In Counts I and II, plaintiff asserts claims for plan benefits under ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a) (1)(B). In Count III, plaintiff seeks equitable relief for an alleged breach of fiduciary duty by defendants under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3). Defendants seek the dismissal of Count III pursuant to Federal Rule of Civil Procedure 12(b)(6).

But, to the extent that their claim is documents beyond those which are specified in 29 U.S.C. §1024(b)(4), this claim fails as a matter of law. In particular, although Section 1132(a)(1) provides an action against a Plan Administrator who fails to make timely disclosures in response to a valid 29 U.S.C. §1024(b)(4), this cause of action is only available where the Plan Administrator failed to disclose a limited set of documents, namely "the latest updated summary, plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated." 29 U.S.C. §1024(b)(4).

Id. ¶ 110–111. HCSC does not dispute the legal sufficiency of these allegations, at least to the extent they are brought pursuant to 29 U.S.C. Case: 1:14-cv-05853 Document #: 79 Filed: 07/10/15 Page 25 of 34 PageID #:1086 18 4984901.4 § 1132(a)(1)(B).18 Because HCSC concedes the viability of Count III under at least one statutory provision, that claim must not be dismissed.

However, Plaintiff does not identify any term(s) of the Plan that are allegedly ambiguous or subject to being construed against Defendant. Even if there was a dispute as to the construction of the terms of the Plan, it would not provide an independent theory of liability because that dispute is part of Plaintiff's ERISA section 1132(a)(1)(B) denial of benefits claim. *5 Based upon the above reasons, the Court finds that Plaintiff's Count IV must be dismissed.

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.” 29 U.S.C. § 1132(a)(1)(B).

As in Mertens, Norris’ claim for “make-whole monetary relief” seeks money damages, which fall outside of the remedy provisions of ERISA section 502(a)(3), 29 U.S.C. § 1132(a)(3). Case 3:15-cv-04962-JSC Document 89 Filed 09/08/16 Page 28 of 32 Baker & McKenzie LLP Two Embarcadero Center, 11th Floor San Francisco, CA 94111 +1 415 576 3000 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 SFODMS/67615590 21 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT CASE NO. 3:15-CV-04962-JSC Moreover, relief may be granted under ERISA section 502(a)(3), 29 U.S.C. § 1132(a)(3), only if relief is not available under ERISA section 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B). Forsyth v. Humana, Inc., 114 F.3d 1467, 1475 (9th Cir. 1997).

(Amended Complaint at ¶64) 13 In this case, Defendants contend that the Estate is actually seeking to recover compensatory damages through its breach of fiduciary duty claim. In support of this contention, Defendants cite a series of cases which hold that monetary damages are not available under 29 U.S.C. §1132(a)(3). See, LaRue v. DeWolff, Boberg & Assoc., Inc., 450 F.3d 570 (4th Cir. 2006) (holding that the payment of investment losses into a participant’s retirement account constituted compensatory damages rather than equitable restitution); Rego v. Westvaco Corp., 319 F.3d 140, (4th Cir. 2003)(holding that the issuance of company stock to remedy valuation losses in a retirement account would compensate the plaintiff rather than restore him to the position he would have occupied had the misrepresentations never occurred); Scott v. American Nat’l Red Cross, No. 05-1284 (4th Cir. October 11, 2005)(unpublished opinion attached as Ex.

See Conn. Gen. Life Ins., 2015 WL 4394408, at *30-32 (holding plaintiffs adequately pled § 1132(c) claim.) Case 3:14-cv-00143-JM Document 131 Filed 01/08/16 Page 23 of 25 23 CONCLUSION Based on the foregoing Cigna’s Motion to Dismiss should be denied its entirety. Respectfully submitted, /s/ Douglas F. Halijan

The only parties authorized to bring a lawsuit under the various subsections of § 1132 are: participants, beneficiaries, fiduciaries, or the Secretary of Labor. See 29 U.S.C. § 1132(a); McKinnon v. Blue Cross & Blue Shield of Ala., 935 F.2d 1187, 1193 (11th Cir. 1991); Arnold, 6 However, that portion of Mr. Gissen's assertion that these potential additional trust assets would increase his distribution, again falls under § 1132(a)(1)(B) and must be pursued under Count I just as the other (a)(3) allegations. Case 1:13-cv-21565-UU Document 15 Entered on FLSD Docket 06/14/2013 Page 8 of 11 {26556336;1} 9 809 F.2d at 1524; see also Physician's Multispecialty Group v. Heath Care Plan of Horton Homes, Inc., 371 F.3d 1291, 1293 (11th Cir. 2004); Wolf v. Coca-Cola Co., 200 F.3d 1337, 1340 (11th Cir. 2000); Gilbert, 276 F.3d at 1295.

Moreover, to the extent not already preempted, Plaintiffs’ requests for compensatory and punitive damages also are preempted by ERISA. As noted, § 1132 provides the exclusive civil enforcement mechanism for claims relating to a benefit plan. Pilot Life, 481 U.S. at 50-52. “It is well established that extracontractual compensatory and punitive damages are not available under ERISA.”