in a manner very similar to that described in Section 1002(21)(A). The Plan Administrator is also included in 29 U.S.C. § 1002(14)(A) among a list of fiduciaries in the definition of the term "party in interest." Finally, defendant argues that not only is plaintiff McDermott a fiduciary as well as an employer, but McDermott was acting in its fiduciary capacity in contracting with defendants in the first place.
In response to defendants' arguments, the Court agrees with plaintiff McDermott that "whether or not an individual or entity is an ERISA fiduciary must be determined by focusing on the function performed, rather than on the title held." Blatt v. Marshall & Lassman, 812 F.2d 810, 812 (2d Cir. 1987). However, a party "need not have absolute discretion with respect to a benefit plan in order to be considered a fiduciary." Id. On the contrary, fiduciary status exists "with respect to any activity enumerated in the statute over which the [party] exercises discretion or control." Id. See also Amato v. Western Union Int'l, Inc., 773 F.2d 1402, 1416-17 (2d Cir. 1985) (ERISA permits employers to wear "two hats" -- employer in some cases and fiduciary in others).
On the face of plaintiffs' Complaint and Amended Complaint, defendants apparently contracted to manage and administer all significant aspects of both the ESOP and the 401(k). Although plaintiff McDermott may have retained the title of Plan Administrator by default, the Court finds that McDermott has sufficiently alleged that defendants assumed the functions of Plan Administrator. Defendants' argue that McDermott was acting as the Plan Administrator, and thus as a fiduciary, when it arranged for defendants to "assist" in the administration of the plans. But even if plaintiff McDermott was the Plan Administrator prior to the contract, defendants replaced McDermott as Administrators once the contract went into effect.
Defendant argues that in determining jurisdiction where a party has a capacity as both an employer and a fiduciary, "both capacities count." (Defs' Supp. Mem. Opp. Rem. at 7 (emphasis in original).) The Court is inclined to agree. However, the only real control that McDermott exercised and retained was the ability to select defendants as Administrators; such control does not, standing alone, confer upon McDermott the role of fiduciary in all suits. See Gelardi v. Pertec Computer Corp., 761 F.2d 1323, 1325 (9th Cir. 1985). Plaintiffs' claims here are based on theories of negligence and breach of contract. As such, they do not implicate the limited fiduciary function exercised and retained by McDermott. St. Francis Hosp., 776 F. Supp. at 662. In other words, rather than hold that McDermott brings this suit in its capacity as an employer and not as a fiduciary, the Court finds that for purposes of this suit McDermott had only one capacity -- that of employer. Defendants had already assumed McDermott's capacity as fiduciary.
Returning to the Dunham-Bush standard, 959 F.2d at 8, plaintiffs' claims do not fall within the civil enforcement provisions of 29 U.S.C. § 1132(a), and removal in this case was improper. Plaintiffs lack standing to bring a cause of action under ERISA in federal court because they are not among the parties enumerated in 29 U.S.C. § 1132(a).
Because plaintiffs cannot bring an action on this subject under ERISA and their claims are governed by state tort and contract law, the Court finds that it has no subject-matter jurisdiction to hear this case. The Court therefore orders that this action be remanded to New York State Supreme Court, Albany County, pursuant to 28 U.S.C. § 1447(c). Defendants' motion for dismissal of the complaint is denied as moot and plaintiffs' motion is hereby GRANTED.
IT IS SO ORDERED.
October 4, 1995
Binghamton, New York
HON. THOMAS J. McAVOY
Chief U.S. District Judge
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