     09-1674-cv
     Hall v. Kodak Retirement Income Plan


                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER
     RULINGS BY SUMM ARY ORDER DO NO T HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WH EN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED W ITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (W ITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER
     MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 1st day of February, two thousand ten.
 4
 5
 6   PRESENT:
 7
 8                     JOHN M. WALKER, JR.,
 9                     CHESTER J. STRAUB,
10                     DEBRA ANN LIVINGSTON,
11                                     Circuit Judges.
12
13
14   PEGGY A. HALL,
15
16                     Plaintiff-Appellant,
17
18            -v.-                                        No. 09-1674-cv
19
20   KODAK RETIREMENT INCOME PLAN, KODAK
21   RETIREMENT INCOME PLAN COMMITTEE, and
22   TRUSTEES OF THE KODAK RETIREMENT INCOME
23   PLAN,
24
25                     Defendants-Appellees.
26
27
28
29
30


                                                     1
 1                                   R. SCOTT DE LUCA , Schrader, Israely, DeLuca & Waters LLP
 2                                   (Williamsville, NY), for Plaintiff-Appellant.
 3
 4                                   MARGARET A. CLEMENS, Littler Mendelson P.C. (Rochester, NY),
 5                                   for Defendants-Appellees.
 6
 7           Appeal from a judgment of the United States District Court for the Western District of New

 8   York (Telesca, J.).

 9           UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED

10   that the judgment of the district court be AFFIRMED.

11           Plaintiff-Appellant Peggy A. Hall appeals from the March 23, 2009 judgment of the United

12   States District Court for the Western District of New York (Telesca, J.) dismissing in its entirety

13   Hall’s complaint against Defendants-Appellees the Kodak Retirement Income Plan, the Kodak

14   Retirement Income Plan Committee, and the Trustees of the Kodak Retirement Income Plan

15   (collectively “the Plan” or “Defendants”). Plaintiff’s husband, William D. Hall, was an employee

16   of Eastman Kodak Co. until his retirement in 1992.1 Hall claims that at the time of her husband’s

17   retirement, Defendants failed to provide him with the appropriate notification required by the Plan’s

18   terms of the full range of methods he could elect for the payment of retirement benefits. This

19   resulted in his failure to designate Plaintiff as a Contingent Annuitant entitled to an annuity after his

20   death. Plaintiff brought claims against the Plan for benefits allegedly due to her under the Plan and

21   for declaratory relief under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C.

22   § 1001 et seq., as well as for breach of fiduciary duty for the Defendants’ failure to provide adequate

23   notice to William Hall in 1992. Plaintiff here appeals the district court’s dismissal of the fiduciary

24   duty claim, brought under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), and the district court’s award



             1
                 Plaintiff herself was also an Eastman Kodak employee.
                                                        2
 1   of summary judgment in favor of Defendants on her claims for benefits and declaratory relief,

 2   brought pursuant to ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B). We assume the parties’

 3   familiarity with the remaining facts, procedural history, and specification of issues for review.

 4          I. Hall’s Claim for Benefits and Declaratory Relief

 5          We review a grant of summary judgment de novo, viewing the evidence in the light most

 6   favorable to the non-moving party and drawing all reasonable inferences in her favor. Burke v.

 7   Kodak Ret. Income Plan, 336 F.3d 103, 109 (2d Cir. 2003). Summary judgment is appropriate if

 8   “there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a

 9   matter of law.” Fed. R. Civ. P. 56(c). Normally, when an ERISA plan grants the plan administrator

10   discretionary authority to determine eligibility for benefits, we review the administrator’s decision

11   to deny such benefits under an “arbitrary-and-capricious” standard. Pepe v. Newspaper & Mail

12   Deliveries’-Publishers’ Pension Fund, 559 F.3d 140, 146 (2d Cir. 2009). “Under this highly

13   deferential standard of review, this Court cannot substitute its own judgment for that of the Plan

14   Administrator and will not overturn a decision to deny or terminate benefits unless it was without

15   reason, unsupported by substantial evidence or erroneous as a matter of law.” Fuller v. J.P. Morgan

16   Chase & Co., 423 F.3d 104, 107 (2d Cir. 2005) (quoting Pagan v. NYNEX Pension Plan, 52 F.3d

17   438, 442 (2d Cir. 1995)) (internal quotation marks omitted). Although it is clear that the Kodak plan

18   vests the administrator with this discretion, it is not clear whether the “arbitrary and capricious”

19   standard applies to the claims in this case, involving not an error by the Plan administrator in denying

20   Hall benefits in 2006 but an alleged failure of disclosure fourteen years earlier. Cf. Burke, 336 F.3d

21   at 110 (declining to decide whether “arbitrary and capricious” or de novo review applies to claim of

22   inadequate notice in a Summary Plan Description (SPD)). We need not address this question,


                                                        3
 1   however, because even under a more exacting de novo standard of review, Hall has not raised a

 2   material question of fact regarding her alleged entitlement to benefits or other relief under the Plan.

