the label here, it is clear that the equitable relief requested by Plaintiff is essentially “a claim for benefits expressed in equitable language.” Clark v. Feder Semo & Bard, P.C., 527 F.Supp.2d 112 (D.D.C.2007) (holding plaintiff who sought “such declaratory, legal, equitable and remedial relief as the Court deems appropriate” to ensure her receipt of all benefits due was essentially “a claim for benefits expressed in equitable language,” and thus, failed to seek appropriate equitable relief under § 1132(a)(3)) (quoting Fairview Health Servs. v. Ellerbe Becket Co. Employee Med. Plan, Civ. File No. 06-2585, 2007 WL 978089, at *6 (D.Minn. Mar. 28, 2007)). Here the relief Plaintiff seeks in her proposed Third Claim under Section 1132(a) (3) is “injunctive, equitable and remedial relief (a) directing defendants, as fiduciaries of the Plan, to continue to pay to plaintiff Plan benefits based on plaintiffs’ [sic] ongoing disability and entitlement to benefits within the meaning of the Plan; until such time as there has been a determination by the defendants, in accordance with the procedures set forth in the Plan for rendering such determinations, that plaintiff is no longer disabled.” Proposed Am. Compl., ¶ 102. This relief is essentially a claim for benefits expressed in equitable language, and thus, authorized by Section 1132(a)(1)(B).

Moreover, contrary to Plaintiffs argument, courts have held that Section 1132(a)(1)(B) does provide a mechanism for ordering a plan to pay benefits due. See, e.g., Clark, supra; Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 146-147, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985) (“To recover the benefits due her, [plaintiff] could have filed an action pursuant to § 502(a)(1)(B) to recover accrued benefits, to obtain a declaratory judgment that she is entitled to benefits under the provision of the plan contract, and to enjoin the plan administrator from improperly refusing to pay benefits in the future.”); Smith v. Life Ins. Co. of N. Am., 466 F.Supp.2d 1275, 1292 (N.D.Ga.2006) (finding claim for equitable relief under § 1132(a)(3), requesting court to enter order enjoining defendant from reducing plaintiffs disability benefits based on personal injury settlement so long as plaintiff remained disabled, was inappropriate as an adequate remedy existed under § 1132(a)(1)(B)) (citing Katz v. Comprehensive Plan of Group Ins., 197 F.3d 1084, 1088-89 (11th Cir.1999)). In Smith, the district court concluded that because it could award back pay to plaintiff and ‘clarify future rights’ to benefits under Section 1132(a)(1)(B), all of the relief plaintiff sought was available under Section 1132(a)(1)(B), and thus, he was precluded from proceeding on his claim for equitable relief under Section 1132(a)(3). Id. at 1292. Likewise here, since Plaintiff has an adequate remedy under Section 1132(a)(1)(B) for the relief she seeks, there is no basis for invoking the catch-all relief provision contained in Section 1 132(a)(3).

In so concluding, the Court does not find the authority relied upon by Plaintiff to be persuasive for several reasons. Benamara was decided pre-Twombly, and thus, the court applied a less stringent pleading standard in ruling on the Rule 12(b)(6) motion. Thus, query whether the district court in Benamara would have reached the same conclusion had it applied Twombly. Second, the issue raised in the motion to dismiss filed by the defendant in Benamara was whether the plan administrator and employer were improper parties, not whether plaintiff could maintain a claim under the catchall provision, Section 1132(a)(3). Thus, the holding in Benamara regarding prospective relief is really dictum. Finally, unlike in the case at bar, the Section 1132(a)(3) claim in Benamara was supported by an allegation suggesting a breach of fiduciary duty. Equally unpersuasive is Reinert. That case was before the court on cross-motions for summary judgment, and the question for resolution was whether the claims administrator was a proper party, not whether equitable relief was appropriate where Section 1132(a)(1)(B) provides an adequate remedy. 1997 WL 364499, at *5-6. Thus, Plaintiffs authority is simply inapposite here.

Because Plaintiffs attempt to add the proposed Third Claim for Equitable Relief under Section 1132(a)(3) fails as a matter of law, it would be futile to allow Plaintiff to amend her complaint to add this claim.

