Watson v. Dell Technologies Inc. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 19-cv-02667-RM-NYW
MARIE WATSON,
Plaintiff,
v.
DELL TECHNOLOGIES INC., a/k/a DELL EMC, f/k/a DELL, INC and EMC CORPORATION,
DELL EMC,
METROPOLITAN LIFE INSURANCE COMPANY, and
ADP, LLC,
Defendants.1
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Nina Y. Wang
This matter comes before the court for recommendation on the following three motions:
(1) 	Defendant Metropolitan Life Insurance Company’s (“MetLife”) Amended Motion
to Dismiss and Supporting Brief (“MetLife’s Motion to Dismiss”), filed October 21, 2019,
[#9];
(2) 	Defendant EMC Corporation’s Motion to Dismiss and Supporting Brief (“EMC’s
Motion to Dismiss”), filed March 6, 2020, [#44]; and
1 There is some ambiguity as to the identity of the named Defendant Dell Technologies Inc. In its
Motion to Dismiss and Reply, Dell Technologies Inc. identifies itself as EMC Corporation, and
suggests that Dell Technologies Inc. (also known as Dell EMC, formerly known as Dell Inc. and
EMC Corporation) and Dell EMC are merely subsidiaries or tradenames of EMC Corporation and
are not separate legal entities. See [#44 at 6; #63 at 3-4 & n.1]. For clarity, this court will refer to
EMC Corporation as encompassing Dell Technologies, Inc. and Dell EMC—which also appears
evident from the docket, as counsel for EMC Corporation is listed as counsel of record for Dell
Technologies Inc. and Dell EMC. Further, Plaintiff sues ADP, LLC as Automatic Data Processing,
Inc. By this Recommendation, the Clerk of the Court shall amend the case caption to reflect ADP,
LLC as the appropriate name of this Defendant.
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(3) 	Defendant ADP, LLC’s (“ADP”) Motion to Dismiss and Supporting Brief (“ADP’s
Motion to Dismiss”), filed March 16, 2020, [#53].
The undersigned Magistrate Judge considers the Motions to Dismiss pursuant to 28 U.S.C.
§ 636(b) and the Memoranda dated October 21, 2019, March 6, 2020, and March 16, 2020. See
[#10; #45; #54]. This court concludes that oral argument will not materially assist in the resolution
of this matter. Accordingly, having reviewed the Motions and associated briefing, the applicable
case law, and being fully advised in their premises, this court respectfully RECOMMENDS that
MetLife’s Motion to Dismiss be GRANTED IN PART and DENIED IN PART, EMC’s Motion
to Dismiss be GRANTED IN PART and DENIED IN PART, and ADP’s Motion to Dismiss be
GRANTED.
BACKGROUND
The court draws the following facts from the Complaint and the documents attached to the
Motions to Dismiss and presumes they are true for purposes of the instant Motion.2 Plaintiff Marie
Watson’s (“Plaintiff” or “Ms. Watson”) husband Thayne Watson (“Mr. Watson”) was an
employee of EMC Corporation (“EMC”) until his voluntary separation from EMC effective
December 31, 2015. 	See [#1 at ¶ 9]. 	Pursuant to his voluntary separation agreement (the
“Separation Agreement”), Mr. Watson received continued benefits under the “Q4 Voluntary
Separation Plan and Summary Plan Description,” including but not limited to life insurance
benefits totaling $663,000 under the EMC Corporation Benefit Plan (the “Plan”), through
November 24, 2016. See [id. at ¶¶ 9-10, 15; #9-1]. The Plan designates MetLife as the underwriter
2 Because the Motions to Dismiss attach several documents that appear authentic, are referenced
in the Complaint, and are central to Plaintiff’s claims, I consider the documents when analyzing
the Motions to Dismiss. 	See Waller v. City & Cty. of Denver, 932 F.3d 1277, 1282 (10th Cir.
2019). 	For clarity purposes, this court omits citations to duplicate copies of the proffered
documents.
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of the offered life insurance benefits and as the party responsible for determining life insurance
claims and EMC as the policyholder and Plan Administrator. See [#1 at ¶¶ 11-12; #9-1 at 3; #9-2
at 67-71].
Relevant here, Mr. Watson had the option to extend the full amount of his life insurance
coverage after its expiration on November 24, 2016. See [#1 at ¶ 15; #9-1 at 3; #9-2 at 37]. The
Plan states, “Please refer to the section entitled LIFE INSURANCE: CONVERSION OPTION
FOR YOU for information concerning the option to convert to an individual policy of life
insurance if Your Life Insurance ends.” [#9-2 at 37 (emphasis in original)]. Under this section,
the Plan provided:
If You [i.e., Mr. Watson] opt to convert Your life insurance for any of the reasons
stated above, We [i.e., MetLife] must receive a completed conversion application
form from You within the Application Period described below.
If You are given Written notice of the option to convert within 15 days before or
after the date Your life insurance ends, the Application Period begins on the date
that such life insurance ends and expires 31 days after such date.
If You are given Written notice of the option to convert more than 15 days after the
date Your life insurance ends, the Application Period begins on the date such life
insurance ends and expires 15 days from the date of such notice. In no event will
the Application Period exceed 91 days from the date Your life insurance ends.
[#9-2 at 55]. 	Accordingly, Mr. Watson had to convert his group life insurance policy to an
individual life insurance policy within 31 days of November 24, 2016. See [#9-3 at 1, 3]; see also
[#1 at ¶ 15].
On or about November 29, 2016, Mr. Watson sent an email inquiring, “How do I start
paying for my benefits at the employee rate for the next year?”, to which he received the following
reply, “You will be receiving a bill form adp [sic] pay flex to continue paying for your benefits.
Benefits remain active during the transition.” [#1 at ¶¶ 16-17]; see also [#9-5 at 2]. According to
Plaintiff, Mr. Watson never received a bill from ADP, nor did he receive any further
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communication from EMC or MetLife (including MetLife’s Conversion Notice dated November
29, 2016) regarding the continuation of his life insurance policy. See [#1 at ¶¶ 18-19, 24].
Mr. Watson passed away on September 18, 2017. [Id. at ¶ 21]. Prior to his passing, Mr.
Watson obtained new employment, but he did not elect to participate in his new employer’s health
or life insurance policies given his participation in the Plan. 	[Id. at ¶ 20]. 	Ms. Watson, as
beneficiary of Mr. Watson’s life insurance benefits, then demanded the full $663,000 in life
insurance benefits from EMC, ADP, and MetLife (collectively, “Defendants”). 	[Id. at ¶ 23].
MetLife denied Ms. Watson’s claim, citing Mr. Watson’s failure to follow the proper procedure
for converting his group life insurance benefits to individual life insurance benefits within the
31-day window to do so. See [id. at ¶¶ 23-24; #9-4]. Ms. Watson appealed the denial, but MetLife
upheld it is determination on appeal. See [#9-5; #9-6].
Dissatisfied with Defendants’ conduct, Plaintiff initiated this civil action on September 18,
2019. 	See [#1]. 	She asserts two claims against Defendants under the Employment Retirement
Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1101 et seq., for (1) life insurance benefits
pursuant to 29 U.S.C § 1132(a)(1)(B) (“Claim 1”) and (2) monetary damages under the equitable
doctrine of “surcharge” for breach of fiduciary duties pursuant to 29 U.S.C. § 1132(a)(3) (“Claim
2”), as well as two state law claims against Defendants for (3) promissory estoppel (“Claim 3”)
and (4) breach of contract (“Claim 4”). See generally [id.]. As relief, Ms. Watson requests all life
insurance benefits due under the Policy, monetary damages in the form of a “surcharge,”
compensatory damages, pre- and post-judgment interest, and reasonable attorney’s fees. See [id.
at 10].
