The opinion of the court was delivered by: ELAINE E. BUCKLO, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs Geri Kannapien and Janice Rozhon were both
originally hired as employees of the Golden Grain Company
("Golden Grain"), Ms. Kannapien in 1980 and Ms. Rozhon in 1977.
Golden Grain was acquired by defendant Quaker Oats Company
("Quaker Oats") in 1986, which was in turn acquired by defendant
PepsiCo in 2001. Both Ms. Kannapien and Ms. Rozhon maintained
continuous employment throughout these acquisitions.
In early 2003, both Ms. Kannapien and Ms. Rozhan were presented
with information about PepsiCo's early retirement package. In
meetings with Jeff Satterlee, human resources manager for Quaker
Oats, plaintiffs were informed about their estimated benefits
under the early retirement plan. In both instances, Mr. Satterlee
provided plaintiffs with information based on their original
start dates with Golden Grain. Relying on that information, both
Ms. Kannapien and Ms. Rozhan accepted the early retirement package and retired on April 26, 2003. When plaintiffs
received their benefits packages in May 2004, they discovered
that the benefits would be paid based on their years of service
since 1990, not since their actual start dates.
Ms. Kannapien and Ms. Rozhan filed the present complaint, on
behalf of themselves and other PepsiCo employees similarly
situated, alleging that defendants had denied them benefits due
under the plan, pursuant to the Employee Retirement Income
Security Act ("ERISA"), 29 U.S.C. § 1132(a) (1) (B) (Count I),
and that defendants had breached their fiduciary duty to
plaintiffs (Count II). Plaintiffs have since voluntarily
dismissed Count I. Plaintiffs now move to amend their complaint
to allege that defendants have violated ERISA's "anti-cutback"
provision, 29 U.S.C. § 1154(g)(1) (Count III). I deny that
motion, for the reasons stated below. Ms. Kannapien and Ms.
Rozhan move to amend their complaint to allege that defendants
have violated 29 U.S.C. § 1154(g)(1). That statute, referred to
as the "anti-cutback" provision, states that "[t]he accrued
benefit of a participant under a plan may not be decreased by an
amendment of the plan." As defendants have already filed
responsive pleadings to the original complaint, amendment
requires the leave of the court, which should be "freely given
when justice so requires." Fed.R.Civ.P. 15(a). However, leave
to amend may be denied when the proposed amendment would not
survive a motion to dismiss. Garcia v. City of Chicago,
24 F.3d 966, 970 (7th Cir. 1994). That is the case, here. Plaintiffs' proposed Count III alleges a violation of §
1154(g)(1), which requires an amendment of a benefits plan. While
the proposed Count III mentions the "original" Golden Grain plan,
it nowhere alleges what plan was amended, nor how that amendment
affected plaintiffs' accrued benefits. Plaintiffs simply allege
that PepsiCo used a different date for calculating benefits than
Golden Grain had. The proposed Count III does not state a claim,
even if all plaintiffs' allegations are taken as true. See,
e.g., Brengettsy v. LTV Steel (Republic) Hourly Pension Plan,
241 F.3d 609, 612 (7th Cir. 2001). The motion to amend the
complaint is denied.
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