2. Plaintiffs Proposed Fourth and Fifth Claims for Breach of Fiduciary Duty against Expanded Mellon Defendants

Next, Plaintiff proposes to add two claims for breach of fiduciary duty under 29 U.S.C. §§ 1104(a)(1), 1109 and 1132(a)(2) — one for imprudent investment and management of Plan assets, and the other for failure to act in accordance with documents and instruments governing the Plan-against the following Defendants” Mellon Long-Term Disability Plan, Sheila Miller, Mellon Bank, N.A., Mellon Financial Corporation, BNY Mellon Corp., and the CBC, as well as proposed new defendants, the BIC and John Doe (collectively referred to by Plaintiff as the “Mellon defendants”, but as noted above, the Court will refer to this group as the “Expanded Mellon Defendants”). In support of her claim for imprudent investment and management of Plan assets, Plaintiff alleges:

The actions of the Mellon defendants in engineering the Buyout and leaving a de minimus corpus in the existing funded trust were subject to the [fiduciary duties set forth in 29 U.S.C. § 1104(a)(1) ]. By their acts and omissions in connection with the decision to divest the Plan of virtually all of its assets in order to obtain an insurance policy which, upon information and belief, would not provide for the payment of benefits and other appropriate relief in the event plaintiff were to prevail, the Mellon defendants breached each of these fiduciary duties by failing to insure that the Plan possessed and possesses sufficient assets to comply with a judgment entered in this action directing the Mellon defendants to pay benefits and additional relief to plaintiff in conformity with the terms of the Plan.

Prop. Am. Compl., ¶ 106. Section 1104(a)(1) provides, in relevant part:

... a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and—

(A) for the exclusive purpose of:

(i) providing benefits to participants and their beneficiaries; and

(ii) defraying reasonable expenses of administering the plan;

(B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims;

(C) by diversifying the investments of the plan so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so; and

(D) in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this subchapter and subchapter III of this chapter.

29 U.S.C. § 1104(a)(1). In support of her claim that the Expanded Mellon Defendants failed to act in accordance with the documents and instruments governing the Plan, Plaintiff alleges:

The Plan Document required that the decision to divest the Plan of virtually all of its assets and to purchase a policy of insurance which, upon information and belief, would only provide benefits for disabilities occurring after the policy went into effect, be undertaken only upon sufficient provision being made to secure the Plan’s ability to pay benefits to plaintiff or, for that matter, any other participant or beneficiary whose claim might give rise to an entitlement to benefits which could not be paid under the insurance policy. The decision of the Mellon defendants to divest the Plan of virtually all of its assets without making sufficient provision for payment of benefits not covered by insurance, violated the terms of the documents governing the plans.

Prop. Am. Compl., ¶ 115. In addition, Section 1109 provides, in relevant part:

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, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate, including removal of such fiduciary.

29 U.S.C. § 1109(a). Section 1132(a)(2) authorizes the Secretary of Labor, a participant, beneficiary, or fiduciary to bring a civil action for appropriate relief under Section 1109.

To get around the Defendants’ argument in their motions to dismiss that the only proper party against whom a claim for denial of benefits under Section 1132(a)(1)(B) may be brought is the Plan, Plaintiff attempts to assert additional facts by way of amended complaint to show that the non-Plan Defendants are fiduciaries and that they breached a fiduciary duty under 29 U.S.C. §§ 1104(a)(1) and 1109(a). The Court finds the facts asserted by Plaintiff in her proposed amended complaint do not establish a plausible claim against the non-Plan Defendants for breach of fiduciary duty.

In order to maintaining a breach of fiduciary duty claim against the non-Plan Defendants under ERISA, it is axiomatic that Plaintiff must first establish that each is a fiduciary. Section 3(21)(A) of ERISA provides the following definition of a fiduciary:

[A] person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, ... or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan. Such term includes any person designated under section 1105(c)(1)(B) of [title 29].

29 U.S.C. § 1002(21)(A). ERISA further provides that a corporation may be a “person” under the definition of fiduciary. 29 U.S.C. § 1002(9). It is well established that a determination about whether a claimant is entitled to benefits under the terms of the plan documents is a fiduciary act connected to plan administration. Aetna Health Inc. v. Davila, 542 U.S. 200, 219-20, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004) (citing Varity Corp. v. Howe, 516 U.S. 489, 512, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996)). Fiduciary status does not simply attach to any administrative activity, but rather, only to the person (or entity) who has final authority to authorize or disallow a claim for benefits under the plan. Varity, 516 U.S. at 512, 116 S.Ct. 1065 (citing Dep’t of Labor Interpretative Bulletin § 75-8, 29 C.F.R. § 2509.75-8 (1995)) (emphasis added). In addition, such person must be acting as a fiduciary when determining a claim for benefits. Davila, 542 U.S. at 220, 124 S.Ct. 2488.

