The opinion of the court was delivered by: Elaine E. Bucklo, United States District Judge
MEMORANDUM OPINION AND ORDER
Defendant Elizabeth Jarvis worked for Plaintiff Lumenite Control Technology, Inc. ("Lumenite") from September 1992 until she resigned in March 1999, during which time she accrued pension benefits under an employee benefit plan ("Plan"). Lumenite was both fiduciary and administrator of the Plan. In May 1999, Ms. Jarvis executed a distribution request form and received a disbursement of benefits from Lumenite in the amount of $13,877.74. In January 2000, Ms. Jarvis received another distribution request form. She executed and returned this second request form, and an additional $22,270.64 was disbursed to her. Ms. Jarvis states that she requested, but never received, documentation regarding her pension account and how the amounts disbursed were calculated. Lumenite states that the amount transferred in January 2000 was in error, and that only $7,930.09 should have been sent. Lumenite requested that Ms. Jarvis return the $14,340.55 balance, which she has not done. Lumenite brought suit in Illinois state court to recover the alleged overpayment.
Ms. Jarvis removed the suit to federal court and brought a counterclaim, stating that she has yet to receive a proper accounting of the exact amount of benefits that she accrued under the Plan. Count I of her counterclaim seeks injunctive relief to compel Lumenite to provide the requested information, count II seeks statutory penalties for failing to provide the information, and count III claims that Lumenite breached its fiduciary duties to Ms. Jarvis by "engaging in the conduct described [in counts I and II]." Before me now are cross-motions for summary judgment on Lumeflite's complaint and count III of Ms. Jarvis' counterclaim, as well as a motion by Ms. Jarvis for summary judgment on count II of her counterclaim. In addition, Lumenite has filed a motion in limine to exclude evidence relating to one of Ms. Jarvis' expert witnesses. I deny both cross-motions for summary judgment on Lumeflite's complaint, deny Ms. Jarvis' motion for summary judgment on count TI of her counterclaim, and grant Lumenite's motion for summary judgment on count III of Ms. Jarvis' counterclaim Cand therefore deny Ms. Jarvis' motion for summary judgment on that count). Additionally, I grant Lunienite's motion in limine to exclude certain evidence.
Lumenite seeks restitution of the alleged overpayment it made to Ms. Jarvis. it proceeds under section 1132(a)(3)(B) of ERISA, which states that a civil action may be brought by a plan fiduciary "to obtain other appropriate equitable relief" to redress violations of the ERISA statute, to enforce ERISA provisions, or to enforce terms of the plan. 29 U.S.C. § 1132 (a)(3)(B). Ms. Jarvis argues that the restitution remedy sought does not qualify as "other appropriate equitable relief" under section 1132(a)(3)(B), and that Lumenite is thus precluded from proceeding under that section.
A. "Other Appropriate Equitable Relief"
The Supreme Court recently reexamined the meaning of the phrase "other appropriate equitable relief" in Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002). Tn that case, the Court reiterated a previous ruling that the term "equitable relief" in § 1132(a)(3) must mean something less than all relief, and in fact, it refers to "those categories of relief that were typically available in equity." Id. at 209-10 (quoting Mertens v. Hewitt Assocs., 508 U.S. 248, 256 (1993) (emphasis removed)). The Court went on to say that "not all relief falling under the rubric of restitution is available in equity." Great-West Life, 534 U.S. at 212. whether restitution is a legal or equitable remedy (and consequently whether it falls under § 1132(a)(3)) is determined on a case-by-case basis depending on the basis of the plaintiff's claim and the nature of the underlying remedy sought. Id. at 213. when a plaintiff cannot assert title or right to possession of particular property but can nevertheless show grounds for recovering money to pay for some benefit that the defendant has received from him, restitution is a legal remedy. Id. On the other hand, when money or property belonging to the plaintiff can clearly be traced to particular funds or property in the defendant's possession, restitution is an equitable remedy, generally taking the form of a constructive trust or an equitable lien. Id. "Thus, for restitution to lie in equity, the action generally must seek, not to impose personal liability on the defendant, but to restore to the plaintiff particular funds or property in the defendant's possession." Id. at 214.
Here, Lumenite does not seek to impose personal liability on Ms. Jarvis, it simply seeks to recover the particular funds that it allegedly overpaid to Ms. Jarvis. Ms. Jarvis argues, however, that she no longer has the alleged overpayment, and that Lumenite cannot trace the alleged overpayment to any particular funds or property currently in her possession. It is undisputed that the alleged overpayment was disbursed into an IRA created by Ms. Jarvis. Lumenite contends that the money in the IRA was used to make a down payment on a house, and that the overpayment is thus traceable to the house.
