CourtListener opinion 9994017

Evidence quotes

Clean opinion text

IN THE UNITED STATES DISTRICT COURT 
 FOR THE DISTRICT OF ALASKA 
MONTE MABRY, 

 Plaintiff, 
 v. 
CONOCOPHILLIPS COMPANY, Case No. 3:20-cv-00039-SLG 
et al., 

 Defendants. 

ORDER RE DEFENDANT BENEFIT COMMITTEE'S MOTION TO DISMISS 
 PLAINTIFF'S SECOND AMENDED COMPLAINT 
 Before the Court at Docket 79 is Defendant Benefits Committee of the 
ConocoPhillips Retirement Plan's (the "Benefits Committee") Motion to Dismiss 
Plaintiff's Second Amended Complaint ("SAC"). Plaintiff Monte Mabry responded 
in opposition at Docket 81. The Benefits Committee replied at Docket 83. Oral 
argument was not requested and was not necessary to the Court's determination. 
 FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY 
 The factual allegations and procedural history of this case are set forth in 
detail in the Court's January 19, 2021 order at Docket 49 and July 6, 2021 order 
at Docket 67. The Court assumes familiarity here. 
 As relevant to this order, in light of the Ninth Circuit's recent decision in 
Bafford v. Northrop Grumman Corp., 994 F.3d 1020 (2021), the Court permitted 
Mr. Mabry to file a second amended complaint, which Mr. Mabry filed on August 
13, 2021 at Docket 74. Mr. Mabry's SAC is substantially the same as his first 
amended complaint, with the addition of allegations related to Mr. Mabry's claim 
against the Benefits Committee for alleged violation of ERISA § 105 and removal 
of the second claim for relief against Defendant Alight Solutions LLC ("Alight"), 

which was previously dismissed by the Court.1 The Benefits Committee now 
moves to dismiss the claims alleged in the SAC. 
 The legal standard for evaluating a Rule 12(b)(6) motion was set forth in this 
Court's order on the first motion to dismiss and is again applied here.2 
 DISCUSSION 
I. Procedural Arguments 

 Mr. Mabry argues that the Benefits Committee's motion fails on two 
procedural grounds: (1) the Benefits Committee's argument for dismissal as to his 
first claim for breach of fiduciary duty is barred by the Court's July 6, 2021 order 
on reconsideration; and (2) the Benefits Committee waived its argument against 
his third claim under ERISA § 105.3 

 A. Claim 1 – ERISA § 404(a), 29 U.S.C. § 1104(a) – Fiduciary Duty 

1 See Docket 49 at 37 (January 19, 2021 Order). Compare Docket 16, with Docket 74. 
2 Docket 49 at 11–12 (January 19, 2021 Order). 
3 Docket 81 at 9–11 (Opp'n). 

Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
 Mr. Mabry asserts that because the Court allowed the first claim for breach 
of fiduciary duty to go forward against the Benefits Committee in its July 6, 2021 
order on reconsideration,4 the "instant motion is in effect a motion for 

reconsideration of that order based on new authority, but it fails to comply with any 
of the requirements of Local Civil Rule 7.3(h)."5 
 Contrary to Mr. Mabry's assertion, there has not been any ruling on the 
breach of fiduciary duty claim against the Benefits Committee for the Court to 
reconsider. ConocoPhillips Company ("ConocoPhillips") and the Benefits 
Committee did not previously move to dismiss the fiduciary duty claim against the 

Benefits Committee; rather, they sought dismissal of that claim only against 
ConocoPhillips, which the Court granted.6 While ConocoPhillips and the Benefits 
Committee later attempted to dismiss the fiduciary duty claim against the Benefits 
Committee when opposing Mr. Mabry's motion for reconsideration,7 the Court 

