United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Michael E. Hegarty, United States Magistrate Judge.
action arises under the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”), and asserts
claims for benefits due under 29 U.S.C. §
1132(")(1)(B) and for breach of fiduciary duty under 29
U.S.C. § 1104(")(1). Defendant Aetna Life Insurance
Company (“Aetna” or “Defendant”) has
filed a Partial Motion to Dismiss the second claim for
relief. The Court finds that Plaintiff's second claim is
impermissibly duplicative of the first and, thus,
respectfully recommends that the Partial Motion to Dismiss be
Shannon Sliwinski ("Sliwinski” or
APlaintiff") initiated this action on June 23, 2017.
Compl., ECF No. 1.
following are factual allegations made by Sliwinski in the
Complaint, which are taken as true for analysis under
Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
began working for the company Zogenix as a Specialty Account
Manager in 2014. Compl. & 9, ECF No. 1. As a part of her
employment, Sliwinski was covered by a Long Term Disability
Plan (the “Plan"), which is an “employee
benefit plan” as defined by 29 U.S.C. § 1002(3).
Id. && 8, 12. Aetna is the insurer and
underwriter of the Plan and pays the benefits for all
approved claims. Id. & 17.
worked for Zogenix until April 2015, when physical
disabilities rendered her unable to perform the duties of the
job. Id. & 10. Sliwinski then applied for long
term disability under the Plan. Id. & 30. On
October 22, 2015, Aetna approved the claim and began paying
long-term disability benefits. Id. && 30B32.
In January 2016, Plaintiff attempted to return to work on a
part-time basis. After only a few days, she found she was
unable to perform her duties and ceased working entirely on
January 20, 2016. Id. & 11.
terminated Sliwinski's benefits on March 25, 2016
reasoning that she had returned to work. Id. &
32. Sliwinski informed Aetna that while she had attempted to
return to work, her attempt lasted only a few days.
Id. Sliwinski appealed the termination pursuant to
the policy, but Aetna denied the appeal. Id.
&& 34B40. Sliwinski then asked Aetna to allow another
appeal and submitted records as evidence of her disability,
but Aetna informed her that it would not grant the request
and considered the decision final. Id. &&
suit followed. As set forth above, Sliwinski's second
claim alleges breach of fiduciary duty under 29 U.S.C. §
1104(")(1) and seeks enforcement through 29 U.S.C.
§ 1132(")(3), which permits a civil action by a
participant “to obtain other appropriate equitable
relief.” Under this claim, Sliwinski seeks
“equitable relief for the separate and distinct harms
she suffered from Aetna's breaches of its fiduciary
duty.” Compl. & 91, ECF No. 1. Sliwinski argues
“it would be unjust for Aetna to retain the profits it
received at Sliwinski's expense without commensurate
compensation to her.” Id. & 90. Among the
remedies Sliwinski seeks as equitable relief are surcharge,
disgorgement, an accounting of profits generated as a result
of the withheld benefits, unjust enrichment, injunctive
relief, and restitution. Id. && 92B97.
motion asks the Court to dismiss the second claim as
duplicative of the first claim. Defendant argues that when a
plaintiff can recover under § 1132(")(1)(B), she
cannot obtain additional relief under § 1132(")(3).
Plaintiff counters that Supreme Court precedent, in fact,
permits her to seek relief under both causes of action.
Alternatively, she argues that the second claim should not be
dismissed because the Federal Rules of Civil Procedure permit
her to plead in the alternative.
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Plausibility, in the context of a motion to dismiss,
means that the plaintiff pled facts which allow “the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Twombly requires a two-prong analysis. First, a court
must identify “the allegations in the complaint that
are not entitled to the assumption of truth, ” that is,
those allegations which are legal conclusions, bare
assertions, or merely conclusory. Id. at 678B80.
Second, the Court must consider the factual allegations
“to determine if they plausibly suggest an entitlement
to relief.” Id. at 681. If the allegations
state a plausible claim for relief, such claim survives the
motion to dismiss. Id. at 680.
refers “to the scope of the allegations in a complaint:
if they are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs 'have
not nudged their claims across the line from conceivable to
plausible.'” Khalik v. United Air Lines,
671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)).
“The nature and specificity of the allegations required
to state a plausible claim will vary based on context.”
Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210,
1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard
does not require that a plaintiff establish ...