The opinion of the court was delivered by: LORETTA PRESKA, District Judge
On November 20, 2003, Plaintiff Ronald Reid ("Plaintiff") filed
a complaint ("Complaint" or "Compl.") against defendants The
Local 966 Pension Fund (the "Plan") and The Plan Administrator of
the Local 966 Pension Fund (the "Administrator") (collectively,
"Defendants") pursuant to the Employee Retirement Income Security
Act of 1974, as Amended ("ERISA") § 502(a)(3),
29 U.S.C. § 1132(a)(3), to enforce Plaintiff's alleged statutory right of
access to the Plan's claims procedure and pursuant to ERISA §
502(a)(1)(A), 29 U.S.C. § 1132(a)(1)(A), to obtain certain
documents from the Administrator in order to establish whether
Plaintiff is entitled to pension benefits under the Plan. Before
this Court are Defendants' motion, dated January 23, 2004, to
dismiss the Complaint pursuant to Fed.R. Civ. P. 12(b)(1) for
lack of subject matter jurisdiction and Fed.R. Civ. P. 12(b)(6)
for failure to state a claim and Plaintiff's cross-motion, dated April 7, 2004, for summary judgment.
I. Motion to Dismiss for Lack of Subject Matter Jurisdiction
"A case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court lacks
the statutory or constitutional power to adjudicate it."
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
"[T]he plaintiff asserting subject matter jurisdiction has the
burden of proving by a preponderance of the evidence that it
exists. Luckett v. Bure, 290 F.3d 493 (2d Cir. 2000) (citing
Makarova, 201 F.3d at 113). In considering challenges to
subject matter jurisdiction under Rule 12(b)(1), a court may
consider evidence extrinsic to the pleadings, such as affidavits.
See Antares Aircraft, L.P. v. Fed. Republic of Nigeria,
948 F.2d 90, 96 (2d Cir. 1991), vacated for reconsideration on other
grounds, 505 U.S. 1215 (1992), reaff'd on remand, 999 F.2d 33
(2d Cir. 1993). The consideration of such materials does not
convert the motion to one for summary judgment pursuant to Rule
56. See United States v. Vazquez, 145 F.3d 74, 80 (2d Cir.
As the Court of Appeals has explained, "[w]hether a federal
court possesses federal-question subject matter jurisdiction and
whether a plaintiff can state a claim for relief under a federal
statute are two questions that are easily, and often, confused."
Carlson v. Principal Fin. Group, 320 F.3d 301, 305-06 (2d Cir.
2003) (citations omitted). "In order to sustain federal jurisdiction, the complaint must allege a claim that
arises under the Constitution or laws of the United States and
that is neither made solely for the purpose of obtaining
jurisdiction nor wholly insubstantial and frivolous." Carlson,
320 F.3d at 306. "[T]he question of whether a federal statute
supplies a basis for subject matter jurisdiction is separate
from, and should be answered prior to, the question of whether
the plaintiff can state a claim for relief under that statute."
Id. "`In cases where the asserted basis for subject matter
jurisdiction is also an element of the plaintiff's allegedly
federal cause of action, [the court] ask[s] only whether on its
face the complaint is drawn so as to seek recovery under
federal law or the Constitution. If so, then [the court]
assume[s] or find[s] a sufficient basis for jurisdiction, and
reserve[s] further scrutiny for an inquiry on the merits.'" Id.
at 307 (quoting Nowak v. Ironworkers Local 6 Pension Fund,
81 F.3d 1182, 1189 (2d Cir. 1996)). In other words, "[t]he pertinent
question in the subject matter jurisdiction context is whether a
plaintiff has asserted a non-frivolous federal claim, not whether
Plaintiff will ultimately be able to obtain relief under the
relevant statute." Vengurlekar v. HSBC Bank, No. 03 Civ. 243,
2004 U.S. Dist. LEXIS 6838, at *5 (S.D.N.Y. May 14, 2004) (citing
Carlson, 320 F.3d at 306).
Here, Defendants move to dismiss for lack of subject matter jurisdiction because they argue that Plaintiff is not a
"participant" in the Plan as required under ERISA § 502(a) and
502(e)(1), 29 U.S.C. § 1132(a) and (e)(1). (See Defs'
Br.*fn1 at 4-7.) However, the jurisdictional inquiry is not
whether Plaintiff can state a claim for relief under ERISA, but
whether the Complaint, on its face, "clearly seeks relief under
that statute." Carlson, 320 F.3d at 306.