With these precepts in mind, the Court will address the viability of the proposed Fourth and Fifth Claims against each of the Expanded Mellon Defendants,

a. Mellon Long Term Disability Plan

The breach of fiduciary duty claims against the Plan are completely unavailing. Section 1132(a)(2) allows a claim to be brought by the Secretary, a participant, beneficiary, or fiduciary for appropriate relief under 29 U.S.C. § 1109. However, it is well settled that recovery under Sections 1109 and 1132(a)(2) inures to the plan, not the individual. Leckey v. Stefano, 501 F.3d 212, 226 (3d Cir.2007) (citing Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 147, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985); Knudson, 534 U.S. at 213, 122 S.Ct. 708); see also Varity, 516 U.S. at 515, 116 S.Ct. 1065 (citation omitted). As noted by the court of appeals in Hozier v. Midwest Fasteners, Inc.:

Even if plaintiffs could establish that a fiduciary duty owed to them has been breached, it is unclear whether they could recover from defendants in their fiduciary capacity. The liability of fiduciaries is governed by § 409 of ERISA, which provides that “[a]ny person who is a fiduciary with respect to a plan who breaches any of the ... duties imposed upon fiduciaries by [ERISA] shall be personally liable to make good to such plan any losses to the plan resulting from each such breach.” 29 U.S.C. § 1109(a) (emphasis added). This liability accrues only to the plan itself, not to participants suing in their individual capacities. See Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 140, 105 S.Ct. 3085, 3089, 87 L.Ed.2d 96 (1985). Section 502(a)(2) of ERISA entitles individual participants to sue “for appropriate relief’ under § 409. 29 U.S.C. § 1132(a)(2). Because § 409 liability accrues only to the plan itself, § 502(a)(2) in effect allows individual participants to sue “in a representative capacity on behalf of the plan as a whole.” Russell, 473 U.S. at 142 n. 9, 105 S.Ct. at 3090 n. 9. Because plaintiffs here seek to recover benefits allegedly owed to them in their individual capacities, their action is plainly not authorized by either § 409 or § 502(a)(2).

Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1162 n. 7 (3d Cir.1990). Therefore, Plaintiff, as a participant, can only bring a claim pursuant to §§ 1132(a)(2) and 1109 on behalf of the Plan, not against the Plan.

b. The “Bank Defendants”

In the case at bar, the Bank Defendants submit that the allegations in the proposed amended complaint do not establish that any of them is a fiduciary under ERISA. In support of this argument, the Bank Defendants submit that the proposed amended complaint does not contain any well-pleaded facts to the effect that any of them exercised or had actual control over, influenced or dictated the actions, decisions or operations of the CBC or BIC in any manner or respect, or any control over the decision of the LTD Plan to deny Plaintiffs appeal seeking LTD benefits. In response, Plaintiff contends that the facts clearly demonstrate the Bank Defendants maintained actual control over the operations of the CBC to a degree which warrants a finding that t hey were fiduciaries. In support, Plaintiff points to paragraph 14 of the proposed amended complaint, wherein she asserts that Mellon Financial Corp. and BNY Mellon Corp. had the authority to remove members of the CBC and/or CIB.

The Court agrees with the Bank Defendants. In her proposed amended complaint, Plaintiff acknowledges the statement of Defendant Sheila Miller that Defendant Mellon Financial Corporation ceased to exist on July 1, 2007, when BNY Mellon Corp. was formed. Plaintiff also acknowledges that Mellon Bank, N.A. changed its name to BNY Mellon, N.A. Yet, Plaintiff continues to name Mellon Bank, N.A. and Mellon Financial Corporation as defendants in the proposed amended complaint. Moreover, none of the factual allegations in the proposed amended complaint vis a vis BNY Mellon, N.A. or BNY Mellon Corp., shows that either entity (or their predecessors-in-interest) had actual control or influence over, or dictated, the decisions or operations of the CBC in any manner or respect with regard to the decision of the CBC to deny Plaintiffs claim for LTD benefits. Nor does the proposed amended complaint allege that either BNY Mellon, N.A. or BNY Mellon Corp. (or their predecessors-in-interest) had actual control or influence over, or dictated, the decisions or operations of the BIC, in any manner or respect, with regard to the management or investment of Plan assets. Merely asserting that the Bank Defendants had authority to remove members of the CBC and BIC does not make these Defendants fiduciaries with regard to the alleged breaches of fiduciary duties relating to plan administration and/or management and investment of Plan assets. Gelardi v. Pertec Computer Corp., 761 F.2d 1323, 1325 (9th Cir.1985) (employer and board of directors which appointed plan administrator were fiduciaries and liable as such only with regard to the selection of the plan administrator) (citing 29 C.F.R. § 2509.75-8(D-4), (FR-16)); In re Williams Cos. ERISA Litig., 271 F.Supp.2d 1328, 1339 (N.D.Okla.2003) (holding because board of directors was only vested with power to appoint, retain, or remove members of benefits committee, its fiduciary liability was limited to only those acts) (citing Indep. Ass’n of Publishers’ Employees, Inc. v. Dow Jones & Co., Inc., 671 F.Supp. 1365, 1367 (S.D.N.Y.1987); 29 U.S.C. § 1002(21)). And the proposed amended complaint does not contain any allegations to suggest, let alone show, that the Bank Defendants somehow breached a fiduciary duty in the appointment or removal of members of the CBC or BIC.

