United States District Court, Southern District of New York
January 3, 2001
ALTON C. SCHULTZ, JR., ELAINE B. JACKSON, GLADYS CRIDDLE, AND HAROLD J. WEBER, JR., INDIVIDUALLY AND ON BEHALF OF A CLASS OF OTHERS SIMILARLY SITUATED, PLAINTIFFS,
TEXACO INC., TEXACO EXPLORATION AND PRODUCTION, INC., THE RETIREMENT PLAN OF TEXACO, INC., THE EMPLOYEE THRIFT PLAN OF TEXACO, INC., TEXACO COMPREHENSIVE MEDICAL PLAN, TEXACO DENTAL ASSISTANCE PLAN, SHORT-TERM DISABILITY PLAN OF TEXACO, INC., LONG-TERM DISABILITY PLAN OF TEXACO, INC., TERM LIFE INSURANCE PLAN OF TEXACO INC., GROUP ACCIDENT PLAN OF TEXACO INC., JANET L. STONER, PETER I. BIJUR, A. CHARLES BAILLIE, MARY K. BUSH, EDMUND M. CARPENTER, MICHAEL C. HAWLEY, FRANKLYN G. JENIFER, SAM NUNN, CHARLES H. PRICE, II., CHARLES R. SHOEMATE, ROBIN B. SMITH, WILLIAM C. STEERE, JR., AND THOMAS A. VANDERSLICE, DEFENDANTS.
The opinion of the court was delivered by: Parker, Judge
AMENDED DECISION AND ORDER
In this ERISA action, Plaintiffs are former employees of Texaco, Inc.
("Texaco") and Texaco Exploration and Production, Inc. ("TEN"), who were
hired directly by Texaco or TEPI and then reclassified as independent
contractors in the early 1990's. The plaintiffs bring this putative class
action under various provisions of the Employee Retirement Income
Security Act of 1974, 29 U.S.C. § 1001, et seq. ("ERISA"). They
allege that defendants Texaco, members of its Board of Directors, TEPI,
and Janet L. Stoner, the benefit plans administrator, (collectively, "the
defendants") violated ERISA by unlawfully failing to include them in
various Texaco ERISA plans after they were improperly reclassified as
independent contractors or temporary employees.*fn1
The four plaintiffs are Alton C. Schultz, Jr., Elaine B. Jackson,
Gladys Criddle, and Harold J. Weber, Jr. Alton Schultz was hired by TEPI
in May 1991 as an "Independent Petroleum Landman". Two months later in
July 1991 he began receiving his paychecks from a temporary agency called
Metro Careers, Inc. and subsequently received paychecks from other
temporary agencies. He worked at various Texaco facilities until January
28, 1999. Schultz alleges he learned of a benefits suit by ARCO
Corporation employees in June of 1999 and soon thereafter filed a request
with Texaco for benefits. Texaco denied his request.
Elaine Jackson was hired by TEPI in October 1990 as an "Oil and Gas
Lease Analyst". In July 1991, she was informed that Metro Careers would
handle her payroll. She continued to work at Texaco until March of 1995
when she was released. She was rehired as an "Oil and Gas Lease Analyst"
in July 1996, received her paychecks through Kelly Temporary Services,
and ceased working for Texaco in February 1999. She alleges that she too
learned of the suit by ARCO employees in June 1999 and then filed a
request for benefits from Texaco which was denied.
Gladys Criddle was hired by TEPI in late 1990 as a well spotter. At
some point subsequent to her hiring, she began receiving checks from a
temporary employment agency called Norrell. She continued to work at
Texaco until January 1999. She does not allege that she requested
information about Texaco benefit plans.
Harold Weber first worked for Texaco between 1966 and 1984, when he
resigned to pursue other employment. In March 1991, Texaco rehired Weber
as an "independent landman" on a per diem basis. In July 1991, Metro
Careers began paying Mr. Weber. He worked at Texaco until February 1999.
Mr. Weber then requested various benefits from Texaco and was ultimately
denied them in January 2000.
The plaintiffs allege that they were transferred from Texaco and TEPI
to various temporary agencies and, although they received checks from
these agencies, no other substantive changes occurred in their employment
status. They allege that they were provided office space, tools, and
Texaco equipment. They were paid by the hour, had their time sheets
approved by Texaco and reported to Texaco when sick or on vacation. They
allege that they received training and professional education from
Texaco, performed work directly for Texaco and were supervised in their
daily activities by Texaco employees. The plaintiffs maintain that, even
if they were no longer directly on Texaco or TEPI's payroll, they were
nonetheless "common law" employees, despite Texaco's decision to treat
them as independent contractors or leased employees.
