The opinion of the court was delivered by: Mihm, Chief Judge.
This matter is before the Court on the Motion to Dismiss filed
by the Defendants on May 28, 1992. For the reasons set forth
below this Motion is DENIED.
The Plaintiff, Merrill S. Wright, brings this action
derivatively on behalf of the Bosch Trucking Company, Inc.
Defined Benefit Pension Plan and Trust, ("the Plan"), under
29 U.S.C. § 1132(a)(1). The Plan was established as a legal entity
by virtue of 29 U.S.C. § 1132(d)(1) on January 12, 1979, and
amended January 12, 1984. Under the terms of the Plan, Bosch
Trucking Company, Inc. ("Bosch Trucking") was to fully fund one
hundred percent (100%) of the pension benefits of the non-union
employees, including those of Merrill S. Wright. On December
14, 1989, the Plan was fully funded in accordance with its
terms. Bosch Trucking has always been the Plan administrator,
and from approximately 1982, to December 14, 1989, Wright was
President and Chief Executive Officer of Bosch Trucking.
On December 14, 1989, Sally A. Bosch owned eighty per cent
(80%) and Wright owned twenty per cent (20%) of Bosch
Trucking's stock. On that date, Bosch Trucking's Board of
Directors convened a special meeting. At that meeting, the
Board demoted Wright to Vice President, relieved him of all
duties regarding Bosch Trucking and unanimously passed a
resolution to terminate the Plan. On December 14, 1989, Sally
Bosch assumed one hundred per cent (100%) control of Bosch
Trucking and became Trustee of the Plan. On February 12, 1990,
Bosch Trucking terminated Wright's employment.
Wright entered into a settlement agreement with Bosch Trucking
and Sally Bosch on July 22, 1991, whereby the Plan distributed
to Wright ". . . an amount of money equal to the single sum
vested value of his Plan benefits". On January 3, 1992, Bosch
Trucking and Sally Bosch distributed the single sum vested
value of $209,046.26 to Wright on the condition Wright place
$88,225.36 of this distribution into a special individual
retirement account and grant a security agreement in that
account to Sally Bosch, as Plan Trustee, in the event the Plan
is terminated while underfunded.
After December 14, 1989, Bosch Trucking failed to fully fund
one hundred per cent (100%) of the pension benefits to the
Plan. The present status of the Plan is that it is underfunded
in excess of $137,000.00 and is in the process of being
terminated. As a result, Wright brings this derivative action
against Bosch Trucking, the Plan administrator, and Sally
Bosch, the Plan Trustee, for breach of their fiduciary duties
to the Plan, the participants, and the beneficiaries. Wright
alleges that the Defendants breached their duties when they
failed to terminate the Plan as directed by the Board of
Directors at the December 14, 1989, special board meeting and
failed to adequately fund the Plan pursuant to Plan terms.
Defendants Bosch Trucking and Sally Bosch, through their
counsel, moved to dismiss Wright's claim on the grounds that
Wright lacked standing to bring this action, and alternatively,
Wright's interests in the Plan conflict with other Plan
participants and beneficiaries.
In ruling on a Rule 12(b)(6) motion to dismiss, a court must
the accepted rule that a complaint should not be dismissed for
failure to state a claim unless it appears beyond a doubt that
the Plaintiff can prove no set of facts in support of his claim
which would entitle him to relief. (footnote omitted) Conley
v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80,
This Court must accept "all allegations in the complaint as
true." Collins v. County of Kendall, Ill., 807 F.2d 95, 99
(7th Cir. 1986). See also H.J., Inc. v. Northwestern Bell
Telephone Company, 492 U.S. 229, 250, 109 S.Ct. 2893, 2906,
106 L.Ed.2d 195 (1989); Hishon v. King and Spalding,
467 U.S. 69, 73, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59, 65 (1984); and
Gomez v. Illinois State Board of Education, 811 F.2d 1030,
1039 (7th Cir. 1987).