United States District Court, D. Oregon, Portland Division
CLINT FISHER, individually and on behalf of the participants in Inlandboatmen's Union of the Pacific National Pension Plan and its participants, Plaintiff,
MARINA SECCHITANO; LEE EGLAND; BRIAN DODGE; DONOVAN DUNCAN; PETER HART; GAIL MCCORMICK; JOHN SKOW; ADAM SMITH; ROBERT ESTRADA; MATT HAINLEY; PATRICK MURPHY; ALICE NG; MIKE O'CONNOR; and ROBERT RELLER, Defendants.
OPINION AND ORDER
MICHAEL W. MOSMAN, CHIEF UNITED STATES DISTRICT JUDGE
April 4, 2019, Magistrate Judge Jo lie A. Russo issued her
Findings and Recommendation (F&R)  recommending that
I grant Defendants' Motion to Dismiss . She also
recommended that I grant Defendants' Request for Judicial
Notice . Plaintiff Clint Fisher, on behalf of the
Inlandboatmen Union's (IBU) Pension Plan participants
("the Participants") filed Objections to the
F&R  and Defendants ("the Trustees") filed
a Response  to those objections. For the reasons below, I
adopt Judge Russo's F&R in part and grant the
Trustees' Motion to Dismiss . Because the
Trustees' exhibits are not required to reach this
conclusion, I do not address the issue of judicial notice.
magistrate judge makes only recommendations to the court, to
which any party may file written objections. The court is not
bound by the recommendations of the magistrate judge but
retains responsibility for making the final determination.
The court is generally required to make a de novo
determination regarding those portions of the report or
specified findings or recommendation as to which an objection
is made. 28 U.S.C. § 636(b)(1)(C). However, the court is
not required to review, de novo or under any other standard,
the factual or legal conclusions of the magistrate judge as
to those portions of the F&R to which no objections are
addressed. See Thomas v. Am, 474 U.S. 140, 149
(1985); United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003). While the level of scrutiny under which
I am required to review the F&R depends on whether or not
objections have been filed, in either case, I am free to
accept, reject, or modify any part of the F&R. 28 U.S.C.
Trustees are the fiduciaries of a multi-employer benefits
plan called the Inlandboatmen's Union of the Pacific
National Pension Plan ("the IBU Plan"). Am. Compl.
 at ¶3. In September 2018, Mr. Fisher filed a
Complaint against the Trustees alleging breach of fiduciary
duty. Id. at ¶4. The Complaint was filed
shortly after the Trustees implemented a plan that resulted
in the reduction of the Participants' benefits ("the
Rehabilitation Plan"). Id. at ¶6. The
parties agree that the Rehabilitation Plan was implemented to
eliminate an unfunded vested benefit liability (UVB) that the
IBU Plan incurred roughly nine years ago. Id. at
¶¶4, 5; Mot. to Dismiss  at 8. The presence of
UVB in an employee benefits plan means that the present value
of nonforfeitable pension benefits exceeds the value of plan
assets available to pay those benefits. Mot. to Dismiss 
F&R, Judge Russo found that the alleged misconduct was
not fiduciary activity and recommended that I dismiss Mr.
Fisher's breach of fiduciary duty claims. F&R  at
12. Mr. Fisher argues that Judge Russo misinterpreted his
allegations. Objs.  at 2. This implicates questions of
fact and law. The factual question is whether Mr.
Fisher's First Amended Complaint (FAC) alleged facts
related to (1) the Trustee's modification of the IBU
Plan, or (2) the Trustees' failure to avoid UVB. The
legal question is whether the law provides for relief from
what Mr. Fisher alleged. I agree with Judge Russo's
answer to the legal question given the first possible reading
of the FAC but find that the FAC fails to state a claim for
which relief can be granted even when read in the manner
recommended by Mr. Fisher in his Objections to the F&R.
motion to dismiss should only be granted if a complaint fails
to allege "enough facts to state a claim to relief that
is plausible on its face." Bell Ail. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). All allegations must
be accepted as true and viewed in the light most favorable to
the nonmoving party. Cervantes v. United States, 330
F.3d 1186, 1187 (9th Cir. 2003). Although factual allegations
are taken as true, the Court is "not bound to accept as
true legal conclusions couched as factual allegation."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Therefore, conclusory legal allegations without factual
allegations cannot defeat a motion to dismiss for failure to
state a claim. Caviness v. Comm. Learning Cent,
Inc., 590 F.3d 806, 812 (9th Cir. 2010).