The Complaint alleges that this Court has jurisdiction under
ERISA §§ 502(e)(1), 502(a)(3), 502(a)(1)(A) and under
28 U.S.C. 1331(a) because this action arises under the laws of the United
States, namely ERISA. (Compl. ¶ 2.) Further, the Complaint
alleges that the declaratory and injunctive relief sought are
authorized by ERISA § 502(a)(3), 29 U.S.C. § 1332(a)(3). (Compl.
¶ 3.) Thus, the Complaint seeks relief under ERISA because it
alleges both that federal jurisdiction is based on ERISA and that
the declaratory and injunctive relief that Plaintiff seeks are
authorized by ERISA as well. Because "it cannot be said that
[the] [C]omplaint is `plainly insubstantial' or that it fails to
present any issue worthy of adjudication," Nowak,
81 F.3d at 1190, this Court will assume subject matter jurisdiction and
evaluate Plaintiff's claims under Rule 12(b)(6). Because
Defendants' argument regarding "participant" qualification is more properly framed as an
argument that Plaintiff fails to state a claim under Rule
12(b)(6), it will be evaluated as such.*fn2
II. Motion to Dismiss for Failure to State a Claim
In deciding a motion to dismiss under Rule 12(b)(6), a
complaint must be viewed in the light most favorable to the
plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 237 (1974); Yoder
v. Orthomolecular Nutrition Inst., Inc., 751 F.2d 555, 562 (2d
Cir. 1985). All well-pleaded factual allegations of a complaint
must be accepted as true. City of Los Angeles v. Preferred
Communications, Inc., 476 U.S. 488, 493 (1986); Mireee v.
DeKalb County, 433 U.S. 25, 27 n. 2 (1977) (referring to
"well-pleaded allegations"); Mills v. Polar Molecular Corp.,
12 F.3d 1170, 1174 (2d Cir. 1993). "The complaint is deemed to
include any written instrument attached to it as an exhibit or
any statements or documents incorporated in it by reference."
Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co.,
62 F.3d 69, 72 (2d Cir. 1995) (quoting Cortec Indus., Inc. v. Sum
Holding L.P., 94 F.2d 42, 47 (2d Cir. 1991)). In order to avoid
dismissal, a plaintiff must do more than plea mere "conclusory
allegations or legal conclusions masquerading as factual conclusions." Gephardt v.
Allspect, Inc., 96 F. Supp. 2d 331, 333 (S.D.N.Y. 2000) (quoting
2 James Wm. Moore, Moore's Federal Practice P 12.34[a][b] (3d ed.
1997)). Dismissal is proper only when "it appears beyond doubt
that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46 (1957); accord Cohen v. Koenig, 25 F.3d 1168
(2d Cir. 1994).
Except where noted, the following facts are drawn from the
Complaint and documents attached to affidavits submitted by both
parties which are incorporated in the Complaint by reference.
See Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42,
47 (2d Cir. 1991) ("[T]he complaint is deemed to include any
written instrument attached to it as an exhibit or any statements
or documents incorporated in it by reference.").
Plaintiff was employed by Royaltone, Inc. for the period 1955
through 1970, inclusive. (Compl. ¶ 6.) The Plan is an "employee
pension benefit plan" within the meaning of ERISA § 3(2)(A),
29 U.S.C. § 1002(2)(A), a "defined benefit plan" within the meaning
of ERISA § 3(35), 29 U.S.C. § 1002(35), and, specifically, is a
"multiemployer plan" within the meaning of ERISA § 3(37)(A),
29 U.S.C. § 1002(37)(A). (Compl. ¶¶ 7, 10.) The purpose of the Plan
is to provide pension benefits for participants in the Plan and their beneficiaries. (Compl. ¶¶ 7,
10.) The Administrator is the Plan's "administrator," within the
meaning of ERISA § 3(16)(A), 29 U.S.C. § 1002(16)(A), and is a
Plan "fiduciary" within the meaning of ERISA § 3(21)(A),
29 U.S.C. § 1002(21)(A).
On July 15, 2003, Plaintiff's counsel wrote by certified letter
(the "July letter") to the Administrator informing the Plan that
she had been retained by Plaintiff to make a claim for benefits
on Plaintiff's behalf and requesting copies of the current full
governing Plan instrument, the Plan instrument in effect in 1970,
each summary plan description of the Plan in effect from 1990 to
the present, the summary plan description of the Plan in effect
in 1970, the collective bargaining agreements between Royaltone,
Inc. and Teamsters Local 966 in effect from 1955 to 1970, and
various other documents and records. (Compl. ¶ 11.) After
receiving no response to the July letter, Plaintiff's counsel
again wrote by certified letter dated September 25, 2003 (the
"September letter") to the Administrator reiterating her request
and advising Defendants that in the event of their failure ...