* Circuit Judge of the Ninth Circuit, sitting by designation.

** Pursuant to Local Rule 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in Local Rule

47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-60416

PATRICIA CUNNINGHAM,

Plaintiff-Appellant,

versus

DUN & BRADSTREET PLAN SERVICES, INC.;

DUN & BRADSTREET PENSION SERVICES,

INC.; J.T. COMER & ASSOCIATES, a

division of Dun & Bradstreet Pension

Services, Inc.; DUN & BRADSTREET, INC.,

Defendants-Appellees.

Appeal from the United States District Court

For the Northern District of Mississippi

(1:92CV139-D-D)

December 19, 1996

Before POLITZ, Chief Judge, GOODWIN * and DUHÉ, Circuit Judges.

POLITZ, Chief Judge: **

Patricia Cunningham appeals the Rule 12(b)(6) d ismissal of her action1 29 U.S.C. § 1003.

2 Cunningham alleges that from inception to December 31, 1986, Personal Money

Management, Inc. was the plan administrator. Effective January 1, 1987, J.T. Comer &

Associates acquired the business of PMMI a nd assumed the administration of the plans.

Comer was merged with Dun & Bradstreet Pens ion Services, Inc. in 1989. Cunningham

n amed Comer, Dun & Bradstreet Pension Services, Inc., Dun & Bradstreet Plan Service s

, Inc., with whom Comer became affiliated in June of 1986, and Dun & Bradstreet, Inc., the

parent company of the latter two entities, as defendants in this lawsuit.

2 seeking damages for an alleged breach of fiduciary duties by ERISA plan

administrators. For the reasons assigned, we affirm.

Background

Cunningham, an employee of Pest M anagement Specialists, Inc., participated

in pension and profit sharing plans sponsored by PMSI that qualified as “employee

benefit plans” unde r the Employee Retirement Income Security Act. 1 In July of

1986 funds representing Cunningham’s interests in the plans were transferred out

of the plans under instructions from the then plan administrator. 2 Cunningham was

not notified that her share of plan assets was being removed from the plans and was

not informed of the tax consequences of these plan distributions.

Cunningham filed suit against the plan administrators, contending that they

breached their fiduciary duties to her by negligently failing to notify h er that the

plans had been terminated, that a distribution was being made to her, and that the

distribution entailed significant tax consequences. Cunningham alleged causes of3 Capital Parks, Inc. v. Southeastern Advertising & Sales Sys., Inc.

, 30 F.3d 627 (5th

Cir. 1994).

4 Section 1132(a)(2) provides:

A civil action may be brought --

* * *

(2) by the Secretary, or by a participant, beneficiary or fiduciary for appropriate

3 action under ERISA and Mississippi common law and sought compensation for her

tax liability, the fees and expenses concomitant thereto, the loss of any continued

tax-deferred growth of the disbursed funds, and exemplary damages.

The plan administrators filed a motion to dismiss under Rule 12(b)(6)

contending that Cunningham could not sue them under ERISA on her own behalf,

but only on behalf of the plans, and that her state law claims we re preempted by

ERISA. The district court granted this motion and dismissed Cunningham’s

claims. Cunningham timely appeals.

Analysis

Our review of a dismissal under Rule 12(b)(6) is d e novo

, with all wellpleaded facts taken as true and c onsidered in the light most favorable to the

plaintiff. 3

Cunningham first contends that her allegations state a cause of action under

29 U.S.C. § 1132(a)(2). 4 As the plan administrators correctly observe, however,relief under section 409 [29 USC § 1109]. . . .

29 U.S.C. § 1109 provides, in pertinent part:

(a) Any person who is a fiduciary with respect to a plan who breaches any of the

responsibilities, obligations, or duties imposed upon fiduciar ies 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 use of assets of the plan by the fiduciary, and shall be subject

to such other equitable or remedial relie f as the court may deem appropriate,

including removal of such fiduciary.

5 473 U.S. 134 (1985).

6 I nsofar as Cunningham maintains that she may escape the teachings of Russell by

characterizing her claim as one for a breach of the fiduciary duties outlined in section 1104,

not section 1109, her

contention is foreclosed by our recent opinion in M cDonald v.

Provident Indem. Life Ins. Co. , 60 F.3d 234 (5th Cir. 1995), cert

. denied

, 116 S.Ct. 1267

(1996). In M cDonald

, after finding that the fiduciary duties prescribed by section 1104 had

been breached, we held that the plaintiffs’ failure to prove a loss to the plan was fatal to their

claim. McDonald , 60 F.3d at 237.

4 Cunningham seeks only personal recovery and does not suggest that the plan

administrato rs’ conduct detrimentally affected the plan as a whole. In

Massachu setts Mut. Life Ins. Co. v. Russell, 5 the Supreme Court held that any

recovery under section 1132(a)(2) inures solely to the benefit of the plan, not the

individual beneficiary. Therefore, because Cunningham seeks only to recover for

her p ersonal losses, the holding of R ussell precludes her from maintaining this

action under section 1132(a)(2). 6

Cunningham next advances the contention, first raised in her response to7 Section 1132(a)(3) provides:

A civil action may be brought --

* * *

(3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice

w hich violates any provision of this subchapter or the terms of the plan, or (B) to

obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce

any provisions of this subchapter or the terms of the plan . . . .