Consequently, the proposed amended complaint fails to plead a factual basis to show a plausible claim against Defendants

Mellon Bank, N.A., Mellon Financial Corporation, or BNY Mellon Corp.

c. Sheila Miller

Likewise, the Court finds that the factual allegations in the proposed amended complaint do not establish that Sheila Miller, the Plan Manager, is a fiduciary. In reaching this conclusion, the Court is guided by the decision of the Court of Appeals for the Third Circuit in Taylor v. Peoples Natural Gas Company, 49 F.3d 982 (3d Cir.1995). In that case, the Court of Appeals addressed the standards under which an individual employee may be held liable as an ERISA fiduciary:

[Individuals, whose activities are limited “within a framework of policies, interpretations, rules, practices, and procedures made by other persons, fiduciaries with respect to the plan,” cannot be individually liable as fiduciaries under ERISA, since they fail to exercise “the discretionary authority or discretionary control” over the plan required for the direct imposition of fiduciary liability. See ERISA § 3(21)(A), 29 U.S.C.A. § 1002(21)(A)(West Supp.1993).

49 F.3d at 987 (quoting Dep’t of Labor Regulation § 2509.75-8, 29 C.F.R. § 2509.75-8, Q & A D-2). Thus, the Taylor court held that a plan sponsor’s “Supervisor of Employee Benefits” was not an ERISA fiduciary, as his activities were limited to administrative ministerial functions, such as advising employees of their rights and options under the plan, preparing reports concerning participants’ benefits, and calculating the costs of alternative plan amendments on behalf of the plan administrator. Id. at 982.

Like the plan sponsor’s employee in Taylor, Sheila Miller did not have any discretionary authority. Rather, Sheila Miller’s responsibilities were solely ministerial in nature, as evidenced by the plain language of the Plan. Section 1.25 defines the Plan Manager as the “person(s), designated pursuant to Section 5.2(d), who is (are) responsible for the day-to-day administration of the Plan.” Plan, § 1.25. Section 5.2(d) elaborates on the responsibilities of the Plan Manager: “The Plan Manager(s) shall be responsible for the day to day administration of the Plan and shall act solely within the framework of the policies, interpretations, practices, and procedures established by the CBC and, as such, shall be considered as acting solely in a ministerial capacity.” Plan, § 5.2(d). Thus, the Plan explicitly limits Defendant Sheila Miller’s authority to ministerial tasks which, under Taylor and the DOL regulations, does not rise to the level of discretionary authority in administration of the Plan required for fiduciary status. Plaintiffs new allegation in the proposed amended complaint, that as Plan Manager, Sheila Miller had “ ‘discretionary authority or discretionary responsibility in the administration of [the][P]lan’ in accordance with 29 U.S.C. § 1002(21)(A)”, does not establish that she is a fiduciary, as it is a eonclusory allegation, which the Court may disregard for purposes of the pending motions. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir.2009).

In addition, none of the factual allegations set forth in the proposed amended complaint regarding Defendant Sheila Miller shows that she is a fiduciary. For example, in paragraph 6 of the proposed amended complaint, Plaintiff asserts that at all relevant times Sheila Miller acted as the Plan Manager as defined in Section 1.25 of the Plan. In paragraph 36, Plaintiff asserts that Section 2.2 of the Plan “states that a participant will be eligible for benefits under the Plan provided that, among other things, the Plan Manager determines that the participant is Totally Disabled within the meaning of § 2.3.” Proposed Am. Compl., ¶ 36. In actuality, Section 2.2 of the Plan states that a “[participant shall be initially eligible for benefits under the Plan if he satisfies the application requirements of Section 6.2” and if all five enumerated conditions are met, one of which is that the Plan Manager determines that the participant is totally disabled as defined in Section 2.3. (Emphasis added.) This allegation does not establish any discretionary authority on Sheila Miller’s part, but rather, shows merely that she was acting within the “framework of the policies, interpretations, practices, and procedures” established by the Plan Administrator, the CBC, specifically Section 2.3 of the Plan, in determining whether a participant is totally disabled. The authority given to the Plan Manager, Sheila Miller, is indistinguishable from that in Taylor, which was found to be ministerial in nature.