The action was commenced in January 2000. On March 24, 2000, the
plaintiffs filed a Second Amended Complaint although, as previously
noted, in June 2000 certain defendants and claims were voluntarily
dismissed. The current complaint alleges that: (a) the defendants
breached their fiduciary duties under Section 502(a)(3) by
mis-classifying the plaintiffs as independent contractors; (b) the
defendants improperly denied ERISA benefits under Section 502(a)(1)(B);
(c) the defendants refused to supply benefit information in violation of
Section 502(c); (d) their reclassification was a deliberate attempt to
interfere with plaintiffs' rights to benefits in violation of ERISA
section 510; and (e) the defendants violated state law. The Plaintiffs
also seek injunctive relief under Section 409 and Section 502(a)(3)
reclassifying them as employees with full ERISA benefits, and preventing
Texaco and TEPI from making similar allegedly improper
In April 2000, Texaco moved to dismiss the Second Amended Complaint
pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), on the grounds that
various claims are time-barred or are otherwise legally insufficient.
Specifically, the defendants seek to dismiss the claims based on ERISA
Sections 510, 502(a)(1)(B), 502(a)(3), and 502(c). For the reasons stated
below, the motion is granted in part and denied in part.
The plaintiffs first claim violations of Section 510 of ERISA,
29 U.S.C. § 1140. In relevant part, Section 510 makes it unlawful for
an employer to:
discharge, fine, suspend, expel, discipline, or
discriminate against a participant or beneficiary for
right to which he is entitled under the provisions of
an employee benefit plan . . . or for the purpose of
interfering with the attainment of any right to which
such participant may become entitled under the plan . . .
29 U.S.C. § 1140.
Plaintiffs argue that the defendants violated Section 510 when they
removed plaintiffs from Texaco or TEPI's payrolls and reclassified them
as independent workers or leased employees since the purpose of this
shift was to interfere with their attainment of ERISA rights.
Defendants contend that the claim is time-barred. Section 510 does
not expressly contain a statute of limitations. However, our Circuit has
held that the statute of limitations for Section 510 claims is the
analogous two-year state statute of limitations for causes of action in
violation of New York Worker's Compensation Law Section, 120. Sandberg
v. KPMG Peat Marwick, LLP, 111 F.3d 331, 336 (2d Cir. 1997).
It is undisputed that the last time the plaintiffs received checks
directly from Texaco or TEPI was in 1990 or 1991 when they were
classified or reclassified as employees of various temporary agencies.
However, the plaintiffs did not assert their Section 510 claim until
January of 2000, almost seven years later.
The plaintiffs argue that the Court should equitably toll the
limitations period because the conduct of the defendants in continuing to
mistakenly classify them amounts to a continuing violation of the
statute, or, in the alternative, the Court should equitably toll the
limitations period for the Section 510 and 502(a)(1)(B) claims because
the defendants' concealment of plaintiffs' eligibility for ERISA benefits
prevented them from discovering their injury.
Neither of these arguments is persuasive. First, no continuing
violation occurred. The plaintiffs, according to the Second Amended
Complaint, were misclassified in discrete, singular actions in 1990 or
1991. Furthermore, plaintiffs do not allege or identify any ongoing,
discriminatory policy, or series of discriminatory acts, as required for
the continuing violation doctrine to apply. Accordingly, the Title VII
cases cited by plaintiffs in which a discriminatory policy or a series of
discriminatory acts were alleged are inapposite.
Specifically, plaintiffs allege a single "erroneous classification"
in late 1990/early 1991 which "continued to interfere with [their]
attainment of employment benefits . . ." (2d Amd.Complaint, ¶ 118).
However, the mere fact that the effects of a single, wrongful act
continue to be felt over a period of time does not render that single,
wrongful act a "continuing violation." See, e.g., Tolle v. Carroll
Touch, Inc., 977 F.2d 1129, 1138-41 (7th Cir. 1992). See also Lightfoot
v. Union Carbide Corp., 110 F.3d 898, 907-908 (2d Cir. 1997); Hudson v.
