This is an action filed by plaintiff Larry R. Caldwell against PNC Financial Services Group, Inc., and PNC Bank (collectively “PNC”), the National City Corporation Amended and Restated Management Severance Plan (“the Plan”), Kerry Allen, a Plan administrator, and John Does 1-10. Plaintiff alleges that he was an employee of National City Bank (“National City”) as of December 3, 2008, when PNC acquired National City in a change of control. Complaint, ¶¶ 23-24. Plaintiff further alleges that he was a participant in the Plan. Complaint, ¶ 6. The Plan, attached as Exhibit A to defendants’ motion to dismiss, became effective on January 1, 2005, and was amended effective September 30, 2008. The Plan was designed to provide severance benefits to certain National City employees in the event National City was acquired by another entity.
Plaintiff contends that following PNC’s acquisition of National City, plaintiff was assigned to three branches, two of which were located in financiаlly depressed areas of Columbus, Ohio. Complaint, ¶ 25. Plaintiff alleges that PNC made no allowance for the viability of plaintiffs territories in setting his loan goals, which were based on plaintiffs salary. Complaint, ¶ 26. Plaintiff alleges that he was given a formal warning in April of 2009 for failing to meet his loan goals, and that he was given a second warning and placed on a performance improvement plan in July of 2009. Complaint, ¶¶ 27, 29. Plaintiff contends that in May and June of 2009, PNC realigned the territories of employees who occupied positions similar to that held by plaintiff, but did not grant plaintiffs request to assign him additional territories. Complaint, ¶ 28. Plaintiff alleges that he was given a third warning on August 12, 2009, and that Ron Byers requested that plaintiff voluntarily resign from his employment. Complaint, ¶¶ 30-31. Plaintiff alleges that he was given a fourth warning on August 27, 2009, and that his supervisor, Don Guilbert, requested that plaintiff resign and told him that if he did not, he would be placed on probation effective Septembеr 1, 2009. Complaint, ¶¶ 32-33. Plaintiff was placed on probation on December 10, 2009, but despite the fact that plaintiffs loan goals were not met, PNC did not terminate plaintiffs employment. Complaint, ¶¶ 44-49. Plaintiff resigned from his position effective January 29, 2010. Doc. 7, Ex. B.
After his resignation, plaintiff sought to recover severance benefits from the Plan, contending that he had been constructively discharged. Complaint, ¶¶ 51-53. The Plan denied plaintiffs claim for benefits, and plaintiffs appeal from that decision was denied. Doc. 7, Ex. F. Plaintiff then filed his complaint in the instant case. In Count 1 of the complaint, plaintiff asserts a claim for breach of contract due to the denial of severance benefits. Count 2 advances a claim of age discrimination under Ohio Rev.Code Chapter 4112. Count 3 asserts a claim for benefits under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132(a)(1)(B). Count 4 asserts that PNC acted with the intent to interfere with plaintiffs rights under the Plan in violation of 29 U.S.C. § 1140. In Count 5, plaintiff alleges that the defendants failed to grant his request for Plan documents in violation of 29 U.S.C. § 1132(c). This matter is before the court on the motion of defendants to dismiss Counts 1, 3, 4 and 5 of the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim for which relief may be granted.
I. Standards for a Rule 12(b)(6) Motion
In ruling on a motion to dismiss under Rule 12(b)(6), the court must construe the complaint in a light most favorable to the
While the complaint need not contain detailed factual allegations, the “[fjactual allegations must be enough to raise the claimed right to relief above the speculative level,” Bell Atlantic Corp. v. Twombly,
In evaluating a motion to dismiss, a court generally is limited to the complaint and exhibits attached thereto. Amini v. Oberlin College,
Plaintiff does not oppose defendants’ motion to dismiss Count 5 of the complaint. Accordingly, Count 5 will be dismissed.
II. Count 1 — Breach of Contract
Defendants argue that plaintiffs state law breach of contract claim should be dismissed because it is preempted by ERISA. Under 29 U.S.C. § 1144(a), ERISA supersedes “any and all State laws insofar as they may now or hereafter relate to an employee benefit plan.” § 1144(a). “Any state-law cause of action that duplicates, supplements, or supplants the ERISA civil enforcement remedy conflicts with the clear congressional intent to make the ERISA remedy exclusive and is therefore pre-empted.” Aetna Health Inc.
Plaintiff argues in response that his breach of contract claim is not preempted because the Plan is not an ERISA employee welfare benefit plan.
