# Reed v. Queens Village Committee for Mental Health for Jamaica Community Adolescent Program, Inc.

> District Court, E.D. New York · September 17, 2019

URL: https://www.frixlaw.com/law-library/cases/10303076

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 17, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- holding Merrill Lynch was a directed trustee and ERISA fiduciary
- finding “fiduciary” status because complaint alleged defendant “determined which creditors the [corporate defendant] 10 would pay,” “exercised control over money due and owing to the Plaintiff Funds,” and failed to remit employer contributions under his control
- discussing limited application of Tibble

## Opinion text

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IN CLERK'S OFFICE
US DISTRICT COURT E.0.N.Y.
UNITED STATES DISTRICT COURT * SEP i771 09 4
EASTERN DISTRICT OF NEW YORK
aioe aanrarane □□□ NEReRTe
REED, ef al. BROOKLYN OFFICE
Plaintiffs,
- against- MEMORANDUM & ORDER
18-CV-3114 (AMD) (JO)
QUEENS VILLAGE COMMITTEE FOR
MENTAL HEALTH FOR J-CAP, INC.,
elal.,
Defendants.
sesaaseua cscance ns □□□□□□□□□□□□□□□□□□□□□□□□□□□□□ TE
ANN M. DONNELLY, U.S. District Judge:
On May 25, 2018, the plaintiffs commenced this civil action against Queens Village
Committee for Mental Health for Jamaica Community Adolescent Program, Inc. (“Queens
Village”), Diane Gonzalez, Nilda Ruiz, and Nancy Brinn (collectively, the “Queens Village
defendants”), alleging violations of the Employee Retirement Income Security Act (ERISA), 29
U.S.C. § 1001, e¢ seg. (ECF No. 1.) The plaintiffs filed an amended complaint on September
24, 2018, which added a co-fiduciary liability claim against Delaware Charter Guaranty and
Trust Company, d/b/a Principal Trust Company. (ECF No. 21.) On November 1, 2018, the
Queens Village defendants and Principal moved separately to dismiss the claims against them.
(ECF Nos. 33, 34.) For the reasons explained below, the Queens Village defendants’ motion is
granted in part and denied in part, and Principal’s motion is denied.

BACKGROUND!
The plaintiffs are former employees of Queens Village who participated in the J-Cap
Pension Plan and did not receive some or all the contributions to which they were entitled from
Queens Village within the 2008 to 2016 timeframe.? (ECF No. 21 (“Compl.”) § 1, 17-20.)
Queens Village is a non-profit 501{c)(3) corporation that runs a residential drug and
alcohol abuse treatment program in Jamaica, New York. (Compl. J 2.) Queens Village sponsors
the Pension Plan for its employees and “is responsible for the day-to-day administration and
management of the plan.” (Compl. { 23.) It is also the named fiduciary of the Pension Plan.
(Compl. § 23.)
The plaintiffs allege that the three individual defendants — Diane Gonzalez, Nancy Brinn,
and Nilda Ruiz — are fiduciaries for the Pension Plan. (Compl. ff 13.) Ms. Gonzalez is the
Chief Executive Officer of Queens Village. (Compl. 24.) The plaintiffs assert that Ms.
Gonzalez “exercises authority and control over the pension plan asset” — “its right to payment
of the debt that Queens Village owed the pension plan” — and “has the authority to determine
and control... whether and under what circumstances Queens Village... would manage or dispel
of the plan asset.” (Compl. J] 25-26.) They also say that Ms. Gonzalez exercises control over
whether to seek federal court guidance on how Queens Village should exercise its fiduciary duty
to the Pension Plan, that she controls which of Queens Village’s creditors get paid and in what

1 For purposes of deciding the defendants’ motions, | accept as true the factual allegations in the
complaint and draw all reasonable inferences in the plaintiff's favor. See Town of Babylon v. Fed. Hous.
Fin. Agency, 699 F.3d 221, 227 (2d Cir. 2012).
2 The plaintiffs purport to bring their claims on behalf of themselves, the pension plan, and all pension
plan participants who were eligible for-contributions from Queens Village for the 2008-2016 plan years.
(Compl. 7 13.)

order, and that she “exercises discretionary authority or discretionary control” over what
information is provided to Principal. (Compl. {{] 27-29.)
Ms. Brinn is the Chief Operating Officer of Queens Village and is listed as a Pension
Plan trustee. (Compl. 731.) Ms. Brinn signed the Pension Plan’s annual U.S. Department of
Labor Form 5500 SF (“Form 5500 SF”) for the 2009 and 2010 plan years. (Compl. { 32.)
According to the plaintiffs, Ms. Brinn had “discretionary authority or discretionary control
respecting management” of the Pension Plan because she “conceal{ed] the failure of Queens
Village to make its mandatory contributions... for the 2008-2010 plan years.” (Compl. { 35.)
Ms. Ruiz is the Chief Financial Officer of Queens Village. (Compl. □ 36.) Ms. Ruiz
signed the Pension Plan’s annual Form 5500 SFs for the 2012 to 2016 plan years. (Compl. { 36.)
As with Ms. Brinn, the plaintiffs allege that Ms. Ruiz had “discretionary authority or
discretionary control respecting management” of the Pension Plan because she “conceal[ed] the
failure of Queens Village to make its mandatory contributions... for the 2008-2010 plan years.”
(Compl. { 39.)
Principal Trust Company is a trustee of the Pension Plan. (Compl. ff 13.) The plaintiffs
allege that Principal is also a co-fiduciary of the Pension Plan pursuant to ERISA § 405(a), 29
U.S.C. § 1105(a). (Compl. ff 41.) Principal holds Queens Village’s contributions to the Pension
Plan in a trust fund. (Compl. { 41.)
The Pension Plan
Queens Village created the Pension Plan in 1980 for employees who complete at least
one year of service to Queens Village. (Compl. {J 42-43.) Pursuant to the Pension Plan, Queens
Village was supposed to “match” employees’ contributions by contributing funds into the plan
on the employees’ behalf. (Compl. { 4.) According to the plaintiffs, the 2002 Pension Plan