MetLife filed the instant Motion to Dismiss on October 21, 2019, arguing that Ms.
Watson’s ERISA claims (Claims 1 and 2) fail as a matter of law. 	[#9]. 	Following several
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extensions of time to respond, e.g., [#13; #21], Plaintiff filed her Response in opposition to the
Motion to Dismiss, see [#25], and MetLife has since filed its Reply, see [#33].
On March 6, 2020, EMC filed its Motion to Dismiss, arguing the court should dismiss Ms.
Watson’s Complaint in its entirety for failure to state plausible claims for relief. See [#44]. On
March 16, 2020, ADP filed its Motion to Dismiss, arguing the court should dismiss Ms. Watson’s
Complaint in its entirety for failure to state plausible claims for relief. 	See [#53]. 	Plaintiff has
since responded to these Motions to Dismiss, see [#58; #59], and EMC and ADP have since
replied, see [#63; #64]. 	The Motions to Dismiss are now ripe for recommendation, and thus I
consider each in turn.
LEGAL STANDARD
“To 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.” Walker v. Mohiuddin, 947
F.3d 1244, 1248-49 (10th Cir. 2020) (internal quotation marks omitted). 	“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.” Cummings v. Dean, 913 F.3d
1227, 1238 (10th Cir. 2019) (internal quotation marks omitted). In making this determination, the
“court accepts as true all well-pleaded factual allegations in [the] complaint and views those
allegations in the light most favorable to the plaintiff.” Straub v. BNSF Ry. Co., 909 F.3d 1280,
1287 (10th Cir. 2018). In some instances, like here, the court may consider materials beyond the
complaint if the documents are central to the plaintiff’s claims, referred to in the complaint, and
the parties do not dispute their authenticity. See Waller v. City & Cty. of Denver, 932 F.3d 1277,
1282 (10th Cir. 2019).
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ANALYSIS
I. 	Claim 1: Violation of 29 U.S.C. § 1132(a)(1)(B)
A. 	Applicable Law
ERISA 	regulates 	employee 	pension 	and 	welfare 	benefit 	plans. 	See 	29 	U.S.C.
§§ 1002(1)-(2), 1003(a). “Congress enacted ERISA both to ensure that employees would receive
the benefits they had earned and to encourage employers to offer these plans by creating a system
that is not so complex that administrative costs, or litigation expenses, unduly discourage
employers from offering ERISA plans in the first place.” Ellis v. Liberty Life Assurance Co. of
Bos., --- F.3d ----, ----, 2020 WL 2463044, at *4 (10th Cir. May 13, 2020) (brackets, internal
citations, and internal quotation marks omitted). 	ERISA also aims to “proscribe[] interference
with a participant’s [or beneficiary’s] rights under a qualified benefit plan.” Millsap v. McDonnell
Douglas Corp., 368 F.3d 1246, 1247 (10th Cir, 2004). 	It therefore allows a participant or
beneficiary to initiate a civil action “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); accord Chastain v. AT&T, 558 F.3d 1177, 1181
(10th 	Cir. 	2009) 	(stating, 	“only 	plaintiffs 	who 	are 	properly 	considered 	‘participants’ 	or
‘beneficiaries’ have standing to sue under ERISA”). Ms. Watson bears the burden of establishing
her entitlement to benefits under the Plan. See Hodges v. Life Ins. Co. of N. Am., 920 F.3d 669,
680 (10th Cir. 2019).
B. 	Application
MetLife denied Ms. Watson’s claim for life insurance benefits because Mr. Watson failed
to convert his group insurance policy under the Plan to an individual policy after November 24,
2016. See [#1 at ¶¶ 23-24; #9-4]. Ms. Watson asserts this decision was “incorrect, unreasonable,
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arbitrary, 	and 	capricious,” 	ignored 	readily 	available 	information, 	relied 	on 	Defendants’
miscommunications, and was not supported by substantial evidence or based on a correct
application or administration of the Plan and Separation Agreement. See [id. at ¶¶ 29, 31, 33, 34].
According to Ms. Watson, this is because Defendants failed to provide Mr. Watson notice of the
procedures for converting his group life insurance benefits to an individual policy and ignored his
attempt to convert with his November 29, 2016 email. See [id. at ¶¶ 16-18, 30, 32].
Based on the foregoing allegations, this court interprets Claim 1 as asserting two theories.
First, Ms. Watson contends that she is entitled to benefits because Defendants failed to provide
Mr. Watson notice of his option to convert as the Plan required. Second, MetLife’s denial of Ms.
Watson’s claim based on Mr. Watson’s failure to convert is wrong because Mr. Watson did not
receive the written notice referenced in the denial of Ms. Watson’s claim and Mr. Watson
attempted to convert his life insurance on November 29, 2016 but received misleading information
in response.3 See, e.g., [id. at ¶¶ 16-18, 30, 32; #58 at 10-13].
At the outset, I conclude that Ms. Watson cannot proceed under § 1132(a)(1)(B) as to her
second theory of recovery. Cf. Neuma, Inc. v. Wells Fargo & Co., 515 F. Supp. 2d 825, 842-43
(N.D. Ill. 2006) (discerning the precise statutory provisions plaintiff proceeds on before engaging
in analysis). A claim for benefits under 29 U.S.C. § 1332(a)(1)(B) “speaks of enforcing the terms
of the plan, not changing them,” and such a claim must be premised on the terms of the Plan itself,
not on other documents. 	See CIGNA Corp. v. Amara, 563 U.S. 421, 435-36 (2011) (internal
3 The court notes that this theory is not clearly articulated in Claim 1 of the Complaint. [#1 at
¶¶ 28-36]. But construing the allegations in favor of Plaintiff as I must, this court concludes that
Plaintiff has adequately set forth the theory by alleging “Defendants ignored readily available
information that confirmed Ms. Watson’s entitlement to basic life insurance benefits, and their
own miscommunications to Mr. Watson regarding the life insurance benefits” breached their
fiduciary duty to Plaintiff. [Id. at ¶ 33].
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quotation and citations omitted). To the extent Plaintiff contends that Defendants breached their
fiduciary duty to Mr. Watson by improperly answering the November 29, 2016, such a theory is
not premised upon the Plan terms—unlike Ms. Watson’s first theory of recovery that the Plan
terms required Defendants to provide Notice of Conversion to Mr. Watson and they did not. See,
e.g., [#25 at 6-8; #58 at 10]. With this understanding in mind, I turn to Defendants’ Motions to
Dismiss.
Defendants move to dismiss Claim 1 for varying reasons. See [#9; #44; #53]. MetLife and
EMC argue that neither ERISA nor the Plan required the provision of notice to Mr. Watson of his
option to convert his group life insurance benefits to an individual policy. [#9 at 12-13, #44 at 14-
15]. 	EMC and ADP challenge whether Dell Technologies Inc., Dell EMC, and ADP are
appropriate Defendants under Claim 1. [#44 at 13-14; #53 at 14-16]. EMC also argues that Mr.