Delphi Energy and Engine Management Systems, Inc., 10 F. Supp.2d 256, 259
(W.D.N.Y. 1998). Indeed, if accepted by the Court, plaintiffs'
interpretation of the continuing violation doctrine would lead to the
illogical result that no claim under Section 510 could ever be
time-barred, since every termination and every "mis-classification" has
the "continuing" effect of rendering an individual ineligible to receive
Next, the plaintiffs allege that the defendants violated Section
502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B).
That section reads, in part, as follows:
(a) Persons empowered to bring a civil action
A civil action may be brought —
(1) by a participant or beneficiary —
(A) for the relief provided for in subsection
(c) of this section, or
(B) to recover benefits due to him under the terms of
his plan, to enforce his
rights under the terms of the plan, or to clarify his
rights to future benefits under the terms of the
29 U.S.C. § 1132(a).
Specifically, the plaintiffs allege that because they were improperly
reclassified as independent contractors, they were wrongfully denied
employee benefits in violation of Section 502(a)(1)(B). Defendants
contend that, as with Section 510, the claim is time-barred.
Again, although ERISA does not prescribe a statute of limitations
for violations of Section 502(a)(1)(B), our Circuit holds that the
appropriate statute of limitations under analogous New York law is the six
year statute of limitations that applies to claims for breach of
contract. Miles v. New York State Teamsters Conference Pension and
Retirement Fund, 698 F.2d 593, 598 (2d Cir.), cert. denied, 464 U.S. 829,
104 S.Ct. 105, 78 L.Ed.2d 108 (1983).
A claim for denied benefits under Section 502(a)(1)(B) begins "upon a
clear repudiation by the plan that is known, or should be known, to the
plaintiff regardless of whether the plaintiff has filed a formal
application for benefits." Carey v. IBEW Local 363 Pension Plan,
201 F.3d 44, 47-50 (2d Cir. 1999). Defendants argue that each plaintiff
knew, or should have known, in 1990 or 1991 that their benefit plans were
being repudiated when they began to receive payroll checks from an
employment or temporary agency and not from Texaco or TEPI.
Plaintiffs allege that when they were removed from the payrolls of
Texaco or TEPI they did not understand that their benefits would, as a
result, be denied. Since no other significant changes occurred in the
nature of their work or in their responsibilities, they insist that they
neither knew, nor should not have known of the repudiation.
Contrary to this contention, plaintiffs' claim for benefits under
Section 502(a)(1)(B) accrued in late 1990 or early 1991, when plaintiffs
allege they were wrongfully removed from either Texaco or TEPI's
payroll, placed on the payroll of various temporary employment agencies,
and erroneously classified as independent contractors for "the sole or
predominant purpose" of preventing plaintiffs from participating in Texaco
and/or TEPI's ERISA covered benefits plans. It was at this time that
plaintiffs knew they would not be eligible to participate in, or receive
benefits from, the Plans and suffered the injury which forms the basis of
their denial of benefits claim, and it is at this time that the
repudiation, which is the basis for this lawsuit, was known, or, or at a
minimum, should have been known, to plaintiffs. Carey, 201 F.3d at
Plaintiffs contend the statute of limitations as to their Sections
510 and 502(a)(1)(B) claims should be tolled either under Louisiana's
doctrine of "contra non valentem" or under principles of equitable
estoppel. Where a District court has borrowed a forum state's limitations
periods, such as with plaintiffs' Sections 510 and 502(a)(1)(B) claims,
the Court also looks to the forum state's laws to determine the
circumstances under which the borrowed limitations periods should be
tolled, or whether estoppel principles apply. See, e.g., Board of Regents
University of State of New York v. Tomanio, 446 U.S. 478-486, 100 S.Ct.
1790, 64 L.Ed.2d 440 (1980); Hardin v. Straub, 490 U.S. 536, 109 S.Ct.
1998, 104 L.Ed.2d 582 (1989).
Thus, Louisiana law does not apply and New York tolling principles
codified at C.P.L.R. §§ 204, 205, 207, and 208 control. Specifically,
New York permits the tolling of a statute of limitations: (1) "[w]here
the commencement of an action has been stayed by a court or by statutory
prohibition" (C.P.L.R. 204(a)); (2) where a dispute that is ultimately
determined to be non-arbitrable has been submitted to arbitration
(C.P.L.R. 204(b)); (3) where an action was timely commenced and
dismissed (other than for certain reasons),
and recommenced within six months of the dismissal (C.P.L.R. 205(a)); (4)
where a defendant is outside New York when a claim accrues (C.P.L.R.
