Miller v. Int'l Paper Co.

Full title: WARREN MILLER, Plaintiff, v. INTERNATIONAL PAPER COMPANY, and RETIREMENT…

Court: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Jul 24, 2013

12 Civ. 7071 (LAK) (JLC) (S.D.N.Y. Jul. 24, 2013)

Opinion

12 Civ. 7071 (LAK) (JLC)

07-24-2013

WARREN MILLER, Plaintiff, v. INTERNATIONAL PAPER COMPANY, and RETIREMENT PLAN OF INTERNATIONAL PAPER COMPANY, Defendants.

JAMES L. COTT, United States Magistrate Judge.

REPORT AND RECOMMENDATION

JAMES L. COTT, United States Magistrate Judge.

To The Honorable Lewis A. Kaplan, United States District Judge:

Plaintiff Warren Miller brings this action against his former employer, International Paper Company ("International Paper"), and the Retirement Plan of International Paper Company ("Retirement Plan") (collectively, "Defendants"), pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA") and New York law. Miller alleges that Defendants violated ERISA by failing to calculate his retirement benefits properly in light of an enhanced severance package that he received when he was laid off by International Paper in 2009. In the alternative, Miller alleges that Defendants violated their fiduciary duties under ERISA by failing to explain the terms of the enhanced severance package, thus causing Miller to unwittingly forfeit some of his benefits. In addition to his ERISA claims, Miller brings common law claims for unjust enrichment, fraud, misrepresentation, and intentional and negligent infliction of emotional distress.

Defendants now move for partial judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Defendants contend that the Court should dismiss Miller's claim that Defendants violated their fiduciary duties under ERISA, as well as all of his common law claims. Defendants also argue that Miller is not entitled to a jury trial on his ERISA claims as a matter of law, and his demand for one should be stricken. For the reasons that follow, I recommend that Defendants' motion be granted in part and denied in part.

I. BACKGROUND

A. Miller's Allegations

As discussed below, in the context of a Rule 12(c) motion, the Court accepts as true the plausible factual allegations of the complaint. Accordingly, what follows is drawn from Miller's complaint.

Miller worked for International Paper in various different positions from November 5, 1987 until April 13, 2009. (Complaint ("Compl."), ¶¶ 4, 5 (Dkt. No. 1)). During his employment, Miller was a participant in the Retirement Plan, a defined-benefits pension plan sponsored by International Paper and governed by ERISA. (See id. ¶ 3; see also Memorandum of Law in Support of Defendants' Partial Motion for Judgment on the Pleadings and to Strike Plaintiff's Jury Demand, filed February 4, 2013 ("Defs. Mem.") (Dkt. No. 7), at 1).

In April 2009, Miller was laid off. (See Compl. ¶ 5; Defs. Mem. at 1). International Paper offered Miller-who was then 58 years old-an "enhanced severance package" whereby he could allegedly receive "an 'additional 3 years of service and three years of age' for purposes of calculating his pension." (Compl. ¶ 6; see also Memorandum in Opposition to Defendants' Partial Motion for Judgment on the Pleadings, filed February 26, 2013 ("Pl. Opp.") (Dkt. No. 16), at 8). According to Miller, the package also provided that three years would be added to Miller's age "to determine the [a]pplicable reduction [f]actor for [e]arly [c]ommencement of [b]enefits.'" (Compl. ¶ 16). In his opposition papers, Miller contends that International Paper offered this enhanced severance package so that Miller would "releas[e] his claims against the Defendant . . . and not pursu[e] . . . various age discrimination and wrongful termination claims . . . ." (Pl. Opp. at 8). Miller further asserts that, "[b]ased on [Defendants'] representations," he agreed to waive his legal claims and accept the enhanced severance package. (See id. at 9-10).¹

1 Conversely, Defendants argue that Miller "did not accept the enhanced severance package at the time of his termination." (Defs. Mem. at 2). However, Defendants do not provide support for this contention aside from a general citation to the Complaint. (Id.) While Miller's papers are not entirely clear, the Court does not find any admissions by Miller that he rejected the package (or that his failure to immediately file for benefits was tantamount to a rejection). Rather, Miller seems to argue that he accepted the package when it was offered to him. (See Pl. Opp. at 9-10).

Miller waited until March 1, 2011, approximately 22.5 months after he lost his job, to file a "request to retire," which the Court construes as a request for retirement benefits. (Compl. ¶ 8).² Miller alleges that he delayed seeking retirement benefits because his wife was ill and then passed away. (See Compl. ¶¶ 8, 27). Miller also asserts that, based on Defendants' descriptions of the enhanced severance package, he "expected, and had reason to expect" that "his benefit[s] [would] increase[] as a result of his waiting to exercise his right to [receive benefits] . . . ." (Compl. ¶ 10; see also Pl. Opp. at 10).³ However, when Miller requested benefits in 2011, he was allegedly told that "his [monthly] benefits would be exactly the same as they would have been" had he started receiving benefits in 2009. (Compl. ¶ 9). Thus, Miller would not receive any financial advantage from having foregone the receipt of retirement benefits from April 2009 until March 2011. The Plan's administrators also advised Miller that the additional three years of age and service that had allegedly been promised at the time of his lay-off "would not actually be added to his age for purposes of determining his benefits," and thus his benefits "would be exactly the same as they would have been had he retired in 2009." (Id.).

2 In his Complaint, Miller equates "retirement" with the commencement of retirement benefits. (See, e.g., Compl. ¶¶ 8, 10, 11). At this stage of the litigation, there is nothing in the record to shed light on how the plan documents defined "retirement" (e.g., whether the term "retirement" referred to an employee's receipt of retirement benefits, or merely to the termination of an employee's employment at International Paper). For the purposes of this Report and Recommendation, the Court assumes that when Miller's papers refer to him having "retired" at a particular time (see id. ¶¶ 8, 11), Miller is asserting that he began receiving benefits at that time.