description says that Queens Village “will contribute an amount equal to 7% of [the
participant’s] compensation up to the Taxable Wage Base, plus an amount equal to 5.7% of [the
participant’s] compensation above the Taxable Wage Base.” (Compl. J 44.) A grant from the
New York State Office of Alcohol and Substance Abuse Services (OASAS) provides some or all
of the funding for Queens Village’s contributions to the plan. (Compl. ff 3, 4.)
For the plan years 2007 through 2010,? Queens Village did not pay its required
contributions, which were $202,851 for 2007, $216,057 for 2008, $212,193 for 2009, and
$187,000 for 2010. (Compl. ff 46, 48-49.)
As of July 1, 2011, the Pension Plan was amended so that Queens Village was required to
contribute only 1% of the participant’s compensation. (Compl. 9 50.) Queens Village’s
contribution for the 2011 plan year was $32,063. (Compl. 4 51.)
“At some point after contributions were due for the 2010 plan year” in 2012, Principal
met with Queens Village and the three individual defendants. (Compl. 4 10.) The individual
defendants announced that Queens Village would not be enforcing the Pension Plan’s right to
payment for the unpaid 2008 to 2010 contributions. (Compl. { 10.) After that meeting, Principal
did not alert the plan participants that Queens Village did not intend to enforce the plan’s right to
payment of the unpaid contributions. (Compl. 4 10.)
The plaintiffs allege that “[b]y early 2016, at the latest,” Queens Village had funds
available to pay the contributions it owed the Pension Plan; they point out that Queens Village

3 A “plan year” runs from July 1 through June 30. (Compl. § 46; see, e.g., ECF No. 34-2 at 4.) In this
instance, the 2007 plan year refers to the year beginning July 1, 2007, and ending June 30, 2008.
4 The amended complaint does not specify whether Queens Village paid this amount, but the plaintiffs
allege that “For subsequent plan years through at least the 2016 plan year, on information and belief,
Queens Village failed to contribute the amount it was required by the terms of the plan, and by law, to
contribute into the plan for that plan year.” (Compl. | 5.)

satisfied the mortgage for its residential treatment facility prior to February 29, 2016. (Compl.
{7 11, 12, 80-83.) The plaintiffs reason that the mortgage was “worth millions of dollars,” and
that therefore Queens Village “had and has assets from which the plan’s loss could be
recovered.” (Compl. □ 12.) They also allege that Verizon paid Queens Village “a large amount
of money in 2016,” which Queens Village used to create a television show “instead of putting
the money into the pension plan to fund the unpaid contributions.” (Compl. { 84.)
The Form 5500 SFs
According to the plaintiffs, Queens Village concealed its failure to make the required
contributions to the Pension Plan on the annual Form 5500 SF for the 2008-2010 plan years.
(See, e.g., Compl. ff 6-8, 47-28, 51-52.)
Under ERISA, the Pension Plan is required annually to file a Form 5500, also known as
an “annual report;” on which the Pension Plan must include financial information such as assets,
liabilities, income and expenses, including the amount of any employer contributions. (See 29
U.S.C. § 1023; Annual Reporting and Disclosure, 72 FR 64710-01 (November 16, 2007).°) The
contents of all annual reports must be maintained publicly. 29 U.S.C. § 1026.
Queens Village, as sponsor for the Pension Plan, must “[e]nter the minimum required
contribution for [each] plan year” in Form 5500 SF Part VI (“Pension Funding Compliance”),
Line 12(b). (See Compl. ff 47-48, 51-52; see also ECF No. 34-2 at 5, 7, 9, 11, 14.) The

5 “The Form 5500 Annual Return/Report is the primary source of information concerning the operation,
funding, assets, and investments of pension and other employee benefit plans. In addition to being an
important disclosure document for plan participants and beneficiaries, the Form 5500 Annual
Return/Report is a compliance and research tool for the Department of Labor (Department), Internal
Revenue Service (IRS), and the Pension Benefit Guaranty Corporation (PBGC) (collectively, the
Agencies) and a source of information and data for use by other federal agencies, Congress, and the
private sector in assessing employee benefit, tax, and economic trends and policies.” (See also U.S.
Department of Labor website, “Form 5500 Series” (August 26, 2019),
https://www.dol.gov/agencies/ebsa/employers-and-advisers/plan-administration-and-
compliance/reporting-and-filing/form-5500.)

instructions for Line 12(b) provide as follows: “If there is an accumulated funding deficiency for
a prior year that has not been waived, that amount should also be included as part of the
contribution required for the current year.” (Compl. { 33; see also Instructions for Form 5500-
SF, Short Form Annual Return/Report of Small Employee Benefit Plan at 18.*)
The plaintiffs allege that for each plan year beginning in 2008, Queens Village included
the required contribution amount only for the particular plan year, and did not include the .
deficiency for the prior year. (Compl. ff 47-48, 51-52.) They say that Ms. Brinn “signed and
submitted” the annual Form 5500 SFs for the 2010 and 2011 plan years, and that Ms. Ruiz
“signed and submitted” the Form 5500 SFs for the 2012 through 2016 plan years. (Compl. [9
32, 36.) According to the plaintiffs, Ms. Brinn and Ms. Ruiz “failed to follow the directions” and
“concealed” the fact that Queens Village did not make mandatory contributions to the Pension
Plan by not including the accumulated funding deficiency from the prior year in Line 12(b).
(Compl. ff 33, 37-38.) The plaintiffs say that Ms. Gonzalez “had the authority to direct Ruiz to
include the cumulative funding deficiency on Line 12(b)... but did not do so.” (Compl. 4 40.)
Line 12(e) of Form 5500 SF asks whether “the minimum funding amount...[will] be met
by the funding deadline.” (See, e.g., ECF No. 34-2 at 5, 7,9, 12, 15.) The funding deadline is “8
Y% months after the end of the plan year.” (See Instructions for Form 5500-SF at 19.) For the
2009, 2011, 2012 and 2013 plan years Queens Village checked “Yes,” indicating it would meet
the minimum funding amount by the deadline. (See ECF No. 34-2 at 5, 9, 12, 15.) Queens
Village checked “No” for the 2010 plan year and “N/A” for the 2014 to 2016 plan years. (ECF
No. 34-2 at 7, 18, 21, 24.)

Available at https://www.dol.gov/sites/dolgov/files/EBSA/employers-and-advisers/plan-administration-
and-compliance/reporting-and-filing/form-5500/20 | 8-sf-instructions.pdf.

