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November 21, 1991


The opinion of the court was delivered by: Wexler, District Judge.


Plaintiff/counterclaim defendant Irwin Plotkin ("Plotkin") brings this action against defendant/counterclaim plaintiff Bearings Limited ("Bearings" or "the company") as well as defendants John Bauer ("Bauer"), Michelle Saunders ("Saunders"), Jeff D. Feldman and Martin Granowitz, (collectively "defendants"), alleging, inter alia, violations of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1024(b)(4) and 1132(a)(1)(B). This Court has jurisdiction to hear this action pursuant to 29 U.S.C. § 1132(e). Additionally, both Plotkin and Bearings assert various state claims and counterclaims. Currently before the Court is Bearings' motion to dismiss*fn1 in its entirety Plotkin's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and Plotkin's cross-motion to dismiss Bearings' counterclaims against Plotkin and counterclaim defendant GA-RO International, Inc. ("GA-RO"). For the reasons set forth below, the Court grants defendants' motion to dismiss the ERISA claims and declines to hear the remaining state claims and counterclaims.


On July 6, 1990, Bearings, a ball and roller bearings importer/exporter and wholesaler, terminated Plotkin, who for fifteen years had been an employee of the company. On August 21, 1990, Bearings commenced an action in the Supreme Court of Suffolk County, New York, alleging, inter alia, that Plotkin had secretly violated his duty of loyalty by incorporating and operating GA-RO,*fn2 a competitor company, while he was employed by defendant. On October 5, 1990, Plotkin filed his answer and that suit is currently pending.

On February 7, 1991, Plotkin filed an action in this Court alleging a violation of 29 U.S.C. § 1024(b)(4). Specifically, Plotkin contends that defendants failed to respond to written requests made to Bauer, on May 3 and May 21, 1990, two months prior to Plotkin's termination by Bearings, for information regarding the company pension plan including "how the figures were compiled, how the PLAN works, the rules and regulations of the PLAN and the plaintiff's current statement." Complaint at 3. Defendants contend that Plotkin made these requests to parties who are not designated as administrators of the plan as required by the statute and, thus, has failed to set forth any basis for relief.

Plotkin also asserts, pursuant to 29 U.S.C. § 1132(a)(1)(B), that defendants "failed to properly clarify [his] rights to future benefits under the PLAN." Id. In addition, Plotkin alleges various state law causes of action.


On a motion to dismiss, the allegations of the complaint must be accepted as true, Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972), and the complaint must be construed in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Furthermore, a complaint cannot be dismissed for failure to state a claim unless it appears beyond a doubt "`that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Dahlberg v. Becker, 748 F.2d 85, 88 (2d Cir. 1984) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)), cert. denied, 470 U.S. 1084, 105 S.Ct. 1845, 85 L.Ed.2d 144 (1985).

ERISA Claims

As noted, Plotkin alleges that defendants violated 29 U.S.C. § 1024(b)(4) which states:

  The administrator [of the plan] shall, upon
  written request of any participant or beneficiary,
  furnish a copy of the latest updated summary plan
  description, plan description, and the latest
  annual report, any terminal report, the bargaining
  agreement, trust agreement, contract, or other
  instruments upon which the plan is established or

29 U.S.C. § 1024(b)(4). Deliberate failure by the plan administrator to provide such information within thirty days allows a court, in its discretion, to impose a penalty of up to $100 per day. 29 U.S.C. § 1132(c)(1)(B).

Plotkin asks this Court to impose a penalty of $100 per day commencing June 1, 1990. Defendants contend that Plotkin received the information he requested on November 21, 1990. Plotkin disputes this contention but admits that he obtained the requested information on February 20, 1991, after the commencement of this action.

The Court finds that defendants have failed to overcome the stringent standard that would allow this Court to grant defendants' motion to dismiss on that basis. See Conley, 355 U.S. at 45-46, 78 S.Ct. at 101-02. Under ERISA, the decision to impose a penalty on an administrator who fails to furnish the requested information to a participant of the plan within 30 days is placed within the discretion of the court. 29 U.S.C. ยง 1132(c)(1)(B). However, penalties are generally not imposed for "technical violations" of that statute. See Chambers v. European American ...

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