In newly added paragraph 41 (i), Plaintiff alleges that the Plan Manager sent her a letter on July 24, 2007, advising her that her appeal would be delayed because not all of her doctors had responded to CIGNA’s request for information. Proposed Am. Compl., ¶ 41(i). In paragraph 44, Plaintiff asserts that on October 12, 2006, Sheila Miller sent a letter to Plaintiff (“Initial Determination”) in which Defendant Miller informed Plaintiff that the Plan determined that no benefits were payable as of October 15, 2006. Id. at ¶ 44. (Emphasis added.) Sheila Miller is also alleged to have sent a letter to Plaintiff on April 17, 2007 acknowledging that the CBC received Plaintiffs appeal. Id. at ¶ 50. These allegations demonstrate merely that Sheila Miller was acting solely in a ministerial capacity on behalf of the CBC.

Similarly, the allegations in paragraphs 73, 86, and 87 of the proposed amended complaint again describe ministerial tasks of the Plan Manager (such as ordering IMEs) and demonstrate that Sheila Miller was acting solely in a ministerial capacity when she wrote to Plaintiff on September 21, 2004 informing her of the CBC’s decision to initially deny her claim for benefits and on April 17, 2007. Therefore, Plaintiff has failed to allege any facts to suggest, let alone show, that Defendant Sheila Miller was acting in a fiduciary capacity with regard to her handling of Plaintiffs claim for LTD benefits. Accordingly, the proposed amended complaint fails to state a plausible claim for breach of fiduciary duty against Sheila Miller.

d. CBC

The proposed amended complaint also fails to establish a plausible claim for breach of fiduciary duty as to the CBC. The allegations set forth in paragraphs 12, 13, 14 of the proposed amended complaint, as well as Sections 5.1 and 5.3, establish that the CBC was a fiduciary to the extent it exercised discretionary authority or control with respect to the administration of the Plan. In this regard, it appears that when the CBC made a final determination denying Plaintiffs claim for LTD benefits, it was acting in a fiduciary capacity. Plan, § 5.3(a)(i). However, the CBC was dissolved in July 2009 and, thus, no longer exists. In any event, under the Plan, the CBC was not authorized to engage in the acts that form the basis of Plaintiffs Fourth and Fifth Claims; those powers are expressly reserved to the BIC. Nor does the proposed amended complaint set forth any allegations of fact showing that the CBC engaged in any conduct involving the management or investment of Plan assets. “Fiduciary duties under ERISA attach not just to particular persons, but to particular persons performing particular functions” that ERISA has defined as fiduciary in nature. Hozier, 908 F.2d at 1158-59; see also 29 U.S.C. § 1002(21)(A). Thus, the proposed amended complaint fails to establish that the CBC was a fiduciary with regard to the duties allegedly breached in Plaintiffs Fourth and Fifth Claims. Accordingly, the Court finds the proposed amended complaint fails to state a plausible claim for breach of fiduciary duty against the CBC.

e. BIC

As with the CBC, the Plan establishes that the BIC is a named fiduciary when exercising certain powers granted thereunder. Specifically, the BIC is vested with discretionary authority in the management of the Plan assets and investment decisions. However, the BIC’s discretionary authority does not include the power to adopt, amend, or terminate the Plan, as said power is expressly reserved to the Plan Sponsor, Mellon Bank, N.A. Plan, § 5.3(a) (vi). In support of her breach of fiduciary duty claims, Plaintiff alleges that the Expanded Mellon Defendants engaged in imprudent investment and management of Plan assets and failed to act in accordance with the documents and instruments governing the Plan, when they made the decision to withdraw substantial funds from the Trust, purportedly leaving insufficient funds in the Trust to pay her claim if judgment is entered in her favor. However, Plaintiff does not proffer any allegations to support the conclusion that Defendants engaged in imprudent investment and management of the Plan assets. Rather, she alleges that Defendants withdrew substantial funds from the Trust, purportedly leaving insufficient funds to pay her claim if judgment is entered.

These factual allegations do not support a breach of fiduciary duty claim with regard to a self-funded welfare benefit plan. Instead, the alleged withdrawal of funds from the Trust represents a change in the way the Plan is funded, which is not a fiduciary act, but a business decision made by the Plan Sponsor, not BIC. Lockheed Corp. v. Spink, 517 U.S. 882, 890, 116 S.Ct. 1783, 135 L.Ed.2d 153 (1996). The Supreme Court in Lockheed concluded that inasmuch as the definition of a fiduciary under ERISA does not include acts involving plan design, amending or terminating a welfare plan is not an act of plan management or administration, and thus, not subject to fiduciary review. Id., 517 U.S. at 890, 116 S.Ct. 1783 (citing Siskind v. Sperry Ret. Program, Unisys, 47 F.3d 498, 505 (2d Cir.1995); Varity, 516 U.S. at 505, 116 S.Ct. 1065); see also Hozier, 908 F.2d at 1160-62.