However, the Sixth Circuit has held that not all severance pay plans are ERISA plans. Swinney v. General Motors Corp.,
In regard to the first factor, employer discretion, a court considers whether the plan administrator made individualized determinations of eligibility, as opposed to those that require automatic or simple decisions. Id. Simple or mechanical determinations regarding the distribution of benefits do not satisfy the first factor. See Cassidy v. Akzo Nobel Salt, Inc.,
As to the second factor, whether benefits create on-going demands on employer assets, a plan may be an ERISA plan if the employer “assumes ... responsibility to pay benefits on a regular basis, and thus faces ... periodic demands on its assets that create a need for financial coordination and control.” Fort Halifax,
In Toohig v. PNC Financial Services Group, Inc., No. 1:10 CV 657 (unreported),
The Plan states that its purpose is “to maximize the Corporation’s [National City’s] profitability and operating success by attracting and retaining key managerial, operational and executive employees and allowing them to focus on their responsibilities in the event of, and following, a Change in Control.” Plan, § 1.2. The Plan grants severance benefits to employees who are terminated by thе “Surviving Entity” (in this case, PNC) during the “Protection Period.” The “Protection Period” is defined as the period of time between the “Effective Date” (the date uninterrupted discussions or negotiations leading to the change in control commenced) and the fifteen-month anniversary of the implementation of the change in control. Plan, § 2.1(i),(m), (u). In this case, plaintiff alleges that the change in control occurred on or about December 31, 2008, and the fifteen-month period concluded on or about March 31, 2010.
Plaintiff argues that this time limitation on the duration of the Plan weighs against it being an ERISA plan. However, even a plan of short duration can potentially require a significant level of administrative oversight. In this case, the participants in the Plan include any employees “whose job is assigned to a grade level within the range of grade level 1 through grade level 7” except for certain employees who are covered by an employment agreement, severance agreement, or other specialized
The Plan provides that the Plan shall be administered by the Compensation and Organization Committee of the Board or another committee appointed by the Board to serve as the administering committee of the Plan. Plan, § 2.1(e); Article 14. If PNC fails to pay severance compensation, a participant may make a claim for severance benefits by submitting a written request to the Committee. Plan, § 5.1. The Committee must review the claim and either approve or deny it. Plan, § 5.2. The Plan also provides for an appeal from the Committee’s determination. Plan, §§ 5.4-5.5.
The Committee must determine whether thе employee is a “participant” who is eligible for benefits. The Committee must learn whether the employee is assigned to a grade level 1 through 7, and whether the employee is covered by another employment agreement, severance agreement or other specialized plan which would preclude him from being a participant. See Plan, § 2.1(r). Under § 3.1 of the Plan, a participant is entitled to benefits if PNC terminates the participant’s employment during the Protection Period, unless the participant is terminated for cause. The term “Cause” is defined as the termination of employment due to: an intentional act of fraud, embezzlement or theft in connection with the participant’s employment; intentional wrongful damage to the employer’s property; intentional wrongful disclosure of proprietary information; intentionally engaging in competitive activity which materially harmed the employer; an order from a federal or state regulatory agency mandating the termination of the participant’s employment; or conviction of a criminal offense involving dishonesty, breach of trust, money laundering, or illegal drug trafficking. Plan, § 2.1(c). Under § 3.2 of the Plan, a participant is entitled to benefits when the participant resigns his employment where the participant has incurred a reduction in his base salary, or where PNC requires the participant to change his principal location of work to a location in excess of fifty miles away from his principal location of work immediately prior to the change in control. This eligibility determination requires looking at the particular circumstances of each employee. See Sherrod,
The Plan also requires the Committee to make benefit calculations that go beyond mere simple or mechanical determinations. The Plan provides for bi-weekly payments for a year, consisting of adding the participant’s base salary and incentive pay, divided by twenty-six. Plan, § 4.1(a). To determine a participant’s base salary, the Committee must ascertain the participant’s annual salary, less any bonuses, incentive pay, special awards, stock options or other stock compensation. Plan, § 2.1(a). The calculation of incentive pay also entails a complex examination of numerous factors in each participant’s employment history.