207); and (5) when a plaintiff is disabled by infancy or insanity when
his claim accrues (C.P.L.R. 208). See also, Foley, 1998 U.S. Dist. LEXIS
12176, *30-33 (W.D.N.Y. Jan. 27, 1998). None of these tolling principles
apply in this case.
Under New York law, a defendant is estopped to assert a statute of
limitations defense: (1) where the defendant conceals from the plaintiff
the fact that he has a cause of action, or (2) where the plaintiff is
aware of his cause of action, but the defendant affirmatively induces him
to forego suit until after the period of limitations has expired. See
McKinney's C.P.L.R. § 201, comment C201:6; Foley, 1998 U.S. Dist.
LEXIS 12176, *30; Perez, 872 F. Supp. at 52 (S.D.N.Y. 1994). Again,
neither of these circumstances is alleged to exist in this case.
The basis for plaintiffs' 510 claim (the alleged "erroneous
classification" of plaintiffs) took place around 1991. Plaintiffs were
aware of this classification when it occurred. Likewise, plaintiffs'
502(a)(1)(B) claim is premised on a denial of an opportunity for
participation in the Plans. This denial occurred, with plaintiffs'
knowledge, about the same time. Since plaintiffs do not allege that
defendants concealed any relevant facts from them, there can be no
equitable estoppel based on a concealment theory.
Second, plaintiffs' argument that defendants' failure to provide them
with Plan documents was an affirmative act intended to induce plaintiffs
to forgo their lawsuit is contrary to the allegations in the Second
Amended Complaint. Plaintiffs allege that defendants' failure to provide
them with Plan documents was a consequence of the "erroneous
classification" of plaintiffs (of which plaintiffs were fully aware), and
not an affirmative act intended to induce plaintiffs to forgo filing
suit. (2d Amd.Complaint, ¶¶ 36, 56, 74); Foley, 1998 U.S. Dist. Lexis
12176 at *30. Thus, there also can be no equitable estoppel based on a
fraudulent inducement theory. Accordingly, plaintiffs' claims for
benefits under Sections 510 and 502(a)(1)(B) are dismissed as
Next, the plaintiffs claim violations of Section 502(c),
29 U.S.C. § 1132(c), against the Plan Administrator, Janet Stoner,
Texaco, TEPI and the Texaco Board of Directors. Section 502(c) of ERISA
(1) Any administrator . . . (B) who fails or refuses
to comply with a request for any information which
such administrator is required by this subchapter to
furnish to a participant or beneficiary . . . by
mailing the material requested to the last known
address of the requesting participant or beneficiary
within 30 days after such request may in the court's
discretion be personally liable to such participant or
beneficiary in the amount of up to $100 a day from the
date of such failure or refusal . . .
Under the express terms of this section, only a plan administrator can be
found liable for a failure to provide the required information. See
29 U.S.C. § 1132(c). Accordingly, all defendants except Stoner are
The defendants move to dismiss plaintiffs Criddle and Weber on the
ground that neither alleges that he or she asked Texaco or TEPI for
benefit information. Under the express statutory language, in order for a
claim to be actionable under this section of ERISA, and the administrator
must have failed or refused to comply with such request.
The Second Amended Complaint (at ¶ 90) appears to allege that
Weber requested information. The motion to dismiss Weber's 502(c) claim
cannot be resolved on a motion pursuant to Rule
12(b)(6). Since the complaint does not allege that Criddle did so, the
motion to dismiss her from this claim is granted.
Next, the plaintiffs seek equitable relief under Section 502(a)(3),
29 U.S.C. § 1132 (a)(3), against Texaco, its directors, TEPI and
Janet Stoner, enjoining them from allegedly mis-classifying employees and
making them ineligible for ERISA benefits.
Section 502(a)(3) authorizes a civil action in two circumstances:
(A) to enjoin any act or practice which violates any
provision of this subchapter or the terms of the plan
or (B) to obtain other appropriate equitable relief
(i) to redress such violations or (ii) to enforce any
provisions of this subchapter or the terms of the
29 U.S.C. § 1132(a)(3).
For claims under § 502(a)(3), the relevant limitations period is
Section 413, which provides that:
No action may be commenced under this title with
respect to a fiduciary's breach of any
responsibility, duty, or obligation under this part,
or with respect to a violation of this part, after the
(1) six years after (A) the date of the last action
which constituted a part of the breach or violation,
or (B) in the case of an omission, the latest date on
which the fiduciary could have cured the breach or
(2) three years after the earliest date on which the
plaintiff had actual knowledge of the breach or
violation; except that in the case of fraud or
concealment, such action may be commenced not later
than six years after the date of discovery of such
breach or violation.
