Moreover, courts have denied motions to dismiss claims 5 Courts generally have held that actuaries are not fiduciaries themselves, unless they become fiduciaries based upon their activities. See Yeseta v. Baima, 837 F.2d 380, 385 & n. 2 (9th Cir. 1988) (finding attorney and accountant not to be fiduciaries where they exercised purely ministerial duties); 29 C.F.R. § 2509.75-5 (1986) (actuary not fiduciary unless exercised control over management of plan or plan’s assets) and Mertens v. Hewitt Assocs., 948 F.2d 607 (9th Cir. 1991); but see IBEW Local 241 Pension Plan v. First Allmerica Fin. Life Ins. Co., 354 F.Supp.2d 203, 206-07 (N.D.N.Y. 2005) (denying summary judgment by actuary because factual disputes remained over whether he exercised discretionary authority in calculating benefits). Case 3:14-cv-05596-JST Document 79 Filed 11/03/15 Page 21 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 OPPOSITION TO DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS 17 Case No. 3:14-cv-5596-JST that fiduciaries failed to monitor their appointed service providers.