4 Docket 67 at 23–24 (Order on Reconsideration). 
5 Docket 81 at 9–10 (Opp'n). 
6 Docket 33 at 4–5 (First Mot. to Dismiss); Docket 49 at 37 (January 19, 2021 Order) ("The 
ConocoPhillips Defendants' motion to dismiss Mr. Mabry's First Claim for Relief for breach of 
fiduciary duty against ConocoPhillips is GRANTED." (emphasis added)). The dismissal was 
initially without prejudice and with leave to amend. However, Mr. Mabry did not timely file an 
amended complaint and the claim was thereafter dismissed with prejudice. See Docket 52. 
Even with the Court's dismissal of that claim, Mr. Mabry's SAC realleges that ConocoPhillips 
violated ERISA § 404(a). Docket 74 at 17–18, ¶¶ 83–88. Mr. Mabry did not move for the Court 
to reconsider that claim, see Docket 57 at 3, and the Court again dismisses that claim against 
ConocoPhillips with prejudice for the reasons stated in the January 19, 2021 order and February 
22, 2021 order. See Dockets 49, 52. 
7 Docket 62 at 10 (Opp'n to Reconsideration). 

Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
declined to entertain their claim at that time because it was improperly presented 
in a response to a motion.8 The Benefits Committee now properly presents its 
arguments for dismissal—for the first time—of Mr. Mabry's fiduciary duty claim 

against the Benefits Committee in its motion to dismiss. Accordingly, the Court 
finds that the Local Civil Rules do not procedurally bar this claim. 
 B. Claim 3 – ERISA § 105, 29 U.S.C. § 1025 
 Pursuant to Local Civil Rule 7.1(h), Mr. Mabry asserts that the Benefits 
Committee waived its argument for dismissal of Mr. Mabry's claim for alleged 
violations of ERISA § 105 by not opposing Mr. Mabry's motion for leave to amend 

his complaint.9 
 Local Civil Rule 7.1(h) only addresses "a failure to respond to a non-
dispositive motion" and is limited to the relief sought by the non-dispositive motion 
at issue. The rule does not speak to the substance of a proposed amended 
pleading or the validity of the claims advanced therein. While a party may choose 
to oppose a motion for leave to amend on the basis of futility, it does not follow that 

a failure to respond to a non-dipositive motion to amend automatically precludes 
all other subsequent dispositive motions, such as the Benefits Committee's motion 

8 Docket 67 at 23 (Order on Reconsideration) ("The Court agrees with Mr. Mabry that the 
ConocoPhillips Defendants' request is improper in this context and at this time. The 
ConocoPhillips Defendants did not move to dismiss Mr. Mabry's breach of fiduciary duty claim 
against the Benefits Committee in its motion to dismiss. Thus, there is no [order] as to this 
claim for the Court to reconsider."). 
9 Docket 81 at 10–11 (Opp'n). 

Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
to dismiss here. Indeed, Mr. Mabry cites no authority to support this novel 
interpretation, and it runs counter to other federal rules of civil procedure.10 
Accordingly, the Court finds that the Local Civil Rules do not procedurally bar the 

motion to dismiss Mr. Mabry's ERISA § 105 claim against the Benefits Committee. 
II. Rule 12(b)(6) Arguments 
 A. Claim 1 – ERISA § 404(a), 29 U.S.C. § 1104(a) – Fiduciary Duty 
 The Benefits Committee first asserts that Mr. Mabry's fiduciary duty claim 
should be dismissed because "the calculation of benefits according to a 
predetermined formula . . . is not fiduciary in nature and cannot support a breach 

of fiduciary claim as a matter of law" under the Ninth Circuit's recent decision in 
Bafford.11 
 In Bafford, the plaintiffs were provided grossly exaggerated benefit 
estimates through a third-party administrator's website based on a calculation 
error.12 The Ninth Circuit held that the plaintiffs' fiduciary claims against the third-
party administrator failed because "calculation of pension benefits is a ministerial 

function that does not have a fiduciary duty attached to it."13 Therefore, the plan 

10 For example, Federal Rule of Civil Procedure 15(a)(2) permits amendment with the opposing 
party's written consent. Under Mr. Mabry's interpretation of Local Civil Rule 7.1(h), any time an 
opposing party consents to an amended pleading, it effectively waives any arguments against 
claims therein. 
11 Docket 79 at 7–9 (Second Mot. to Dismiss). 
12 Bafford, 994 F.3d at 1025. 
13 Id. at 1028. 

Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
administrator "did not breach a fiduciary duty by failing to ensure that [the third-
party administrator] correctly calculated Plaintiffs' benefits."14 
 The gravamen of Mr. Mabry's fiduciary claim is that the Benefits Committee 

"fail[ed] to ensure that [it] or [its] delegees provided Mr. Mabry with complete and 
accurate information regarding the amount of his ConocoPhillips Plan benefit."15 
Mr. Mabry received the allegedly incomplete and inaccurate information from an 
online system designed to calculate pension benefits.16 Accordingly, Mr. Mabry's 
fiduciary duty claim against the Benefits Committee is nearly identical to the claim 
that the Ninth Circuit held was foreclosed in Bafford. 

 Mr. Mabry's attempts to distinguish Bafford are unavailing. First, while 
conceding that Bafford held that the calculation of benefits by a "predetermined 
formula" is not fiduciary in nature, Mr. Mabry asserts that the Benefits Committee 
identifies no such formula.17 However, Mr. Mabry's SAC alleges that "Alight 
programmed the Total Benefits Administration system to perform benefit 
calculations in accordance with the requirements documents that it prepared for 

the ConocoPhillips Plan."18 The SAC also alleges that Mr. Mabry received the 

14 Id. 
15 Docket 74 at 17, ¶ 85 (SAC). 
16 Docket 74 at 7–9, ¶¶ 33–44 (SAC). 
17 Docket 81 at 13 (Opp'n). 
18 Docket 74 at 8, ¶ 40 (SAC). 

Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
inaccurate estimates from the programmed Total Benefits Administration 
System.19 These allegations fall well within the Ninth Circuit's holding that 
"[c]alculating a benefit within the framework of a policy set by another entity does 

not involve the requisite discretion or control to constitute a fiduciary function."20 
Accordingly, by the terms of his own SAC, Mr. Mabry's fiduciary duty claim against 
the Benefits Committee is foreclosed by Bafford. 
 Second, Mr. Mabry attempts to recast his fiduciary duty claim as a QDRO 
noncompliance claim, asserting that "the problem was not with the system's 
application of the . . . formula, but with a failure to segregate the alternate payee's 

benefit as required by the QDRO and promised in the December 2008 letters."21 
But, as the Court previously discussed, "Mr. Mabry is not asserting a claim for 
QDRO noncompliance. Instead, Mr. Mabry's claims arise from the provision of 
inaccurate benefit statements to him."22 Further, according to the SAC, the 
December 2008 letters were sent by ConocoPhillips, not the Benefits Committee.23 

19 Docket 74 at 11, ¶ 57 (SAC). 
20 Bafford, 994 F.3d at 1028. 
21 Docket 81 at 13, 16 (Opp'n) ("[T]he Benefits Committee sent Mr. Mabry individualized 
communications promising to segregate the alternate payee's benefit, then failed to fulfill its 
promise and continued to report his benefit, and allow its delegee to report his benefit, as 
though the alternate payee's benefit was still part of Mr. Mabry's pension"). 
22 Docket 49 at 24 (January 19, 2021 Order). 
23 Docket 74 at 9–10, ¶¶ 47–48 (SAC). 

Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
As such, even assuming Mr. Mabry was alleging QDRO noncompliance, which he 
is not, that claim would be against ConocoPhillips, not the Benefits Committee. 
 In conclusion, because the Court finds Bafford controlling here, Mr. Mabry's 

claim for breach of fiduciary duty against the Benefits Committee fails to state a 
viable cause of action. The Court further finds that in light of Bafford, the dismissal 
should be with prejudice, as it is clear that this claim cannot be saved with any 
amendment.24 
 B. Claim 3 – ERISA § 105, 29 U.S.C. § 1025 
 The Court initially dismissed Mr. Mabry's ERISA § 105 claim against the 

Benefits Committee, holding that Mr. Mabry's allegation of accessing an online 
calculator that allowed him to calculate benefit projections on Alight's website did 
not "constitute[] a written request for a benefit statement under ERISA § 105."25 
However, as a result of the Bafford decision, where the Ninth Circuit held that "use 
of an online platform to request a pension benefit statement can satisfy the writing 
requirement" of ERISA § 105(a)(1)(B)(ii),26 Mr. Mabry was permitted to file a 

second amended complaint, which the Court now considers in light of Bafford's 
holding. 

