be dismissed because there are no allegations against those
1. The Legal Standard
Defendants have moved in the alternative to dismiss or for
summary judgment. Fed.R.Civ.P. 12(b)(6), 56. Because the
parties have submitted matters outside the pleadings, I will
treat the motion as one for summary judgment. Nat'l Ass'n of
Pharmaceutical Mfrs. v. Ayerst Lab., 850 F.2d 904, 911 (2d
Rule 56 provides that summary judgment may be granted only when
"there is no genuine issue as to any material fact . . ." A
party moving for summary judgment must therefore establish that
the record as a whole, viewed in the light most favorable to
the non-moving party, could not lead a rational factfinder to
find for the non-moving party. Matsushita Elec. Indus. Co. v.
Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89
L.Ed.2d 538 (1986).
The party seeking summary judgment bears the initial burden of
showing that there are no relevant facts in dispute, Celotex
Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91
L.Ed.2d 265 (1986), and must "point to an absence of evidence
to support an essential element of the nonmoving party's
claim." Brady v. Town of Colchester, 863 F.2d 205, 211 (2d
Cir. 1988). However, once the movant has done so, the nonmoving
party must go beyond the pleadings and designate specific
factual issues through affidavits, depositions, answers to
interrogatories, or admissions on file. Celotex, 477 U.S. at
324, 106 S.Ct. at 2553.
2. The Summary Plan Description
ERISA requires that participants in a benefits plan receive a
summary plan description outlining, inter alia, the plan's
requirements concerning eligibility for participation and
benefits and circumstances which could result in a denial or
loss of benefits. 29 U.S.C. § 1022. If the description does not
adequately inform an employee of his rights under the plan, the
employee may bring a civil action against plan fiduciaries for
any damages that result from their failure to disclose.
29 U.S.C. § 1001(b), 1132(a)(1)(B).
Defendants' alleged breach of these disclosure requirements
forms part of the basis of both Count I and Count IV. In Count
I, Swanson alleges that the Plan Summary was inadequate because
it did not inform him of the consequences of signing retirement
papers when he did. More particularly, Swanson alleges that the
summary failed to inform him what constituted "retirement"
under the Plan, that signing retirement papers would affect the
calculation of his benefits, and how and when he could change a
decision to retire. Plaintiff also claims that the Plan
description should have advised him "to take enough time and
consider other alternatives to be sure he wanted to retire" in
1986. Plaintiff's Statement of Material Facts in Dispute p. 2.
In Count IV, Swanson alleges that he has not retired under the
terms of the Plan because he did not "withdraw completely from
employment in the industry . . ." In part, Swanson's
interpretation of the Plan in this regard is based on his
contention that the Plan is unclear regarding the calculation
of benefits, and that its terms should therefore be construed
In addition, Swanson maintains that he constructively withdrew
his request to retire by accepting employment after he signed
the papers but before the Trustees approved his application.
Plaintiff also claims that under the Plan, he could "withdraw"
his retirement application even following Trustee approval in
the event of his "reemployment in the industry," which he
claims occurred in his case.
In response, defendants contend that ERISA does not require
summary plan descriptions to include the information which
Swanson alleges was omitted from or inadequately explained in
his Plan Summary. Defendants also argue that even if these
items are required by ERISA, plaintiff's claims relating to the
Plan Summary should be dismissed because the items
were in fact addressed in the summary given to Swanson.
The Plan Summary
Before the court addresses these contertions, a review of the
relevant provisions of the Plan Summary is needed.
The summary informed participants that "You are eligible to
retire on a normal retirement pension at any time you wish
after you have reached age 65 and completed at least five (5)
Years of Service." Plan Summary p. 11. It further stated that
"You must file a written application on forms provided at the
Fund Office before any pension will be paid." Id. at 21.
The Plan Summary warned participants that "You cannot change
the form of pension that you selected after your pension
payments have commenced," and that
[y]ou cannot reject your pension after your application has
been approved by the Trustees. A participant shall be allowed
to withdraw his application for pension benefits, on forms
provided, prior to Trustee approval thereof. However, if
approval of the application has occurred, benefit payments may
not be later rejected by the participant except in the event of
re-employment in the industry as provided on page 33.
Id. at 17 (emphasis in original).
On page 33, a provision entitled, "RETIREMENT DEFINED;
RE-EMPLOYMENT OF RETIRED EMPLOYEES," stated as follows:
To be considered retired under the U.A. Local 13 Pension Plan,
you must withdraw completely from employment in the industry
within the geographic area of Local 13. You will not be
entitled to a monthly pension for any month during which you
are re-employed for 40 or more hours of work.
If you retire on pension and later return to work, upon
subsequent retirement you are entitled to a pension equal to
the pension you were receiving before your retirement; and, if
you are credited with at least 1,000 Hours of Service during
the first year of your re-employment and you do not already
have 30 years of Credited Service, you are also entitled to a
pension based on the period of reemployment. Credit for the
period of reemployment would be limited so that your total
Credited Service would not be more than 30 years. This
additional pension is calculated on the benefit formula in
effect at the date of reapplication for benefits.
Id. at 33.