The Plan further provides that the “Committee shall have full power and authority to interpret, construe and administer this Plan” and further that “its interpretations and constructiоn hereof, and actions hereunder, including the timing, form, amount or recipient of any payment to be made hereunder, shall be binding and conclusive on all persons for all purposes.” Plan, Article 14. “The degree of discretion retained by the employer over distribution of benefits is one important factor in deciding whether a severance plan is an ERISA plan.” Cassidy,
The second prong is also satisfied in this case, as the Plan makes ongoing demands on PNC’s assets. The Plan provides for bi-weekly payments for a year, in addition to the lump sum payment in lieu of employee benefits. Plan, § 4.1(a) and (b). The Plan also provides that a participant’s termination will not affect any rights which the participant may have under the terms of any other agreement or policy provided by PNC. Plan, § 3.3. Participants receiving financial counseling рrior to the change in control continue to receive financial counseling services during the protection period. Plan, § 2.1(k), (u). The ongoing nature of the demands on PNC’s assets contemplated by the Plan is further indicated by the fact that the Plan affords participants the right to appeal the denial of benefits, and successful appellants may gain the right to the payment of severance benefits beyond the one-year anniversary of the termination of the protection period. The second branch of the Kolkowski test is met in this case.
Plaintiff has pleaded no facts which contradict the terms of the Plan, or which would indicate that the Plan is not an ERISA plan. The court concludes that plaintiffs state law breach of contract claim is preempted by ERISA, and defendants’ motion to dismiss Count 1 is granted.
A. Motion to Dismiss PNC, Allen, and John Doe Defendants
In Count 3, plaintiff asserts a claim for severance benefits under the terms of the plan pursuant to § 1132(a)(1)(B). Defendants argue that defendants PNC, Allen, and the John Doe defendants should be dismissed as to Count 3 because the Plan is the only proper defendant to this claim. The proper defendant in an ERISA action concerning benefits is the plan administrator. See Riverview Health Institute LLC v. Medical Mutual of Ohio,
Article 14 of the Plan states that “this Plan shall be administered by the Committee.” PNC is not a Plan administrator, and would ordinarily not be a proper party to plaintiffs claim for benefits. However, PNC would arguably be liable under § 5.6 of the Plan to pay plaintiffs reasonable attorneys’ fees and costs in the event that plaintiff would prevail on his claim for benefits. In the absence of additional informatiоn and argument, dismissal of PNC on this ground would be premature, and PNC’s motion to dismiss Count 3 against the PNC entities on this ground is denied.
In regard to defendant Allen, the complaint contains the conelusory allegation that Allen is “a Plan Administrator” and “an employee of PNC.” Complaint, ¶ 11. Even assuming that Allen holds the title of “Plan Administrator,” the mere fact that a person holds an office or position within a plan does not make that person a fiduciary. 29 C.F.R. § 2509.75-8, Q & A D-3. A holder of an office or position of an employee benefit plan would be- a plan fiduciary if that person “has the final authority to authorize or allow benefit payments in cases where a dispute exists as to the interpretation of the plan provisions relating to eligibility for benefits.” Id. Under the Plan, the term “Committee” is defined as “the Compensation and Organization Committee of the Board or another committee appointed by the Board to serve as the administering сommittee of the Plan.” Plan, § 2.1(e). The Committee is responsible for making the final decision regarding eligibility , for Plan benefits. Plan, § 5.5. The complaint fails to allege sufficient facts to support a claim under § 1132(a)(1)(B) against defendant Allen, and the motion to dismiss him as a defendant on this claim is well taken.
In regard to the John Doe defendants, plaintiff alleges that the John Doe defendants were members of the Committee. They might arguably be proper defendants to this claim as members of the entity responsible for making final decisions under the Plan. See Bendaoud v. Hodgson,
B. Sufficiency of§ 1132(a)(1)(B) Claim
Defendants have also moved to dismiss Count 3 for failure to state a claim for relief. Defendants argue that plaintiff has failed to plead facts sufficient to show that he is a pаrticipant entitled to benefits under the Plan because he has not alleged
Article 3 of the Plan states that “[i]n the event the Surviving Entity terminates the Participant’s employment during the Protection period, the Participant will be entitled tо the severance compensation provided by Article 4[.]” Plan, § 3.1. Article 3 then specifies three circumstances in which a participant whose employment is terminated by the Surviving Entity is not entitled to benefits: the participant dies prior to the termination of employment; the participant becomes permanently disabled prior to termination of employment; and participant’s employment is terminated for “cause” as defined in § 2.1(c) of the Plan. Plan, § 3.1(c). The Plan further provides:
The Participant may terminate employment with the Surviving Entity during the Protection Period with the right to severance benefits as provided in Article 4 upon the occurrence of one or more of the following events (regardless of whether any other reason for such termination exists or has occurred, including without limitation other employment):
(a) A reduction in the Participant’s Base Salary; or
(b) The Surviving Entity of the Participant requires the Participant to have his principal lоcation of work changed, to any location which is in excess of 50 miles from the location thereof immediately prior to the Change in Control.
