[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM AND ORDER
This matter is before the court on Plaintiff's timely objectionto a Report and Recommendation issued by United States MagistrateJudge Lincoln D. Almond on June 15, 2005. Magistrate Judge Almondrecommended that the Defendants' motion to dismiss all claims inthe complaint as to defendants Mattiello and Barth pursuant toFed.R.Civ.P. 12(b)(6) be granted. For the reasons set forthbelow, this court adopts the Report and Recommendation in part.The court adopts the Report and Recommendation insofar as itrecommends dismissal of Plaintiff's claims against defendantsMattiello and Barth with respect to their liability asfiduciaries and their liability for breaching a fiduciary duty.The court reserves judgment on Plaintiff's 29 U.S.C. § 1140 claimsubject to the filing of an amended complaint as noted in thisMemorandum and Order.
The court must conduct a plenary review of a Report andRecommendation addressing dispositive pretrial matters to whichspecific written objections have been made. See Fed.R.Civ.P.72(b). The court must make "a de novo determination upon therecord, or after additional evidence, of any portion of themagistrate judge's disposition to which specific writtenobjection has been made. . . ." Id. When reviewing a motion to dismiss pursuant to Fed.R.Civ.P.12(b)(6), the well-pled facts must be taken as true and allreasonable inferences must be drawn in favor of plaintiff.Figueroa v. Rivera, 147 F.3d 77, 80 (1st Cir. 1998). Acourt should not grant a motion to dismiss unless "it appears toa certainty that the plaintiff would be unable to recover underany set of facts." Roma Construction Company v. aRusso,96 F.3d 566, 569 (1st Cir. 1996). The court exempts those "facts"which "have since been conclusively contradicted by plaintiff['s]concessions or otherwise, and likewise eschew[s] any reliance onbald assertions, unsupportable conclusions and `opprobriousepithets.'" Chongris v. Board of Appeals, 811 F.2d 36, 37(1st Cir.), cert. denied, 483 U.S. 1021 (1987) (citationomitted).
At the outset, the court acknowledges Plaintiff's pro sestatus and reads the complaint and Plaintiff's papers with a moregenerous import than it would if Plaintiff were represented bycounsel.
I. Barth as a Fiduciary
Plaintiff objects to Magistrate Judge Almond's conclusion thatshe has pled no set of facts supporting her claim that Barth is aplan fiduciary under 29 U.S.C. § 1002 (21)(A)(iii). Plaintiff'sSubmission of Objections to the Report and Recommendation § II.In her complaint Plaintiff describes Barth as an "attorneyrepresenting the Plan Administrator." Complaint for Injunctiveand Declaratory Relief § II ¶ 5. Plaintiff alleges that Barth had"full knowledge" of the "policies used in Plaintiffs [sic]termination of benefits" and established "an Estopple [sic] bySilence a confirmation of the validity of . . . policies . . .being enforced by [the insurance company] against Plaintiff fortermination of Plaintiffs [sic] benefits by taking no action toprovide a remedy. . . ." Id. at ¶ VI ¶ 7. Plaintiff allegesthat Barth made it known to her that he had no "conflict" with the insurance company's use of policyinterpretations to terminate her benefits. Id. at V pg. 15.Plaintiff asserts that Barth withheld the summary plandescription causing her harm. Id. at ¶ 8.
ERISA provides that an individual is a fiduciary with respectto a plan to the extent that "he has any discretionary authorityor discretionary responsibility in the administration of suchplan." 29 U.S.C. § 1002 (21)(A)(iii). "[T]he mere fact that anattorney represents an ERISA plan does not make the attorney anERISA fiduciary because legal representation of ERISA plansrarely involves the discretionary authority or control requiredby the statute's definition of `fiduciary.'" Custer v. Sweeney,89 F.3d 1156, 1162 (4th Cir. 1996), see also Yeseta v.Baima, 837 F.2d 380, 385 (9th Cir. 1988) (attorney whoreviewed ERISA plan and its compliance with the law and did notcontrol plan in a manner other than by his usual professionalfunctions was not fiduciary under ERISA); Useden v. Acker,947 F.2d 1563 (11th Cir. 1991), cert. denied, 508 U.S. 959(1993) (law firm representing ERISA plan not a fiduciary becauseit did not depart from the usual professional functions of a lawfirm). "It cannot plausibly be considered consonant with theclear purpose of ERISA to deprive ERISA plans of access toordinary legal advice. . . ." Id. at 1578 (emphasis added).