3 Miller does not explain why he expected his benefit amount to increase if he waited until 2011 to start receiving benefits. It is possible that Miller thought he would receive increased benefits if he waited to file until he reached a certain age. However, Miller does not provide any information with regard to how "retirement age" was defined under the Plan, or how his age would affect his benefit amount. See 29 U.S.C. § 1002(24) (retirement plan may (A) provide for "'normal retirement age'" that is lower than age 65, or (B) set retirement age as the "the later of" either "(i) the time a plan participant attains age 65, or (ii) the 5th anniversary of the time a plan participant commenced participation in the plan").

On June 17, 2012, Miller filed a claim with the Plan Administrator seeking to have three years of age and three years of service added to his work history for the purpose of calculating his retirement benefits. (Id. ¶ 11). Alternatively, he sought to have his "retirement date adjusted as if he retired on the first date he was eligible to retire." (Id.). Miller's latter claim seems to have been seeking benefits for the 22.5-month period between when Miller left International Paper in April 2009 and when he filed a request for benefits in March 2011. (See supra note 2). The Plan Administrator denied Miller's claims and his subsequent appeal (Id. ¶¶ 12-14), and this lawsuit followed.

B. Procedural History

On September 19, 2012, Miller filed his complaint alleging that Defendants failed to calculate his benefits properly pursuant to the enhanced severance package (i.e., by wrongfully denying him credit for an additional three years of age and three years of service at International Paper) (Id. ¶¶ 15-21); or, in the alternative, that Defendants breached their fiduciary duty to inform him of the true terms of the enhanced severance package (Id. ¶¶ 22-27). Miller's complaint also includes claims for unjust enrichment (Id. ¶¶ 28-31), and "Fraud, Misrepresentation, [and] Intentional [o]r Negligent Infliction [o]f Emotional Distress." (Id. ¶¶ 32-36).⁴

4 As Defendants point out, it is not clear from the complaint whether Miller's third claim, alleging unjust enrichment, is brought as a claim for equitable relief pursuant to ERISA § 502(a)(3), or as a claim under New York common law. (See Defs. Mem. at 3 n.3; Compl. ¶¶ 28-31). In his opposition papers, Miller characterizes this claim as falling under "state and federal common law." (Pl. Opp. at 5). The Court therefore assesses the claim both as a claim for equitable relief pursuant to ERISA § 502(a)(3) and as a New York common law claim.

After filing an Answer on January 3, 2013 (Dkt. No. 5), Defendants moved for partial judgment on the pleadings and to strike Miller's jury demand under Rules 12(c) and 12(f) on February 4, 2013. (Dkt. No. 7). Defendants argue that Miller's ERISA claim for breach of fiduciary duty and his common law unjust enrichment claim should be dismissed because they are merely a recasting of his claim for benefits. (Defs. Mem. at 4-5). In addition, Defendants contend that Miller's jury demand is improper (id. at 9-10), that his common law claims should be dismissed because they are preempted by ERISA (id. at 5-8), and that he has failed to allege sufficient facts to state a claim for fraud, misrepresentation, or intentional or negligent infliction of emotional distress. (Id. at 11-18). On February 5, 2013, Judge Kaplan referred this motion to me for a report and recommendation. (Dkt. No. 12). Miller filed opposition papers on February 26, 2013 (Dkt. No. 16), and Defendants filed reply papers on March 4, 2013. (Memorandum of Law in Reply to Plaintiff's Opposition) ("Defs. Reply") (Dkt. No. 17).

II. DISCUSSION

A. Motion for Judgment on the Pleadings

"After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). "The Court reviews Rule 12(c) motions for judgment on the pleadings under the same standard as Rule 12(b)(6) motions to dismiss." Miller v. CBS Retirement Plan, No. 12 Civ. 3697 (KBF), 2013 WL 864610, at *4 (S.D.N.Y. Mar. 7, 2013) (citing Bank of New York v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010)). Accordingly, "'to survive a Rule 12(c) motion, the complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Bank of N.Y., 607 F.3d at 922) (internal quotation marks and punctuation omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

In addition, a complaint alleging fraud must satisfy Rule 9(b), which requires that "[i]n alleging fraud . . . a party must state with particularity the circumstances constituting fraud . . . ." Fed. R. Civ. P. 9(b). "'Specifically, the complaint must: (1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.'" Goldstein v. Solucorp Industries, Ltd., No. 11 Civ. 6227 (VB), 2013 WL 1812005, at *7 (S.D.N.Y. Mar. 19, 2013) (quoting Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir. 1993)).

B. Miller's ERISA Claims for Breach of Fiduciary Duty Should Survive the Motion

1. Applicable Legal Standards

a. ERISA's Civil Enforcement Remedies

ERISA § 502(a)(1)(B), codified at 29 U.S.C. § 1132(a)(1)(B), provides that a "participant or beneficiary" in a retirement plan governed by ERISA may bring a civil action "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." In making benefits determinations under this section, a court may "look outside the plan's written language in deciding what [the plan's] terms are, i.e., what the language means." CIGNA Corp. v. Amara, 131 S.Ct. 1866, 1877 (2011) (citing UNUM Life Ins. Co. of America v. Ward, 526 U.S. 358, 377-79 (1999)). However, ERISA § 502(a)(1)(B) "speaks of 'enforc[ing]' the 'terms of the plan,' not of changing them." Amara, 131 S. Ct. at 1877 (citing 29 U.S.C. § 1132(a)(1)(B)). Thus, even if a court relies on extrinsic sources to clarify the terms of a benefit plan, any relief pursuant to ERISA § 502(a)(1)(B) must be under the plan's terms as found by the court; a court may not "reform" the plan or provide other equitable relief under this section. See id. at 1876-77.

In contrast, ERISA § 502(a)(3), codified at 29 U.S.C. § 1132(a)(3), is a catch-all provision allowing a "participant, beneficiary, or fiduciary" to bring a civil action seeking "(A) to enjoin any act or practice which violates any provision of [ERISA] or the terms of [a] [benefit] plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of [ERISA] or the terms of [a] plan." As discussed further below, this provision creates a cause of action for claims that a fiduciary has violated ERISA by providing false or misleading information regarding benefits. Varity Corp. v. Howe, 516 U.S. 489, 506-07, 515 (1996), or has failed to provide notices that are required by statute. See Weinreb v. Hospital for Joint Diseases Orthopaedic Institute, 404 F.3d 167, 171 n.1 (2d Cir. 2005).

