Personal Representative of the Estate of Victor Harold Forsman v. Barnes et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
Personal Representative of the ESTATE OF
VICTOR HAROLD FORSMAN,
Plaintiff,
v.
RORY JAKE BARNES and EMPOWER
RETIREMENT, LLC,
Defendants.
MEMORANDUM DECISION AND ORDER
GRANTING DEFENDANT EMPOWER
RETIREMENT’S MOTION TO DISMISS
Case No. 2:25-CV-00283-JNP-CMR
Chief District Judge Jill N. Parrish
Magistrate Judge Cecilia M. Romero
Defendant Empower Retirement, LLC (“Empower”) brings a motion to dismiss under
Federal Rule 12(b)(6) for failure to state a claim. ECF No. 22 (“Empower’s Mot.”). For the reasons
discussed below, the motion is GRANTED and the sole claim brought against Empower is
DISMISSED.
BACKGROUND
This case arises out of Victor Harold Forsman’s death in 2021. ECF No. 20 (“Am.
Compl.”) ¶ 8. Empower was the service provider for Forsman’s 401k plan, which at the time of
Forsman’s death contained approximately $750,000. Id. ¶¶ 8, 10. Empower treated Defendant
Rory Jake Barnes as the beneficiary of the plan and transferred the proceeds to Barnes in 2022
after receiving a request from Barnes. Id. ¶¶ 28, 30.
Plaintiff, the personal representative of the Estate of Forsman, brings claims against both
Barnes and Empower. Id. ¶¶ 1, 6–49. Against Barnes, Plaintiff asserts a wrongful conversation
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claim. Id. ¶ 33–49. He alleges “[u]pon information and belief” that Barnes, without authorization,
sent a beneficiary designation to Empower via Forsman’s computer and, in doing so, willfully and
unlawfully interfered with the Estate’s rights to the plan proceeds. Id. ¶¶ 44–45, 49. Against
Empower, Plaintiff brings a single claim for breach of fiduciary duty under the Employee
Retirement Income Security Act of 1974 (“ERISA”), Pub. L. No. 93-406, 88 Stat. 829 (codified,
as amended, 29 U.S.C. § 1001 et seq.). Am. Compl. ¶ 7.; 29 U.S.C. § 1109(a). Plaintiff claims that
he was informed by the plan’s trustee “that Empower handled all aspects in the processing of
beneficiary designations for the subject 401k [p]lan, including exercising the discretion of
determining who the participant designated as the beneficiary.” Am. Compl. ¶ 19. He then claims
that “Empower[’s] discretionary decision to treat [Barnes] as the beneficiary of the subject 401k
[plan] without a valid beneficiary designation [was] a breach of its fiduciary duty to [the] Estate
in bypassing the 401k [p]lan’s requirement to treat the . . . Estate as the rightful beneficiary.” Id.
¶ 27. In light of this breach, Plaintiff requests “appropriate equitable relief” against Empower and
“[a]ny other relief the [c]ourt deems appropriate.” Id. at 8–9.
In response, Empower brings a motion to dismiss under Rule 12(b)(6). It argues that
Plaintiff has failed to state a claim against Empower for three independent reasons: (1) “Plaintiff
fails to plead facts showing the availability of any equitable relief, which is [a] required element
of a breach of fiduciary duty claim under ERISA”; (2) “Plaintiff fails to plead facts showing that
Empower acted as a fiduciary under ERISA”; and (3) “[e]ven if Plaintiff could plead facts showing
that Empower acted as an ERISA fiduciary, Plaintiff fails to allege any conduct by Empower that
constitutes a breach of fiduciary duty under ERISA.” Empower’s Mot. at 1–2. Plaintiff fully
opposes the motion. ECF No. 26 (“Pl.’s Mem. in Opp’n”).
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LEGAL STANDARD
“To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient
factual matter . . . to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In evaluating
a Rule 12(b)(6) motion, the court takes the plaintiff's well-pleaded facts as true, drawing all
inferences in the plaintiff's favor. See Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006); see
also Peterson v. Grisham, 594 F.3d 723, 727 (10th Cir. 2010) (“The court's function on a Rule
12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to
assess whether the plaintiff's . . . complaint alone is legally sufficient to state a claim for which
relief may be granted.”) (citation modified). But the plaintiff must allege some facts, not just legal
conclusions, to support his claim. See Bekkem v. Wilkie, 915 F.3d 1258, 1275 (10th Cir. 2019).
(“Pleadings that do not allow for at least a reasonable inference of the legally relevant facts are
insufficient.”) Accordingly, “[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
DISCUSSION
The court begins with Empower’s argument that Plaintiff failed to plead facts plausibly
establishing that Empower acted as a fiduciary for the purposes of ERISA. It ultimately finds this
argument convincing and thus need not address Empower’s other arguments.