Principal
Pension Plan contributions are held by Principal in a trust fund, for which Principal is the
trustee. (Compl. § 85.) Principal is “responsible for allocating the employer contribution into
the individual accounts of the participants and the investment vehicles chosen by the
participants.” (Compl. { 86.) According to the plaintiffs, Queens Village did not provide
Principal with information that it needed to make a proper allocation of money into individual
accounts within the plan, “causing participants to lose contributions and earnings.” (Compl. 8.)
The plaintiffs allege that Principal “knew” that Queens Village did not make “all or most
of its required contributions” for the 2008-2010 plan years, and did not make “the full amount of
required contributions” for the 2011 through 2016 plan years. (Compl. { 87, see also Compl.
4 125.) As discussed above, the plaintiffs assert that sometime between June 30, 2011, and
September 15, 2012, Principal discussed the missing contributions with Ms. Gonzalez, Ms.
Brinn, Ms. Ruiz, and others, and told them that Queens Village had to pay the missing
contributions to the Pension Plan. (Compl. { 87.) However, Principal did not inform the Queens
Village Board of Directors or the Department of Labor that Queens Village did not pay
contributions to the Pension Plan. (Compl. § 89-90.) The plaintiffs allege that Principal “failed
to bring a civil action against named fiduciary Queens Village for failing to enforce the plan’s
right to payment of the unpaid contributions, to recover the plan’s loss.” (Compl. ff 12, 90,
128.)
The Amended Complaint
The Amended Complaint asserts three causes of action; the first and second are against
the Queens Village defendants and the third is against Principal. (Compl. {J 110-29.) The first
claim against the Queens Village defendants is for breach of fiduciary duty pursuant to ERISA

§§ 409 and 502(a)(2), 29 U.S.C. §§ 1109, 1132(a)(2). (Compl. ff 111-16.) The plaintiffs accuse
Queens Village and Ms. Gonzalez of “continuously fail[ing]” to enforce the Pension Plan’s right
to contributions, and accuse Queens Village, Ms. Brinn and Ms. Ruiz of concealing Queens
Village’s “failure” to make contributions on the Form 5500 SFs for the 2008-2016 plan years.
(Compl. ff 114-16.) The second claim is for breach of fiduciary duty pursuant to ERISA
§§ 404(a) and 502(a)(3), 29 U.S.C. §§ 1104(a), 1132(a)(3), and includes the same substantive
allegations as the first claim. (Compl. §§ 118-22.)
The third claim is for co-fiduciary liability pursuant to ERISA §§ 405(a) and 502(a)(3),
29 U.S.C. §§ 1105(a), 1132(a)(3); the plaintiffs assert that as a co-fiduciary, Principal is
responsible for Queens Village’s breaches of fiduciary duty. (Compl. [J 125-29.) The plaintiffs
allege that Principal knew that Queens Village did not pay the required contributions, knew that
Queens Village had funds available to pay what it owed, and did not file a civil action to enforce
the Pension Plan’s rights to the debt. (Compl. {J 125-28.)
The plaintiffs seek to recover unpaid contributions and lost earnings, as well as -
declaratory relief, preliminary and permanent injunctions against the Queens Village defendants,
a $10,000 “bonus” for each named plaintiff, attorney’s fees and costs. (Compl. at 34-36.)
LEGAL STANDARD
A court considering a motion to dismiss must accept all factual allegations in the
complaint as true and draw all reasonable inferences in favor of the plaintiff. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). However, a complaint must contain “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570. “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Jgbal, 556 U:S. at

678 (citing Twombly, 550 U.S. at 556). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice” to state a claim. Jd. (citing Twombly,
550 U.S. at 556).
At the motion to dismiss stage, the court “is generally limited to the facts as presented
within the four corners of the complaint, to documents attached to the complaint, or to
documents incorporated within the complaint by reference.” Williams v. Time Warner Inc., 440
F. App’x 7, 9 (2d Cir. 2011) (quoting Taylor v. Vt. Dep’t of Educ., 313 F.3d 768, 776 (2d Cir.
2002)). The court may also consider any “documents attached to the complaint as an exhibit or
incorporated in it by reference, ... matters of which judicial notice may be taken, or ... documents
either in plaintiffs’ possession or.of which plaintiffs had knowledge and relied on in bringing
suit,” as long as the plaintiff relied on the “terms and effect of a document in drafting the
complaint.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (citing Brass v.
American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993)).
In the complaint, the plaintiffs quote from and rely on various documents, including the
Pension Plan contracts and the annual Form 5500 SFs. Accordingly, I consider them in deciding
this motion. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991);
Williams v. Time Warner, 440 F. App’x at 9; Chambers v. Time Warner, 282 F.3d at 153.
DISCUSSION
The Fiduciary Status of the Individual Defendants
ERISA Section 3 defines a “fiduciary with respect to a plan” as someone who “exercises
any discretionary authority or discretionary control respecting management of such plan or
exercises any authority or control respecting management or disposition of its assets” or “has any
discretionary authority or discretionary responsibility in the administration of such plan.” 29

US.C.A. § 1002(21)(A)(1), (11); see also Finkel v. Romanowicz, 577 F.3d 79, 86 (2d Cir. 2009)
(explaining that “management or disposition’... refers to the common transactions in dealing
with a pool of assets: selecting investments, exchanging one instrument or asset for another, and
so on” (quoting Harris Trust & Sav. Bank v. John Hancock Mut. Life Ins. Co., 302 F.3d 18, 28
(2d Cir. 2002))). To establish the personal liability of a fiduciary, the plaintiffs must show “both
that (1) the unpaid contributions were plan assets and (2) [the defendant] exercised a level of
control over those assets sufficient to make him [or her] a fiduciary.” Jn re Halpin, 566 F.3d
286, 289 (2d Cir. 2009). The defendants do not dispute that the delinquent contributions are plan
assets, so the remaining question is whether Ms. Gonzalez, Ms. Brinn, and Ms. Ruiz exercised
the requisite level of control over plan assets to make them fiduciaries.
The definition of fiduciary “‘focuses on the exercise, as well as the possession, of
authority or control’ over a pension plan’s assets, without regard to the title of the person
exercising such control.” Allen v. Credit Suisse Sec. (USA) LLC, 895 F.3d 214, 223 (2d Cir.
2018) (quoting Blatt v. Marshall & Lassman, 812 F.2d 810, 812-13 (2d Cir. 1987)). “Even ifa
person is not a named fiduciary of an ERISA plan, [she] can be a de facto fiduciary” if she has
discretionary control or authority over the plan assets. Allen, 895 F.3d at 223 (citing 29 U.S.C.A.
§ 1002(21)(A)). This is a question of function, not form. Jd; Finkel, 577 F.3d at 86. In other
words, if a person actually exercises control over the plan assets, she is a fiduciary regardless of
what the plan documents say. Allen, 895 F.3d at 223-24.
The factual allegations in the complaint establish that Ms. Gonzalez was an ERISA
fiduciary. See Bricklayers & Allied Craftworkers Local 2, Albany, N.Y. Pension Fund v.
Moulton Masonry & Const., LLC, 779 F.3d 182, 189 (2d Cir. 2015) (finding “fiduciary” status
because complaint alleged defendant “determined which creditors the [corporate defendant]