Although relief pursuant to ERISA § 502(a)(3) must be "equitable," the Supreme Court recently clarified in Amara that this does not necessarily preclude a court from granting monetary relief. 131 S. Ct. at 1879-80. Rather, the Supreme Court found that several traditional equitable remedies could be available to an ERISA beneficiary who brings a successful claim for breach of fiduciary duty under Section 502(a)(3). These may include a "surcharge" remedy wherein a beneficiary receives "monetary 'compensation' for a loss resulting from a trustee's breach of duty, or to prevent the trustee's unjust enrichment." Id. at 1880 (citation omitted). A plaintiff may also seek equitable estoppel, which "'operates to place the person entitled to its benefit in the same position he would have been in had the representations been true.'" Id. (citation omitted). In practice, an estoppel remedy for breach of fiduciary duty under Section 502(a)(3) would be expected to result in monetary relief (i.e., by holding an employer to a promise to pay certain retirement benefits).

Notably, in order to obtain any equitable relief under Section 502(a)(3), a plaintiff must make the required showing for "the particular equitable remedies he seeks." Osberg v. Foot Locker, Inc., 907 F. Supp. 2d 527, 533 (S.D.N.Y. 2012) (citing Amara, 131 S. Ct. at 1880-82)). Thus, for example, in order to obtain a surcharge for a breach of fiduciary duty, a plaintiff must show both actual harm and causation. Amara, 131 S. Ct. at 1881.

b. ERISA Claims Based Upon False, Misleading, or Incomplete Information

While ERISA § 502(a)(3) provides a vehicle for seeking equitable relief, in order to bring a claim pursuant to this Section, a plaintiff must also allege an underlying violation of some substantive provision of ERISA. See, e.g., Gates v. United Health Grp., No. 11 Civ. 3487 (KBF), 2012 WL 2953050, at *11 (S.D.N.Y. July 16, 2012) (plaintiff's ability to seek equitable relief pursuant to Section 502(a)(3) "does not relieve her from having to establish an underlying violation of the statute"). In a claim such as Miller's alleging a breach of fiduciary duty, the underlying statutory violation may fall under ERISA § 404(a)(1)(B), which imposes an obligation on plan fiduciaries to

discharge [their] duties with respect to a plan solely in the interest of the participants and . . . with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.

29 U.S.C. § 1104(a)(1)(B).⁵

5 Although Miller does not explicitly mention ERISA § 404(a)(1)(B) in his complaint, he paraphrases the language of the statute, asserting that "[p]lans established under ERISA are to be administered for the benefit of the participants" (Compl. ¶ 23), and "[t]hose responsible for administering a Plan have a fiduciary obligation to the plan participants." (Id. ¶ 24). In addition, Miller discusses ERISA § 404(a)(1)(B) in his opposition papers, listing the obligations that it imposes upon plan fiduciaries. (See Pl. Opp. at 12). In light of Miller's reliance on this Section-and his failure to allege any other predicate for his claim to equitable relief under ERISA § 502(a)(3) -the Court assumes that Miller's fiduciary duty claim arises from an alleged violation of ERISA § 404(a)(1)(B).

The duty of care and loyalty found in ERISA § 404(a)(1)(B) has been applied to fiduciaries' communications with plan participants and beneficiaries. See, e.g., Bilello v. JPMorgan Chase Retirement Plan, 649 F. Supp. 2d 142, 165-66 (S.D.N.Y. 2009) ("Communicating information about the contents of a plan is a discretionary responsibility giving rise to a fiduciary obligation.") (citing Bouboulis v. Transport Workers Union of America, 442 F.3d 55, 65 (2d Cir. 2006)). Consequently, "'[f]iduciaries may be held liable for statements pertaining to future benefits if the fiduciary knows those statements are false or lack a reasonable basis in fact.'" Bilello, 649 F. Supp. 2d at 166 (quoting Flanigan v. General Elec. Co., 242 F.3d 78, 84 (2d Cir. 2001)); see also Varity Corp., 516 U.S. at 506; Ballone v. Eastman Kodak Co., 109 F.3d 117, 122 (2d Cir. 1997). Moreover, fiduciaries may be "liable for non-disclosure of information about a current plan when the omitted information was necessary to an employee's intelligent decision about retirement." Flanigan, 242 F.3d at 84 (citing Becker v. Eastman Kodak Co., 120 F.3d 5 (2d Cir. 1997)); see also Devlin v. Empire Blue Cross and Blue Shield, 274 F.3d 76, 88 (2d Cir. 2001) ("[W]hen a plan administrator . . . fails to provide information when it knows that its failure to do so might cause harm, the plan administrator has breached its fiduciary duty to individual plan participants and beneficiaries.") (citation omitted).

2. Miller's Claims for Breach of Fiduciary Duty and Unjust Enrichment Pursuant to ERISA § 502(a)(3) Are Not Precluded by His Claim for Benefits Pursuant to ERISA § 502(a)(1)(B).

In Miller's first claim (the "benefits claim")-which is not the subject of Defendants' motion-Miller alleges that when he requested retirement benefits in March 2011, the Plan Administrator misinterpreted the terms of the enhanced severance package and refused to credit him with three additional years of age and service for the purpose of calculating his benefits. Thus, he seeks to recover benefits allegedly due to him under the terms of his benefit plan-precisely the sort of claim contemplated by ERISA § 502(a)(1)(B).

In Miller's second claim (the "breach of fiduciary duty claim"), he makes an alternative argument that even if he is not entitled to increased benefits under the terms of the enhanced severance package, he should receive equitable relief based on an alleged breach of fiduciary duty. In his breach of fiduciary duty claim, Miller alleges that he waited for approximately 22.5 months to seek benefits, from April 2009 to March 2011, because based on Defendants' misrepresentations, he incorrectly believed that this delay would increase his benefit amount. Although Miller does not cite to a specific statutory basis as the predicate for this claim, "claims by plan participants for breach of fiduciary duties arise under § 502(a)(3)." Frommert v. Conkright, 433 F.3d 254, 269 n.13 (2d Cir. 2006) (construing claim under § 502(a)(3) where plaintiffs failed to identify statutory basis) (citing Devlin, 274 F.3d at 89).⁶

6 Miller does cite to Section 502(a)(3) in the jurisdictional statement of his Complaint (in an unnumbered paragraph), but he does not cite to it or to any other statutory provisions in setting out his breach of fiduciary duty claim. (See Compl. at ¶¶ 22-27).

