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McCartney v. Xerox Corp.

August 13, 2010

BECKY MCCARTNEY, PLAINTIFF,
v.
XEROX CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

DECISION and ORDER

INTRODUCTION

Plaintiff Becky McCartney ("McCartney") brings this case pursuant to Section 502(e)(2) of the Employee Retirement Income Security Act ("ERISA") alleging that Defendant Xerox Corporation ("Xerox"), her former employer, breached its fiduciary duty to her by failing to inform her of a planned enhancement to retirement benefits prior to her retiring from the company. Specifically, McCartney, who claims that she was contemplating retirement in 2008, alleges that at that time, she asked Xerox human resources personnel whether or not an early buyout opportunity would be made available to current employees. McCartney claims that she was told by Xerox personnel that no such buyout opportunity would be forthcoming, and that as a result of Xerox's representation, she decided to retire effective September 28, 2008. According to McCartney, one month after she retired, an early buy-out, with enhanced retirement benefits, was made available to certain Xerox employees. Plaintiff alleges that had she been given correct information regarding the buy-out, she would have waited to retire under the enhanced retirement package.

Defendant now moves pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss plaintiff's Complaint on grounds that the plaintiff has failed to state a claim upon which relief can be granted. Specifically, Xerox claims that McCartney has failed to state a claim under ERISA or New York State common law. In response to Defendant's Motion to Dismiss, Plaintiff filed an Amended Complaint adding new allegations which she believes substantiate her claims.

In response to Plaintiff's Amended Complaint, Xerox moves to Strike the Amended Complaint on grounds that Plaintiff failed to timely file the Amended Complaint pursuant to Rule 15(a)(1) of the Federal Rules of Civil Procedure, which provides in relevant part that "a party may amend its pleading once as a matter of course within ... 21 days after service of a motion under 12(b)..." Fed. Civ. R. P. 15(a)(1).

In response to Defendant's Motion to Strike, Plaintiff has filed a Motion for Leave to file her initial Amended Complaint pursuant to Rule 15.

For the reasons set forth below, I grant plaintiff's motion for leave to file an Amended Complaint, deny as moot defendant's motion to dismiss, and grant defendant's motion to strike.

BACKGROUND

In May of 1973, Plaintiff began her career as a Xerox employee. She remained a Xerox employee for over thirty-five years, until her retirement in September of 2008. A few months prior to her retirement, McCartney allegedly asked Xerox human resources personnel whether or not a voluntary reduction-in-force program would be offered to current employees as an inducement to retire. During her communications with company personnel regarding a possible buy-out program, McCartney told Xerox personnel that she would remain an employee through October of 2008 if there was a chance she could participate in an early buy-out. She claims that Xerox personnel told her that no early buy-out opportunity would be available to her.

Believing that no early retirement opportunity would be made available to her, McCartney decided to retire, effective September of 2008. One month after she retired, however, a voluntary reduction in force initiative was announced by Xerox. According to the plaintiff, had she been told of this initiative prior to her retirement, she would have remained employed so that she could have taken advantage of the buy-out program. According to Xerox, the program was limited to only a certain class of employees, and would not have applied to McCartney even if she had remained employed at Xerox.

Upon hearing of the buy-out program, McCartney, although already retired, asked if she could participate in the program. After Xerox denied this request, McCartney brought the instant action claiming that Xerox had breached its fiduciary duty to her pursuant to 29 U.S.C. §1002 ("ERISA") and had misrepresented information to her about the availability of the October 2008 VRIF; information she claims to have relied upon when making her September 2008 retirement decision.

Defendant moved to Dismiss Plaintiff's Complaint on grounds that she has failed to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In response to the Defendant's motion, Plaintiff filed an Amended Complaint restating her claims and adding additional facts in an attempt to further support her claims.

Defendant moves to strike the Amended Complaint due to the fact that Plaintiff has not complied with the time limitations for filing an Amended Complaint as set forth in Rule 15(a)(1)(B) of the Federal Rules of Civil Procedure. In response to the defendant's ...


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