10

would pay,” “exercised control over money due and owing to the Plaintiff Funds,” and failed to
remit employer contributions under his control). The plaintiffs allege that Ms. Gonzalez
“exercises authority and control over the pension plan asset... its right to payment of the debt
that Queens Village owed the pension plan,” “has the authority to determine and control...
whether and under what circumstances Queens Village... would manage or dispel of the plan
asset” and controls which of Queens Village’s creditors get paid and in what order. (Compl.
25-29.) At this stage, these assertions are sufficient to allege that Ms. Gonzalez is a Pension
Plan fiduciary. See LoPresti v. Terwilliger, 126 F.3d 34, 40 (2d Cir. 1997) (“Of equal if not
more import... is that, as the district court found, [the defendant] had ‘a role in determining
which bills to pay,’ in that he decided which creditors were to be paid out of the Company’s
general account (which... included employee Fund contributions), and when those creditors were
to be paid.”); Trustees of the New York City Dist. Council of Carpenters Pension Fund v. Metro.
Enterprises, Inc., No. 16-CV-284, 2016 WL 5334982, at *7 (S.D.N.Y. Sept. 22, 2016)
(“Numerous courts have held similar allegations sufficient to survive a motion to dismiss on
breach of fiduciary duty claims.” (collecting cases)).
Ms. Brinn and Ms. Ruiz are in different positions than Ms. Gonzalez. The plaintiffs
conclude that Ms. Brinn and Ms. Ruiz are “fiduciaries” because they are officers of Queens
Village and filled out annual Form 5500 SFs. However, the plaintiffs do not assert, as they did
with Ms. Gonzalez, that Ms. Brinn or Ms. Ruiz could “determine which of Queen’s Village’s
creditors would be paid and in what order.” (See Compl. { 28.) Nor do the plaintiffs claim that
Ms. Brinn or Ms, Ruiz had authority or control to manage the plan’s assets, or that any Pension
Plan document or term gave Ms. Brinn.or Ms. Ruiz authority such that they would be considered
fiduciaries. The authority to fill out and sign annual forms is not the same as “discretionary

1]

authority or discretionary control respecting management” of plan assets or respecting
“administration” of the plan. See Finkel, 577 F.3d at 86 (“Accepting all of the Joint Board's
allegations in this case as true and drawing all inferences in its favor, we conclude that
Romanowicz was simply an officer of Whiffen, that he signed checks on the company's behalf,
and that he and Whiffen ‘maintained’ plan assets ‘for the benefit of [Romanowicz and
Whiffen].’”); see also LoPresti, 126 F.3d at 40 (distinguishing defendants as fiduciaries based on
whether they had the responsibility to determine “which of the company’s creditors would be
paid or in what order’).
The plaintiffs base their fiduciary argument on their conclusory allegation that Ms. Brinn
and Ms. Ruiz “concealed” information on the Form 5500 SFs. (See Compl. 34-39.) But
filling out a form at the end of the year is not the same thing as managing “the Pension Plan’s
right to payment of the company debt and... control[ing] its disposition.” (Cf ECF No. 46 at
20.)’ Even if Ms. Brinn and Ms. Ruiz purposefully misrepresented information on a Form 5500
SF, that still would not amount to “discretionary authority or discretionary control” of the
Pension Plan. See Allen, 895 F.3d at 225 (“Insofar as plaintiffs rely on allegations of fraud in
defendants’ conduct... to support their fiduciary claims, this court, as well as sister circuits, have

? The plaintiffs do not cite any case — in this Circuit or any other — in which a court assigned ERISA
fiduciary status simply because a person served as an officer of the plan sponsor and concealed
information on an annual form or report to the federal government, and the cases the plaintiffs do cite are
distinguishable. (See ECF No. 46 at 18-21 (citing Chao v. Day, 436 F.3d 234, 237-38 (D.C. Cir. 2006)
(“We hasten to emphasize the limited scope of today's holding. Our interpretation of the disposition
clause does not—as Day fears—extend fiduciary status to every person who exercises “mere possession,
or custody” over the plans' assets. Day was far more than a mere custodian; he was a broker who
solicited, accepted, and then pilfered the plans' assets by reneging on his promise to purchase insurance
for the plans' members. On the facts presented here, we hold simply that Day exercised sufficient
“authority or control” over the “disposition” of the plans' assets to qualify as a “fiduciary” under the
disposition clause.”); IT Corp. v. Gen. Am. Life Ins. Co., 107 F.3d 1415, 1420-21 (9th Cir. 1997) (finding
defendant “may be a fiduciary” because it “involved plan interpretation and judgment” and “controlled
the money in the plan's bank account”)).)
12

held that wrongdoing in performing non-fiduciary services does not transform the alleged
wrongdoer into a fiduciary.”) (collecting cases). While the alleged conduct may expose the
defendants to liability under some other legal theory, the conduct alleged does not suffice to
make Ms. Brinn and Ms. Ruiz “fiduciaries” as defined in ERISA.
Accordingly, the complaint does not state facts from which this Court can conclude that
Ms. Brinn and Ms. Ruiz are “fiduciaries” within the meaning of ERISA Section 3(21)(A), 29
U.S.C. § 1002(21)(A), and the claims against them are dismissed. See Geller v. Cty. Line Auto
Sales, Inc., 86 F.3d 18, 21 (2d Cir. 1996) (“Because the complaint fails to allege facts sufficient
to support an inference that any of the defendants is a plan fiduciary, no liability can attach to
them under § 1132(a)(2).”).
Statute of Limitations
I next consider whether the statute of limitations bars the plaintiffs’ claims against Ms.
Gonzalez and Queens Village for unpaid contributions for the 2008 to 2010 plan years. The
defendants argue that the six-year statute of limitation bars the plaintiffs’ claims for those years
because the last conduct giving rise to the alleged breach occurred on April 15, 2012, more than
six years before the plaintiffs filed their complaint. The plaintiffs respond that the six-year
statute of limitations was tolled because the defendants’ repeated failures to collect contributions
was an ongoing breach of fiduciary duty, and because the defendants concealed the amount of
contributions Queens Village owed the Pension Plan on the Form 5500 SFs for the 2008-2010
plan years.
ERISA has three alternative limitations periods. See 29 U.S.C. § 1113.8 The first, a six-
year period starting from the last action that was part of the breach, applies in the absence of any