Miller brings a third claim for "unjust enrichment," arguing that due to the breach of Defendants' fiduciary duty, he forfeited benefits to which he would otherwise have been entitled (the "unjust enrichment claim"). Miller fails to cite to a specific legal basis for this claim as well, and the Court will also construe it here as a claim pursuant to ERISA § 502(a)(3).

Defendants assert that Miller's breach of fiduciary duty claim and unjust enrichment claim-which both arise from the fact that he did not seek benefits between April 2009 and March 2011-are, in essence, claims for benefits pursuant to Section 502(a)(1)(B). (Defs. Mem. at 5). They argue that Miller may therefore not bring these claims under Section 502(a)(3) pursuant to the Supreme Court's decision in Varity Corp., 516 U.S. at 515. (Defs. Mem. at 4).

Defendants' reliance on Varity Corp. is misplaced. In Varity Corp, plaintiffs alleged that they were persuaded to withdraw from their original benefit plan and enroll in a far-inferior new plan based on misleading statements by the Plan Administrator, who was also their employer. 516 U.S. at 494. Plaintiffs asserted that the Plan Administrator's misleading statements with regard to the new plan violated the fiduciary obligations set forth in ERISA § 404(a)(1)(B) to administer the plan "'solely in the interest'" of the plan's "'participants and beneficiaries.'" Id. (quoting ERISA § 404(a)(1)(B)). Pursuant to ERISA § 502(a)(3), plaintiffs therefore sought "the benefits they would have been owed" had they not switched plans. Id. Ruling for plaintiffs, the Supreme Court held that ERISA § 502(a)(3) provided a private right of action for their claims and that they could recover in equity for their losses.

In the course of its decision in Varity Corp., the Court noted that plaintiffs could not have brought their lawsuit as a claim for benefits under ERISA § 502(a)(1)(B) because the plaintiffs "were no longer members of the [original benefit] plan and, therefore, had no 'benefits due [them] under the terms of [that] plan.'" Varity Corp., 516 U.S. at 515 (citing ERISA § 502(a)(1)(B)). Thus, if plaintiffs could not proceed in a claim for equitable relief under Section 502(a)(3), they would "have no remedy at all." Id. The Court also acknowledged, however, that by allowing a private right of action under ERISA § 502(a)(3), the Court was opening up the possibility that future plaintiffs might bring claims under both Section 502(a)(1)(B) and Section 502(a)(3). Id. at 514-15. The Court then suggested that "where Congress . . . provided adequate relief for a beneficiary's injury [through an action for benefits pursuant to ERISA § 502(a)(1)(B)], there will likely be no need for further equitable relief [pursuant to ERISA § 502(a)(3)], in which case such relief normally would not be 'appropriate.'" Id. at 515.

Defendants argue that Miller's claims for breach of fiduciary duty pursuant to ERISA § 502(a)(3) should be barred under Varity Corp. because it is possible that he could recover pursuant to his claim for benefits under ERISA § 502(a)(1)(B). This argument fails for two reasons. First, while Section 502(a)(1)(B) provides an avenue for Miller to seek increased benefits dating from when he sought benefits in March 2011 onward, it will not provide a remedy for any benefits that Miller forfeited between April 2009 and March 2011. Miller does not claim that Defendants misconstrued or misapplied the terms of his retirement plan between April 2009 and March 2011, nor that they wrongfully denied him benefits during this period. On the contrary, it is uncontested that Miller did not receive retirement benefits during this period because he made the decision to postpone his request for them. Since Miller does not claim that he should have received benefits between 2009 and 2011 under the terms of his benefit plan, he plainly cannot obtain relief as to this time period under ERISA § 502(a)(1)(B). See Varity Corp., 516 U.S. at 515; Weinreb, 404 F.3d at 170 (affirming denial of claim for benefits where potential beneficiary failed to fill out required enrollment form, and noting that "[a] suit for benefits due under the terms of an ERISA-governed plan necessarily fails where the participant does not qualify for those benefits") (citation omitted).

Thus, contrary to Defendants' arguments, ERISA § 502(a)(1)(B) does not provide Miller with an "adequate remedy" if, in fact, he forfeited 22.5 months of retirement benefits due to Defendants' alleged breach of fiduciary duty. Rather, Miller's only means of relief for his forfeited benefits during this period would be a claim pursuant to ERISA § 502(a)(3). See, e.g., Watson v. Consol. Edison of New York, 594 F. Supp. 2d 399, 407-08 (S.D.N.Y. 2009) (denying motion to dismiss breach of fiduciary duty claim pursuant to ERISA § 502(a)(3) where plaintiffs asserted they mistakenly chose specific plan for early retirement, foregoing other options, because defendants misrepresented plan's true terms). As discussed above, Varity Corp. did not bar plaintiffs from pursuing an action for breach of fiduciary duty pursuant to ERISA § 502(a)(3) where, as here, relief under Section 502(a)(1)(B) would be unavailable. On the contrary, Varity Corp. permitted plaintiffs to proceed with a breach of fiduciary duty claim under § 502(a)(3) while noting that they could not recover benefits under the terms of their former benefit plan because they had withdrawn from the plan. See Varity Corp, 516 U.S. at 515. Rather than undermining Miller's ability to bring claims for equitable relief pursuant to Section 502(a)(3), Varity Corp. supports it because Miller has no other remedy for his alleged losses between April 2009 and March 2011.⁷

7 In addition to Sections 502(a)(1) and 502(a)(3), Miller's Complaint also cites to ERISA § 502(a)(2) in the jurisdictional statement. Section 502(a)(2) provides for civil actions against individual fiduciaries who have breached their obligations to an employee benefit plan. See id.; 29 U.S.C. § 1109. However, as Defendants correctly point out (see Defs. Mem. at 2 n.2), in the context of a defined-benefit pension plan such as the plan at issue here, Section 1132(a)(2) does not provide a remedy to individual beneficiaries, but only to the plan itself. See LaRue v. DeWolff, Boberg & Associates, Inc., 552 U.S. 248, 256 (2008); Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 144 (1985). Accordingly, Section 502(a)(2) does not provide any jurisdictional predicate or alternative basis for relief to Miller.

