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
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).
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. § 1132(c)(1)(B). However, penalties are generally not imposed for
"technical violations" of that statute. See Chambers v.
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