8 “No action may be commenced under this subchapter with respect to a fiduciary's breach of any
responsibility, duty, or obligation under this part, or with respect to a violation of this part, after the earlier
13

special circumstances.’ Janese v. Fay, 692 F.3d 221, 227-28 (2d Cir. 2012); 29 U.S.C.
§ 11131). The second is a three-year period, which applies when a plaintiff has “actual
knowledge” of a violation, defined as “knowledge of all material facts necessary to understand
that an ERISA fiduciary has breached his or her duty or otherwise violated the Act.” Janese, 692
F.3d at 227-28 (quoting Caputo v. Pfizer, Inc., 267 F.3d 181, 193 (2d Cir. 2001)); 29 U.S.C.
§ 1113(2).!° The third period is also six years, and applies when the plaintiff alleges fraud or

of— (1) six years after (A) the date of the last action which constituted a part of the breach or violation, or
(B) in the case of an omission, the latest date on which the fiduciary could have cured the breach or
violation, or (2) three years after the earliest date on which the plaintiff had actual knowledge of the
breach or violation; except that in the case of fraud or concealment, such action may be commenced not
later than six years after the date of discovery of such breach or violation.”
The plaintiffs rely on Tibble v. Edison Int'l, 135 S. Ct. 1823, 1825 (2015) to argue that so long as the
“last ‘act or mission’ alleged to be part of the breach of duty” occurred “within six years of filing suit,”
the suit is timely pursuant to § 1113(1). (ECF No. 46 at 6 (citing Tibble, 135 S. Ct. at 1829).) However,
Tibbie held that in the context of an ongoing fiduciary duty — the duty to monitor the plan’s investments
and assets — a breach of fiduciary duty claim is timely “so long as the alleged breach of the continuing
duty occurred within six years of suit.” 135 S. Ct. at 1829. Courts in this Circuit have not applied Tibble
outside of the “duty to monitor” context. See, e.g., O'Day v. Chatila, No. 18-CV-2621, 2019 WL
2404660, at *2 (2d Cir. June 7, 2019) (pursuant to 7ibb/e, failure to monitor claim “requires Defendants
both to have improperly monitored investments and to have failed to remove imprudent ones”); Kim v.
Hartford Life Insurance Company, No. 15-CV-2474, 2017 WL 2589303, at *3 (E.D.N.Y. June 14, 2017),
aff'd, 748 F. App'x 371 (2d Cir. 2018) (limiting 77b/e to fiduciary duty claims involving the monitoring
of investments); Jn re SunEdison, Inc. ERISA Litig., 331 F. Supp. 3d 101, 114 (S.D.N.Y. 2018)
(discussing limited application of Tibble); In re Lehman Bros. Sec. & ERISA Litig., 113 F. Supp. 3d 745,
757 (S.D.NLY. 2015) (“It is true of course, as Tibb/e reminds us, that ERISA fiduciaries bear a
‘continuous duty’ to monitor the prudence of investments.”). Here, the plaintiffs do not make a “duty to
monitor” claim. Rather, they allege that the defendants had an ongoing duty to “enforce the plan’s right
to payment of the debt owed to the plan.” (ECF No. 46 at 6.)
According to the defendants, the three-year limitations period applies because the plaintiffs had “actual
knowledge” of Queens Village’s failure to collect 2008-2010 employer contributions by January 28,
2013, at the latest, when the Pension Plan’s publicly-filed Form 5500 SFs disclosed that no employer
contributions were made for each plan year. (ECF No. 34-1 at 17-22.) The defendants have not met their
burden of showing that the three-year limitations period applies. The facts in the amended complaint
establish, at most, that the plaintiffs had constructive knowledge of a breach based on the Form 5500 SFs,
which is “insignificant to trigger the three-year statute of limitations.” See Caputo, 267 F.3d at 193
(“Although the announcement should have (and did) give plaintiffs reason to suspect that Pfizer had lied
to them, ‘it is not enough that [plaintiffs] had notice that something was awry; [plaintiffs] must have had
specific knowledge of the actual breach of duty upon which [they sued].’” (quoting Brock v. Nellis, 809
F.2d 753, 755 (11th Cir. 1987))). “Constructive knowledge” of a breach does not trigger the three-year
period. Caputo, 267 F.3d at 194. The Form 5500 SFs merely disclosed that no employer contributions
had been made the previous year and that Queens Village reported having no debt, which is not enough to
alert the plaintiffs that the statements on the forms were “untruthful at the time they were made” or that
14

concealment with the requisite particularity. Janese, 692 F.3d at 228; 29 U.S.C. § 1113(2). The
latter six-year period is tolled until the plaintiffs discover, or “should with reasonable diligence
have discovered,” the breach. Janese, 692 F.3d at 228 (citing Caputo, 267 F.3d at 190).
The statute of limitations is an affirmative defense, which means that the defendants have
the burden of showing that the plaintiffs’ claims are not timely. See Caufield v. Colgate-
Palmolive Co., No. 16-CV-4170, 2017 WL 744600, at *4 (S.D.N.Y. Feb. 24, 2017) (citing
Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 425 (2d Cir. 2008) (“The lapse of a
limitations period is an affirmative defense that a defendant must plead and prove.”)). Dismissal
based on an affirmative defense at the complaint stage is warranted only if “it is clear from the
face of the complaint, and matters of which the court may take judicial notice, that the plaintiffs
claims are barred as a matter of law.” Caufield, 2017 WL 744600, at *4 (citing Staehr, 547 F.3d
at 426).
The plaintiffs base their breach of fiduciary duty claims on two different theories.'! The
first theory is that Ms. Gonzalez and Queens Village breached their fiduciary duties by failing to
enforce the Pension Plan’s right to payment. Because there is no allegation of fraud or
concealment related to this theory, and no allegation of special circumstances, the statute of
limitations period that applies to this theory is six years from the date of the last action that was