are at least two plausible readings of the FAC and a factual
question exists about what Mr. Fisher alleges. Judge Russo
stated in her F&R that "plaintiff alleges defendants
breached their fiduciary duties by failing to adhere to the
'Trust Documents' in that they failed to
modify the IBU Plan to eliminate and avoid
UVB." F&R  at 3 (emphasis added). In their
Motion to Dismiss, the Trustees stated that Mr. Fisher
alleged that "the Trustees breached fiduciary duties
under ERIS A by failing to amend the Plan to reduce
pension benefits in a manner that would have (1)
'avoided' UVB liability being incurred in the first
place, and (2) 'timely eliminated' that liability
'when incurred'" Mot. to Dismiss  at 3
(quoting Am. Compl.  at ¶¶4-7) (emphasis
added). In his Objections to Judge Russo's F&R, Mr.
Fisher argued that the Trustees and Judge Russo
mischaracterized his allegations. Objs.  at 2. Mr. Fisher
acknowledged that the FAC is unclear but argued it alleges
the Trustees breached their fiduciary duties by violating the
provisions of the Trust Documents, not by modifying the IBU
Plan. Objs.  at 2.
the FAC to allege a breach of fiduciary duty related to the
Trustees' modification of the IBU Plan, I agree with
Judge Russo that Defendants' Motion to Dismiss should be
granted because the Trustees cannot be liable for actions,
such as modifying plan benefits, that are nonfiduciary in
nature. See Lockheed Corp. v. Spink, 517 U.S. 882,
890 (1996). But even under the reading urged by Mr. Fisher,
the Amended Complaint fails to state a claim upon which
relief can be granted because it fails to show a breach of
Fisher brought three claims against the Trustees, two for
breach of fiduciary duty under 29 U.S.C. § 1104(a)(1)(B)
and (D), and one for equitable relief under §
1132(a)(3). Am. Compl.  at 6-8. All three claims are
insufficiently plead because Mr. Fisher has failed to
identify a specific act or omission on the part of the
Trustees that could plausibly constitute a breach of
FAC, Mr. Fisher claims that the Trustees failed to act in
accordance with the Trust Documents because the IBU Plan
incurred UVB, which the Trust Documents expressly prohibits.
Id., at 2. Few cases address adequacy of pleading in
this context. Fortunately, ERISA's fiduciary
provisions provide enough guidance to decide this case.
Mr. Fisher's facts as true, it cannot reasonably be
inferred that because the IBU Plan incurred UVB in violation
of the Trust Documents, the Trustees therefore violated their
fiduciary duties. In order to state a valid breach of
fiduciary duty claim, a plaintiff must challenge an action
that was within the trustee's authority and control as a
fiduciary. Spink, 517 U.S. at 890. ERISA provides
that fiduciaries are only responsible for management
decisions that are within their authority and control:
"[A] person is a fiduciary with respect to a plan to the
extent (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 ... ." 29 U.S.C.
§1002(21)(A). Section 1002(21)(A) highlights the
importance of considering authority and control in
determining whether a fiduciary duty has been
breached. As Judge Russo noted in her F&R, it
would be absurd to hold the Trustees responsible for a
decrease in the value of plan assets that resulted from a
nationwide recession. F&R  at 13. Mr. Fisher has not
provided an alternative explanation of how the Trustees'
conduct resulted in a breach of fiduciary duty. Nor has he
has clearly identified an act or omission within the
Trustees' capacities as fiduciaries that resulted in a
breach of their fiduciary duties. Because Mr. Fisher has
failed to identify a breach of fiduciary duty, all three
claims in the Amended Complaint are insufficiently plead.
reasons described above, I ADOPT the F&R  in part and
GRANT Defendants' Motion to Dismiss  with leave to
amend. Plaintiff has thirty (30) days in which to file a
second amended complaint. Plaintiff is advised that failure
to file a second amended complaint within the allotted time
will result in the entry of a ...