8 Vanity Corp. v. Howe , 116 S.Ct. 1065 (1996).

9 508 U.S. 248 (1993).

5 defenda nts’ motion to dismiss, that she states a claim under section 1132(a)(3). 7

Section 1132(a)(3) does provide a cause of action for individual participants and

beneficiaries who all ege a breach of fiduciary duties by an ERISA plan

administrator, but limits the available remedies to “appropriate equitable relief.” 8

In Mertens v. Hewitt Assocs.

, 9 the Supreme Court held that the phras e “other

appropriate equitable relief” in this section refers to remedies typically available

in equity, i.e. injunction, mandamus, and restitution, but not to compensatory or

punitive damages. Throughout this litigation Cunningham has consistently referred

to the recovery she seeks as “damages” or “compensatory damages,” adopting the

position only in the eleventh hour that what she seeks is equitable resti tution. A

grant of equitable restitution, however, is warranted only when the defendant has10 See Borst v. Chevron Corp.

, 36 F.3d 1308 (5th Cir. 1994), cert

. denied

, 115 S.Ct. 1699

(1995); Crocker v. Piedmont Aviation, Inc.

, 49 F.3d 735 (D.C. Cir.), cert

. denied

,

_____ U.S. _____, 116 S.Ct. 180 (1995).

11 29 U.S.C. § 1144(a).

6 profited unjustly at the plaintiff’s ex pense. 1 0 Because none of Cunningham’s

claimed injuries inured to the benefit of the plan or its admini strators, we must

conclude that her complaint states a claim for legal damages only and thus cannot

be maintained under section 1132(a)(3).

Cunningham next challenges the district court’s determination that all of her

state law claims are preempted. Cunningham asserts that, after termination of the

plan and distribution of the assets, the administrators affirmatively misled her into

believing that the plans remained in force and that she could leave her funds in

the plans exempt from taxes. She asserts that such misconduct supports a state law

claim for breach of fiduciary duty and that because the breach occurred after the

plan was terminated ERISA does not preempt these claims.

Section 514(a) of ERISA 11 provides that ERISA’s provisions “supersede any

and all State laws insofar as they may now or her eafter relate to any employee

benefit plan.” “The words ‘relate to’ are to be given their ‘broad common-sense

meaning’ and a state law will be pre-empted ‘if it has a connection with or12 Christopher v. Mobil Oil Corp.

, 950 F.2d 1209, 1217-18 (5th Cir.) (citations omitted),

cert

. denied , 506 U.S. 820 (1992).

13 New York State Conference of Blue Cross & Blue Shield v. Travelers Ins.

, _____ U.S.

_____, _____, 115 S.Ct. 1671, 1680, 131 L.Ed.2d 695 (1995), q uoting District of

Columbia v. Greater Washington Board of Trade , 506 U.S. 125, 113 S.Ct. 580, 121

L.Ed.2d 513 (1992) (internal quotation marks and citations omitted).

14 Hook v. Morrison Milling Co.

, 38 F.3d 776, 785 (5th Cir 1994). See also N ew York

Blue Cross (state law of general application which merely increases costs of ER ISA plan

demonstrates insufficient nexus for preemption).

15 See American Flint Glass Workers Union v. Beaumont Glass Co.

, 62 F.3d 574, 579

(3d Cir. 1995) (“We will, however, assume, once a terminati on decision is reached, that

ERISA’s fiduciary duties control the termination procedures.”). Termination of an ERISAcovered plan must occur according to the procedures set forth in Subchapter III, subtitle C,

29 U.S.C. § 1341 et seq. P ension Benefit Guar. Corp. v. Pritchard

, 50 F.3d 315 (5th Cir.

1995).

7 reference to such a plan.’” 12 Nonetheless, “[p]reemption does not occur . . . if the

state law has only a tenuous, remote, or peripheral connection with covered plans,

as is the case with many laws of general applicability.” 13 Furthermore, “a law or

claim is preempted when it relates to an ERISA plan, and not the reverse.” 14

We conclude that although those cl aims which are based upon fiduciary

duties created by ERISA or arise out of the plan administrator’s conduct during the

lifetime of the plan or during post-termination events regula ted by ERISA 1 5 are

preempted, any claims based upon the breach of legal duties arising under state law

outside of this limited preemptive scope remain viable. In other words, if after

Cunningham’s assets were no longer under ERISA’s mantle there nonetheless16 Miner v. Bertasi , 530 So.2d 168, 170 (Miss. 1988).

8 existed as a matter of independent state law some fiduciary relationship between

the parties, irrespective of ERISA’s provisions, an action arising out of this

relationship would escape ERISA preemption. The fact that a state law claim

embraces parties whose financial relationship was previously regulated by ERISA

is alone insufficient to create a con nection between the claim and ERISA which

warrants preemption.

Und er Mississippi law a fiduciary relationship m ay exist as a legal matter

when there emerges “on the one side an overmastering influence or, on the other,

weakness, dependence, or trust, justifiably reposed.” 16 Cunningham’s pleadings,

however, clearly reference the participant-administrator relationship under ERISA

as the sole source of the fiduciary duties allegedly breached. Given the

exclusiveness of Cunningham’s submission s, we perceive no error in the district

c ourt’s finding that Cunningham’s state law claims “relate to,” and hence are

preempted by, section 504 of ERISA.

The judgment appealed is AFFIRMED.