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United States District Court, Southern District of New York

May 9, 2000


The opinion of the court was delivered by: Lewis A. Kaplan, District Judge.


Plaintiff, a former employee of Republic National Bank of New York and Republic National Bank of New York (International) Limited (collectively, "RNB"), brings this action to compel RNB and its successor-in-interest, HSBC Bank U.S.C. to pay him the pension to which he allegedly is entitled. Plaintiff has moved for partial summary judgment. Defendants have cross-moved for summary judgment dismissing the complaint. Plaintiff has not responded to the cross-motion although the time for doing so has expired.


Plaintiff first was employed by RNB in New York City from December 1, 1971 until January 1, 1974. He was rehired on December 1, 1975. On July 1, 1986 he entered into the first of three successive employment contracts with RNB pursuant to which he was made executive vice president of Republic National Bank of New York (International) Limited, first in the Bahamas and then in Gibraltar. Each of the contracts provided, among other things, that plaintiff "will be covered under the Republic National Bank of New York Pension Plan (as any other officer), as well as other benefits (medical, life insurance, etc.), enjoyed by New York officers."*fn1

According to defendants, plaintiff on August 13, 1998 confessed that he had breached his fiduciary duties to RNB by engaging in numerous unauthorized transactions for his own benefit. He promptly was terminated.*fn2

Plaintiff reached the age of 55 on March 26, 1999 and sought his pension.*fn3 In April 1999, counsel for RNB informed plaintiff's counsel that neither RNB nor plaintiff had made any pension plan contributions in his behalf, that it was prepared to pay a pension benefit of $2,328.38 per month to plaintiff's wife during her life, and that it "is prepared to begin those payments as of [plaintiff's] birthday when, and if, we received a release from [plaintiff] of any and all claims against the Bank arising out of his employment and the termination of his employment."*fn4 Nevertheless, no payments have been made.


RNB's principal defense to this action is that plaintiff fraudulently induced the employment contracts upon which he relies. It contends also that he never was covered by the pension plan, despite the language of the contracts, because the plan itself provides that overseas employees are not covered by it. In any case, it contends that plaintiff has failed to exhaust his administrative remedies within the plan or to join the proper parties and that plaintiff's motion for summary judgment is premature because defendants are entitled to on its fraudulent inducement claim. It is unnecessary, however, to address most of these arguments.

The RNB retirement plan, as amended and restated as of January 1, 1989, provides that applications for benefits must be submitted to the Employee Benefits and Compensation Committee and that denials of applications may be appealed to that committee within 60 days.*fn5 While plaintiff asserts that he has sought his pension, he has not alleged that he ever submitted an application for benefits to the committee, that any application to the committee ever was denied, or that he appealed any such denial.

ERISA requires the exhaustion of plan remedies as a prerequisite to a suit for benefits. Exhaustion serves the important purposes of placing responsibility for plan administration principally on plan trustees rather than the courts, creating an administrative record, and permitting limitation of the scope of court review of eligibility determinations.*fn6 As plaintiff has failed to allege that he has exhausted his remedies under the plan, this action must be dismissed. For plaintiff's further guidance, actions under ERISA to recover benefits from qualified plans must be brought against the plan itself, not the plan sponsor or the employer.*fn7 In consequence, if plaintiff fails to obtain redress from the plan and commences another suit to recover plan benefits, the plan must be named as a defendant.*fn8


For the foregoing reasons, plaintiff's motion for partial summary judgment is denied. Defendants' cross-motion for summary judgment dismissing the complaint is granted. The federal claim is dismissed on the ground of failure to exhaust administrative remedies. The supplemental state law claim is dismissed for lack of subject matter jurisdiction. Plaintiff of course will be free to commence a new action, if necessary, following his exhaustion of his remedies under the plan.


Dated: May 9, 2000

_____________________________________________ Lewis A. Kaplan, United States District Judge

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