The opinion of the court was delivered by: Kenneth M. Karas, District Judge
Plaintiff R. Scott Stevenson ("Stevenson") brings this action against Defendants Tyco International (US) Inc. Supplemental Executive Retirement Plan ("Supplemental Plan"), Tyco International (US) Inc. ("Tyco"), Tyco International (US) Inc. Administrative Committee ("Administrative Committee"), and the Tyco International (US) Inc. Special Appeals Committee ("Special Appeals Committee") stemming from his claim for benefits under Tyco's ERISA plan. Before the Court are the Parties' competing motions regarding arbitration. Plaintiff seeks to enforce arbitration of the counterclaims asserted against him by Defendants, while Defendants move to stay such arbitration. Also, Defendant Administrative Committee has moved to dismiss the action against it.
For the reasons stated herein, the Court grants Plaintiff's motion to compel arbitration of Defendants' counterclaims. Consequently, the Court denies Defendants' motion to stay arbitration. However, the Court grants Defendant Administrative Committee's motion to dismiss.
Plaintiff R. Scott Stevenson ("Stevenson") was hired by Tyco in February 1998. (Am. Compl. ¶ 13) He then became a participant in the Supplemental Executive Retirement Plan ("SERP"), an unfunded plan maintained by Tyco to provide deferred compensation for certain management and highly compensated employees.*fn1 (Id. ¶¶ 2, 10) Under the SERP, Tyco credited Plaintiff's individual account with an amount equal to that which Tyco would have contributed to Tyco's Retirement and Investment Plan if Plaintiff had been a participant in that plan, using a formula based on his compensation in excess of the compensation limits imposed by provisions of the Internal Revenue Code. (Id. ¶ 12) Plaintiff's benefits under the SERP vested on the fifth anniversary of his employment with Tyco in February 2003. (Id. ¶ 16)
On March 5, 2002, Plaintiff signed a Retention Agreement presented to him by Tyco and signed by former Tyco CEO Dennis Kozlowski, which granted Plaintiff certain benefits allegedly separate and apart from those granted in the SERP. (See Aff. of R. Scott Stevenson in Supp. of His Mot. to Compel Arb. ¶ 6, Ex. B ("Stevenson Aff. II")) Defendants allege that Plaintiff engaged in insubordination during the summer of 2003. (Defs. Tyco Int'l Ltd. and Tyco Int'l (US) Inc.'s Countercls. Against Pl. R. Scott Stevenson ¶¶ 10-11 ("Defs.' Countercls.")) Stemming from this alleged bad behavior, Defendants assert that Plaintiff was terminated effective immediately on September 11, 2003. (Am. Compl. ¶ 22; Defs.' Countercls. ¶ 12) However, Plaintiff asserts he gave notice of his intent to terminate his employment on July, 29, 2003. (Am. Compl. ¶ 21)
Plaintiff filed a post-termination claim to receive his SERP benefits on November 23, 2003. (Id. ¶ 28) Plaintiff's claim for benefits was denied on May 20, 2004, by the Special Appeals Committee. (Id. ¶ 33) The Special Appeals Committee was created in December 2003 to decide claims of senior officers under the SERP who were subject to allegations of wrongdoing. (Id. ¶¶ 29-30) On May 28, 2004, Plaintiff commenced the present action to recover his benefits under the SERP which were denied by the Special Appeals Committee.
In February 2005, after Plaintiff filed this suit, Defendants allege that they received a mysterious letter from an attorney stating he would take Plaintiff's sworn testimony in an "unspecified proceeding." (Defs.' Mem. of Law in Opp'n to Pl.'s Mot. to Compel Arb. 5 ("Defs.' Opp'n Mem.")) Defendants assert they did not know the attorney that sent the letter was Plaintiff's attorney. Defendant Tyco then sought an injunction in Florida state court to stop Plaintiff from testifying and revealing "confidential information," as forbidden in the Retention Agreement. (Sarelson Decl. Ex. 1) In response, Plaintiff brought a Motion to Dismiss for Lack of Subject Matter Jurisdiction and Compel Arbitration, invoking the arbitration clause within the Retention Agreement. (Sarelson Decl. Ex. 2) Tyco withdrew its motion in April 2005, allegedly after learning that the attorney who sent the "mysterious" letter was Plaintiff's attorney. Plaintiff then moved for attorney's fees, pursuant to Florida state law as well as under the terms of the Retention Agreement. (Sarelson Decl. Ex. 3) The Florida court denied attorney's fees under Florida law, and deferred ruling upon whether Plaintiff was entitled attorney's fees pursuant to the Retention Agreement "pending a determination on the validity of that agreement by the District Court Southern District of New York . . . ." (Sarelson Decl. Ex. 5)
Plaintiff filed this action on May 28, 2004. On October 28, 2004, the Defendants in this case filed a partial motion to dismiss, seeking the release of several Defendants and certain state law claims, the latter primarily on ERISA preemption grounds. This Motion to Dismiss was largely made moot by Plaintiff's November 8, 2005, submission of a proposed Amended Complaint. The Defendants did not oppose the submission of the Amended Complaint.*fn2 Thus, the only remaining motion to dismiss is that of Defendant Administrative Committee.