The second reason Defendants' argument fails is that, even assuming that Miller could potentially recover benefits under ERISA § 502(a)(1)(B) for the period between April 2009 and March 2011, the Second Circuit has made clear that this would not bar his claims for breach of fiduciary duty, especially at this early stage of the litigation. See Devlin, 274 F.3d at 89-90. In Devlin, a case not cited by the parties, the Second Circuit considered a claim for benefits under ERISA § 502(a)(1)(B) and a parallel claim for breach of fiduciary duty under ERISA § 502(a)(3).⁸ The Court found that both claims could proceed, explaining that the "Supreme Court in Varity Corp. did not eliminate the possibility of a plaintiff successfully asserting a claim under both § 502(a)(1)(B), to enforce the terms of a plan, and § 502(a)(3) for breach of fiduciary duty . . . ." Devlin, 274 F.3d at 89. Rather,

8 While there are more than 10,000 cases that cite Varity Corp., there are only 33 Second Circuit cases as of this writing that do so, and Devlin is prominent among them. It is therefore disappointing that neither party brought this decision to the Court's attention, especially given its obvious relevance to the issues presented by this motion.

the determination of "appropriate equitable relief" rests with the district court should plaintiffs succeed on both claims. This determination must be based on ERISA policy and the special nature and purpose of employee benefit plans. We therefore hold that Varity Corp. did not eliminate a private cause of action for breach of fiduciary duty when another potential remedy is available; instead, the district court's remedy is limited to such equitable relief as is considered appropriate. If the plaintiffs ultimately prevail on [the fiduciary duty] claim upon remand, the district court must then fashion appropriate relief.

Id. (additional quotation marks and citation omitted). Devlin makes clear that while recovery pursuant to ERISA § 502(a)(1)(B) may render further recovery under ERISA § 502(a)(3) not "appropriate," a plaintiff may assert both claims at the pleading stage. See also Frommert, 433 F. 3d at 272 ("In Devlin, this Court considered whether the Supreme Court's decision in Varity Corp. foreclosed the availability of a private cause of action for breach of fiduciary duty under § 502(a)(3) when another potential remedy is available and held that it did not.").

Accordingly, Miller's claims for equitable relief pursuant to § 502(a)(3) are not barred by Varity and its progeny. Should Miller prevail on one or both of his claims for equitable relief as well as on his claim for benefits pursuant to ERISA § 502(a)(1)(B), the Court would be responsible "for determining appropriate equitable relief . . . based on ERISA policy and the special nature and purpose of employee benefits plans . . . as well as consideration of the relief afforded the plaintiff[] under [his] § 502(a)(1)(B) claim." Frommert, 433 F.3d at 272 (citations and quotation marks omitted). However, as that issue is not currently before the Court, I recommend that Defendants' motion be denied as to Miller's claims for equitable relief pursuant to ERISA § 502(a)(3). C. Miller's State Law Claims for Unjust Enrichment, Fraud, Misrepresentation, and Intentional or Negligent Infliction of Emotional Distress Should Be Dismissed

Having addressed Miller's claims pursuant to ERISA § 502(a)(3), I now turn to his common law claims for unjust enrichment, fraud, misrepresentation, and negligent and intentional infliction of emotional distress. For the reasons set forth below, I recommend that these claims be dismissed.

1. Applicable Legal Standards

a. Unjust Enrichment

"To assert a claim for unjust enrichment under New York law, [a] plaintiff[] must allege: '(1) that the defendant was enriched; (2) that the enrichment was at the plaintiff's expense; and (3) that the circumstances are such that in equity and good conscience the defendant should return the money or property to the plaintiff.'" Goldstein, 2013 WL 1812005, at *7 (quoting Golden Pac. Bancorp v. F.D.I.C., 273 F.3d 509, 519 (2d Cir. 2001)); see also Giordano v. Thomson, 564 F.3d 163, 169 (2d Cir. 2009) (same).

b. Fraud

"To state a claim for fraud under New York law, a plaintiff must show: '(1) a misrepresentation or omission of material fact; (2) which the defendant knew to be false; (3) which the defendant made with the intention of inducing reliance; (4) upon which the plaintiff reasonably relied; and (5) which caused injury to the plaintiff.'" Tolin v. Standard & Poor's Fin. Servs., LLC, 12 Civ. 8842 (PAE), 2013 WL 3192115, at *6 (S.D.N.Y. June 24, 2013) (quoting Abu Dhabi Commercial Bank v. Morgan Stanley & Co. Inc., 651 F. Supp. 2d 155, 171 (S.D.N.Y. 2009)).

c. Negligent Misrepresentation

"To state a claim for negligent misrepresentation under New York law, the plaintiff must allege that '(1) the defendant had a duty, as a result of a special relationship, to give correct information; (2) the defendant made a false representation that he or she should have known was incorrect; (3) the information supplied in the representation was known by the defendant to be desired by the plaintiff for a serious purpose; (4) the plaintiff intended to rely and act upon it; and (5) the plaintiff reasonably relied on it to his or her detriment.'" Anschutz Corp. v. Merrill Lynch & Co., 690 F.3d 98, 114 (2d Cir. 2012) (quoting Hydro Investors, Inc. v. Trafalgar Power Inc., 227 F.3d 8, 20 (2d Cir. 2000)).