Watson was not enrolled in life insurance benefits at the time of his passing and therefore Plaintiff
is not entitled to receive any benefits. [#44 at 15-16]. I consider each in turn.
1. 	Notice of Conversion
MetLife and EMC move to dismiss Claim 1 because neither ERISA nor the Plan required
MetLife or EMC to provide Mr. Watson notice of the procedures for converting his group life
insurance plan to an individual policy. See [#9 at 12-13; #33 at 1-2, 3-4; #44 at 14-15; #63 at 5-
7]. For the following reasons, I respectfully agree that neither ERISA nor the Plan required notice
to Mr. Watson of his option to convert.
First, I agree that ERISA does not require conversion notices to Plan participants or
beneficiaries. Indeed, ERISA does not command disclosure beyond the summary plan description
and information of the benefits plan as outlined in 29 U.S.C. §§ 1021(a)(1), 1022 and 29 C.F.R.
§ 2520.102-3, which do not include conversion notices. Cf. Vest v. Resolute FP US Inc., 905 F.3d
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985, 989 (6th Cir. 2018) (holding the plaintiff failed to allege a breach of fiduciary duty claim
against the plan administrator because ERISA does not require administrators to provide
conversion notices to participants). Ms. Watson does not dispute this point. [#25; #58; #59].
Second, this court respectfully agrees that the Plan does not require conversion notices to
participants or beneficiaries. “The interpretation of an ERISA plan is governed by federal common
law.” Fulghum v. Embarq Corp., 785 F.3d 395, 403 (10th Cir. 2015) (citing Foster v. PPG Indus.,
Inc., 693 F.3d 1226, 1237 (10th Cir. 2012)). This requires the court to consider the terms of the
Plan as a whole, giving those terms their plain and ordinary meaning as understood by a reasonable
person. 	See Martinez v. Plumbers & Pipefitters Nat. Pension Plan, 795 F.3d 1211, 1219 (10th
Cir. 2015). If unambiguous, the court construes those terms as a matter of law. 	See Cardoza v.
United of Omaha Life Ins. Co., 708 F.3d 1196, 1203 (10th Cir. 2013).
As mentioned, the Plan first alerts participants of their conversion options in the context of
when coverage ends: “Please refer to the section entitled LIFE INSURANCE: CONVERSION
OPTION FOR YOU for information concerning the option to convert to an individual policy of
life insurance if Your Life Insurance ends.” [#9-2 at 37 (emphasis in original)]. Conversion under
the Plan requires the participant to complete a conversion application within the applicable
application period. See [id. at 55]. The applicable application period depends on:
If You are given Written notice of the option to convert within 15 days before or
after the date Your life insurance ends, the Application Period begins on the date
that such life insurance ends and expires 31 days after such date.
If You are given Written notice of the option to convert more than 15 days after the
date Your life insurance ends, the Application Period begins on the date such life
insurance ends and expires 15 days from the date of such notice. In no event will
the Application Period exceed 91 days from the date Your life insurance ends.
[Id.]. In other words, the time to convert depends on the date life insurance ends and when or if
the participant receives written notice of the option to convert.
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MetLife argues these terms provide participants the requisite information regarding
conversion and “anticipate no additional notice beyond the terms of the Plan.” [#9 at 13; #33 at
3-4]; see also [#63 at 6-7]. Ms. Watson counters that by using “Written notice” the Plan explicitly
requires the provision of written notice of the option to convert, which Ms. Watson alleges did not
occur. See [#25 at 6-8]; see also [#58 at 9-10]. I respectfully disagree with Ms. Watson.
As MetLife argues, the use of “Written notice” in the Plan cannot be read in isolation to
require such notice to participants as Ms. Watson suggests. Rather, “Written notice,” when viewed
in relation to the terms of the conversion procedure, triggers when a participant must submit a
conversion application but only if a participant receives “Written notice of the option to convert[.]”
[#9-2 at 55]. By its very terms, the Plan recognizes that a participant may not receive “Written
notice,” in which case the applicable application period will not “exceed 91 days from the date
Your life insurance ends.” [Id.].
Nor does Ms. Watson contend that the Plan’s conversion procedure is ambiguous in any
manner, i.e., susceptible to more than one meaning or susceptible to uncertainty, Scruggs v.
ExxonMobil Pension Plan, 585 F.3d 1356, 1362 (10th Cir. 2009), in which case the court would
construe that ambiguity against MetLife, LaAsmar v. Phelps Dodge Corp. Life, Accidental Death
& Dismemberment & Dependent Life Ins. Plan, 605 F.3d 789, 805 (10th Cir. 2010). Instead, she
argues it unambiguously requires written notice of the option to convert. Ms. Watson’s reliance
on Canada Life Assurance Company v. Estate of Lebowitz, 185 F.3d 231 (4th Cir. 1999), however,
is misplaced. There, the life insurance policy stated, “[the administrator] will be required to give
each person at least 15 days written notice prior to the date on which his right to convert would
expire[,]” and provided certain extensions should the participant not receive notice. 	Id. at 237
(emphasis added). No unequivocal notice requirement appears in the Plan here. Rather, giving
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the Plan’s terms their plain and ordinary meaning as an ordinary person would understand them
indicates that “Written notice” merely triggers when a participant must file a conversion
application, not that MetLife or EMC must provide such notice.
Based on the foregoing, I conclude that insofar as Claim 1 is based on a theory that MetLife
and EMC were required to provide written notice of the option to convert under the Plan to Mr.
Watson, such a claim is not cognizable. And because this court concludes that Ms. Watson cannot
proceed under Claim 1 as to her second theory of recovery, i.e., Defendants breached their
fiduciary duties to Mr. Watson by improperly answering the November 29, 2016, I find that Ms.
Watson has not pleaded a cognizable claim under § 1332(a)(1)(B). 	Nevertheless, because it
proceeds on Recommendation, this court briefly considers Defendants’ other arguments out of an
abundance of caution.
2. 	Appropriate Defendants
EMC and ADP move to dismiss Claim 1, because Dell Technologies Inc., Dell EMC, and
ADP are not Plan administrators or fiduciaries and therefore are not appropriate defendants for
purposes of Claim 1. See [#44 at 8-9; #53 at 14-15; #63 at 4-5; #64 at 4-7]. Ms. Watson counters
that all three entities are appropriate defendants under Claim 1, though conceding that Dell
Technologies and Dell EMC cannot be sued unless they were Plan Administrators or some other
fiduciary. [#58 at 8-9].
ERISA provides that an employee benefit plan may “be sued under [§ 1132] as an entity,”
and “[a]ny money judgment . . . against an employee benefit plan shall be enforceable only against
the plan as an entity and shall not be enforceable against any other person unless liability against
such person is established in his individual capacity[.]” 29 U.S.C. § 1132(d)(1)-(2). Aside from
the plan, ERISA does not identify who else may be proper defendants under § 1132. Though the
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United States Court of Appeals for the Tenth Circuit (“Tenth Circuit”) has not directly addressed
this issue, it has acknowledged that plan administrators and fiduciaries may also be proper
defendants. See Geddes v. United Staffing All. Employee Med. Plan, 469 F.3d 919, 931 (10th Cir.
2006) (stating in dicta, “The language of 29 U.S.C. § 1132(d)(2) allows beneficiaries to bring
claims against the plan entity, and possibly against plan administrators and named fiduciaries as
well.”).