Plaintiff has alleged no facts showing that either of these employment actions occurred in his case.
The record indicates that plaintiff pursued an appeal from the denial of severance benefits to the Plan’s Appeal Committee. The Committee noted § 3.2 of the Plan and concluded that plaintiff “is not eligible for benefits under the Plan because he resigned his position when he submitted a letter of resignation on January 29, 2010, and neither of the events in Section 3.2 occurred.” Doc. 7, Ex. D. Counsel for plaintiff then sent a letter to the Appeal Committee dated June 16, 2010, in which he advanced the constructive discharge theory and set forth the alleged circumstances which he argued supported that theory. Doc. 7, Ex. F. The Appeal Committee then conducted a second level review of plaintiffs claim and affirmed the denial of benefits by letter dated July 27, 2010. Doc. 7, Ex. F. The Appeal Committee noted that plaintiff did not contend that either of the circumstances described in § 3.2 of the Plan were present, and that plaintiff acknowledged that he resigned from his employment effective January 29, 2010. Ex. F., p. 2. The decision states: “While you suggest that Mr. Caldwell was constructively discharged during the protection period and thus forced to terminate his employment, the Plan does not provide for severance benefits in the case of a voluntary or constructive discharge except [in the case of a reduction in base salary or a change in work location in excess of fifty miles].” Ex. F, p. 2. The Appeal Committee determined that plaintiff “voluntarily terminated employment with National City/PNC
Under ERISA, every employee benefit plan must be established and maintained pursuant to a written instrument specifying the basis on which payments are to be made from the plan. 29 U.S.C. §§ 1102(a)(1) and 1102(b)(4); Kennedy v. Plan Administrator for DuPont Savings and Investment Plan,
Federal common law rules of contract interpretation apply in construing an ERISA plan, and a plan’s provision must be interpreted “according to their plain meaning, in an ordinary and popular sense.” Perez,
The Plan in this case states that the “validity, interpretation, construction and performance of this Plan will be governed by and construed in accordance with the substantive laws of the State of Delaware.” Plan, Article 12. Thus, in addition to applying the federal common law of ERISA, this court will look for guidance to Delaware law. Under both federal and Delaware law, the interpretation and construction of a contract is a matter of law for the court. See Detroit Radiant Products Co. v. BSH Home Appliances Corp.,
“A contract is not rendered ambiguous simply because the parties do not agree upon its proper construction.” Rhone-Poulenc,
Under the Plan, a participant is entitled to benefits if “the Surviving Entity terminates the Participant’s employment during the Protection Period” for grounds other than cause. Plan, § 3.1 (emphasis supplied). This language clearly indicates
In contrast, § 3.2 provides that a “Participant may terminate employment with the Surviving Entity during the Protection period with the right to severance benefits” only in two circumstances: (a) a reduction in the participant’s base salary, or (b) the assignment of the participant to a new principal work location over fifty miles away. Plan, § 3.2(a) and (b). These two circumstances fall within the class of adverse employment actions which might arguably support a constructive discharge. Logic dictates that if severance bеnefits were to be made available following employee resignations in response to other types of adverse actions by the employer, those actions would have been listed here. Significantly, § 3.2 makes no reference to any other type of adverse employment action by the employer.
The doctrine of expressio unius est exclusio alterius, used as a tool of contract interpretation, provides that where specific items are listed in a document such as a contract, any item not so listed is typically thought to be excluded. See Smart v. Gillette Co. Long-Term Disability Plan,
Regardless of whether this court were to apply a discretionary standard of review of the Appeal Committee’s decision or the heightened de novo standard, see Firestone Tire & Rubber Co. v. Bruch,
IV. Count I— § 1H0 Claim
Plaintiff alleges that defendants engaged in coercion, harassment and discrimination against him with the purpose of interfering with his attainment of ERISA benefits and with the purpose of retaliating against him for engaging in protected activities in violation of 29 U.S.C. § 1140. Complaint, ¶¶ 86-87. Section 1140 of ERISA provides:
It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan ... or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan[.]
§ 1140.