d. Intentional and Negligent Infliction of Emotional Distress

To state a claim for intentional infliction of emotional distress, a plaintiff must allege "(i) extreme and outragfeous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress." Carandang v. Shapiro, No. 12 Civ. 5634 (PAC), 2013 WL 1809641, at *3 (S.D.N.Y. Apr. 30, 2013) (quoting Howell v. New York Post Co., 612 N.E. 2d 699, 702 (N .Y. 1993)); see also Margrabe v. Sexter & Warmflash, P.C., 353 Fed. Appx. 547, 550 (2d Cir. 2009) (same). The first element, extreme and outrageous conduct, sets a high burden: "the conduct in question must be 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Medcalf v. Walsh, No. 12 Civ. 5091 (PAE), 2013 WL 1431603, at *7 (S.D.N.Y. Apr. 9, 2013) (quoting Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 303 (1983)). In addition, "[t]he New York courts have held that a claim for damages for intentional infliction of emotional distress is subject to the one-year statute of limitations in C.P.L.R. Section 215(3)." Lowe v. Housing Works, Inc., No. 11 Civ. 9233 (DAB), 2013 WL 2248757, at *12 (S.D.N.Y. May 15, 2013) (quoting Patterson v. Balsamico, 440 F.3d 104, 112 n.4 (2d Cir. 2006)). The one-year limitations period begins to run "'when the claim becomes enforceable, i.e. when all elements of the tort can be truthfully alleged in a complaint.'" Lowe, 2013 WL 2248757, at *12 (quoting Dana v. Oak Park Marina, 660 N.Y.S.2d 906, 910 (1997)).

The tort of negligent infliction of emotional distress shares three common elements with intentional infliction of emotional distress, namely: (1) extreme and outrageous conduct; (2) a causal connection between the conduct and the injury; and (3) severe emotional distress. See Jackson v. City of New York, No. 11 Civ. 2925 (WFK) (SMG), 2013 WL 1621994, at *10 (E.D.N.Y. Apr. 16, 2013) (citation omitted). Additionally, "the plaintiff must plead a breach of a duty owed to the plaintiff which either unreasonably endangers, or causes the plaintiff to fear for the plaintiff's safety." Naughright v. Weiss, 826 F. Supp. 2d 676, 698 (S.D.N.Y. 2011) (citing Sheila C. v. Povich, 11 A.D.3d 120, 130 (1st Dep't 2004)).

e. ERISA Preemption

i. State Law

ERISA preempts state causes of action that (1) "relate[ ] to an employee benefit plan within the meaning of [ERISA] section 514(a), 29 U.S.C. § 1144(a)," and (2) "fall[ ] within the scope of [ERISA's] civil enforcement provisions, found in section 502(a), 29 U.S.C. § 1132(a)." Smith v. Dunham-Bush, Inc., 959 F.2d 6, 8 (2d Cir. 1992); see also Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138-39 (1990) (ERISA's preemption provisions as to "State laws" also apply to state common law). As to the first prong of this test, "a state law relates to a benefits plan in the normal sense of the phrase, if it has a connection with or reference to such a plan." Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47 (1987) (internal quotations omitted). "A state law of general application, with only an indirect effect on a pension plan, may nevertheless be considered to 'relate to' that plan for preemption purposes." Smith, 959 F.2d at 9 (internal quotations omitted). For example, a state law claim that "arise[s] from the administration of [an ERISA plan], whether directly or indirectly" will be preempted if the additional requirements for preemption are met. Billinger v. Bell Atlantic, 240 F.Supp.2d 274, 286 (S.D.N.Y. 2003).

As to the second prong of the test, the Supreme Court explained in Aetna Health Inc. v. Davila, 542 U.S. 200 (2004) that the civil enforcement mechanisms found in Section 502(a) of ERISA are intended to be exclusive remedies:

The detailed provisions of § 502(a) set forth a comprehensive civil enforcement scheme that represents a careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans. The policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA. The six carefully integrated civil enforcement provisions found in § 502(a) of the statute as finally enacted . . . provide strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.

Id. at 208-09 (quoting Pilot Life Ins. Co., 481 U.S. at 54). The Court therefore held in Davila that "any state-law cause of action that duplicates, supplements, or supplants the ERISA civil enforcement remedy conflicts with the clear congressional intent to make the ERISA remedy exclusive and is therefore pre-empted." Id. at 209 (citation omitted).

ii. Federal Law

As to federal law, ERISA's preemption provision provides that nothing in the statute "shall be construed to alter, amend, modify, invalidate, impair, or supersede any law of the United States." 29 U.S.C. § 1144(d). This language has been interpreted to preserve not only federal laws, but also some state laws that "provide[ ] a means of enforcing" federal law. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 102 (1983). Thus, the Supreme Court found in Shaw that ERISA does not preempt state-law discrimination claims to the extent that they arise from conduct that is also illegal under Title VII. The Court reasoned that because Title VII relies on state laws for enforcement, to disallow parallel state law claims for employment discrimination would also "impair" Title VII in violation of § 1144(d). Id. Following Shaw, the Second Circuit found in Devlin v. Transp. Comm's. Intern. Union, 173 F.3d 94 (2d Cir. 1999), for example, that because ERISA does not preempt the federal Age Discrimination in Employment Act ("ADEA"), it similarly does not preempt certain sections of the New York Human Rights Law "to the extent that its protections track those of the ADEA." Devlin, 173 F.3d at 100.

2. Miller's Common Law Claim for Unjust Enrichment is Preempted by ERISA

Miller characterizes his unjust enrichment claim as falling under both "state and federal common law." (Pl. Opp. at 5). As discussed above, the Court recommends that Miller be permitted to pursue his unjust enrichment claim under ERISA § 502(a)(3). However, any common law claim for unjust enrichment would arise from exactly the same circumstances which underlie Miller's claim for unjust enrichment under ERISA: that Miller allegedly forfeited benefits between 2009 and 2011 based on Defendants' misrepresentations or omissions. Because Miller's common law unjust enrichment claim both arises from the administration of an ERISA plan and falls within the enforcement provisions of ERISA § 502(a), it is preempted by ERISA. See Raff v. Travelers Ins. Co., No. 90 Civ. 7673 (BSJ), 1996 WL 137310, at *3-4 (S.D.N.Y. Mar. 26, 1996) (allowing plaintiffs to pursue breach of fiduciary claims, but dismissing common law unjust enrichment claim as preempted by ERISA); see also Diduck v. Kaszycki & Sons Contractors, Inc., 974 F.2d 270, 288 (2d Cir. 1992) ("A state common law action which merely amounts to an alternative theory of recovery for conduct actionable under ERISA is preempted."), overruled on other grounds in Mertens v. Hewitt Assoc., 508 U.S. 248 (1993); Neidich v. Estate of Neidich, 222 F. Supp. 2d 357, 375 (S.D.N.Y. 2002) (citing Raff for proposition that state law claims for unjust enrichment are preempted by ERISA). Defendants' motion as to Miller's common law unjust enrichment claim should therefore be granted.