First, as to Dell Technologies Inc. and Dell EMC, this court agrees with Ms. Watson that
EMC has failed to carry its burden to establish that Dell Technologies Inc. and Dell EMC are not
Plan administrators or fiduciaries as a matter of law. As mentioned, there is some ambiguity as to
the corporate identity of Dell Technologies, Inc. and Dell EMC, but it appears that EMC
encompasses both of those entities. 	See [#44 at 6; #63 at 3-4 & n.1]. 	Though the Plan clearly
designates EMC as the Plan Administrator, it is not clear based on the record before the court that
Dell Technologies Inc. and Dell EMC cannot also be fiduciaries, and there is no evidence in the
record that Dell EMC is solely a trademark.4 Thus, this court finds that dismissal is not warranted
on this basis.5
Second, as to ADP, this court finds that Ms. Watson fails to plead that ADP is a proper
defendant for purposes of Claim 1. The Complaint alleges ADP, along with EMC, administered
the Plan and was a fiduciary under the Plan. 	See [#1 at ¶¶ 11, 13]. 	But the Plan belies this
contention, as it names EMC as the Plan Administrator and designates MetLife as the insurer and
4 The fact that Dell EMC is a registered trademark does not answer the question as to whether there
is an entity named Dell EMC that can be sued for the purposes of ERISA. 	The court notes the
same 	webpage 	identifies 	EMC 	as 	a 	registered 	trademark 	as 	well. 	[#44 	at 	15 	(citing
https://www.dell.com/learn/us/en/uscorp1/terms-conditions/trademarks-us)].
5 This court suggests that this is the type of dispute that the Parties should be able to resolve without
further court intervention upon the exchange of formal and/or informal discovery.
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arbiter of claims submitted for benefits under the Plan. See [#9-2 at 67]; see also GFF Corp. v.
Assoc. Wholesale Grocers, Inc., 130 F.3d 1381, 1384-85 (10th Cir. 1997) (explaining that while
the court must generally accept all well-pleaded factual allegations as true, the court need not
accept factual allegations belied by documents properly considered under Rule 12(b)(6)).
The Complaint further alleges that Mr. Watson was to receive a bill from ADP to continue
paying for his benefits. See [id. at ¶ 17]. But absent from the Complaint are any factual allegations
suggesting ADP had “any authority or control” over the Plan’s assets such that it satisfies ERISA’s
definition of “fiduciary” under 29 U.S.C. § 1002(21)(A). 	See In re Luna, 406 F.3d 1192, 1198
(10th Cir. 2005). 	Nor is it clear that providing a bill to Mr. Watson is anything more than a
ministerial or administrative task, which does not render a party a fiduciary under ERISA. 	See
Lebahn v. Nat’l Farmers Union Unif. Pension Plan, 828 F.3d 1180, 1187 (10th Cir. 2016)
(concluding allegations that someone responded to the plaintiff’s request by calculating certain
pension-plan benefits, informing him of the results, and verifying the calculations in response to
his stated concerns did not establish fiduciary status under ERISA): David P. Coldesina, D.D.S. v.
Estate of Simper, 407 F.3d 1126, 1132-33 (10th Cir. 2005) (concluding that preparing plan
financial documents, including tax forms, was merely an administrative function, whereas “acting
as a signatory on behalf of a plan can indicate fiduciary control.”). Indeed, Plaintiff concedes that
“it is difficult to know whether ADP satisfies th[e] definition of a fiduciary,” and that “it will take
discovery to learn the full extent of ADP’s authority.” [#59 at 8]. 	But the court’s inquiry on a
Rule 12(b)(6) motion to dismiss is to determine whether the well-pleaded factual allegations in the
Complaint state a claim for relief that is plausible on its face, and it is not clear from the Complaint
that ADP acted as a fiduciary as Plaintiff contends in her Response. See [id. at 9]. Thus, I find
that Claim 1 fails to state a cognizable claim as to ADP.
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3. 	Enrollment in Life Insurance Benefits
EMC and ADP also move to dismiss Claim 1 as a matter of law, because “it is undisputed”
that Mr. Watson was not enrolled in life insurance benefits under the Plan at the time of his passing.
See [#44 at 10-11; #53 at 15-16; #63 at 8-9]. Plaintiff counters that Mr. Watson did not receive
MetLife’s purported conversion notice, but regardless he did attempt to convert his life insurance
benefits and received misleading information in response. 	See [#58 at 10-11; #59 at 9-10].
According to Ms. Watson, this is precisely the basis for challenging the denial of her life insurance
claim. See [#58 at 11-13; #59 at 9-10].
To the extent that the presiding judge finds that it is appropriate for Ms. Watson to proceed
pursuant to § 1332(a)(1)(B) on her second theory, i.e., Defendants breached their fiduciary duties
to Mr. Watson by providing him misinformation and thus she is entitled to benefits under the Plan,
the fact that Mr. Watson was not formally enrolled in the Plan when he passed would not appear
to warrant dismissal presently. Rather, such a dispute lies at the core of the merits as to the scope
of Defendants’ alleged fiduciary duties and whether Defendants met those duties under the
particular circumstances of this case. 	In determining whether a communication is sufficient to
trigger fiduciary duties, courts have looked beyond whether an insured has invoked particular
words. See Horn v. Cendant Operations, Inc., 69 F. App’x 421, 428 (10th Cir. 2003) (holding that
a plaintiff could not be bound by words for which she had no notice); Eddy v. Colonial Life Ins.
Co. of Am., 919 F.2d 747, 751 (D.C. Cir. 1990) (holding that a participant’s question regarding
“continuation” of coverage, to which he was not entitled, rather than “conversion” of coverage, to
which he was entitled, triggered the plan fiduciaries’ duty to fully inform the participant of his
rights under the ERISA plan); Atwood v. Swire Coca-Cola, 482 F. Supp. 2d 1305, 1315-16 (D.
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Utah 2007) (concluding a fiduciary breached its duties owed to a participant even though the
participant submitted an incomplete and confusing enrollment card).
C. 	Conclusion
Based on the foregoing, this court respectfully RECOMMENDS that Claim 1 be
DISMISSED as to all Defendants, because the Plan did not require any conversion notice to Mr.
Watson 	and 	Ms. 	Watson’s 	second 	theory 	of 	recovery 	does 	not 	appear 	proper 	under
§ 1132(a)(1)(B). Alternatively, to the extent Judge Moore believes Ms. Watson’s second theory
of recovery under Claim 1 may proceed, this court respectfully RECOMMENDS that Claim 1 be
DISMISSED as to ADP alone, because Plaintiff has not adequately pleaded facts that ADP is a
Plan fiduciary.
II. 	Claim 2: Violation of 29 U.S.C. § 1132(a)(3)(B) - Breach of Fiduciary Duties
A. 	Applicable Law
Another “purpose of ERISA is to protect employees from abuse and mismanagement of
funds designated for employee-benefit plans.” Petersen v. Comm’r of Internal Revenue, 924 F.3d
1111, 1116 (10th Cir. 2019). To that end, “ERISA generally obligates private employers offering
pension plans to adhere to an array of rules designed to ensure plan solvency and protect plan
participants.” 	Medina v. Catholic Health Initiatives, 877 F.3d 1213, 1221 (10th Cir. 2017)
(internal quotation marks omitted). 	For instance, ERISA imposes stringent standards on plan
administrators related to disclosures and reporting, participation and vesting, funding, as well as
fiduciary responsibilities. 	See, e.g., 29 U.S.C. §§ 1021-1112; Petersen, 924 F.3d at 1116-17
(quoting New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514
U.S. 645, 651 (1995)). 	To plead a plausible breach of fiduciary duty claim, Ms. Watson must
allege “some causal link between the alleged breach and the loss [she] seeks to recover.”