“material information known to [Queens Village] was withheld.” See Caputo, 267 F.3d at 190, 194.
Therefore, I do not find that the plaintiffs had actual knowledge that the defendants breached a fiduciary
duty and the 29 U.S.C. § 1113(2) 3-year statute of limitations does not apply.
" The plaintiffs’ claims are somewhat duplicative, though they are asserted under different sections of
ERISA. Their first claim, under ERISA § 502(a)(2), 29 U.S.C. § 1132(a)(2), alleges that Ms. Gonzalez
and Queens Village breached their fiduciary duties by failing to enforce the Pension Plans right to
payment, and also that Queens Village concealed the failure to make payments on the Plan’s Form 5500
SFs. (Compl §{ 114-16.) The plaintiffs’ second claim, under ERISA § 404(a)(1), 29 U.S.C. § 1104(a)(1),
asserts that Ms. Gonzalez and Queens Village breached their fiduciary duties by failing to enforce the
Pension Plans right to payment. (Compl. {J 120-21.)
15

part of the breach. See, e.g., Demopoulos v. Anchor Tank Lines, LLC, 117 F. Supp. 3d 499, 509
(S.D.N.Y. 2015) (applying six-year period in 29 U.S.C. § 1113(1) because “This is not a case of
fraud because the alleged breach arose from the nonpayment of amounts due to the Funds, and
not any misrepresentation or omission made to employees or beneficiaries.”). The plaintiffs’
second theory of liability is that Queens Village concealed its failure to make payments on the
Pension Plan’s Form 5500 SFs. (Compl { 114-16.) Because the latter theory is based on an
assertion that Queens Village misrepresented a matter of fact, the “fraud or concealment”
exception to the statute of limitations applies to their claims and the six-year period is tolled until
the plaintiffs could have reasonably discovered the breach. See Caputo, 267 F.3d at 190.
1. The Failure to Pay Claims
The plaintiffs argue that their claims for the 2008-2010 plan years were timely when the
complaint was filed in May 2018 because the defendants’ breach began in 2008 and the claim
did not accrue until 2016, when Queens Village said it would not pay the outstanding
contributions. The defendants respond that the plaintiffs’ claims for unpaid contributions in
2008 to 2010 accrued on April 15, 2012, when Queens Village’s contribution for the 2010 plan
year was due.
As discussed above, the six-year statute of limitations applies to the plaintiffs’ first theory
of breach of fiduciary duty — that Ms. Gonzalez and Queens Village did not enforce the Pension
Plan’s right to contributions. See Demopoulos, 117 F. Supp. 3d at 509. ERISA Section
1113(1)(A) directs that a claim for a breach of a fiduciary duty must be brought within six years
of “the date of the last action which constituted a part of the breach or violation.” L.J. Head Start
Child Dev. Servs., Inc. v. Econ. Opportunity Comm'n of Nassau Cty., Inc., 558 F. Supp. 2d 378,
405 (E.D.N.Y. 2008), aff'd, 710 F.3d 57 (2d Cir. 2013).

16

The plaintiffs argue that I should apply the “continuing violation doctrine” as described
in L.. Head Start, 558 F. Supp. 2d at 400 (collecting cases):!? “[A] new cause of action accrues
for each violation where separate violations of the same type, or character, are repeated over
time.” The continuing violation doctrine applies to cases of “repeated decision-making, of the
same character, by the fiduciaries.” See id; Novella, 661 F.3d at 146. Here, the plaintiffs
sufficiently alleged that fiduciary Queens Village made the same decision — not to pay
contributions to the Pension Plan — for each of the 2008 through 2016 plan years. Therefore, I
find that the continuing violation doctrine applies to the plaintiffs’ breach of fiduciary duty
claims arising from the 2008 to 2010 plan years, and they are not barred by the statute of
limitations. See L.f. Head Start, 558 F. Supp. 2d at 401-402, 405 (holding the plaintiffs’ claims
that defendants failed to fund the plan were within the six-year limitations period and not barred
by the statute of limitations); Bona v. Barasch, No. 01-CV-2289, 2003 WL 1395932, at *19
(S.D.N.Y. Mar. 20, 2003) (dismissing claims resulting from contract entered more than six years
before the complaint, but not the contract renewals that came after because defendants had a
continuing duty to review plan investments and “that duty was violated each time defendants
renewed imprudent contracts with fund administrators”).

!2 While the Second Circuit has acknowledged that the doctrine should be applied in certain ERISA cases,
see, e.g., Novella v. Westchester Cty., 661 F.3d 128, 146 (2d Cir. 2011), I am not aware of a factually
similar case where it has actually been applied. In Novella, the Court expressly did not adopt the
continuing-violation theory: “We think that method is appropriate in ERISA cases, as elsewhere, only
‘where separate violations of the same type, or character, are repeated over time.’” Jd. (citing L.. Head
Start, 558 F.Supp.2d at 400). The Court explained that “Usually, ‘[t]hese cases are marked by repeated
decision-making, of the same character, by the fiduciaries.’ But it is not as clear a fit in cases where, as
here, ‘the plaintiff['s] claims are based on a single decision that results in lasting negative effects.’”
Novella, 661 F.3d at 146. The facts of this case are more akin to the first category because of the
allegations of the fiduciaries’ repeated decisions not to contribute money to the Pension Plan.
17

