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).