An ERISA claim for violations of fiduciary duties is time barred if
filed after the earlier of six years after the last act which constituted
a part of the breach of fiduciary duty, or three years after the earliest
date on which the plaintiff had actual knowledge of the breach. The
defendants argue that the three year statute of limitations in Section
413 has run for claims under Section 502(a)(3) and that the Supreme
Court's decision in Varity Corp. v. Howe, 516 U.S. 489, 116 S.Ct. 1065,
134 L.Ed.2d 130 (1996) counsels against allowing recovery under Section
502(a)(3) where viable Section 502(a)(1)(B) claims exist.
Plaintiffs argue that under § 413(1), the limitations period has
not expired because their Section 502(a)(3) claim is predicated upon the
failure of the defendants to include the plaintiffs in ERISA plans and to
provide them with the required disclosures. Accordingly, these alleged
failures amount to an omission triggering the six year statute of
limitations. Moreover, the plaintiffs argue that the three year period in
410(2) has not yet run because plaintiffs did not have "actual knowledge"
of the denial of benefits until they read newspaper articles in 1999.
Actual knowledge means "actual knowledge of all material facts
necessary to understand that some claim exists, which facts could include
necessary opinions of experts, knowledge of a transaction's harmful
consequences, or even actual harm." Maher v. Strachan Shipping Co.,
68 F.3d 951 (5th Cir. 1995) (internal citations omitted). Other Circuits
agree. See Gluck v. Unisys Corp., 960 F.2d 1168, 1177 (3d Cir. 1992).
Whether defendants, in fact, had actual knowledge triggering the
three-year statute under 413(2) cannot be resolved on a motion pursuant
to 12(b)(6). Defendants motion to dismiss the Section 502(a)(3) claims as
time-barred is denied.
The defendants also argue that the Section 502(a)(3) claim must be
dismissed because the plaintiffs are attempting a dualrecovery of
benefits, something barred by Varity Corp. v. Howe, 516 U.S. 489, 116
S.Ct. 1065, 134 L.Ed.2d 130 (1996). Varity, held that where plaintiffs
have an adequate
remedy under Section 502(a)(1)(B), they cannot repackage their denial of
benefits claim as one for breach of fiduciary duties or injunctive relief
under Section 502(a)(3). However, Varity also made clear that Section
502(a)(3) could, in limited circumstances, serve as a "safety net",
equitable relief caused by violations that cannot be remedied through
other provisions of Section 502. In particular, the Court found that
"where Congress elsewhere provided adequate relief for a beneficiary's
injury, there will likely be no need for further equitable relief, in
which case such relief normally would not be appropriate Varity, 116
S.Ct. at 1079.
Relying on this language from Varity, defendants argue that because the
plaintiffs seek the same remedy under 502(a)(1)(B) that they seek under
the equitable provisions of Section 502(a)(3), the claim is prohibited by
Varity. Defendants contend that, although this Circuit has not addressed
this dual-pleading issue, sister Circuits have found that a denial of
benefits claim cannot also be pled as a violation of Section 502(a)(3).
See, e.g., Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 615-16
(6th Cir. 1998); Wald v. Southwestern Bell Corp., 83 F.3d 1002, 1006 (8th
It is true that Varity holds that a litigant may not double-dip by
seeking to recover on a Section 502(a)(1)(B) claim while at the same time
pursuing the equitable remedies of Section 502(a)(3). However, that is
not the plaintiffs' theory. The Amended Complaint alleges a denial of
benefits and, as a separate and distinct argument, asks the Court to use
its injunctive powers to find that plaintiffs were employees as defined
under ERISA and to require that the employer reclassify them as such.
Since this case is at an early stage and facts are not
sufficiently developed conclusively to demonstrate which of these is
ultimately viable, dismissal of the Section 502(a)(3) claim at this time
is not warranted.