This court has reviewed Plaintiff's complaint and finds nosupport for the premise that Barth acted in any manner beyondthat of the usual attorney-client relationship. Plaintiff'sreferences to Barth in her complaint, even read with Plaintiff'spro se status in mind, amount to mere bald assertions.Accordingly, the court concludes that Plaintiff has alleged nofacts supporting a claim that Barth may be held liable as afiduciary under 29 U.S.C. § 1002 (21)(A)(iii).1
II. Mattiello as a Fiduciary
Plaintiff also objects to Magistrate Judge Almond's conclusionthat she has pled no set of facts supporting Plaintiff's claimthat Mattiello is a plan fiduciary under 29 U.S.C. § 1002(21)(A)(iii). Plaintiff's Submission of Objections to the Reportand Recommendation § I. Plaintiff appears to suggest thatMattiello was relied upon to resolve all matters pertaining toplan participants. Id. at ¶ 2. She suggests that Mattiello'sposition as Vice President of Human Resources of Hope Global, andother factors, support her claim that Mattiello was a fiduciaryunder 29 U.S.C. § 1002 (21)(A)(iii). Id. at ¶¶ 3-6.
In her complaint Plaintiff notes that Mattiello is the "HopeGlobal Human Resources Director." Complaint for Injunctive andDeclaratory Relief § II ¶ 3. Plaintiff readily admits that she began to "copy Defendant . . . Mattiello" on "importantletters," id. at § IV ¶ 30, and that she requested a copy ofthe summary plan description from Mattiello, id. at ¶ 39. Theremainder of her allegations as to Mattiello are the same asthose Plaintiff has leveled at Barth.
"The key determinant of whether a person qualifies as afunctional fiduciary is whether that person exercisesdiscretionary authority in respect to, or meaningful controlover, an ERISA plan, its administration, or its assets. . . ."Beddall v. State Street Bank and Trust, 137 F.3d 12, 18(1st Cir. 1998). "[T]he performance of mechanicaladministrative tasks generally is insufficient to conferfiduciary status." Id.
The allegations that Plaintiff raises in her complaint, eventaken in the light most favorable to Plaintiff, establish nothingmore than Mattiello's responsibilities as the Human ResourcesDirector. Thus, the allegations simply describe Mattiello'sadministrative responsibilities and the usual consequences ofthose responsibilities. The complaint does not contain anyfactual allegations which would show the requisite authority orcontrol over an ERISA plan by Mattiello. Accordingly, the courtconcludes that Plaintiff has alleged no facts supporting a claimthat Mattiello may be held liable as a fiduciary under29 U.S.C. § 1002 (21)(A)(iii).2 III. Plaintiff's 29 U.S.C. § 1140 Claim
Last, Plaintiff objects that Magistrate Judge Almond's Reportand Recommendation contained no specific examination of her claimunder 29 U.S.C. § 1140 against Mattiello and Barth. Plaintiff'sSubmission of Objections to the Report and Recommendation § III.In her objection, Plaintiff appears to claim that Mattiello andBarth interfered with her "protected" rights by demanding sheestablish that her request for the summary plan description wasrelevant to her claim for benefits. Id. at ¶¶ 2, 4, 5.Although Magistrate Judge Almond did not specifically address29 U.S.C. § 1140 in his Report and Recommendation, he recommendedthat this court dismiss all claims against Mattiello and Barthbecause they were not legally responsible for providing thesummary plan description and they were not plan fiduciaries.
Section 1140 provides, in part, that it is unlawful for
any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan, this subchapter . . . or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan, this subchapter. . . .29 U.S.C. § 1140.
In her complaint Plaintiff asks the court to
[d]eclare Defendant's [sic] . . . Mattiello and attorney Barth in violation of 29 U.S.C. § 1140 for interfering with Plaintiffs [sic] rights of access to [the summary plan description] by not fulfilling a promissory estopple [sic] to deliver [the summary plan description] and assign appropriate civil penalties as a result of such actions as requested herein.Complaint for Injunctive and Declaratory Relief § VII ¶ 5.
In Plaintiff's objection to the Report and Recommendation, sheonce again refers to information not contained in her complaint.Plaintiff's Submission of Objections to the Report andRecommendation § III ¶ 2 (citing to "document 11, sections 1 and3"). Taking Plaintiff's pro se status into account, the courtaddresses Plaintiff's allegation.
Plaintiff appears to argue that Defendants' (Plaintiff does notspecify and the court takes this to mean all defendants) act ofrequiring "relevance criteria" was a violation of29 C.F.R. § 2560.503-1(b)(3) and that Plaintiff "will prove" that "this wasan act of discrimination" against her that was "not applied toothers in a similar situation." Reply Memorandum in Support ofPlaintiff's Objection to Dismiss the Complaint Against DefendantsDorothy Mattiello and Bruce Barth at ¶ 3 (emphasis added). Itappears that Plaintiff is suggesting that Defendants' (includingBarth and Mattiello) act of requiring her to show that therequested summary plan description was relevant to her claim forbenefits before it would be forwarded to her was a discriminatoryact that was not applied to others in a similar situation.