This provision of ERISA is “aimed primarily at preventing unscrupulous employers from discharging or harassing their employees in order to keep them from obtaining vested pension rights.” West v. Butler,
In the absence of direct evidence, courts apply the burden-shifting approach utilized in Texas Dep’t of Community Affairs v. Burdine,
Plaintiff alleges that defendants engaged in conduct prohibited under ERISA with the purpose of interfering with his receipt of severance benefits. Plaintiff alleges that he was assigned to three branches, two of which were in depressed areas, and that he was unable to meet his loan quota. Complaint, ¶¶ 25-26. He was given formal warnings and ultimately placed on probation due to his failure to meet his loan goals. Complaint, ¶¶ 27, 29-30, 32, 45-46. Plaintiff does not allege in the complaint that he was in fact meeting his goals, or that the probation was unwarranted. In fаct, it is stated in the complaint that plaintiff acknowledged on January 15, 2010, that he was not meeting the terms of his probation. Complaint, ¶ 47. Instead, plaintiff complains that he was not put on probation until December 10, 2009, that he was not terminated in a timely manner after he failed to meet the terms of his probation, and that his supervisors kept rescheduling meetings concerning the status of his probation. Complaint, ¶¶ 44-49. When his termination was not forthcoming, plaintiff resigned on January 29, 2010.
Thus, the main gist of plaintiffs complaint is that PNC interfered with his right to severance benefits because PNC did not terminate his employment during the protection period, where termination by PNC would have made him eligible to receive severance benefits. However, PNC had no obligation under ERISA to terminate plaintiffs employment; rather, PNC could elect instead to keep plaintiff on its payroll for the duration of the protection period.
As a matter of law, keeping plaintiff on the payroll did not constitute an adverse employment action and was not conduct prohibited under ERISA. See Garavuso v. Shoe Corps. of America Industries, Inc.,
Plaintiff also alleges that on two occasions in August of 2009, his supervisors requested that he voluntarily retire from his employment with PNC, but that plaintiff refused to do so. Complaint, ¶¶ 31, 33. Plaintiff informed his supervisors that it was his opinion that if his employment was terminated, he would be entitled to severance benefits. Complaint, ¶ 31. Plaintiff does not allege that his resignation, which occurred much later on January 29, 2010, was in any way related to or coerced by these requests. The record includes a letter dated September 1, 2009, from plaintiffs counsel, in which counsel alleges that “National City apparently wishes to force Mr. Caldwell to retire after his lengthy and successful career with the company” and advocating that plaintiff receive severance benefits. Doc. 7, Ex. G. John R. Johnson, Chief Counsel for PNC, responded by letter dated October 9, 2009, (prior to plaintiffs resignation in January of 2010) in which he stated that “we disagree with your contention that he was forced to retire, and both your subsequent letters and his continued employment bear out our position in that regard.” Doc. 7, Ex. H. Plaintiff also alleges in his complaint that PNC kept putting off meetings concerning plaintiffs performance issues and did not terminate his employment. Complaint, ¶¶ 47-49. The facts alleged in the complaint suggest that plaintiff decided to resign within the protection period and rely on his constructive discharge argument as a basis for his claim to benefits when it appeared that PNC was not going to terminate his employment. The complaint is devoid of any facts sufficient to state a claim that plaintiffs resignation was coerced by the defendants.
Plaintiff claims that his resignation constituted a constructive discharge which was sufficient to constitute a “dischаrge” under § 1140. Even assuming that the constructive discharge theory may apply to a claim under § 1140, the complaint fails to allege facts showing that the defendants engaged in prohibited conduct under ERISA which created intolerable working conditions, as perceived by a reasonable person, with the intention of forcing plaintiff to quit. See Logan v. Denny’s, Inc.,
The complaint also fails to allege facts sufficient to show that plaintiff had any right to expect severance benefits under the Plan. At the time of plaintiffs resignation, he had no vested right to severance benefits with which the defendants could interfere. Perdue,
Plaintiff also alleges that the defendants engaged in retaliatory conduct in response to plaintiffs protected activity under ERISA. To establish a prima facie
Plaintiff alleges in conclusory fashion that from September 1, 2009 through January 29, 2010, he engaged in protected activity by corresponding with his supervisors, Don Guilbert and Ron Byers, with Mr. Johnson, and with Sally Weinkam, Human Resources Officer for PNC, regarding the status of plaintiffs employment, plaintiffs disparate treatment, and PNC’s interference with plaintiffs rights under the Plan. Complaint, ¶ 43. The record does include the September 1, 2009, letter from plaintiffs counsel stating that benefits under the Plan were “appropriate” in plaintiffs case. Mr. Johnson responded in his letter of October 9, 2009, that since plaintiff had not been terminated, his salary had not been reduced, and his job location had not been moved, he was not entitled to benefits under the Plan “at this time.” Doc. 7, Ex. H. The mere expression of the corrеct opinion that plaintiff was not entitled to benefits under the Plan because his employment had not been terminated was not an adverse action under § 1140.