The defendants are, however, correct that 502(a)(3) claims cannot
proceed against individuals who are not fiduciaries. To establish a breach
of fiduciary duty under this section, the plaintiffs must prove that the
defendant is a fiduciary who breached fiduciary obligations. See Herman
v. Time Warner Inc., 56 F. Supp.2d 411, 416 (S.D.N.Y. 1999). ERISA
defines a "fiduciary" as follows:
[A] person is a fiduciary with respect to a plan to
the extent (i) he exercises discretionary authority or
discretionary control respecting management of such
plan or exercises any authority or control respecting
management or disposition of its assets; (2) he
renders investment advice for a fee or other
compensation, direct or indirect, with respect to any
moneys or other property of such plan, or has any
authority or responsibility to do so, or (3) he has
any discretionary authority or discretionary
responsibility in the administration of such plan.
29 U.S.C. § 1002(21)(A) emphasis added.
Thus, a person is a fiduciary only with respect to those
portions of a plan over which he exercises discretion or control. See,
e.g., American Fed. of Unions, Local 102 Health & Welfare Fund v.
Equitable Life Assurance Soc'y, 841 F.2d 658 (5th Cir. 1988). Thus, a
claim for a breach of fiduciary duties is only viable if the person
accused of such a breach is a fiduciary with respect to the particular
activity being challenged. See Moench v. Robertson, 62 F.3d 553 (3d Cir.
1995), cert. denied, 516 U.S. 1115, 116 S.Ct. 917, 133 L.Ed.2d 847
Here, plaintiffs allege that Texaco, its Board of Directors and Janet
Stoner, as Plan Administrator, breached their fiduciary duties, in
violation of §§ 404(a)(1)(A) and 404(a)(1)(d) of ERISA, by failing to
identify all employees eligible to participate in the Plans and to ensure
that they participated in the Plans. In other words, plaintiffs allege
that these defendants
breached their fiduciary duties with respect to the operation and
administration of the Plans.
This argument fails because neither Texaco nor any member of its Board
of Directors is a fiduciary with respect to these activities. Janet
Stoner has been designated Plan Administrator. As Plan Administrator, she
has the sole and exclusive responsibility for the administration of the
Plans, including exclusive discretionary authority to interpret and
construe the terms of the Plans, to determine the eligibility of
participants and beneficiaries for benefits, and to determine all
questions arising in connection with the administration of the Plans.
Notwithstanding the unequivocal language in the Plans, plaintiffs
allege that Texaco, TEPI and Texaco's Board of Directors "retain
fiduciary responsibility to the Plans," even after they have allocated
those responsibilities to Janet Stoner. (See Second Amended Complaint at
¶¶ 110, 117). This allegation directly contradicts ERISA's statutory
scheme, which expressly permits the allocation of fiduciary obligations
among named fiduciaries, and which expressly limits fiduciary liability
in such instances. 29 U.S.C. § 1105(c).
Where, as here, a plan provides for the allocation of fiduciary
responsibility, the person allocating the fiduciary responsibilities
(allegedly Texaco or the members of its Board of Directors) is not liable
for acts or omissions of the person to whom fiduciary responsibility is
allocated (Janet Stoner, in her capacity as Plan Administrator), except
to the extent that the allocation itself is a breach of fiduciary duty.
29 U.S.C. § 1105(c)(2); see also, 29 C.F.R. § 2509.75-8, Q & A
D-3. See Gelardi v. Pertec Computer Corp., 761 F.2d 1323 (9th Cir.
1985); St. Francis Hosp. and Med. Ctr. v. Blue Cross & Blue Shield of
Connecticut, Inc., 776 F. Supp. 659 (D.Conn. 1991) ("an employer's
ability to select the plan administrator does not, by itself, compel upon
it the role of fiduciary"). Accordingly, Texaco and the individusl
members of its Board of Directors are not fiduciaries with respect to the
administration of the Plans and plaintiffs' claim under Section 502(a)(3)
against are dismissed as to all defendants except Janet Stoner in her
capacity as Plan Administrator.
The defendants' motion to dismiss all claims pursuant to ERISA Sections
510 and 502(a)(1)(B) is granted. The defendants' motion to dismiss the
claim of Criddle and the claims against all defendants except Janet
Stoner under ERISA Section 502(c) is granted. The motion to dismiss the
Section 502(c) claim as to Harold Weber is denied. The motion to dismiss
claims under Section 502(a)(3) is granted to all defendants except Janet
Stoner. Defendants' motion to dismiss claims pursuant to ERISA Section
502(a)(1)(B) is granted. The parties shall appear for a Rule 16
conference on January 19, 2001 at 9:00 a.m.