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Holdeman v. Devine, 572 F.3d 1190, 1193 (10th Cir. 2009) (ellipsis and internal quotation marks
omitted).
Relevant here, § 1132(a)(3) permits a civil suit by a beneficiary “to obtain other appropriate
equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or
the terms of the plan.” 	29 U.S.C. § 1132(a)(3). 	Appropriate equitable relief includes “‘those
categories of relief that were typically available in equity (such as injunction, mandamus, and
restitution, but not compensatory damages).’” Teets v. Great-W. Life & Annuity Ins. Co., 921 F.3d
1200, 1224 (10th Cir. 2019) (quoting Mertens v. Hewitt Assocs., 508 U.S. 248, 256 (1993)
(emphasis in original)). The Tenth Circuit has held that restitution of lost wages, exacerbation of
the beneficiary’s medical condition, and pain and suffering are outside ERISA’s “appropriate
equitable relief” provision, see Lind v. Aetna Health, Inc., 466 F.3d 1195, 1200-01 (10th Cir.
2006), and so too is monetary compensation for harms caused by delay in receipt of benefits, see
Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1234 (10th Cir. 2002). But § 1132(a)(3)
does not wholly preclude recovery of monetary damages. In some instances, monetary relief in
the form of a “surcharge” under § 1132(a)(3) is appropriate equitable relief when it compensates
a plaintiff for actual harm caused by a fiduciary’s breach of duty. See CIGNA, 563 U.S. at 441-42,
444 (explaining that a “surcharge” compensates “for a loss resulting from a trustee’s breach of
duty, or to prevent the trustee’s unjust enrichment,” and which might be available upon a showing
of detrimental reliance or loss of a right protected by ERISA).
B. 	Application
Under Claim 2, Ms. Watson requests equitable relief in the form of a surcharge under
29 U.S.C. § 1132(a)(3) for Defendants’ alleged breach(es) of their fiduciary duties. 	See [#1 at
¶ 46]. She alleges Defendants, as fiduciaries under the Plan, were required to ensure the Plan and
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its summary plan description contained accurate information concerning participants’ rights and
continued benefits, which included notice of the option to convert. 	See [id. at ¶¶ 38-43].
According to Ms. Watson, Defendants breached their fiduciary duties by:
• 	providing inaccurate information regarding conversion of life insurance benefits;
• 	failing to provide notice of Mr. Watson’s option to convert his life insurance benefits;
• 	failing to provide an accurate summary plan description with procedures for conversion;
• 	offering misleading communications regarding continued benefits; and
• 	misrepresenting the terms of the Plan.
[Id. at ¶ 44]. 	As this court interprets Claim 2, Defendants breached their fiduciary duties by
supplying inaccurate information in Plan documents and by providing misleading communications
and misrepresenting the terms of the Plan in response to Mr. Watson’s November 29, 2016 email.
Defendants move to dismiss Claim 2 for several reasons. 	They argue the court should
dismiss Claim 2, because Ms. Watson cannot “repackage” her denial of benefits claim (Claim 1)
as a claim for appropriate equitable relief under § 1132(a)(3); Dell Technologies Inc., Dell EMC,
and ADP are not fiduciaries; MetLife is not responsible for the contents of the Plan documents;
and EMC provided accurate information regarding conversion in the Plan. See generally [#9; #44;
#53]. I consider each in turn, though not necessarily in this order.
1. 	Dell Technologies Inc., Dell EMC, and ADP
EMC and ADP move to dismiss Claim 2, because Dell Technologies Inc., Dell EMC, and
ADP are not fiduciaries under the Plan, and therefore cannot breach any duties owed to Ms.
Watson. For the reasons discussed above, this court disagrees that Dell Technologies Inc. and Dell
EMC should be dismissed at this stage given the ambiguity of the corporate structure of these
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entities and EMC; however, this court agrees that Claim 2 cannot lie against ADP given that Ms.
Watson fails to allege that ADP is a fiduciary under the Plan. See supra Part I.B.2.
2. 	Contents of the Plan Documents and Conversion Notice
MetLife moves to dismiss Claim 2, arguing it is not responsible for the contents of the Plan
documents because it is not the Plan Administrator. See [#9 at 19-20; #33 at 9]. EMC argues that
Claim 2 fails as a matter of law because it provided the Plan to Mr. Watson, and the Plan contained
accurate information regarding conversion of life insurance benefits. See [#44 at 17; #63 at 10]. I
consider each argument in turn.
First, this court agrees with MetLife that it cannot be liable for the provision of alleged
inaccurate information in the summary plan description. This is because the Plan identifies EMC
as the Plan Administrator, and ERISA obligates only the Plan Administrator to provide participants
with an accurate summary plan description. 	See 29 U.S.C. § 1024(b). 	MetLife, as the Claims
Administrator, therefore, cannot be liable for any misinformation contained in the summary plan
description. 	See, e.g., Mondry v. Am. Fam. Mut. Ins Co., 557 F.3d 781, 794 (7th Cir. 2009)
(explaining that claims administrators cannot be liable for failure to provide required plan
documents, as this duty lies solely with the plan administrator); Nechis v. Oxford Health Plans,
Inc., 421 F.3d 96, 104 (2d Cir. 2005) (dismissing the plaintiff’s failure to disclose claim against
the claims administrator because only the plan administrator owed any disclosure duties to the
plaintiff) Klosterman v. W. Gen. Mgmt., Inc., 32 F.3d 1119, 1122 (7th Cir. 1994) (stating, “any
cause of action for violations of [ERISA’s] disclosure requirements is proper only against the plan
administrator, the party responsible under the statute.”); Johnson v. Health Care Serv. Corp., 262
F. Supp. 3d 1260, 1265 (W.D. Okla. 2017) (concluding the claims administrator was under no
obligation to provide the plaintiff with the summary plan description). And as explained, neither
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ERISA nor the Plan required MetLife to provide Mr. Watson written notice of his option to convert
as Ms. Watson contends. See [#25 at 14-15].
Second, this court agrees with EMC that Ms. Watson cannot maintain a breach of fiduciary
duty claim based on any omission of the conversion procedure from the Plan’s summary plan
description. As explained above, ERISA does not require notice of a participant’s right to convert
his life insurance benefits in a summary plan description. See, e.g., Vest, 905 F.3d at 989; Prouty
v. Hartford Life & Acc. Ins. Co., 997 F. Supp. 2d 85, 91 (D. Mass. 2014) (“[ERISA] simply does
not require that the SPD even include notification to participants and beneficiaries of any
conversion rights.”). And the procedure for conversion is outlined clearly in the Plan itself.
3. 	Misinformation in Response to November 29, 2016 Email
I now turn to Ms. Watson’s contention that Defendants breached their fiduciary duties in
their response to Mr. Watson’s November 29, 2016 email as described above. 	In response to
EMC’s Motion to Dismiss, Plaintiff contends that when Mr. Watson contacted EMC on November
29, 2016, EMC did not direct him to the Plan or the summary plan description; nor did it direct
him to consult with MetLife. [#58 at 10]. Instead, Plaintiff avers that EMC incorrectly informed
him that all he needed to do was pay the bill he received from ADP. [Id.]. These allegations are
reflected, albeit not identically, in the Complaint. See [#1 at ¶¶ 15-24].
