The opinion of the court was delivered by: David G. Larimer, Chief Judge
Plaintiffs commenced these actions*fn1 under the Employee Retirement
Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq. Presently
before the Court is defendants' motion, under FED. R. CIV. P. 12(b)(6),
to dismiss portions of the complaint in each action.
Plaintiffs are employees or former employees of Xerox, each of whom
worked for Xerox during two separate periods of time. During each
plaintiff's original period of employment, he or she was a participant in
Xerox' pension plan, known as the Retirement Income Guarantee Plan
("RIGP" or "the Plan"). Upon their initial termination of employment,
each plaintiff received a lump sum distribution of his pension benefit.
Each plaintiff was later re-hired by Xerox and again became a participant
in the RIGP. Under the terms of the RIGP, the amount of plaintiffs'
pension benefit is offset by the amount of their prior distribution plus
any earnings which would have accrued had plaintiffs left their money in
Plaintiffs, currently 96 in number, challenge the method used to
calculate the offset for prior distributions. Plaintiffs' principally
contend that Xerox improperly used the offset procedure which reduced the
pension benefits of Xerox rehires. Because most of the plaintiffs are
still employed with Xerox, they seek a determination now that their
pension plan will not be so affected by the challenged offset procedure.
In their most recent iterations, plaintiffs' 791 paragraph, 173 page,
second amended complaint in Frommert (Dkt. #71) and plaintiffs' 201
paragraph, 64 page, amended complaint in Levy (Dkt. #3) seek, inter alia,
damages, injunctive relief, and a declaratory judgment. The complaints in
Frommert and Levy each contain seven separate claims for relief. More
particularly, plaintiffs seek a declaratory judgment (first count). They
also seek relief under sections 1132(a)(1)(B) and (a)(3) (second count),
sections 1054(g) and (h) (fifth count), section 1140 (sixth count), and
sections 1054(d) and (e) (seventh count). In addition, they claim a
breach of fiduciary obligation (third count), and violations of ERISA
forfeiture provisions (fourth count).
Defendants have moved, under FED. R. CIV. P. 12(b)(6), to dismiss the
first, third, fourth, fifth, sixth, and seventh counts of the
complaints. They also move to dismiss the second count insofar as it
makes any claims against any defendants except the RIGP, and to the
extent that it purports to set forth a claim under § 1132(a)(3). For
the reasons that follow, defendants' motion is granted in part and denied
I. Motion to Dismiss — General Standards
In order to prevail on a motion to dismiss a complaint under
Rule 12(b)(6), the moving party must show that "it appears beyond doubt that
plaintiff can prove no set of facts in support of his claim which
entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). When
presented with a motion to dismiss for failure to state a claim, the
court's function "is merely to assess the legal feasibility of the
complaint, not to assay the weight of the evidence which might be offered
in support thereof." Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.
1980). "Thus `[t]he issue is not whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer evidence to support
the claims.'" York v. Association of the Bar of the City of New York,
286 F.3d 122, 125 (2d Cir. 2002) (quoting Scheuer v. Rhodes, 416 U.S. 232,
On a motion to dismiss for failure to state a claim, then, the
"complaint must be sustained if relief could be granted `under any set of
facts that could be proved consistent with the allegations.'" National
Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994) (quoting
Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)); see also Patel v.
Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001)
(on motion to dismiss, district court must accept all allegations in the
complaint as true and draw all inferences in non-moving party's ...