“To plead a breach of fiduciary duty [under ERISA], [Plaintiff] must adequately allege
[the] fiduciary status of the wrongdoer.” Lebahn v. Nat'l Farmers Union Unif. Pension Plan, 828
F.3d 1180, 1183–84 (10th Cir. 2016). There are two ways in which a party may be a fiduciary under
ERISA: (1) it may be a named fiduciary if identified in the instrument establishing the plan as a
fiduciary with “the ‘authority to control and 	manage the operation and administration of the
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plan’”; (2) it may be a functional fiduciary “by virtue of the authority the party holds over the
plan,” regardless of whether it is named in the planned instrument. Teets v. Great-W. Life & Annuity
Ins. Co., 921 F.3d 1200, 1206 (10th Cir. 2019) (quoting 29 U.S.C. § 1102(a)). More specifically, a
party becomes a functional fiduciary when
(i) he 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, (ii) he
renders investment advice for a fee or other compensation, direct or
indirect, with respect to any moneys or other property of such plan,
or has any authority or responsibility to do so, or (iii) he has any
discretionary 	authority 	or 	discretionary 	responsibility 	in 	the
administration of such plan.
29. U.S.C. § 1002(21)(A).1
1 Teets notes that it may be significant that the text of § 1002(21)(A)(i) requires “discretionary
authority or discretionary control respecting management of [the] plan” but only requires
“authority 	or 	control 	respecting 	management 	or 	disposition 	of 	[plan] 	assets. 	29. 	U.S.C.
§ 1002(21)(A)(i) (emphasis added); Teets, 921 F.3d at 1207 n.3. However, the Tenth Circuit
“assume[d] without deciding that the textual difference between these clauses does not affect the
functional fiduciary analysis.” Teets, 921 F.3d at 1207 n.3. Within Tenth Circuit caselaw, there are
conflicting signals about whether this linguistic feature of § 1002(21)(A)(i) is significant and some
form of non-discretionary authority or control over plan assets can suffice for fiduciary status.
Compare David P. Coldesina, D.D.S. v. Est. of Simper, 407 F.3d 1126, 1132 (10th Cir. 2005)
(emphasizing that “[d]iscretion is conspicuously omitted from the fiduciary function of controlling
plan assets”) with Lebahn, 828 F.3d at 1186 (rejecting cases that “expand ERISA's functional-
fiduciary provision to encompass persons who lack discretionary authority” as unpersuasive
“because their approach would stretch the definition of ‘fiduciary’ beyond any meaningful
boundaries”).
The court, however, need not resolve the issue. Plaintiff has argued exclusively on the
ground that Empower exercised discretion and even suggests discretion is a requirement for
functional fiduciary status. Pl.’s Mem. in Opp’n at 11–13. (describing a functional fiduciary as
“any individual who de facto performs specified discretionary functions with respect to the
management, assets, or administration of a plan”) (emphasis added). Even if exercising a form of
non-discretionary authority or control over assets suffices for fiduciary status, Plaintiff still has
failed to make an adequate showing. To establish that Empower exercised authority or control over
plan assets, Plaintiff alleges only that Empower made payments to Barnes. See Am. Compl. ¶ 30.
But this fact does not undermine the possibility that Empower only made payments “at the plan's
direction” and thus failed to exercise any authority or control over plan assets. See Coldesina, 407
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To establish that a service provider exercised sufficient authority or control to be a
functional fiduciary, the “ERISA plaintiff must show the service provider (1) did not merely follow
a specific contractual term set in an arm’s-length negotiation; and (2) took a unilateral action
respecting plan management or assets without the plan or its participants having an opportunity to
reject its decision.” Teets, 921 F.3d at 1212. Additionally, the Tenth Circuit has held that parties
who perform “[m}inisterial tasks alone do not qualify” as functional fiduciaries. Id. at 1212 n.11.
This principle is clarified by Department of Labor regulations, which the Tenth Circuit has cited
favorably, specifying that “a person who performs purely ministerial functions[,] such as
[processing claims] . . . within a framework of policies, interpretations, rules, practices and
procedures made by other persons is not a fiduciary.” 29 C.F.R. § 2509.75-8 (2018); Teets, 921
F.3d at 1212 n.11.
In the present case, there is no indication that Empower was a named fiduciary, so Plaintiff
must allege that Empower acted as a functional fiduciary.2 From Plaintiff’s allegations, it appears
that Empower’s plan-related activities were limited to “beneficiary designations” and “beneficiary
payment[s].” Am. Compl. ¶ 9. Empower argues that “these alleged acts—processing forms already
submitted and paying benefits consistent with those forms—are purely ministerial tasks” that “do
not implicate fiduciary status.” Empower’s Mot. at 7.
To argue otherwise, Plaintiff relies on information it received from the plan’s trustee:
F.3d at 1134; Bryant v. Matrix Tr. Co., LLC, No. 18-CV-00749-PAB-NYW, 2019 WL 1331954, at
*4 (D. Colo. Mar. 25, 2019) (noting that a “bank is not a fiduciary where the trustee and third-
party administrator direct all account activity”) (citing McLemore v. Regions Bank, 682 F.3d 414,
423(6th Cir. 2012)).
2 Similarly, there is no indication that Empower ever provided investment advice, so the court need
not consider whether Empower qualifies as a functional fiduciary under § 1002(21)(A)(ii).