2. The Concealment Claim
The plaintiffs argue that their breach of fiduciary duty claims based on fraud for the 2008
to 2010 plan years are timely because the Queens Village defendants concealed Queens Village’s
failure to make Pension Plan contributions by misrepresenting information on the Form 5500
SFs each year for the 2008 to 2016 plan years. Queens Village denies that they concealed or
misrepresented information on the Form 5500 SFs, and assert that the plaintiffs’ claims accrued
on April 15, 2012.
The “fraud or concealment exception” requires the plaintiffs to allege that a fiduciary
either “(1) breached its duty by making a knowing misrepresentation or omission of a material
fact to induce an employee/beneficiary to act to his detriment; or (2) engaged in acts to hinder
the discovery of a breach of fiduciary duty.” Caputo, 267 F.3d at 190. The plaintiffs must state
these allegations “with particularity,” meaning that the plaintiffs must “specify the time, place,
speaker, and content of the alleged misrepresentations,” “how the misrepresentations were
fraudulent,” and “those events which give rise to a strong inference that the defendant had an
intent to defraud, knowledge of the falsity, or a reckless disregard for the truth.” Janese, 692
F.3d at 228 (citing Fed. R. Civ. P. 9(b) and Caputo, 267 F.3d at 191). To allege concealment, the
plaintiffs must also plead facts giving rise to a duty to disclose the relevant information. Jn re
Express Scripts/Anthem ERISA Litig., 285 F. Supp. 3d 655, 675 (S.D.N.Y. 2018). While it is the
defendants’ burden to prove the statute of limitations bars the plaintiffs’ claims, the plaintiffs
must prove that tolling is appropriate. Demopoulos, 117 F. Supp. 3d at 511 (citing Chapman v.
ChoiceCare Long Island Term Disability Plan, 288 F.3d 506, 512 (2d Cir. 2002)).
The plaintiffs assert that on each-annual Form 5500 SF, Queens Village included only the
contribution amount it owed for that year and did not add in the unpaid amount from the

18

previous year. As discussed infra, it is not clear that the plaintiffs have standing to assert a
breach of fiduciary duty claim based on misrepresentations in a Form 5500 SF because, to the
extent that Queens Village owed a duty to fill out the Form 5500 SF truthfully, that duty was
owed to the government and not to the plaintiffs. However, assuming for the purposes of this
analysis that the plaintiffs do have standing, there are still too many questions of fact surrounding
this claim to resolve it at the pleading stage.'? See Janese, 692 F.3d at 228-29 (resolution of
“issue of fact” as to knowledge of fraud “was not proper at the pleading stage”). Drawing all
reasonable inferences in the plaintiffs’ favor, as I must at this stage, I find that the amended
complaint adequately alleges the fraud or concealment exception to the ERISA six-year statute
of limitations. See also Frulla v. CRA Holdings, Inc., 596 F. Supp. 2d 275, 288 (D. Conn. 2009)
(plaintiff adequately pled concealment exception by asserting defendants took affirmative steps
to hinder discovery of breaches of fiduciary duty including by furnishing inaccurate Form 5500
filings to participants).
There are also open questions about when the plaintiffs discovered or should have
discovered the alleged breach of fiduciary duty. See 29 U.S.C. § 1113(2); Janese, 692 F.3d at
228 (citing Caputo, 267 F.3d at 190). The amended complaint does not plead facts from which I
can determine when the plaintiffs first knew or should have known about Queens Village’s
concealment, but I draw the inference in the plaintiffs’ favor and deny the defendants’ motion to
dismiss at this stage.

'3 For example, it remains an open question whether the plaintiffs, in exercising their due diligence and
reviewing other Pension Plan documents aside from the Form 5500 SFs, were on notice that Queens
Village was not making its required contributions.
19

Claim Against Principal
The plaintiffs’ claim against Principal is essentially that Principal knew that Queens
Village did not make all or most of its required contributions for the 2008 to 2016 plan years and
did nothing about it. (See Compl. ff 87, 125.) The plaintiffs allege that Principal should have
informed the Queens Village Board of Directors and the Department of Labor, or that they
should have brought a civil action against Queens Village to recover the unpaid contributions.
(Compl. {J 12, 89-90, 128.) Principal moves pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the
claim against it, arguing that 1) it did not have a fiduciary duty to ensure that Queens Village
made adequate contributions to the Pension Plan and 2) that it should not be held liable as a co-
fiduciary because the plaintiffs have not “plausibly alleged” the factors of a co-fiduciary liability
claim. (ECF No. 33-1.)
Pursuant to ERISA § 405(a), 29 U.S.C.A. § 1105(a)(3), “a fiduciary with respect to a
plan shall be liable for a breach of fiduciary responsibility of another fiduciary... if he has
knowledge of a breach by such other fiduciary, unless he makes reasonable efforts under the
circumstances to remedy the breach.” See also Silverman v. Mut. Ben. Life Ins. Co., 138 F.3d 98,
104 (2d Cir. 1998) (granting summary judgment to Principal because plaintiff did not show the
fund’s loss “resulted from Principal’s inaction,” but issues of fact remained as to the knowledge
and reasonable efforts elements and “a reasonable factfinder could conclude that... Principal had
knowledge of the trustees’ breach”).
The parties disagree about whether Principal is a fiduciary. The plaintiffs allege that
Principal is a fiduciary because Queens Village’s contributions are sent to and held by Principal
as the Pension Plan trustee, and because Principal is “responsible for allocating” contributions
into participants’ accounts and investment vehicles. (Compl. J] 41, 86.) The defendants say that

20

Principal is merely a “directed trustee” of the Pension Plan and has narrow fiduciary duties that
are not implicated by the allegations in the amended complaint. (ECF No. 33-1 at 9-13.)
However, courts in this district have held that a directed trustee is an ERISA fiduciary, and the
Department of Labor has advised that a “trustee... will, by definition, always be a ‘fiduciary’
under ERISA as a result of its authority or control over plan assets.” In re WorldCom, Inc.
ERISA Litig., 354 F. Supp. 2d 423, 444 (S.D.N.Y. 2005) (citing U.S. Department of Labor, Field
Assistance Bulletin 2004—03 (Dec. 17, 2004)) (collecting cases). The defendants are correct that
a directed trustee’s duties or discretion may be expressly limited by contract and the plaintiffs
have not pled that Principal had or exercised “discretion in a way that is inconsistent with its
status as a directed trustee.” See In re WorldCom, 354 F. Supp. 2d at 442-43 (holding Merrill
Lynch was a directed trustee and ERISA fiduciary). It is also true that Principal is a fiduciary to
the Pension Plan “only ‘to the extent’ [it] functions as a fiduciary” and “the fiduciary obligations
of directed trustees are circumscribed by the parameters of their duties pursuant to Section
403(a).” Id. at 444-45 (citing 29 U.S.C. § 1002(21)(A), 1103(a)); see also Mahoney v. JJ Weiser
& Co., 339 F. App'x 46, 48 (2d Cir. 2009) (“Our case law makes clear that “a person may be an
ERISA fiduciary with respect to certain matters but not others, for he has that status only ‘to the
extent’ that he has or exercises the described authority or responsibility.” (internal citations
omitted)); F.W. Webb Co. v. State St. Bank & Tr. Co., No. 09-CV-1241, 2010 WL 3219284, at
*13 (S.D.N.Y. Aug. 12, 2010) (“Under ERISA, however, a fiduciary is only liable for conduct
that falls within the scope of its fiduciary authority.””). At this stage, without the benefit of
discovery,'* I am unable to determine the precise boundaries of Principal’s fiduciary duties as a
directed trustee and must draw the inference in favor of the plaintiffs.
Principal submits Directed Trust Agreements with Queens Village from various years. (ECF No. 33-2.)
Though these documents may ultimately absolve Principal of co-fiduciary liability, they are not
21

