United States District Court, E.D. New York
MEMORANDUM & ORDER
RAYMOND J. DEARIE, DISTRICT JUDGE.
Andrew Cotten ("Cotten") and Andrew Horlick
("Horlick") (collectively, "Plaintiffs")
bring claims against their former employer, Altice USA, Inc.
("Altice" or "Defendant"), related to
Altice's alleged failure to pay severance benefits.
Plaintiffs sue for breach of contract (Count I) and
promissory estoppel (Count II). Cotten Second Amended
Complaint, ECF No. 15, ¶¶ 27-36 ("Cotten
Compl."); Horlick Second Amended Complaint, ECF No. 15,
¶¶ 26-35 ("Horlick Compl."). Following
removal, Plaintiffs amended their pleadings to raise three
Employee Retirement Income Security Act ("ERISA")
claims in the alternative: failure to pay benefits under an
ERISA plan pursuant to § 502(a)(1)(B) (Count III),
failure to furnish ERISA plan documents under §
502(a)(1)(A) (Count IV), and breach of fiduciary duty to
Plaintiffs and others similarly situated to provide plan
documents and timely deliver severance benefits under §
502(a)(3) (Count V). Cotten Compl. ¶¶ 37-58;
Horlick Compl. ¶¶ 36-57. Altice now moves to
dismiss, arguing (i) Plaintiffs' state law claims are
preempted by ERISA, (ii) Plaintiffs lack standing under
ERISA, (iii) Plaintiffs failed to exhaust administrative
remedies, and (iv) Plaintiffs' ERISA claims under
§502(a)(3) are duplicative of other claims. Def. Mem.,
Cotten ECF No. 24, Horlick ECF No. 22, at 4-14. For the
reasons described below, the Court denies Defendant's
Motion to Dismiss as to ERISA preemption, standing, and
exhaustion, and reserves decision on dismissal of Count V as
began his employment as a Sales Director for Altice on
September 25, 2017, and was terminated in July 2018. Cotten
Compl. ¶¶ 13, 22. Horlick began his employment as
Director of East Coast Sales for Altice on January 2, 2018,
and was terminated on June 2, 2018. Horlick Compl.
¶¶ 13, 21. Both Plaintiffs allege that they were
terminated "without cause or explanation" and
denied severance pay. Cotten Compl. ¶¶ 15, 25;
Horlick Compl. ¶¶ 15, 24 (referencing Ex. B).
about January 1, 2017, Altice issued a company-wide Altice
Severance Benefits Policy ("Altice Policy") that it
published on Altice's intranet, widely disseminated, and
furnished to Plaintiffs when they accepted employment with
Altice. Cotten & Horlick Compls. ¶¶ 6, 8. The
Altice Policy outlines severance benefits for Altice
employees terminated without cause. Cotten & Horlick
Compls, Ex. A at 1-3. The Altice Policy also states: "As
approved by the EVP/Head of Function and EVP of Human
Resources, severance guidelines are governed by the
Company's ERISA-covered severance pay plan and the
associated plan document/summary plan description. If you
would like to receive a copy please speak with your local
Human Resources contact." Id. at 2. The Altice
Policy defines "The Company" as "Altice
removing the action to this Court, Defendant filed a
declaration from Altice's Senior Vice President,
Compensation, Benefits & HR Operations, Christopher
Clarke, and a "Cablevision Severance Pay Plan and
Summary Plan Description" ("Cablevision
Plan"). See Notice of Removal, Cotten &
Horlick ECF No. 1, Ex. C (Cablevision Plan), Ex. D (Clarke
Decl.); see also Sweeney Affidavit, Cotten ECF No.
23, Horlick ECF No. 20, Ex. C (Cablevision Plan). With little
explanation, Clarke simply states that the Cablevision Plan
is the ERISA plan that governs the Altice Policy. Clarke
Decl. ¶¶ 3-4. Plaintiffs contend that they were not
provided with documents indicating that they were Cablevision
employees during the onboarding process nor given the
Cablevision Plan prior to this litigation. Cotten Compl.
¶¶ 11-12, 24; Horlick Compl. ¶¶ 11-12,
23; Pl. Opp., Cotten ECF No. 22, Horlick ECF No. 21, at 7, 9.
motion to dismiss, the Court must "accept all
allegations in the complaint as true and draw all inferences
in the non-moving party's favor." LaFaro v. N.Y.
Cardiothoracic Grp., PLLC, 570 F.3d 471, 472 (2d Cir.
2009). "In considering a motion to dismiss for failure
to state a claim under Fed.R.Civ.P. 12(b)(6), a district
court must limit itself to facts stated in the complaint or
in documents attached to the complaint as exhibits or
incorporated in the complaint by reference." Kramer
v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir. 1991).
"[W]here a document is not incorporated by reference,
the court may nevertheless consider it where the complaint
'relies heavily upon its terms and effect,' which
renders the document 'integral' to the
complaint." Chambers v. Time Warner, Inc., 282
F.3d 147, 153 (2d Cir. 2002) (quoting Int'l Audiotext
Network. Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72
(2d Cir. 1995)).
threshold matter, the Court Declines to consider the
proffered Cablevision Plan in deciding Defendant's
Motion. Despite defense counsel's insistence, it is not
apparent that a Cablevision Plan governs the
Altice Policy. Indeed, the first reference to the
Cablevision Plan is found in Defendant's notice of
removal. Compare Id. at 154 (finding it
improper to consider outside document on motion to dismiss
where "the parties disagree as to whether and how the
[document] relate[s] to or affect[s] the contractual
relationships at issue" and the document could be read
as either "irrelevant" or "intended to modify
the ... contracts").
Motion to Dismiss State Claims as Preempted by ERISA
with Congress's goal of "providing] a uniform
regulatory regime over employee benefit plans ... ERISA
includes expansive pre-emption provisions which are intended
to ensure that employee benefit plan regulation [is]
'exclusively a federal concern.'" Aetna
Health Inc. v. Davila, 542 U.S. 200, 208 (2004) (quoting
Alessi v. Raybestos-Manhattan. Inc., 451 U.S. 504,
523 (1981)) (citing ERISA § 514; 29 U.S.C. § 1144).
"[A]ny state-law cause of action that duplicates,
supplements, or supplants the ERISA civil enforcement remedy
... is therefore pre-empted." Id. at 209.
ERISA's broad preemptive force, where there is a factual
dispute as to the existence of an enforceable ERISA plan,
Plaintiffs may plead state law claims in the alternative.
See, e.g., Aiena v. Olsen, 69 F.Supp.2d
521, 531 (S.D.N.Y. 1999) ("Given the uncertainties
concerning (a) whether the [challenged] arrangements were an
ERISA plan and (b) the scope of ERISA preemption, it would be
foolish to put all of one's eggs in either the ERISA or
the state law basket. Resting solely on ERISA would run the
risk that a court ultimately would determine that there was
no ERISA plan. Resting solely on the state law theory would
run the risk that a court would conclude that there was an
ERISA plan and that the state claims were preempted.");
Aramony v. United Way of Am., 949 F.Supp. 1080, 1084
(S.D.N.Y. 1996) ("[A]s defendants question the existence
of an enforceable ERISA plan, plaintiffs [state law] claim is
an acceptable alternative theory that may be pled along with
plaintiffs ERISA claims.").
uncertainty regarding the existence and identification of
Altice's ERISA severance plan, the Court at this time
declines to dismiss Plaintiffs' state law claims.
Motion to Dismiss ERISA Claims ...