IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ROSA DYMECK, :

:

Plaintiff : No. 4:CV-05-2314

:

vs. : (Complaint Filed 11/7/05)

:

NBTY, INC., ET AL., : (Judge Muir)

:

 Defendants :

ORDER

April 4, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On February 28, 2006, Plaintiff Rosa Dymeck filed an

amended complaint pursuant to the Employee Retirement Income

Security Act of 1974 (“ERISA”), 28 U.S.C. §§ 1001 et seq. This

action arises out of an employee stock ownership plan offered by

the Defendant NBTY, Inc., known as the NBTY, Inc. Employees’

Stock Ownership Plan (the “Plan”). Plaintiff alleges that she

retired on January 30, 2004, and attempted to obtain a

distribution from the Plan. Plaintiff claims that at the end of

2003 her stock in the Plan had a value of $322,527.90. Plaintiff

claims that immediately after she retired she contacted the Plan

and requested the election forms to obtain a distribution but

that the Plan did not send her the election forms until July,

2004. Plaintiff alleges she ultimately received a distribution

in late 2004 but that the value of her stock was $122,000.00 less

than it was at the time of her retirement in January of 2004. As

relief Plaintiff requests that she be awarded $122,000.00 which

she alleges are the additional benefits due her based on what she

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would have received if the Plan had appropriately made a

distribution when she requested one in early 2004. Plaintiff

also requests interest, attorney’s fees and costs of the

litigation. 

On March 8, 2006, Defendant filed a motion to dismiss

the amended complaint and a brief in support thereof. Defendant

contends that the amended complaint should be dismissed for

Plaintiff’s failure to exhaust the administrative remedies

provided for under the Plan. Plaintiff filed a brief in

opposition on March 9, 2006. The motion became ripe for

disposition on March 27, 2006, with the filing of Defendant’s

reply brief.

A plaintiff seeking benefits under an ERISA plan, such

as the one involved in this case, generally must first exhaust

administrative remedies provided for under the plan before filing

an action in this court. Harrow v. Prudential Ins. Co. of

America, 279 F.3d 244, 249 (3d Cir. 2002). The exhaustion

requirement, however, may be excused “where resort to

administrative remedies would be futile because of the certainty

of an adverse decision . . . [and] when resort to the

administrative remedies is clearly useless.” Communication

Workers of America v. American Tel. And Tel. Co., 40 F.3d 426,

432 (D.C. Cir. 1994); see also Kriner v. GTE Products Corp., 1990

WL 597393 *3 (M.D.Pa. July 10, 1990)(Muir, J.)(“Normally, we

would remand this matter to the trustee for the appropriate

review because federal courts generally do not entertain an

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action under ERISA to recover benefits when the party bringing

the action has failed to exhaust administrative remedies. The

Court, however, may excuse a claimant seeking benefits under an

ERISA plan from exhausting administrative remedies where resort

to such administrative remedies would be futile or the remedy

would be inadequate. Because GTE is the plan administrator and

because GTE has stated that Kriner is not entitled to benefits,

the Court is of the view that requiring Kriner to submit her

claim to GTE for administrative review is futile.”)(citations

omitted)). 

Plaintiff in the amended complaint admits that she did

not exhaust her administrative remedies. Furthermore, there are

no allegations in the amended complaint from which we could

conclude that exhaustion would be futile. Plaintiff in her brief

in opposition does not expressly argue that exhaustion would be

futile. However, Plaintiff does hint at a futility argument when

she states that the administrative remedies procedures are

“inadequate.” Moreover, Plaintiff attaches to her brief in

opposition a letter purportedly written by Irene B. Fisher, the

General Counsel for the Plan, which suggests that exhaustion of

administrative remedies would be a futile effort. As noted

above, the primary contention of Plaintiff is that there was a

delay in the distribution of retirement benefits which resulted

in Plaintiff receiving a smaller distribution then she would have

received if the distribution occurred promptly after she made the

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1. Our ruling on this motion does not preclude the Defendant

from reasserting the exhaustion argument in a motion for summary

judgment after discovery has been completed.

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request in early 2004. Ms. Fisher in the letter attached to the

brief in opposition states in relevant part as follows:

 Our records indicate that Ms. Dymeck has never elected

to receive her distribution in any particular manner.

In fact, our records further indicate that the first

contact from Ms. Dymeck to NBTY, Inc. was on June

9, 2004 by a voicemail message addressed to Ms. Lori

Collura of NBTY’s benefits department. Our records

further indicate Ms. Collura returned Ms. Dymeck’s

call on June 10, 2004, leaving her a voicemail.

The first “live” conversation between Ms. Dymeck

and Ms. Collura occurred on June 14, 2004. On or about

August 2, 2004, NBTY had sent an election form to 

Ms. Dymeck. To this day, Ms. Dymeck has yet to execute

this election form. Therefore, we disagree with

your assertion that Ms.Dymeck “requested immediate

transfer of her stock ownership plan and cash

account. She customarily contacted your company to

see when she would be receiving her distribution.”

Facts are simply that this is not the case.

**** * * *

We believe that NBTY has complied with the [Plan]

and therefore has no liability to Ms. Dymeck. . . .

This letter suggests that Defendant may have prejudged

Plaintiff’s claim that there was an improper delay in the

distribution which resulted in a loss. Consequently, we will

deny Defendant’s motion to dismiss but require Plaintiff to file

a second amended complaint specifically alleging facts which show

that it would be futile to exhaust her administrative remedies.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Defendant’s motion to dismiss (Doc. 22) the amended

complaint is denied.1

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2. Plaintiff within 30 days of the date of this order

may file a second amended complaint in accordance with the

background of this order. Failure to file a second amended 

complaint will result in the dismissal of this action. 

 s/Malcolm Muir 

 MUIR, U.S. District Judge

MM:gs

 

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