MetLife and EMC move to dismiss Claim 2 because Ms. Watson cannot seek double
recovery of the denied life insurance benefits under § 1132(a)(1)(B) and § 1132(a)(3). They argue
that Claim 2 merely “repackages” Claim 1 and therefore the court should dismiss Claim 2 as
duplicative because Ms. Watson cannot recover a “surcharge” of the denied benefits sought in
Claim 1. See generally [#9; #44; #53]. For the following reasons, I respectfully disagree.
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The Supreme Court of the United States has held that § 1132(a)(3) acts “as a safety net,
offering appropriate equitable relief for injuries caused by violations that [§1132] does not
elsewhere adequately remedy.” Varity Corp. v. Howe, 516 U.S. 489, 512 (1996); see also id. at
515 (“Thus, we should expect that where Congress elsewhere provided adequate relief for a
beneficiary’s injury, there will likely be no need for further equitable relief, in which case such
relief normally would not be ‘appropriate.’”). The Tenth Circuit, in an unpublished opinion, has
interpreted Varity as precluding a plaintiff from pursuing a § 1132(a)(3) claim where the plaintiff
“states a cognizable claim under 29 U.S.C. § 1132(a)(1)(B), a provision which provides adequate
relief for [the] alleged . . . injury.” Lefler v. United Healthcare of Utah, Inc., 72 F. App’x 818, 826
(10th Cir. 2003). 	Several courts within the Tenth Circuit have followed suit. 	E.g., Walden v.
Metro. Life Ins. Co. of Am., Inc., 75 F. Supp. 3d 1320, 1325 (D. Colo. 2014) (holding that the
plaintiff could not maintain a breach of fiduciary duty claim predicated on the defendant’s
non-payment 	of 	benefits, 	especially 	where 	the 	plaintiff 	asserted 	such 	a 	claim 	under
§ 1132(a)(1)(B)); Powers v. BlueCross Blue Shield of Illinois, 947 F. Supp. 2d 1139, 1143 (D.
Colo. 2013) (concluding, “although brought under the theory of breach of fiduciary duty, what the
plaintiffs are alleging is that benefits owed to Ms. Powers were wrongfully denied.”); Sliwinski v.
Aetna Life Ins. Co., No. 17-CV-01528-RM-MEH, 2018 WL 4697310, at **4-11 (D. Colo. Mar. 2,
2018) (dismissing as duplicative the plaintiff’s § 1132(a)(3) based on a denial of benefits); Ihde v.
United of Omaha Life Ins. Co., No. 17-CV-00847-RM-NYW, 2017 WL 5444551, at **6-8 (D.
Colo. Nov. 14, 2017) (recommending the same).
While MetLife and EMC try to fit Claim 2 into this same mold, I respectfully conclude
Claim 2 seeks “appropriate equitable relief” under § 1132(a)(3). As explained above, because Ms.
Watson cannot proceed under § 1132(a)(1)(B) on her theory that Defendants breached a fiduciary
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duty to Mr. Watson, I find that Claim 1 is limited to a challenge of the denial of Ms. Watson’s life
insurance claim based on her allegations that Mr. Watson did not receive written notice of his
option to convert his life insurance benefits as the Plan required. See supra Part I.B. In contrast,
as this court interprets Claim 2, Ms. Watson complains of an injury in addition to the denial of her
claim under the Plan document, i.e., Defendants owed Mr. Watson and Ms. Watson a fiduciary
duty to provide accurate and complete information in response to Mr. Watson’s inquiry about
continuing his “benefits” but breached that duty by providing misleading and inaccurate
information in response, which then resulted in Mr. Watson inadvertently forfeiting his option to
convert. See Horn, 69 F. App’x at 427 (“A fiduciary has a legal duty to disclose to the beneficiary
only those material facts, known to the fiduciary but unknown to the beneficiary, which the
beneficiary must know for its own protection.” (brackets and internal quotation marks omitted)).
Such a claim appears appropriate under § 1132(a)(3). 	See Foster v. Sedgwick Claims Mgmt.
Servs., No. 19-CV-02077-LTB-NRN, 2020 WL 1643447, at *1 (D. Colo. Apr. 2, 2020)
(concluding the plaintiff’s § 1132(a)(3) claim based on the defendant’s alleged failure to inform
the plaintiff of her ability/right to use paid time off for medical treatment in lieu of applying for
short-term disability was not duplicative her denial of benefits claim under § 1132(a)(1)(B)).
I find several cases support this conclusion. First, in Varity, the plaintiffs sought reinstate
in their ERISA employee benefit plan and other individual relief after their employer and plan
administrator (both Varity) fraudulently induced them into transferring to a failing subsidiary,
which (as Varity intended) led the plaintiffs to inadvertently withdraw from their benefit plan and
to forfeit their benefits. 516 U.S. at 492-94. The Supreme Court held that § 1132(a)(3) authorized
the plaintiffs’ suit, because “they were no longer members” of the employee benefit plan and “had
no benefits due [them] under the terms of [the] plan,” foreclosing recovery under § 1132(a)(1)(B),
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and they sought individual relief as opposed to plan-wide relief, foreclosing recovery under
§ 1132(a)(2), and so they had to rely on § 1132(a)(3) “or they have no remedy at all.” Id. at 515.
A similar situation exists here: Ms. Watson alleges Defendants misled Mr. Watson as to how to
convert his life insurance to an individual policy, which Mr. Watson relied on to his detriment (i.e.,
the inadvertent withdrawal from continued coverage under the Plan). Indeed, EMC and ADP both
argue that Claim 1 should be dismissed because Mr. Watson was not enrolled in benefits under the
Plan when he passed away. If true, § 1132(a)(3) would provide the only avenue for relief to Ms.
Watson for Defendants’ allege breach of their fiduciary duties. See Varity, 516 U.S. at 515.
Second, in Moyle v. Liberty Mutual Retirement Benefits Plan, 823 F.3d 948 (9th Cir. 2016),
the plaintiffs alleged the defendant (their new employer) assured them that they would receive past
service credit that they could apply towards their ERISA retirement plan offered by the defendant.
Id. at 952, 954-55. 	The defendant, however, did not honor its assurances, and so the plaintiffs
sought their past service credits under § 1132(a)(1)(B) and equitable relief under § 1132(a)(3) in
the form of reformation and surcharge. See id. Relevant here, the Ninth Circuit held the Supreme
Court’s precedents, Varity and CIGNA, did not foreclose the plaintiffs from bringing a § 1132(a)(3)
claim based on the defendant’s material lack of disclosure regarding past service credits simply
because the plaintiffs also asserted a § 1132(a)(1)(B) claim for past service credits. See id. at 961-
62 (agreeing with Silva v. Metro Life Ins. Co., 762 F.3d 711, 726-27 (8th Cir. 2014) that a plaintiff
may plead a § 1132(a)(3) in the alternative to § 1132(a)(1)(B), as Varity and CIGNA prohibit only
duplicate recoveries). Here, Ms. Watson asserts a similar claim: Mr. Watson inquired as to how
to continue his benefits, received misleading information, and Ms. Watson relied on that
information in seeking life insurance benefits under the Plan.