Plaintiff does not specifically allege in the complaint which conduct on the part of the defendants was in retaliation for this expression of an interest in benefits. Three months after this letter was sent, plaintiff was placed on probation. However, in light of his acknowledged failure to meet his loan goals, he does not allege in the complaint that this probation was unwarranted. In fact, he alleges that PNC should have terminated his employment for failure to meet the terms of his probation. Complaint, ¶ 47. Thus, the main gist of plaintiffs retaliation claim also appears to be that PNC retaliated against him for seeking benefits under the Plan by failing to terminate his employment. However, the refusal to terminate plaintiffs employment does not qualify аs an adverse employment action. Plaintiff has failed to allege sufficient facts to support a retaliation claim under § 1140.
Defendants also argue that plaintiffs § 1140 claim should be dismissed because it would not afford plaintiff the relief that he seeks. Section 1140 is enforced through 29 U.S.C. § 1132(a)(3), which authorizes a civil action by a participant “to obtain other appropriate equitable relief’ to redress the § 1140 violations. Alexander v. Bosch Automotive Systems, Inc.,
In his complaint, plaintiff requests a declaration that he was constructively discharged and that defendants violated the terms of the Plan by refusing to pay him severance benefits. He also requests an order directing defendants to pay him benefits under the Plan. Although he does not assert a claim for back pay in his complaint, he argues in his memorandum contra the motion to dismiss that he is also seeking back pay. However, the benefits he seeks all amount to money damages in the form of severance payments under the Plan. The relief рlaintiff seeks is not available for a § 1140 violation, as enforced through § 1132(a)(3).
For the foregoing reasons, the allegations in the complaint fail to state a claim for relief under § 1140, and defendants’ motion to dismiss that claim is well taken.
V. John Doe Defendants
In regard to Count 2, the court notes that this claim is asserted against PNC, and does not specifically name the Plan, defendant Allen or the John Doe defendants as parties to that count. Accordingly, the John Doe defendants and defendant Allen will be dismissed as parties to this action.
V7. Conclusion
In accordance with the foregoing, defendants’ motion to dismiss Counts 1, 3, 4 and 5 of plaintiffs complaint is granted, and those counts are hereby dismissed. In accordance with this order, defendants National City Corporation Amended and Restated Management Severance Plan, Kerry Allen, and the John Doe defendants are hereby dismissed as parties on all of plaintiffs claims.
Notes
. Paragraph 73 of the complaint states, “The Plan is a welfare plan governed by ERISA." Defendants argue that plaintiff is bound by this statement as an admission. See Shell v. Parrish,
. The fact that the Plan provides that “[t]he validity, interpretation, construction and performance of this Plan will be governed by and construed in accordance with the substantive laws of the State of Delaware” is not conclusive. “It is not the label placed on a state law claim that determines whether it is preempted, but whether in essence such a claim is for the recovery of an ERISA plan benefit.” Cromwell,
. The term "Incentive Pay” means:
[A]n amount equal to the sum of (a) the higher of (i) the highest aggregate annual incentive payment (excluding income realized from, the exercise of stock options, any benefits received from being granted stock options or shares of restricted stock, income realized from the sale of restrictedstock and any profit sharing, matching contributions or discretionary contributions made under any savings plan but including, without limitation, awards pursuant to the Management Incentive Plan) awarded for either of the two calendar years immediately preceding the year in whiсh the Effective Date occurs or (ii) the target award for the individual for the year in which the Effective Date occurs and (b) the higher of (i) the highest incentive payment awarded pursuant to the Long Term Plans for either of the plan cycles ending in the two calendar years immediately preceding the year in which the Effective Date occurs or (ii) the target award for the individual pursuant to the Long Term Plans for the plan cycle ending in the calendar year in which the Effective Date occurs. For purposes of this Paragraph 2.1(o), "payment” includes moneys paid as well as any portion of any award deferred.
Plan, § 2.1(n).
. The court also notes that on August 24, 2011, the magistrate judge issued an order for plaintiff to show cause why the John Doe defendants should not be dismissed without prejudice under Rule 4(m) for failure to obtain service, and plaintiff has not responded to that order. Accordingly, dismissal of the John Doe defendants is warranted on this ground as well.