 3          Plaintiff’s declaration does not refute the clear evidence in the record that William Hall had

 4   ample notice both at the time of and after his retirement of his ability to designate Plaintiff as a

 5   Contingent Annuitant under the Plan, and of his ability to change the Straight Life Annuity election

 6   he made at his retirement in 1992. At the time of Hall’s retirement, Plan participants were given a

 7   “Fact Sheet” which clearly indicated that Hall had the option of designating someone other than his

 8   then-spouse as his Contingent Annuitant, clearly explained the “Optional Joint and Survivor

 9   Annuity” option which would have allowed such a designation, and clearly explained that a Plan

10   participant could change the method of benefits payments that he elected after retirement if he

11   followed certain steps. Hall acknowledged receiving such a Fact Sheet at his May 1992 meeting

12   with a Plan benefits counselor. Plaintiff points to no actual evidence in the record that would

13   indicate that Hall did not receive the Fact Sheet that contained the information she alleges was

14   withheld from him, and does not contest the Plan benefits counselor’s declaration that the Fact Sheet

15   in the record was the one “provided to plan participants” at the time of Hall’s retirement. App. 280.

16          Furthermore, it is undisputed that the Halls received Kodak SPDs in 1995, 1998, and 2003,

17   each of which provided detailed information regarding the options for receiving retirement benefits

18   and the process required for Mr. Hall to change the election he had made in 1992, in order to make

19   Plaintiff his Contingent Annuitant. Thus Mr. Hall had all the information necessary to designate

20   Plaintiff as his annuitant at any time after 1995. See Demirovic v. Bldg. Serv. 32 B-J Pension Fund,

21   467 F.3d 208, 210 n.1 (2d Cir. 2006) (SPDs “will be an employee’s primary source of information

22   regarding employment benefits” (quoting Hedgerd v. Olin Corp., 906 F.2d 903, 907 (2d Cir. 1990))).


                                                       4
 1   “[I]t would be unfair to hold the employer liable when a claimant fails to adhere to a known plan

 2   requirement through procrastination, indecision, or the like.” Weinreb v. Hosp. for Joint Diseases

 3   Othopaedic Inst., 404 F.3d 167, 172 (2d Cir. 2005) (internal quotation marks omitted). The district

 4   court therefore did not err in concluding that there is no material question of fact regarding Hall’s

 5   entitlement to benefits or other rights under the Plan, and therefore the district court’s award of

 6   summary judgment to the Defendants on those claims was correct.

 7           II. Breach of Fiduciary Duty Claim

 8           We review the district court’s decision to dismiss a claim under Rule 12(b)(6) de novo,

 9   accepting all factual statements made in the complaint as true and drawing all reasonable inferences

10   in favor of the plaintiff. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007).

11   A participant, beneficiary, or fiduciary may bring a civil action under ERISA § 502(a)(3), but the

12   relief they may seek is limited either to injunctive relief against “any act or practice which violates

13   any provision of this subchapter or the terms of the plan” or “other appropriate equitable relief” to

14   redress such violations or to enforce any provision of ERISA or of the plan. 29 U.S.C. § 1132(a)(3).

15   We conclude that Plaintiff’s claim under this section is not for relief that is “appropriate equitable

16   relief.” To the extent Hall’s claim is that she is entitled to an annuity pursuant to the terms of the

17   Plan because Defendants failed to give her husband proper notification of his options in 1992, such

18   relief is clearly legal rather than equitable and is therefore not available under § 502(a)(3). See

19   Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210 (2002) (“A claim for money due

20   and owing under a contract is quintessentially an action at law.” (quoting Wal-Mart Stores, Inc. v.

21   Wells, 213 F.3d 398, 401 (7th Cir. 2000) (internal quotation marks omitted))). As to Hall’s assertion

22   on appeal that she is seeking “instatement” into the plan as an annuitant, this theory of relief was not


                                                        5
 1   presented to the district court, as the complaint only seeks “[a]ny and all appropriate equitable relief

 2   that is available to Plaintiff,” without further specification. App. 27. Therefore we would normally

 3   treat the argument as waived. See, e.g., Baker v. Dorfman, 239 F.3d 415, 423 (2d Cir. 2000).

 4   Moreover, such a claim for “unspecified” relief, where the gravamen of the complaint is a claim for

 5   damages and other monetary relief owing under a contractual obligation, is “insufficient to assert a

 6   proper equitable claim under § 502(a)(3).” West v. AK Steel Corp., 484 F.3d 395, 403 (6th Cir.

 7   2007). Without more, Plaintiff’s claim seeking designation as an annuitant is in substance no more

 8   than a request for the annuity payments Plaintiff would have been due had her husband so designated

 9   her. Such suits “seeking . . . to compel the defendant[s] to pay a sum of money to the plaintiff are

10   suits for ‘money damages’ . . . since they seek no more than compensation for loss resulting from

11   the defendant’s breach of legal duty.”         Great-West, 534 U.S. at 210 (quoting Bowen v.

12   Massachusetts, 487 U.S. 879, 918-19 (1988) (Scalia, J., dissenting)) (internal quotation marks

13   omitted).

14          We have considered Plaintiff’s remaining arguments and conclude that they are without

15   merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.

16
17                                                          FOR THE COURT:
18                                                          Catherine O’Hagan Wolfe, Clerk
19
20
21
22




                                                        6