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Third, in Smith v. Liberty Life Assurance Company of Boston, No. 17-CV-01794-PAB-
GPG, 2018 WL 4635983 (D. Colo. Sept. 27, 2018), a court in this District considered whether the
plaintiff’s § 1132(a)(3) claim, based on the defendant’s alleged misinformation about what medical
evidence the plaintiff needed to submit on appeal, was duplicative of her § 1132(a)(1)(B) claim,
based on the defendant’s alleged failure to review relevant medical records when denying
long-term disability benefits. 	See id. at *1. 	The Smith court held that while the plaintiff’s
§ 1132(a)(3) claim potentially rested on the denial of her benefits, the plaintiff plausibly alleged
an entitlement to equitable relief “on the theory that defendant’s breach prevented her from
adequately substantiating her benefits claim,” and “Varity does not bar the pleading of parallel
claims in this context.” 	Id. at *3; see also id. at *4 (rejecting the argument that a parallel
§ 1132(a)(3) claim can only lie where it is based on conduct occurring outside the claims process,
because the relevant question was whether § 1132(a)(1)(B) will provide adequate relief). 	The
same is true for Ms. Watson. She alleges in Claim 2 that Mr. Watson sought information regarding
continued benefits from Defendants—information Defendants had a duty to disclose accurately—
yet Defendants provided misleading information that ultimately “prevented [Ms. Watson] from
adequately substantiating her benefits claim.” Id. at *3.
At this stage, I find adequate Ms. Watson’s allegations that Mr. Watson sought information
regarding the conversion of his life insurance benefits yet received misleading information, leading
to his failure to convert his group life insurance policy to an individual policy. Cf. Jones v. Aetna
Life Ins. Co., 856 F.3d 541, 547 (8th Cir. 2017) (concluding that the defendant’s “alleged liability
under [§ 1132](a)(3) flows from the process, not the denial of benefits,” and thus the plaintiff could
assert a claim for wrongful denial of benefits under § 1132(a)(1)(B) and a § 1132(a)(3) claim
predicated on the defendant’s breach of its fiduciary duties by using conflicted claims examiners
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and relying on the denial of short-term benefits to justify denial of long-term benefits). Further,
Ms. Watson alleges she and Mr. Watson relied on that misleading information to their detriment.
Cf. 	Kenseth v. Dean Health Plan, Inc., 722 F.3d 869, 881-82 (7th Cir. 2013) (concluding the
plaintiff pleaded a breach of fiduciary claim in alleging that she “took action in reliance on an
assurance that she would be covered by a plan benefit” only to later learn that she was misled in
believing so, for which she should be able to seek make-whole monetary damages under
§ 1132(a)(3)).
With that said, this court’s Recommendation that Ms. Watson be permitted to pursue Claim
2 premised on a breach of fiduciary duties should not be read as a finding that Ms. Watson should
be able to recover all the relief she seeks, in particular, the death benefits under the Plan that she
was denied. Indeed, the Tenth Circuit has clearly held that to the extent a plaintiff “seeks payment
of the policy proceeds, such relief is barred under § [1132](a)(3).” Callery v. U.S. Life Ins. Co. in
City of New York, 392 F.3d 401, 405 (10th Cir. 2004). But in her Complaint, Ms. Watson argues
that she is entitled to “all injunctive relief, including monetary damages under the equitable
doctrine of surcharge.” [#1 at ¶ 46; #58 at 12]. The CIGNA Court noted that surcharge could take
the form of monetary compensation for a loss resulting from a trustee’s breach of duty or to prevent
a trustee’s unjust enrichment. See CIGNA, 563 U.S. at 441-42. At this juncture, it is not entirely
clear that Claim 2 is, in effect, a repackaged Claim 1. A more precise determination on that issue,
and what relief might be available to Plaintiff, seems better-suited for summary judgment or trial.
See Smith, 2018 WL 4635983, at *4. Nor does the court pass on the issue of whether MetLife is
an appropriate defendant to the remaining theory under Claim 2 in the absence of allegations that
it participated in the communication at issue, because such an argument was not raised or briefed
by MetLife or Plaintiff. See [#9; #25; #33].
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C. 	Conclusion
Based on the foregoing, I respectfully RECOMMEND that (1) ADP’s Motion to Dismiss
be GRANTED as to Claim 2 because Plaintiff has not sufficiently pleaded that ADP is a fiduciary;
and (2) MetLife’s and EMC’s Motions to Dismiss be GRANTED IN PART and Claim 2
DISMISSED to the extent it alleges MetLife and EMC breached their fiduciary duties by failing
to include the conversion procedures in the Plan’s summary plan description or by failing to
provide written notice of the option to convert. Conversely, I respectfully RECOMMEND that
MetLife and EMC’s Motions to Dismiss be DENIED IN PART as to Claim 2 on Ms. Watson’s
theory that EMC and MetLife breached their fiduciary duties in responding to the November 29,
2016 email and only insofar as she seeks equitable remedies.
III. 	Claims 3 and 4 – ERISA Preemption6
A. 	Applicable Law
ERISA is one of the “few federal statutes that so pervasively regulate[s] [its] respective
areas that [it] ha[s] complete preemptive force[.]” The Supreme Court has held that claims which
fall within the scope of § 1132(a)(1)(B) are completely preempted if: (1) “‘an individual, at some
point in time, could have brought h[er] claim under ERISA § [1132](a)(1)(B),’” and (2) “‘there is
no other independent legal duty that is implicated by a defendant’s actions.’” Salzer v. SSM Health
Care of Oklahoma Inc., 762 F.3d 1130, 1134 (10th Cir. 2014) (quoting Aetna Health Inc. v. Davila,
542 U.S. 200, 210 (2004)). In other words, ERISA completely preempts any state law claim that
“duplicates, supplements, or supplants” the remedies ERISA provides. 	David P. Coldesina,
D.D.S., 407 F.3d at 1137 (internal quotation marks omitted).
6 EMC and ADP also move to dismiss Claims 3 and 4 for failure to state a claim. Because I agree
that ERISA preempts Claims 3 and 4, I do not consider these additional arguments.
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ERISA, however, also “preempts state law claims that ‘relate to any employee benefit
plan.’” Dobbs v. Anthem Blue Cross & Blue Shield, 600 F.3d 1275, 1279 (10th Cir. 2010) (quoting
29 U.S.C. § 1144(a)). A state law claim “relates to” an ERISA plan “if it has a connection with or
reference to such a plan”; claims with only a “tenuous, remote, or peripheral connection with
covered plans” do not “relate to” an ERISA plan. 	Felix v. Lucent Techs., Inc., 387 F.3d 1146,
1153-54 (10th Cir. 2004) (internal quotation marks omitted). 	The Tenth Circuit has extended
ERISA preemption to state law promissory estoppel claims, see Martinez, 795 F.3d at 1223;
Kerber v. Qwest Grp. Life Ins. Plan, 647 F.3d 950, 962 (10th Cir. 2011) (noting the possibility of
allowing such a claim in the most “egregious” instances of fraud), as well as to state law breach of
contract claims, see Kelso v. Gen. Am. Life Ins. Co., 967 F.2d 388, 390 (10th Cir. 1992); Straub v.