24 Missouri ex rel. Koster v. Harris, 847 F.3d 646, 655–56 (9th Cir. 2017) ("Dismissal without 
leave to amend is improper unless it is clear, upon de novo review, that the complaint could not 
be saved by any amendment." (quoting Thinket Ink Info Res., Inc. v. Sun Microsystems, Inc., 
368 F.3d 1053, 1061 (9th Cir. 2004))). 
25 Docket 49 at 31 (January 19, 2021 Order). 
26 Bafford, 994 F.3d at 1029. 

Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
 In Bafford, the Ninth Circuit addressed, as a matter of first impression, 
"whether a pension benefit estimate request via an online portal is sufficient to 
constitute a ‘written request' for purposes of" ERISA § 105(a).27 Section 105(a) 

provides that "[t]he administrator of a defined benefit plan . . . shall furnish a 
pension benefit statement . . . to a participant or beneficiary of the plan upon 
written request."28 The Ninth Circuit upheld the district court's dismissal of the 
plaintiff's § 105(a) claim on the ground that it did not allege a written request 
because the "complaint [did] not specify which words—if any—Plaintiffs 
intentionally recorded in a visual form, so [the Circuit was] not able to determine 

whether those words [were] a sufficient [written] request to trigger the statutory 
obligations."29 
 Even while upholding the district court's dismissal of the § 105(a) claim, the 
Ninth Circuit "also conclude[d] that the statute does not limit adequate requests to 
only those written by hand on a piece of paper and conveyed in the postal system. 
In other words, an adequate electronic writing suffices."30 The Ninth Circuit held 

that if a "complaint alleged facts which, if true, would show [a plaintiff's] ‘intentional 

27 Id. 
28 29 U.S.C. § 1025(a)(1)(B). 
29 Bafford, 994 F.3d at 1030 ("Plaintiffs' complaint did not include specific allegations about the 
manner in which Plaintiffs submitted their request for a pension benefit statement via the online 
platform."). 
30 Id. at 1029–30. 

Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
recording of words in a visual form' that conveyed a request for a pension benefit 
statement, [a plaintiff's] § 1025(a)(1)(B)(ii) claim could survive."31 Accordingly, the 
Ninth Circuit remanded to the district court "to permit Plaintiffs to file an amended 

complaint," because it determined that "Plaintiffs could plead facts adequate to 
allege they made written requests."32 
 Here, the SAC alleges that: 
 Mr. Mabry used the website to make written requests for pension 
 benefit statements. To the best of Mr. Mabry's current recollection, to 
 request a pension benefit statement from the website, he took steps 
 including the following: 
 i. Navigated to the ConocoPhillips benefit website; 
 ii. Identified himself by typing login information into fields on 
 the website, including his employee identification number or 
 Social Security number; 
 iii. Navigated to the retirement area of the website by selecting 
 menu options; 
 iv. Typed in his proposed benefit commencement date; 
 v. Printed the resulting statement.33 

 The Court finds that Mr. Mabry has plausibly alleged a written request under 
Bafford. Mr. Mabry specified the words that he "intentionally recorded in a visual 
form"—by typing his employee identification number, Social Security number, and 
proposed benefit commencement date—that, in turn, "conveyed a request for a 
pension benefit statement." Accordingly, the SAC states a viable cause of action 
against the Benefits Committee under ERISA § 105. 

31 Id. at 1030 (quoting Writing, Black's Law Dictionary (11th ed. 2019)). 
32 Id. at 1032. 
33 Docket 74 at 12, ¶ 59D (SAC). 

Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
 CONCLUSION 
 In light of the foregoing, the Benefits Committee's Motion to Dismiss Mr. 
Mabry's Second Amended Complaint is GRANTED in part and DENIED in part as 

follows: 
 IT IS ORDERED that Claim 1 (ERISA § 404(a), 29 U.S.C. § 1104(a)) against 
the Benefits Committee is hereby DISMISSED WITH PREJUDICE; and Claim 
against ConocoPhillips Company is again DISMISSED WITH PREJUDICE.34 
 IT IS FURTHER ORDERED that the motion to dismiss is DENIED as to 
Claim 3, in which Mr. Mabry alleges that the Benefits Committee violated ERISA 

§ 105, 29 U.S.C. § 1025. 
 DATED this 21st day of December, 2021, at Anchorage, Alaska. 
 /s/ Sharon L. Gleason 
 UNITED STATES DISTRICT JUDGE 

34 See supra note 6. 

Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al.