3. Miller's Common Claims for Fraud and Misrepresentation Are Preempted by ERISA

The Second Circuit has held that "ERISA preempts state common law claims of fraudulent or negligent misrepresentation when the false representations concern the existence or extent of benefits under an employee benefit plan." Cicio v. Does 1-8, 321 F.3d 83, 96 (2d Cir. 2003) (internal quotation marks and citation omitted), vacated sub nom., Vytra Healthcare v. Cicio, 542 U.S. 933 (2004), aff'd in part and rev'd in part on remand, Cicio v. Does 1-8, 385 F.3d 156, 158 (2d Cir. 2004) (per curiam). The rationale for this holding is that such claims must, by their nature, arise from the administration of an ERISA plan. For example, in order to assess Miller's claims for fraud and misrepresentation, the Court would have to review the benefit plan, ascertain the meaning of the plan's various terms, and then determine whether the plan was accurately represented to Miller. The need for these inquiries is reason enough to show that Miller's claims "relate" to an ERISA plan and are preempted. Smith, 959 F.2d at 10 (finding preemption of misrepresentation claim because "the oral representation underlying this suit deals expressly and exclusively with the appellant's benefits"); see also Nat'l Security Sys., Inc. v. Iola, 700 F.3d 65, 84 (3d Cir. 2012) (where state law claims would require court to assess "the accuracy of statements made by an alleged (state law) fiduciary to plan participants in the course of administering the plans," such claims "sit[] within the heartland of ERISA" and are preempted) (citation omitted).

In his opposition papers, Miller argues that his fraud and misrepresentation claims should survive because they are tantamount to federal age-discrimination claims, and thus are not preempted pursuant to 29 U.S.C. § 1144(d). (See Pl. Opp. at 16-18). In support of this argument, Miller contends that when he lost his job at International Paper, Defendants induced him to accept the enhanced severance package in exchange for waiving his claims against International Paper for age discrimination and wrongful termination. (Id. at 16-17). Miller asserts that because the alleged fraud concerns the waiver of his rights under the federal anti-discrimination laws, his fraud claim should be treated as a federal claim for preemption purposes. (Id. at 17-18).

In making this argument, Miller relies upon the decision in Engler v. Cendant Corp., 434 F. Supp. 2d 119 (E.D.N.Y. 2006). The plaintiff in Engler was a long-time employee of Cendant who eventually left the company in order to take a job working on the Cendant account at IBM. Id. at 124. Plaintiff alleged that Cendant facilitated his transfer to IBM, and that he received assurances from Cendant with regard to benefits he would receive if he was later laid off by IBM. Id. Based on these assurances, plaintiff accepted the new position at IBM and also signed a release of any legal claims he had against Cendant. Id. at 132. However, when IBM did lay off plaintiff several years later, it did not provide the severance package that Cendant had allegedly promised. Id. at 124-25. Plaintiff then brought common law claims against Cendant for "fraudulent inducement, negligent misrepresentation, and breach of contract, all of which involve Engler's reliance on Cendant's representations when he changed employment from Cendant to IBM." Id. at 130. Plaintiff also brought ERISA claims against both Cendant and IBM. See id. at 127-30.

The court in Engler found that at the time of Cendant's alleged misrepresentations, plaintiff had already left Cendant and gone to work at IBM. Id. at 130. The court concluded that plaintiff was not a participant or beneficiary in an ERISA plan sponsored or managed by Cendant, and that Cendant's alleged misrepresentations did not relate to an ERISA benefit plan. Id. Accordingly, the court found that the ERISA claims against Cendant should be dismissed, id., but allowed plaintiff to pursue his common law claim "that the letters Cendant wrote to him were negligent representations that he relied on when he accepted employment with IBM and signed the Cendant Release Agreement." Id. at 132.

Engler presents a unique set of circumstances that are not comparable to the alleged facts here. In Engler, the court found that Cendant's alleged statements to plaintiff were not governed by ERISA, and thus ERISA did not preempt state law causes of action. See id. at 131 (noting that "the Plaintiff does not allege that Cendant misrepresented any benefits promised under the terms of an ERISA plan."). Conversely, Miller brings claims under ERISA based on International Paper's alleged misrepresentations regarding his retirement benefits. Engler does not provide any support for Miller's contention that a common law claim for misrepresentation can survive where, as here, the alleged misrepresentations arise from the administration of an ERISA plan. Accordingly, Miller's fraud and misrepresentation claims are preempted by ERISA and Defendants' motion should be granted as to these claims.⁹

9 In addition, Engler did not include claims under the ADEA and does not provide any support for Miller's assertion that his fraud and misrepresentation claims are tantamount to federal age discrimination claims.

4. Miller's Fraud and Negligent Misrepresentation Claims Are Also Subject to Dismissal Pursuant to Rule 9(b)

a. Fraud Claim

"Federal Rule of Civil Procedure 9(b) sets forth a heightened pleading standard for allegations of fraud." Lerner v. Fleet Bank, N.A., 459 F.3d 273, 290 (2d Cir. 2006) (citation omitted). "[T]o comply with Rule 9(b), 'the complaint must: (1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.'" Id. (quoting Mills, 12 F.3d at 1175)); see also Caputo v. Pfizer, Inc., 267 F.3d 181, 191 (2d Cir. 2001) (when bringing claim for fraud, "a plaintiff should specify the time, place, speaker, and content of the alleged misrepresentations.") (citing Luce v. Edelstein, 802 F.2d 49, 54 (2d Cir. 1986)). A bare allegation that a defendant has breached its fiduciary duty by making misleading statements regarding future benefits is insufficient to state a claim for fraud. Caputo, 802 F.2d at 191; see also Murphy v. Int'l Business Machines Corp., No. 10 Civ. 6055 (LAP), 2012 WL 566091, at *5 (S.D.N.Y. Feb. 21, 2012) (where plaintiffs failed to "point to any specific document or communication which they allege with particularity contained a specific misrepresentation or omission of a material fact," they failed to meet requirements of Rule 9(b)). In addition, a fraud complaint must "'allege facts that give rise to a strong inference of fraudulent intent.'" Berman v. Morgan Keegan & Co., 455 Fed. App'x. 92, 95 (2d Cir. 2012) (quoting Acito v. IMCERA Group, Inc., 47 F.3d 47, 52 (2d Cir. 1995)).