W. Union Tel. Co., 851 F.2d 1262, 1263-64 (10th Cir. 1988).
B. 	Application
In addition to her two ERISA claims, Ms. Watson asserts two state law claims against
Defendants. In Claim 3, Ms. Watson asserts a state law claim for promissory estoppel, and alleges:
• 	Mr. Watson sought information from Defendants about continued benefits,
• 	Mr. Watson received misleading information despite Defendants’ fiduciary duties,
• 	Mr. Watson “reasonably and justifiably relied on the misrepresentations,”
• 	Mr. Watson did not elect to obtain life insurance from his new employer in 2017, and
• 	Ms. Watson suffered injuries, i.e., the denial of benefits, based on Defendants’ conduct.
[#1 at ¶¶ 48-52]. In Claim 4, Ms. Watson asserts a state law breach of contract claim. She alleges:
• 	the Separation Agreement required notice of instructions to convert benefits,
• 	Mr. Watson did not receive that notice,
• 	lack of notice breached both the Separation Agreement and the Plan, and
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• 	Ms. Watson suffered damages, i.e., denial of benefits.
[Id. at ¶¶ 54-56].
EMC and ADP move to dismiss Claims 3 and 4 because ERISA both expressly and
completely preempts these claims. See [#44 at 19-24; #53 at 18-23; #63 at 12-14; #64 at 10]. They
argue Claims 3 and 4 “relate to” the Plan because Ms. Watson’s allegations speak to the
continuation of Mr. Watson’s life insurance benefits and the appropriate procedures for converting
those benefits. Further, they contend that Claims 3 and 4 concern conduct that could have been
brought under § 1132(a)(1)(B) and there is no other legal duty implicated by Defendants’ conduct.
For the following reasons, I respectfully agree that Claims 3 and 4 “relate to” an ERISA plan, and
therefore ERISA expressly preempts such claims under § 1144(a).7
As pleaded, Claims 3 and 4 concern the alleged wrongful denial of Ms. Watson’s life
insurance claim based on Defendants’ misleading communications as to how Mr. Watson could
convert his life insurance to an individual policy under the Plan. See [#1 at ¶¶ 48-55]. Regardless
of whether any duty arose from the Separation Agreement, such allegations demonstrate a factual
basis that Claims 3 and 4 involve life insurance benefits under an ERISA plan (i.e., the Plan) and
Ms. Watson’s entitlement to those benefits. See Monarch Cement Co. v. Lone Star Indus., Inc.,
982 F.2d 1448, 1452 (10th Cir. 1992) (explaining that a state law claim “relates to” an ERISA plan
when it involves such a plan, such as when the claim affects the “eligibility for a benefit and the
amount of that benefit.” (internal quotation marks omitted)).
7 For this reason, I do not consider whether ERISA completely preempts Claims 3 and 4, but I note
that both claims concern the alleged breach of fiduciary duty owed to Mr. Watson that gives rise
to Claim 2. 	See Salzer v. SSM Health Care of Oklahoma Inc., 762 F.3d 1130, 1137 (10th Cir.
2014) (“Because Salzer’s tortious interference claim is one seeking to enforce rights under the
terms of an ERISA plan, and does not rest on a legal duty independent of an ERISA plan’s terms,
Davila mandates complete preemption of that claim.”).
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Ms. Watson counters that Claims 3 and 4 do not relate to an ERISA plan, but rather concern
the Separation Agreement. 	See [#58 at 15-16; #59 at 11-12]. 	According to Ms. Watson, the
Separation Agreement is an employee contract, not subject to ERISA. See [id.]. This, however,
is not a fair characterization of the allegations in the Complaint. 	While the entire Separation
Agreement may not be subject to ERISA, the basis for Claims 3 and 4 concern only the alleged
breaches of promises regarding continuation of Mr. Watson’s life insurance benefits. 	ERISA
expressly preempts such claims. 	See Cannon v. Grp. Health Serv. of Oklahoma, Inc., 77 F.3d
1270, 1273 (10th Cir. 1996) (“Mr. Cannon’s initial claims were for breach of contract or a breach
of fiduciary duty cause of action related to the improper processing of Mrs. Cannon’s benefit claim
. . . . 	Both the Supreme Court and this court have consistently held these types of claims are
preempted by ERISA.”).
Ms. Watson also argues in her Response that she was a third-party beneficiary of an
agreement between EMC and ADP regarding the continuation of Mr. Watson’s benefits, which
ERISA does not preempt. 	See [#59 at 12-13]. 	Despite no such claim or allegation in the
Complaint, see Abdulina v. Eberl’s Temporary Services, Inc., 79 F. Supp. 3d 1201, 1206 (D. Colo.
2015) (“Plaintiff, however, cannot amend her complaint by adding factual allegations in response
to Defendant’s motion to dismiss.”), this court is not persuaded that such an agreement does not
relate to an ERISA plan. Indeed, Ms. Watson concedes that any such agreement “relat[ed] to the
continuation of Mr. Watson’s employee benefits[.]” [#59 at 12].
C. 	Conclusion
Based on the foregoing, I respectfully conclude ERISA expressly preempts Claims 3 and
4. 	Thus, I respectfully RECOMMEND that EMC’s and ADP’s Motions to Dismiss be
GRANTED and Claims 3 and 4 be DISMISSED.
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CONCLUSION
For the reasons stated herein, this court respectfully RECOMMENDS that:
(1) 	MetLife’s Motion to Dismiss [#9] be GRANTED IN PART and DENIED IN
PART;
(2) 	EMC’s Motion to Dismiss [#44] be GRANTED IN PART and DENIED IN
PART;
(3) 	ADP’s Motion to Dismiss [#53] be GRANTED;
(4) 	Claim 1 be DISMISSED as to all Defendants;
(5) 	Claim 2 be DISMISSED to the extent it alleges MetLife and EMC breached their
fiduciary duties by failing to provide written notice of the option to convert or for failing
to include conversion procedures in the Plan’s summary plan description, but REMAIN
as to MetLife and EMC to the extent it alleges MetLife and EMC provided misleading
information in response to Mr. Watson’s request on how to convert his life insurance
benefits and only insofar as it seeks equitable relief; and
(6) 	Claims 3 and 4 be DISMISSED.8
8 Within fourteen days after service of a copy of this Recommendation, any party may serve and
file written objections to the magistrate judge’s proposed findings of fact, legal conclusions, and
recommendations with the Clerk of the United States District Court for the District of
Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d
580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the
basis for the objection will not preserve the objection for de novo review. “[A] party’s objections
to the magistrate judge’s report and recommendation must be both timely and specific to preserve
an issue for de novo review by the district court or for appellate review.” United States v. 2121
East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar
de novo review by the district judge of the magistrate judge’s proposed findings of fact, legal
conclusions, and recommendations and will result in a waiver of the right to appeal from a
judgment of the district court based on the proposed findings of fact, legal conclusions, and
recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir.
1999) (holding that the district court’s decision to review magistrate judge’s recommendation de
novo despite lack of an objection does not preclude application of “firm waiver rule”); Int’l Surplus
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DATED: May 29, 2020 	BY THE COURT:
_________________________
Nina Y. Wang
United States Magistrate Judge
Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that
cross-claimant waived right to appeal certain portions of magistrate judge’s order by failing to
object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding
that plaintiffs waived their right to appeal the magistrate judge’s ruling by failing to file
objections). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding
that firm waiver rule does not apply when the interests of justice require review).
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