On June 24, 2005, Defendants filed counterclaims against Plaintiff seeking a declaratory judgment that the Retention Agreement be declared void or voidable and damages for both breach of contract and breach of fiduciary duty. Plaintiff answered and then, on September 29, 2005, demanded that the counterclaims be submitted to arbitration due to an arbitration clause in the Retention Agreement. Plaintiff also filed a Demand for Arbitration before the American Arbitration Association on July 29, 2005. (Stevenson Aff. II Ex. G) Defendants then responded with their Opposition to Plaintiff's Motion to Compel Arbitration, and initiated a Cross-Motion to Stay Arbitration.
II. Administrative Committee's Motion to Dismiss
Defendant Administrative Committee moves to dismiss this action on the grounds that it is not a "plan administrator" and therefore may not be sued under ERISA. (Mem. of Law in Supp. of Defs.' Mot. to Dismiss Pl.'s State Law Claims and Claims Against Certain Defs. 5 ("Defs.' Mot. to Dismiss Mem.")) The function of a motion to dismiss is to test "the legal feasibility of the complaint." Global Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 155 (2d Cir. 2006). Thus, a court should not grant the motion unless no facts could be proved by Plaintiff which would entitle him to relief. See Ambase Corp. v. City Investing Co. Liquidating Trust, 326 F.3d 63, 72 (2d Cir. 2003). When reviewing a motion to dismiss, the Court must accept as true Plaintiff's factual allegations in the complaint. Id.
"In adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Leonard F. v. Isr. Discount Bank of N. Y.,199 F.3d 99, 107 (2d Cir. 1999) (internal quotations omitted). Courts may also consider public records, Tornheim v. Eason, 363 F. Supp. 2d 674, 676 (S.D.N.Y. 2005), as well as documents alleged or referenced in, but not attached to, the complaint. See Cortec Indus. v. Sum Holding, L.P., 949 F.2d 42, 47 (2d Cir. 1991) (noting that defendant may produce a prospectus with its motion to dismiss even though plaintiff did not attach it to the complaint); see also 2 Broadway LLC v. Credit Suisse First Boston Mortgage Capital LLC, No. 00 Civ. 5773, 2001 WL 410074, at *5 (S.D.N.Y. Apr. 23, 2001).
Plaintiff alleges two claims in the Amended Complaint: (1) that the denial of his claim was arbitrary and capricious, and (2) that Tyco's failure to inform Plaintiff of the conditions by which his vested SERP benefits could be forfeited prohibits the Special Appeals Committee from denying him those benefits. (Am. Compl. ¶¶ 52, 60-63) Both claims asserted in the Amended Complaint are brought under section 502(a)(1)(B) of ERISA. See 29 U.S.C. § 1132(A)(1)(B). Suits for benefits under this section may only be maintained against certain parties. "In a recovery of benefits claim, only the plan and the administrators and trustees of the plan in their capacity as such may be held liable." Leonelli v. Pennwalt Corp., 887 F.2d 1195, 1199 (2d Cir. 1989); see also Del Greco v. CVS Corp., 354 F. Supp. 2d 381, 384 (S.D.N.Y. 2005) (providing plan services insufficient to establish liability for ERISA claim). The plan administrator is not personally liable for the unpaid benefits - payment of benefits is "uniquely the Plan's obligation." Greater Blouse, Skirt & Undergarment Ass'n v. Morris, No. 93 Civ. 1257, 1996 WL 325595, at *4 (S.D.N.Y. 1996); accord Hall v. Lhaco, Inc., 140 F.3d 1190, 1196 (8th Cir. 1998); Colin v. Marconi Commerce Sys. Employee's Ret. Plan, 335 F. Supp. 2d 590, 598 (M.D.N.C. 2004). But see Sheehan v. Met Life Ins. Co., No. 01 Civ. 9182, 2002 WL 1424592, at *2 (S.D.N.Y. 2002) (holding that an insurance company that controls the distribution of funds and decides whether to grant benefits under an employee benefit plan may be sued as a plan administrator). This rule springs from section 502(d)(2) of ERISA, which provides that "any money judgment under this subchapter against an employee benefit plan shall be enforceable only against the plan as an entity and shall not be enforceable against any other person unless liability against such person is established in his individual capacity under this subchapter." 29 U.S.C. § 1132(d)(2). Thus, for example, actions against one-time signatories to certain plan agreements must fail, as these defendants have no power to provide plaintiffs with relief. See, e.g., Kerr v. Keogh, 345 F. Supp. 2d 35, 40 (D. Mass. 2004) (former plan administrator released as defendant).
The Amended Complaint asserts claims against the Administrative Committee. This entity is never mentioned in the Plan Document for the SERP. (See Aff. of Christopher Parlo in Supp. of Defs.' Mot. to Dismiss Ex. B ("Parlo Aff.")) Instead, the Plan Document names the "Company's Retirement Committee" as the entity with the power to exercise the Company's rights under the Plan. (Parlo Aff. Ex. B 3, 15) The Administrative Committee is mentioned for the first time in Amendment No. 2004-1 ("2004 Amendment") to the SERP (Parlo Aff. Ex. C), which states, ". . . the Administrative Committee has had the sole responsibility for the general administration of the Plan . . . ."*fn3 (Id.) ...