To support her argument that the Expanded Mellon Defendants breached their fiduciary duties by substantially reducing funding in the Trust, Plaintiff relies on Sections 1.23 and 8.1 of the Plan, as well as on Frulla v. CRA Holdings Inc., 596 F.Supp.2d 275 (D.Conn.2009). However, such reliance is misplaced. Although the court in Frulla held that the fiduciaries may have breached their fiduciary duties by failing to take steps to ensure that the plan sponsor adequately funded the plan, this holding was based on the court’s determination that the plan sponsor was contractually obligated to provide and fund benefits under the welfare plan, even though ERISA did not impose a minimum funding requirement for welfare plans. Id. at 283-84 (emphasis added). To the extent Plaintiff attempts to argue that sections 1.23 and 8.1 of the Plan, when read in conjunction with the allegations in the proposed amended complaint, created an implied contract to provide sufficient fund assets to pay Plaintiff out of trust fund assets, her argument is unavailing. Contrary to Plaintiffs construction of sections 1.23 and 8.1, those provisions do not contain any language to suggest, let alone require, adequate funding. Indeed, section 8.1 provides quite the contrary:

[A]ny rights created hereunder shall be considered to be non-contractual.... The Participants have no vested or nonforfeitable rights to any benefits created under this Plan, including but not limited to benefits that are in pay status.... The claims of Participants under the Plan are confined to and are collectible solely from the assets of the Fund which are attributable to the Plan Account.

Plan, § 8.1. In addition, § 8.2 provides that the plan sponsor “has the right, in its sole discretion, to cease making contributions under and to the Plan.” Plan, § 8.2. Accordingly, the Court finds no merit to Plaintiffs argument.

Thus, the Fourth Claim against BIC fails for two reasons. First, in the ease at bar, the Plan Sponsor’s decision to significantly reduce the amount of the assets in the Trust and purportedly purchase an insurance policy with the funds clearly constitutes a business decision regarding how the Plan would be funded, and the carrying out of that decision resulted in an amendment of the Plan, neither of which is a fiduciary act. Second, the decision to reduce the funding in the Trust established for the Plan was not made by any of the named Defendants, nor was it made by the BIC. The Plan expressly reserves that power to the Plan Sponsor, BNY Mellon, N.A., who is not a named party.

And lest Plaintiff attempt to amend her complaint to add BNY Mellon, N.A., such attempt would also be futile because the termination or amendment of a welfare plan is not a fiduciary act as defined under ERISA. Lockheed, 517 U.S. at 890, 116 S.Ct. 1783 (“Plan sponsors who alter the terms of a plan do not fall into the category of fiduciaries.”); Hozier, 908 F.2d at 1162. As the Supreme Court opined in Curtiss-Wright Corporation v. Schoonejongen, 514 U.S. 73, 115 S.Ct. 1223, 131 L.Ed.2d 94 (1995), “[ejmployers or other plan sponsors are generally free under ERISA, for any reason at any time, to adopt, modify, or terminate welfare plans.” 514 U.S. at 78, 115 S.Ct. 1223 (citing Adams v. Avondale Indus., Inc., 905 F.2d 943, 947 (6th Cir.1990)).

With regard to her Fifth Claim in particular, Plaintiff alleges in paragraph 115 of the proposed amended complaint that the Plan document required that the decision to divest the Plan of virtually all of its assets and to purchase a policy of insurance be undertaken only upon sufficient provision being made to secure the Plan’s ability to pay benefits to Plaintiff and any participant or beneficiary whose claim might give rise to entitlement to benefits which could not be paid under the insurance policy, and in failing to make a sufficient provision for payment of benefits not covered by insurance, the Mellon defendants violated the terms of the documents governing the plans. Prop. Am. Comph, ¶ 115. However, Plaintiff fails to identify the section(s) of the Plan Document or other documents which purportedly contain this provision, and the Court’s perusal of the Plan Document failed to locate any such provision. Thus, Plaintiffs argument does not find support in the record. At best, Plaintiffs allegations in support of her Fifth Claim are conclusory and thus do not have to be accepted as true in considering a 12(b)(6) motion.

