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Gill v. Bausch & Lomb Supplemental Retirement Income Plan

September 25, 2009


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge



This case, brought under the Employee Retirement Income Security Act of 1974 ("ERISA") case is before the Court on Defendants' motion (Docket No.10) to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons stated below, the application is granted in part and denied in part.


Plaintiffs are former officers and senior executives of Bausch & Lomb Incorporated ("B&L") and retired participants in the B&L Supplemental Retirement Income Plan I ("SERP I" or "Plan"). The Plaintiffs filed the subject complaint on January 29, 2009, alleging in Count One that their benefits were wrongfully reduced by the Plan and, in Count Two, that the Plan Administrator failed to provide requested information as required by 29 U.S.C. § 1132(c)(1)(B) and 29 C.F.R. § 2560.503-1. They allege, inter alia, that "[i]n accordance with 29 U.S.C. § 1132(a)(1)(B), plaintiffs are entitled to recover from defendants the benefits rightfully due them under SERP I.." (Compl. ¶87.)

Defendants filed their motion to dismiss on March 30, 2009. In that application, they contend as follows: that Count One of the Complaint should be dismissed against B&L and the Compensation Committee of B&L's Board of Directors; that Count Two should be dismissed as against B&L and the Plan; that the Plan Administrator's decision to pay a lump sum upon B&L's acquisition by Warburg Pincus was not arbitrary and capricious and should not be disturbed; and that the documents Plaintiffs sought pursuant to § 1132(c)(1)(B) and 29 C.F.R. § 2560.503-1 "are not encompassed within the statutory language at issue." (Def.'s Mem. of Law, at 21)


The U.S. Supreme Court, in Bell Atl. Corp. v. Trombly, 550 U.S. 544 (2007), clarified standard to be applied to a 12(b)(6) motion:

Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a Plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Id. at 1964-65. (citations and internal quotations omitted.) See also, ATSI Communications, Inc. V. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) ("To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient to 'to raise a right to relief above the speculative level.'") (quoting Bell Atl. Corp. v. Trombly) (footnote omitted); Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007) (indicating that Bell Atl. Corp. v. Twombly adopted a "flexible 'plausability standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible[,[: as opposed to merely conceivable.). When applying this standard, a district court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Burnette v. Carothers, 192 F.3d 52, 56 (1999), cert. denied, 531 U.S. 1052 (2000). On the other hand, "[c]onclusory allegations on the legal status of the defendants' acts need not be accepted as true for the purposes of ruling on a motion to dismiss." Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995) (citing In re American Express Co. V. Shareholder Litig., 39 F.3d 395, 400-01 n. 3 (2d Cir. 1994)).

Defendants have relied upon documents outside the complaint in support of their positions. As the Court of Appeals stated, "[f]or purposes of a motion to dismiss, we have deemed a complaint to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference... and documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the complaint." Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000) (citation omitted). When the parties reply on papers outside the Complaint in conjunction with a motion under Rule 12(b)(6), the Court must either choose to exclude the additional materials, or convert the motion into one for summary judgment and consider the extraneous papers. See Fed. R. Civ. P. (12(c); 2 MOORE'S FEDERAL PRACTICE, § 12.34[3][a] Matthew Bender 3d ed.).


The Court will address Defendants' arguments in the order which they are presented in Defendants' memorandum of law filed in support of their motion. At the outset, however, the Court just address how it will consider the papers relied upon by Defendants which ...

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