United States District Court, N.D. Illinois, Eastern Division
LAURA L. DIVANE, APRIL HUGHES, SUSAN BONA, KATHERINE D. LANCASTER, and JASMINE WALKER, Plaintiffs,
NORTHWESTERN UNIVERSITY, NORTHWESTERN UNIVERSITY RETIREMENT INVESTMENT COMMITTEE, PAMELA S. BEEMER, RONALD R. BRAEUTIGAM, KATHLEEN HAGERTY, CRAIG A. JOHNSON, CANDY LEE, WILLIAM H. McLEAN, INGRID S. STAFFORD, NIMALAN CHINNIAH, and EUGENE S. SUNSHINE, Defendants.
MEMORANDUM OPINION AND ORDER
L. ALONSO United States District Judge
¶ 287 of plaintiffs' 141-page first amended
complaint (“Am. Complt.”), plaintiffs demand a
trial by jury. Defendants have moved to strike the jury
demand. For the reasons set forth below, the Court grants
defendants' motion  to strike the jury demand.
12(f) of the Federal Rules of Civil Procedure allows a court
to “strike from a pleading . . . any redundant [or]
immaterial . . . matter.” Fed.R.Civ.P. 12(f). Here,
defendants move to strike plaintiffs' jury demand.
ERISA case, plaintiffs assert six claims for breach of
fiduciary duty (Counts I-VI) and one claim for failure to
monitor fiduciaries (Count VII). Plaintiffs seek relief under
29 U.S.C. §§ 1132(a)(2) and 1109(a). Among other
things, plaintiffs want defendants to “make good to the
Plans all losses to the Plans resulting from each breach of
fiduciary duty.” (Am. Complt. at 139). Plaintiffs argue
that, because they seek to be compensated for “losses,
” they are, in essence, seeking money damages, a
classic remedy at law, for which they are entitled to a trial
by jury pursuant to the Seventh Amendment to the Constitution
of the United States. Defendants argue that plaintiffs seek
equitable relief, such that plaintiffs have no right to a
Seventh Amendment guarantees a right to a jury trial in suits
“at common law, ” which means “‘suits
in which legal rights were to be ascertained and
determined, in contradistinction to those where equitable
rights alone were recognized, and equitable remedies
administered.'” Granfinanciera SA v.
Nordberg, 492 U.S. 33, 41 (1989) (quoting Parsons v.
Bedford, 3 Pet. 433, 447, 7 L.Ed. 732 (1830)). In
determining whether a claim is legal or equitable, a court
considers the claim's statutory antecedents prior to the
merger of law and equity and whether the remedy is legal or
equitable. Granfinanciera SA, 492 U.S. at 42.
clear that the antecedent of ERISA was the law of trusts,
which is (and was) equitable. Tibble v. Edison
Int'l, 135 S.Ct. 1823, 1828 (2015) (noting that
ERISA fiduciary law derived from trust law); Firestone
Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110
(“ERISA abounds with the language and terminology of
trust law.”); see also Great-West Life &
Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210 (2002)
(noting that equitable relief under § 502(a)(3) refers
to relief that was typically available in equity). Not
surprisingly, then, the Seventh Circuit has concluded
plaintiffs have no right to a jury trial in ERISA cases.
Patton v. MFS/Sun Life Fin. Distributors, Inc., 480
F.3d 478, 484 (7th Cir. 2007) (in a case brought under §
502(a)(1)(B), noting “plaintiff has no rights to jury
trial” in ERISA cases); McDougal v. Pioneer
Rand Ltd. Partnership, 494 F.3d 571, 576 (“The
general rule in ERISA cases is that there is no right to a
jury trial because ‘ERISA's antecedents are
equitable, ' not legal.”) (internal citation
omitted); Mathews v. Sears Pension Plan, 144 F.3d
461, 468 (7th Cir. 1998) (“there is no right to a jury
trial in an ERISA case (the reason being that ERISA's
antecedents are equitable.”).
though, believe their case is different, because they seek
relief not under ERISA § 502(a)(1)(B) or §
502(a)(3) but under § 502(a)(2). ERISA § 502(a)(2)
provides a private right of action “by a participant,
beneficiary or fiduciary for appropriate relief under section
1109 of this title.” 29 U.S.C. § 1132(a)(2). ERISA
§ 409(a), in turn, provides:
Any person who is a fiduciary with respect to a plan who
breaches any of the responsibilities, obligations, or duties
imposed upon fiduciaries by this subchapter shall be
personally liable to make good to such plan any losses to
the plan resulting from each such breach, and to restore
to such plan any profits of such fiduciary which have been
made through the use of assets of the plan by the fiduciary .
29 U.S.C. § 1109(a) (emphasis added).
on the plain language of this section, plaintiffs seek to
recover “losses” to the plan resulting from the
alleged breaches of fiduciary duty. (Am. Complt. at 139).
Plaintiffs argue that such “losses” are money
damages, a classic legal remedy.
Court does not agree that the relief plaintiffs seek is
legal. The relief plaintiffs seek is equitable, because the
remedy they seek was available in equity prior to the merger
of equity and law. The remedy plaintiffs seek is a surcharge,
a form of equitable restitution. See Restatement (Third)
of Trusts § 95, comment b (2012) (“If a
breach of trust causes a loss, including any failure to
realize income, capital gain or appreciation that would
have resulted from proper administration, the beneficiaries
are entitled to restitution and may have the trustee
surcharged for the amount necessary to compensate fully
for the consequences of the breach.”) (emphasis added).
The remedy existed prior to the merger of law with equity.
See Princess Lida of Thurn and Taxis v.
Thompson, 305 U.S. 456, 464 (1939) (the “court has
the power to fix the compensation of the trustee . . . and .
. . to surcharge him with losses incurred . .
.”) (emphasis added). Although restitution is not an
exclusively equitable remedy, it is equitable when the
underlying claim is equitable, as it is here. Reich v.
Continential Cas. Co., 333 F.3d 754, 755-56 (7th Cir.
1994) (“whether [restitution] is equitable depends
merely on whether it is being sought in an equity
suit.”); see also Mondry v. American Family Mut.
Ins. Co., 557 F.3d 781, 806 (7th Cir. 2009)
(“‘restitution is equitable when it is sought by
a person complaining of a breach of trust.'”).
Accordingly, the relief plaintiffs seek in this §
502(a)(2) suit is equitable, and they are not entitled to a
jury trial. In reaching this decision, the Court is in good
company. Bell v. Pension Comm. of Ath Holding Co.
LLC, Case No. 15-cv-2062, 2016 WL 4088737 (S.D. Ind.
Aug. 1, 2016) (striking demand for jury in ERISA §
502(a)(2) case); George v. Kraft Foods Global Inc.,
Case Nos. 07 C 1713, 07 C 1954, 2008 WL 780629 (N.D. Ill.
March 20, 2008); Abbott v. Lockheed Martin Corp.,
Case No. 06-cv-0701, 2007 WL 2316481 (S.D. Ill. Aug. 13,
motion  to strike jury demand is granted, and the ...