Accordingly, for all of the above reasons, the Court finds the proposed amended complaint fails to state a plausible claim for breach of fiduciary duty against the BIC.

f. John Doe

Finally, the proposed amended complaint also fails to establish a plausible claim for breach of fiduciary duty as to John Doe, in his capacity as the Global Head of Compensation and Benefits of the BNY Mellon Corp. and as Plan Administrator of the Mellon Long-Term Disability Plan. According to the proposed amended complaint, counsel for the Expanded Mellon Defendants informed Plaintiffs counsel via correspondence that following the dissolution of the CBC in July 2009, the Plan Administrator is the Global Head of Compensation and Benefits of the BNY Mellon Corp. Prop. Am. Compl., ¶ 23. Plaintiffs attempt to add John Doe is futile because the Plan simply does not authorize the Plan Administrator, whoever that person or entity is, to make decisions regarding the management and/or investment of plan assets, or to amend or terminate the Plan. Moreover, none of the factual allegations in the proposed amended complaint show or event suggest that the Global Head of Compensation and Benefits breached a fiduciary duty owed to Plaintiff in administering the Plan and/or in exercising any of the Plan Administrator’s duties set forth in Section 5.3(a) of the Plan, nor could it, since the CBC was the Plan Administrator at all relevant times. See Pegram v. Herdrich, 530 U.S. 211, 226, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000) (“In every case charging breach of ERISA fiduciary duty, then, the threshold question is not whether the actions of some person employed to provide services under a plan adversely affected a plan beneficiary’s interest, but whether that person was acting as a fiduciary (that is, was performing a fiduciary function) when taking the action subject to complaint.”) Accordingly, the proposed amended complaint fails to state a plausible claim for breach of fiduciary duty against John Doe in his individual capacity.

However, the current Plan Administrator may be named in its official capacity as a defendant in a § 1132(a)(1)(B) claim for recovery of benefits. Graden v. Conexant Systems Inc., 496 F.3d 291, 301 (3d Cir.2007) (citation omitted); Hahnemann Univ. Hosp. v. All Shore, Inc., 514 F.3d 300, 308 (3d Cir.2008) (citing Graden, supra); see also discussion, infra, at 441-42. Therefore, the Court will allow Plaintiff leave to amend her complaint, but only with respect to adding the current Plan Administrator in its official capacity.

3. Plaintiffs Proposed Sixth Claim for Vicarious Liability Against the Bank Defendants under Doctrine of Respondeat Superior

The crux of Plaintiffs proposed Sixth Claim in which she seeks to hold the Bank Defendants vicariously liable under the doctrine of respondeat superior, is that CBC and/or BIC, as the agents of the Bank Defendants, through their constituent members, acted within the scope of their authority as employees of the Bank Defendants while engaged in the performance of their duties as designated members of the CBC and/or BIC and while employed by and acting in furtherance of the business of the Bank Defendants. Proposed Am. Compl., ¶ 120. Consequently, Plaintiff submits the Bank Defendants are vicariously liable for the actions of the CBC and BIC as set forth in the proposed amended complaint. Id. at ¶ 121.

Plaintiff and the Bank Defendants dispute whether respondeat superior is a viable theory of recovery in ERISA actions. Plaintiff maintains that it is and submits that based on controlling precedent in this circuit, a participant may recover damages for the benefit of the plan directly from the employer or plan sponsor if she can show that the plan fiduciaries breached their duties, citing McMahon v. McDowell, 794 F.2d 100, 109 (3d Cir.1986). Plaintiff also cites several district court cases in support of her position.

The Bank Defendants advance several arguments in opposition. First, the Bank Defendants contend that because Plaintiff has failed to adequately plead a breach of fiduciary duty claim against any Defendant for the Settlor’s/Plan Sponsor’s decision to modify its manner of self-funding the LTD Plan, no respondeat superior liability can be asserted against any Defendant in Plaintiffs proposed Sixth Claim.

Second, the Bank Defendants submit that when the members of the CBC and BIC were acting within the scope of their authority as set forth under the terms of the LTD Plan, the employee-members were wearing their fiduciary hats and not acting as employees. Consequently, when acting as a fiduciary, the Bank Defendants posit that the employee-members are liable only under ERISA because the employee’s duty to act on behalf of his or her employer is replaced with a fiduciary duty owed only to the plan. Stated another way, under the “two hats” theory, when an employee takes actions regarding the plan, he or she is not acting within the scope of his authority granted by the employer, but rather, is acting within the scope of authority granted by the plan or plan fiduciary. Thus, the Bank Defendants maintain that liability for the members’ alleged breaches of fiduciary duty under ERISA cannot be imputed to them on the basis of respondeat superior liability, citing several district court cases in support. The Bank Defendants further submit that respondeat superior liability does not arise simply because they appointed their officers, directors or employees to fiduciary positions regarding ERISA plans.