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On January 11, 2022, Randy Schoeck (he is listed on the 401k [p]lan
as the [t]rustee) informed Plaintiff that [the firm managing the plan,
DuMac,] does not get involved with 401k beneficiary information
and further stated[,] “A beneficiary designation does not produce
any documents or send any alerts to Du[M]ac. That is between the
participant in the plan and the 401k group brokerage: Empower
Retirement and their record keeping.”
Am. Compl. ¶ 12; Pl.’s Mem. in Opp’n at 11. Schoeck’s statement suggests that Empower may
have processed beneficiary designations without any direct oversight. However, the statement does
nothing to exclude, or even make unlikely, the possibility that Empower’s activities were tightly
controlled by established rules and policies and thus ministerial.3 Indeed, the ministerial nature of
Empower’s activities may be the most likely explanation for why the plan trustee and DuMac did
not bother to oversee Empower. Similarly, Schoeck’s statement is fully consistent with the
possibility that Empower “merely follow[ed] . . . specific contractual term[s] set in an arm’s-length
negotiation” that set out the process for beneficiary designation and payment. Teets, 921 F.3d at
1212. While Plaintiff need not plead an airtight case on the merits, he must at least address an
“obvious alternative explanation” to state a plausible claim. Iqbal, 556 U.S. at 682 (quoting
Twombly, 550 U.S. at 567). Schoeck’s statement, even when taken at face value, fails this
requirement and, consequently, does not adequately establish Empower’s fiduciary status.
Other than Schoeck’s statement, Plaintiff’s briefing relies exclusively on conclusory
allegations that Empower “was delegated with” or “exercise[ed]” discretion in carrying out its
3 Empower separately argues that Schoeck’s statement should be discounted because it is wholly
irrelevant hearsay. See ECF No. 28 (“Empower’s Reply”) at 7 (citing Trs. of the Colo. Laborers'
Health & Welfare Trust Fund v. Am. Benefit Plan Adm’rs, Inc., Case No. 04-cv-02630, 2006 WL
263208, at *8 (D. Colo. Sept. 13, 2006)). The court is skeptical of this claim and finds Empower’s
caselaw inapt because it involves a motion for summary judgment rather than a motion to dismiss.
But the court ultimately need not decide whether hearsay should be discounted because it finds
that Schoeck’s statement, even if credited, fails to adequately establish Empower’s fiduciary status.
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duties. See Am. Compl. ¶¶ 9, 19, 27. As numerous courts have found, such threadbare assertions
of discretion without any factual detail “are insufficient to state a claim for breach of ERISA
fiduciary duty.” See, e.g., Dutra v. Recology, Inc., No. 20-CV-08716-JST, 2021 WL 4722959, at
*7 (N.D. Cal. Apr. 26, 2021); Allen v. Bank of Am. Corp., No. 15 CIV. 4285 (LGS), 2016 WL
4446373, at *7 (S.D.N.Y. Aug. 23, 2016), aff'd sub nom. Allen v. Credit Suisse Sec. (USA) LLC,
895 	F.3d 	214 	(2d 	Cir. 	2018); 	Gotham 	City 	Orthopedics, 	LLC 	v. 	Aetna 	Inc., 	No.
CV2019634KMJBC, 2021 WL 9667963, at *10 (D.N.J. Sept. 10, 2021); Dutra v. Recology, Inc.,
No. 20-CV-08716-JST, 2021 WL 4722959, at *7 (N.D. Cal. Apr. 26, 2021).
At a hearing on the motion, Plaintiff’s counsel raised a new argument that Empower’s
fiduciary status is established by the allegation that Empower treated Barnes as the beneficiary sua
sponte without receiving any communication or information suggesting that Barnes had been
designated as the beneficiary. But, at most, Plaintiff pleads that Empower never received a
“beneficiary designation document” or a “valid beneficiary designation.” Am. Compl. ¶¶ 25–26
(emphasis added). This allegation is consistent with the possibility, which Plaintiff himself pleads
“[u]pon information and belief” in connection to his conversion claim, that Empower received an
electronic transmission sent from Forsman’s computer purporting to designate Barnes as the
beneficiary. See id. ¶¶ 43–44. While Plaintiff has every right to plead different theories in the
alternative, Plaintiff’s current suggestion that Empower’s decision to treat Barnes as a beneficiary
was unprompted and not made pursuant to existing procedures and policies is simply missing from
the complaint and, consequently, does not change the court’s analysis.
In summary, Plaintiff pleads nothing beyond a statement of limited relevance and
conclusory allegations to establish Empower’s fiduciary status. This is inadequate to plead a
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plausible claim of breach of fiduciary duty under ERISA and, accordingly, Plaintiff’s claim against
Empower must be dismissed.
CONCLUSION AND ORDER
For the reasons above, the court GRANTS Empower’s motion to dismiss the sole claim
brought against it.
DATED January 12, 2026
BY THE COURT
______________________________
Jill N. Parrish
United States District Court Judge
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