Recognizing Plaintiff's pro se status and that Romadictates that a court should not grant a 12(b)(6) motion unlessthere is a certainty that Plaintiff would be unable to recoverunder any set of facts, Roma, 96 F.3d at 569, and out of anabundance of caution, the court reserves judgment on the motionto dismiss relative to the 29 U.S.C. § 1140 claim subject toPlaintiff filing an amended complaint. The court's grant of leaveto file an amended complaint relates solely to Plaintiff's 29 U.S.C. § 1140 claim. If Plaintiffchooses to file an amended complaint, she must do so within 30days of the date of this Order. Thereafter, Defendants may electeither to supplement the instant motion based upon whatever newfactual allegations Plaintiff raises in her amended complaint orto convert the motion to one made pursuant to Rule 56 of theFederal Rules of Civil Procedure. If Plaintiff elects not to filean amended complaint, this court will consider the merits of theDefendants' motion with respect to the § 1140 claim on the basisof the complaint as it now stands.
To the extent that Plaintiff has raised other arguments thatare not specifically addressed in this Memorandum and Order, thecourt has reviewed all such arguments contained in Plaintiff'sSubmission of Objections to the Report and Recommendation and hasdetermined that they are without merit.
For the reasons stated herein, the court adopts MagistrateJudge Almond's Recommendation that Defendants' motion to dismissthe complaint as to Defendants Mattiello and Barth with respectto their liability as fiduciaries, and their liability forbreaching a fiduciary duty, be granted.
1. Plaintiff ignores the standard of review on a Rule 12(b)(6)motion and refers the court to a document outside of thecomplaint. In support of her objection, Plaintiff points to aletter, authored by Barth, denying Plaintiff's request for planinformation. Plaintiff's Submission of Objections to the Reportand Recommendation § II ¶ 3. Plaintiff concludes that as a resultof Barth's use of the pronoun "us" in the letter he "establishedextraordinary and substantial discretionary authority in thismatter." Id. at ¶ 4. Ordinarily, on a motion to dismiss, acourt may not consider documents outside the complaint or notexpressly incorporated into the complaint. Diva's Inc. v. Cityof Bangor, 411 F.3d 30 (1st Cir. 2005). However, when acomplaint's factual allegations are "expressly linked to" anddependent upon a document whose authenticity is not challenged acourt can review the document during its analysis. Id. at 38.In light of the fact that this is a pro se plaintiff and inlight of the "liberal" amendment policy underlying Fed.R. Civ.P. 15(a), see generally, O'Connell v. Hyatt Hotels of PuertoRico, 357 F.3d 152 (1st Cir. 2004), although the court isnot required to, the court has reviewed the letter in whichPlaintiff asserts supports the premise that Barth is a fiduciaryunder 29 U.S.C. § 1002 (21)(A)(iii). It is readily apparent thatthe letter Plaintiff refers to is a rather standard letter froman attorney from a law firm representing a client. Thus, evenindulging Plaintiff's pro se status and taking the letterinto account, Plaintiff's § 1002 (21)(A)(iii) claim as to Barthmust be dismissed.
2. Once again Plaintiff ignores the standard of review on aRule 12(b)(6) motion and refers the court to documents outside ofthe complaint. Plaintiff alleges the fact that Mattiello filed anaffidavit with the Rhode Island Commission for Human Rights "onbehalf of the plan administrator," and the fact that all lettersto Plaintiff or Plaintiff's representative sent by attorneysrepresenting NFA Corporation were copied to Mattiello, supporther claim that Mattiello was a fiduciary pursuant to29 U.S.C. § 1002 (21)(A)(iii). Plaintiff's Submission of Objections to theReport and Recommendation § I ¶¶ 3-5. Plaintiff fails,however, to note that she also copied Mattiello on hercorrespondence. Complaint for Injunctive and Declaratory Relief §IV ¶ 30. Again, although the court is not required to, in lightof the particular circumstances of this case (see footnote 1) thecourt has reviewed the affidavit that Plaintiff refers to andfinds no factual allegations of the necessary discretionaryauthority with respect to or meaningful control over, the plan,its assets or administration for a finding that Mattiello was afiduciary under the 29 U.S.C. § 1002 (21)(A)(iii). Additionally,although the court has not reviewed the letters Plaintiff refersto, the court also finds that merely copying Mattiello on lettersdoes not create a fiduciary responsibility under ERISA.