For their third argument, the Bank Defendants submit that ERISA preempts common law theories of liability that are not expressly set forth in ERISA’s comprehensive and reticulated enforcement scheme, § 514(a) and (c)(1), 29 U.S.C. § 1144(a) and (e)(1). Consistent with Supreme Court precedent, the Bank Defendants maintain that no reason exists for recognizing an implied ERISA cause of action based on the doctrine of respondeat superior, as ERISA’s “carefully crafted and detailed enforcement scheme provides ‘strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.’ ” In re AOL Time Warner, Inc. Sec. & ERISA Litig., No. MDL 1500, 02-8853, 2005 WL 563166, at *4 n. 5 (S.D.N.Y. Mar. 10, 2005) (quoting Mertens v. Hewitt Assocs., 508 U.S. 248, 254, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993)).

Finally, the Bank Defendants submit that Plaintiff fundamentally misconstrues the court of appeals decision in McMahon, in that the court of appeals was not talking about holding the employer liable for the breach of the fiduciary’s duties. Rather, the Bank Defendants posit that what the court of appeals meant by the statement, “if a beneficiary or participant can show that the plan fiduciaries breached their duties, he may also be able to recover damages, for the benefit of the plan, directly from the employer”, was that if the participants can establish that the fiduciaries breached their duties in failing to pursue the employer for breach of contract for nonpayment of pension contributions, then the participants may stand in the shoes of the plan fiduciaries and maintain a derivative action against the employer for unpaid contributions. In any event, the Bank Defendants point out that McMahon was decided one year before the Supreme Court’s decision in Pilot Life, which was the first Supreme Court decision on preemption that clearly rejected the assumption that an expansive interpretation of the enforcement provisions under § 502 of ERISA was permitted or that common law principles could be easily imported.

Although there appears to be some conflict among the various courts of appeals as to whether respondeat superior may be invoked to impose liability against a non-fiduciary employer/plan sponsor under ERISA for a breach of fiduciary duty by the employer’s/plan sponsor’s agenVemployee, the majority of circuits, including the Third Circuit, appear to allow such theory of recovery, but apply slightly different tests. See, e.g., McMahon, 794 F.2d at 109 (“if a beneficiary or participant can show that the plan fiduciaries breached their duties, he may also be able to recover damages, for the benefit of the plan, directly from the employer.”) (citing Struble v. New Jersey Brewery Employees’ Welfare Trust Fund, 732 F.2d 325 (3d Cir. 1984)); Am. Fed’n of Unions Local 102 Health & Welfare Fund v. Equitable Life Assurance Soc’y, 841 F.2d 658, 665 (5th Cir.1988) (“The doctrine of respondeat superior can be a source of liability in ERISA cases .... For respondeat superi- or liability to attach, the employee must have breached his duty to a third party while acting in the course and scope of his employment[,]” and the employer must have “actively and knowingly participated” in the breach of duty); Hamilton v. Carell, 243 F.3d 992, 1002-03 (6th Cir.2001) (declining to reach the broader question of whether the doctrine of respondeat superi- or applies in ERISA cases alleging a breach of fiduciary duty, but observing that the doctrine would be applicable only if the employee who breached fiduciary duties did so in the course and scope of his employment with the employer; rejecting the “active and knowing participation” requirement imposed by the Fifth Circuit in American Federation); Howell v. Motorola, Inc., 337 F.Supp.2d 1079, 1095 (N.D.Ill.2004) (declining to grant a motion to dismiss an ERISA claim against an employer under respondeat superior doctrine, noting Seventh Circuit had not held respondeat superior doctrine was inapplicable to ERISA claims); Kling v. Fidelity Mgmt. Trust Co., 323 F.Supp.2d 132, 147 (D.Mass.2004) (holding claim may be stated under ERISA based on respondeat superior liability); Meyer v. Berkshire Life Ins. Co., 250 F.Supp.2d 544, 563 (D.Md. 2003) (observing as dictum that the employer would also be derivatively liable for its fiduciary-employee’s breach under vicarious liability theory if Fourth Circuit were to adopt one of the various tests advanced by the other courts of appeals) (footnote omitted), aff'd 372 F.3d 261 (4th Cir.2004). Compare Crocco v. Xerox Corp., 137 F.3d 105, 107-08 (2d Cir.1998) (holding employer was not a de facto administrator where plan documents clearly indicated employer was neither the plan administrator nor plan trustee, and therefore, could not be held liable on denial of benefits claim under § 1132(a)(1)(B)); AOL Time Warner