a § 510 claim. The sixth count must, therefore, be dismissed.
IV. Plaintiffs' Claim Under 29 U.S.C. § 1054(d) and (e)
In their seventh count, plaintiffs allege that the Plan violated
ERISA, 29 U.S.C. § 1054(d) and (e), because the Plan failed to give
rehired employees the option of repaying prior distributions of benefits
back into the Plan. Dismissal is warranted on this count because ERISA
does not require that an employee be permitted to buy back into such a
plan upon being rehired, and because such a claim, if it existed, would be
time-barred in any event.
Section 1054(d) provides, in pertinent part, that "for purposes of
determining the employee's accrued benefit under the plan, the plan may
disregard service performed by the employee with respect to which he has
received" a cash distribution. 29 U.S.C. § 1054(d). Section 1054(e)
contains an exception to the general rule, but it does not mandate, as
plaintiffs allege, that the Plan contain a provision allowing all former
employees to buy back into the plan upon rehire. Instead, it merely
requires a "buyback" opportunity if the plan fails to credit prior
service and there has been a prior forfeiture.
Since plaintiffs do not allege that Xerox failed to count their prior
service, and since plaintiffs acknowledge receipt of their accrued
benefits at the time of their initial separation from Xerox, no
forfeiture existed. Plaintiffs, therefore, have no statutory right to buy
back into the plan.*fn2
For these reasons, the seventh count must be dismissed.
V. Plaintiffs' Request for a Declaratory Judgment
In their first count, plaintiffs seek a declaratory judgment pursuant
to Fed.R.Civ.P. 57 and 28 U.S.C. § 2101 and 2102. Rule 57 explicitly
provides that "the existence of another adequate remedy does not preclude
a judgment for declaratory relief in cases where it is appropriate."
However, the plaintiffs have provided no explanation as to why this is
such an appropriate case. In fact, they admit that the same declaratory
relief they seek is encompassed under § 1132(a)(3). Plaintiffs
Memorandum of Law, p. 23 (Dkt. #75). Xerox further contends that
plaintiffs' request for a declaratory judgment should be dismissed because
ERISA provides adequate relief for each plan participant's alleged
injury. I agree. See Touhig v. Principal Ins. Group, 134 F. Supp.2d 148,
152 (D.Mass. 2001). Congress intended ERISA to be a comprehensive
statutory scheme to redress the rights of plan participants. Plaintiffs
have requested clarification of their rights in other ERISA counts in
their complaint. The first count of the complaint is therefore
Defendant Xerox Corporation's motion to dismiss (Dkt. #72 in Frommert)
is granted, and the complaint is dismissed as to Xerox Corporation.
The motion to dismiss (id.) filed by defendants Sally L. Conkright,
Patricia M. Nazemetz and Lawrence M. Becker, in their capacity as Xerox
Corporation Plan Administrators, and the Xerox Corporation Retirement
Income Guarantee Plan is granted in part and denied in part. The first,
sixth, and seventh counts are dismissed
in their entirety. The second
count is dismissed only as to Xerox Corporation. In addition, plaintiffs'
claims under 29 U.S.C. § 1132(a)(3) are dismissed as to all
defendants. In all other respects, the motion is denied.
IT IS SO ORDERED.