Both the May 1999 and the January 2000 disbursements were paid into the IRA. However, because only a portion of the January 2000 payment is in dispute, the IRA contained both the alleged overpayment as well as money that undisputedly belonged to Ms. Jarvis. Where a single account contains money to which the account holder is entitled as well as money that rightfully belongs to another person, the rightful owner is entitled to a lien on the commingled fund in the amount of his own monies traceable to it. 2 Dan B. Dobbs, Law of Remedies § 6.1(4) (2d ed. 1993). When that fund is used in its entirety to purchase property, the other person is entitled to a constructive trust for a share of the property proportionate to his share of the fund. Id.
Here, while the record is unclear, it certainly supports a finding that the entire IRA fund was used as a down payment for Ms. Jarvis' house. When asked in her deposition, "What happened to the money in your IRA?" Ms. Jarvis answered "I used it to buy my home." (Jarvis Dep. at 86.) Ms. Jarvis states that she paid $10,012 in federal taxes and penalties when she cashed out her IRA.*fn1 (Def.'s Statement of Facts ¶ 210.) The citations she makes to the record, however, do not indicate whether this amount was paid out of the IRA or out of other sources. Even if this amount had been paid out of the IRA (and thus the entire fund was not used for the down payment), the alleged overpayment could still be traced in its entirety to the house under various theories of tracing. See 2 Dobbs § 6.1(4) at 18-22 (describing tracing theories such as "first in, first out" and the Hallett Rule, which could potentially be used to show that any taxes and penalties paid out of the IRA were paid out of Ms. Jarvis' portion of the funds)
Further, even if Ms. Jarvis used other funds in addition to the IRA to make the down payment on her house,*fn2 the ability to trace the alleged overpayment to the house would not be affected. The proportionate share rule for commingled funds could be applied again, treating the down payment as a single "account." If the alleged overpayment constituted 50% of the IRA funds, and the IRA funds constituted 50% of the down payment, Lumenite, if entitled to restitution of the alleged overpayment, would have a constructive trust for a 25% share of the down payment. If the down payment was 20% of the home purchase price, Lumenite would have a constructive trust in 5% of the home. Because the alleged overpayment is potentially traceable to Ms. Jarvis' home, and if so, Lumenite could seek a constructive trust in a share of it,*fn3 this action can be considered one for equitable relief. Lumenite may thus proceed under § 1132(a)(3)(B).
The question then becomes whether there was actually an overpayment, and if so, for how much. It is undisputed that at the end of 1998, Ms. Jarvis was vested in $22,270.64 in her Plan account. (Def.'s Resp. to Pl.'s Statement of Facts ¶ 38.) She left Lumenite in March 1999. (Def's Resp. to Pl.'s Statement of Facts ¶ 24). In May 1999, $13,877.74 was disbursed to Ms. Jarvis' IRA. (Def.'s Resp. to Pl.'s Statement of Facts ¶ 32.) Lumenite states that at the end of 1999, Ms. Jarvis was vested in $7,930.09 in her Plan account. (Pl.'s Statement of Facts ¶ 40.) This figure represents the $8,392.90 remaining after the May 1999 disbursement, minus $462.81 in investment losses for 1999. (Jarvis Dep. Ex. 8.) Thus, Lumenite claims that when it disbursed $22,270.64 in January 2000, it overpaid Ms. Jarvis by $14,340.55. (Jarvis Dep. Ex. 8.) Ms. Jarvis does not dispute that $22,270.64 was disbursed to her IRA in January 2000. (Def.'s Resp. to Pl.'s Statement of Facts ¶ 35.) She does, however, deny that at that time she was vested in only $7,930.09. (Def.'s Resp. to Pl.'s Statement of Facts ¶ 40.) Ms. Jarvis, through an expert report by William Zorc (Def.'s Rule 26(a)(2) Disclosures), argues essentially that the $462.81 loss allocated to her by Lumenite should not be borne by her. Ms. Jarvis is correct.
According to the Plan language, when a participant's employment is terminated not due to death, disability, or normal retirement, that participant is entitled to distribution of the vested portion of their benefits, "valued as of the Valuation Date coincident with or immediately preceding the date of Distribution." (Pl.'s Statement of Facts Ex. E4 at 39.). Under the Plan, the Valuation Date is the end of the calender year. (Pl.'s Statement of Facts Ex. E5 at 2, 5.) Thus, when Ms. Jarvis received a distribution in May 1999, she was entitled to her vested benefits as of December 31, 1998, which the parties agree was $22,270.64. That she received only $13,877.74 does not mean that she was not entitled at that time to the remaining $8,392.90 which she had requested. Ms. Jarvis should not bear the loss for this amount to which she was entitled while it remained in Lumenite's hands. Thus, in January 2000, she was still entitled to $8,392.90 and the payment of $22,270.64 represents an overpayment of ...