Miller has not come close to meeting these requirements. In his complaint, Miller does not explain what he was told about his benefits; how or when he received information about his retirement decision; who gave him information; whether the information was oral or written; or why he thought that it would be advantageous to wait until 2011 to request retirement benefits.

In his opposition papers, Miller contends that he should not be held to the requirements of Rule 9(b) because he cannot meet those requirements without the benefit of discovery. (Pl. Opp. at 22). However, Miller does not meet his burden even as to the elements of fraud of which he should be aware, i.e. the general content of the alleged misrepresentations. Miller's failure to adequately plead fraud therefore provides an alternate basis for dismissal of this claim.

b. Negligent Misrepresentation Claim

The parties cite conflicting authorities as to whether the failure to comply with Rule 9(b) also requires dismissal of Miller's negligent misrepresentation claim. (See Defs. Mem. at 18; Pl. Opp. at 22). "[T]he Second Circuit has not yet determined whether Rule 9(b) applies to negligent misrepresentation claims . . . ." Dexia SA/NV v. Deutsche Bank AG, Nos. 11 Civ. 5672 (JSR), 11 Civ. 6141 (JSR); 2013 WL 98063, at *4 (S.D.N.Y. Jan. 4, 2013) (citing Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 188 (2d Cir. 2004)). However, "district courts in this District have routinely concluded that the Rule is applicable to negligent misrepresentation claims that are premised on fraudulent conduct." Dexia SA/NV, 2013 WL 98063, at *4 (collecting cases). Here, the negligent misrepresentation claim is based upon the same conduct and alleged misrepresentations and/or omissions as the fraud claim. Accordingly, it too should be dismissed in the alternative for failure to meet Rule 9(b)'s pleading requirements.

5. Milller's Claims For Negligent or Intentional Infliction of Emotional Distress Should Also Be Dismissed

Because Miller's claims for negligent and intentional infliction of emotional distress arise solely from the alleged denial of retirement benefits, they are clearly preempted by ERISA. See Jones v. UNUM Provident Ins., No. 1:06-CV-01427 (NPM), 2007 WL 2609791, at *7 (N.D.N.Y. Sept. 5, 2007) (dismissing claim for intentional infliction of emotional distress arising from denial of long term disability benefits); Community Gen. Hosp., Inc. v. Zebrowski, No. 5:03-CV-249, 2004 WL 1769102, at *8 (N.D.N.Y. Aug. 2, 2004) ("'[S]tate law claims of . . . intentional infliction of emotional distress . . . are clearly preempted by ERISA as a matter of law.'") (quoting Todd v. Aetna Health Plans, 62 F. Supp. 2d 909, 915 (E.D.N.Y. 1999)). Cf. Donohue v. Teamsters Local 282, 12 F. Supp. 2d 273, 280-81 (E.D.N.Y. 1998) (denying motion to dismiss claim for intentional infliction of emotional distress where claim was not based on denial of benefits, but on alleged harassment, vandalism, and threats of physical harm).

In addition, Miller has failed to allege sufficient facts to show the "extreme and outrageous conduct" required to meet the high burden of proving either claim. Although Miller asserts that these claims should not be dismissed absent the benefit of discovery, he does not allege how discovery could reveal any conduct by Defendants that could potentially help him meet his burden. Accordingly, I recommend that these claims be dismissed.¹⁰

10 Defendants also contend that these claims are time-barred pursuant to the one-year statute of limitations in C.P.L.R. § 215(3). (See Defs. Mem. at 12). In making this argument, Defendants assert that Miller's claims accrued when he lost his job at International Paper in April 2009, but that he did not file his complaint until September 2012. (Id.). However, because Miller alleges that his emotional distress arose from the denial of benefits, his claim could not have accrued until at least March 2011, when he first requested retirement benefits. In addition, Miller contends that he did not file a claim with the Plan Administrator challenging the initial benefits determination until June 17, 2011, he filed an appeal with regard to his benefits on September 26, 2011, and his appeal was denied on February 21, 2012. (Compl. ¶¶ 11, 13, 14). Given this time line, it is certainly possible that Miller's claims could fall within the one-year statute of limitations. However, as Miller's claims for intentional and/or negligent infliction of emotional distress are subject to dismissal on several other grounds, the Court need not resolve this issue.

D. Miller's Jury Demand

Defendants assert that Miller is not entitled to a jury as to his ERISA claims. While Miller states that he should be entitled to a jury in his memorandum of law (solely in the Conclusion) (Pl. Opp. at 24), he cites no authority in support of this proposition. Moreover, it is well-established that "'there is no right to a jury trial in a suit brought to recover ERISA benefits.'" Tischmann v. ITT/Sheraton Corp., 145 F.3d 561, 568 (2d Cir. 1998) (quoting Sullivan v. LTV Aerospace and Defense Co., 82 F.3d 1251, 1258 (2d Cir. 1996)). Accordingly, the Court recommends that Miller's jury demand be struck.

III. CONCLUSION

The Court recommends that the motion be denied as to Miller's ERISA claims for breach of fiduciary duty and unjust enrichment. It is further recommended that the motion be granted as to Miller's state law claims for unjust enrichment, fraud, misrepresentation, and negligent and intentional infliction of emotional distress, and that Miller's jury demand be struck.

PROCEDURE FOR FILING OBJECTIONS

TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan and the undersigned, United States Courthouse, 500 Pearl Street, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Kaplan.

FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010). Dated: New York, New York

July 24, 2013

/s/_________

JAMES L. COTT

United States Magistrate Judge