Assuming that Principal is a fiduciary, the plaintiffs have pled enough facts to state a
prima facie claim that Principal knew that Queens Village breached its fiduciary duty when it did
not pay the required contributions. The plaintiffs allege that Principal attended a meeting where
it was informed that Queens Village was not planning to pay the contributions it owed to the
Pension Plan, and that a Principal representative told the Queens Village defendants that it
needed to do so. The plaintiffs are not required to prove conclusively that Principal had “actual
knowledge” that Queens Village breached its fiduciary duty; rather, their allegations that
Principal had constructive knowledge of a breach and did not take reasonable steps to remedy
that breach are sufficient to overcome a motion to dismiss. See In re Polaroid ERISA Litig., 362
F. Supp. 2d 461, 479-80 (S.D.N.Y. 2005) (“Defendants argue that the Complaint does not
sufficiently allege knowledge of co-fiduciary actions. However, the Complaint closely tracks the
statutory language, which is sufficient... The Complaint need not allege specific facts
buttressing those claims of knowledge to survive a motion to dismiss.”); Pension Ben. Guar.
Corp. ex rel. St. Vincent Catholic Med. Centers Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712
F.3d 705, 727 (2d Cir. 2013) (“A complaint alleging a breach of fiduciary duties under ERISA
may survive a motion to dismiss based solely on circumstantial factual allegations... when those
allegations give rise to a ‘reasonable inference’ that the defendant committed the alleged
misconduct... thus ‘permit[ting] the court to infer more than the mere possibility of
misconduct.’” (quoting /gbal, 556 U.S. at 678)). Accordingly, Principal’s motion to dismiss is
denied.

mentioned in the amended complaint, and the plaintiffs did not rely on them in drafting the amended
complaint, so I cannot consider them on a motion to dismiss. See Cortec Indus, 949 F.2d at 47; Williams
v. Time Warner, 440 F. App’x at 9; Chambers vy. Time Warner, 282 F.3d at 153.
22

ORDER TO SHOW CAUSE
To the extent the plaintiffs’ claims against Queens Village are premised on
“concealment” in the Pension Plan’s annual Form 5500 SFs, the plaintiffs must establish that
they have standing to bring such claims. ERISA contains “two express causes of action to
remedy reporting and disclosure violations” — §§ 502(a)(1)(A), 502(a)(4) — and “neither
provision provides a private remedy” to plaintiffs. Jacobs v. Verizon Commc'ns, Inc., No. 16-
CV-1082, 2017 WL 8809714, at *13 (S.D.N.Y. Sept. 28, 2017). It is not clear that the plaintiffs,
who are Pension Plan participants, have standing to assert an ERISA breach of fiduciary duty
claim based on Queens Village’s statements in a Form 5500 SF. See Jacobs, 2017 WL 8809714,
at *14 (“Although the Second Circuit has not ruled on this issue, lower courts have found that an
ERISA plan participant lacks standing to assert a claim based on an alleged misrepresentation in
a Form 5500.”) (collecting cases).
While the Second Circuit has not ruled on this issue, see id., the Third Circuit has
“repeatedly held that under ordinary circumstances defects in fulfilling the reporting and
disclosure requirements of ERISA do not give rise to a substantive remedy other than that
provided for in section 502(a)(1)(A) of that Act.” In re Ins. Brokerage Antitrust Litig., No. 04-
CV-5184, 2008 WL 141498, at *7 (D.N.J. Jan. 14, 2008) (collecting cases). The Seventh Circuit
has also declined to find a private right of action based on ERISA reporting requirements. See
Pappas v. Buck Consultants, Inc., 923 F.2d 531, 539-40 (7th Cir. 1991). The plaintiffs have not
cited any cases in which a court held that a defendant who filled out a Form 5500 SF improperly
violated a fiduciary duty owed fo the plaintiff under ERISA. The plaintiffs have not
demonstrated how they relied on any material misrepresentation by Queens Village such that
they were injured, nor have they cited any caselaw supporting their breach of fiduciary duty

23

theory based on concealment underlying their first and second claims. See Jacobs, 2017 WL
8809714, at *15 (holding plaintiff did not assert reliance, just “deprivation of information” and
“[N]o court in this circuit has ever found that a plaintiff successfully pled informational
standing.” (internal citations omitted)); /n re Ins. Brokerage Antitrust Litig., 2008 WL 141498, at
*7 (“Even if Plaintiffs are able to demonstrate that Defendants purposely mislead them in
inaccurately filling out Form 5500s, Plaintiffs utterly fail to demonstrate that they relied on this
misrepresentation and were substantively harmed.”).
Accordingly, the plaintiffs are ORDERED TO SHOW CAUSE, within 30 days, as to
why their concealment-based breach of fiduciary duty claims against Queens Village should not
be dismissed for failure to state a claim upon which relief may be granted. The plaintiffs should
include citations to relevant caselaw, whether in this Circuit or in others, supporting their claims.
CONCLUSION
The Queens Village defendants’ motion to dismiss is granted insofar as the claims against
individual defendants Ms. Ruiz and Ms. Brinn are dismissed for failure to state a claim. Their
motion is otherwise denied. Principal’s motion to dismiss is also denied.
SO ORDERED.
s/Ann M. Donnelly
AnnM.Donnelly
United States District Judge
Dated: Brooklyn, New York
September 16, 2019

24

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10303076. Public record. Not legal advice.