IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JAMES MOORE, :

Plaintiff, :

v. : CA 14-00463-KD-C

TELEDYNE TECHNOLOGIES :

INCORPORATED PENSION PLAN, et al.,

:

Defendants.

REPORT AND RECOMMENDATION

This matter is before the Magistrate Judge for entry of a report and 

recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B), on the motion to dismiss the 

Amended Complaint (doc. 69) and memorandum of law in support (doc. 70) filed by 

Teledyne Technologies Incorporated Pension Plan and Plan Administrative Committee 

of the Teledyne Technologies Incorporated Pension Plan (“the Teledyne Defendants”), 

the Plaintiff’s response (doc. 61), and the Teledyne Defendants’ reply (doc. 63).1 After 

consideration of the Teledyne Defendants’ motion and the briefs of the parties, it is the 

Magistrate Judge’s RECOMMENDATION that the motion to dismiss (doc. 69) be 

GRANTED as discussed below. 

Background and Relevant Allegations in the Amended Complaint

The Plaintiff, James Moore, brings this action seeking relief under the Employee 

 1 As explained in the undersigned’s January 23, 2015 order (doc. 71), the 

undersigned has considered the Teledyne Defendants’ motion to dismiss the Amended 

Complaint in conjunction with the response and reply briefs (docs. 61 and 63) filed during the 

briefing of the Teledyne Defendants’ motion to dismiss the original Complaint (doc. 48). (Doc. 

71 (“Because the parties have already fully briefed the arguments presented by the Teledyne 

Defendants in their motion to dismiss the Amended Complaint, (see docs. 48, 61 and 63), and 

because the undersigned has already held a telephone conference wherein the undersigned 

heard the parties argue their positions on the motion to dismiss, (see doc. 62), the undersigned 

now takes the motion to dismiss the Amended Complaint (doc. 69) under submission without 

any further briefing.”).)

Case 1:14-cv-00463-KD-C Document 72 Filed 03/11/15 Page 1 of 11
2

Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. (“ERISA”).2 The 

Plaintiff alleges that he was previously employed by Teledyne Technologies 

Incorporated and Allegheny Technologies Incorporated, at which time he became a 

participant in the Teledyne and/or Allegheny pension plans. (Doc. 67, ¶ 7.) Currently, 

the Plaintiff works as an employee for Continental Motors, Inc., but he alleges that he 

continues to be a participant in the Teledyne and/or Allegheny plans. (Id.) The 

Plaintiff further asserts the following relevant factual allegations:

15. In preparation for retirement, and in order to insure that he had 

adequate retirement income, [the Plaintiff] requested that the Plan provide 

him a calculation of the benefit he would receive at normal retirement. 

Plaintiff received a response from Allegheny Technologies Benefit Center 

informing him that he was entitled to [a] pension benefit of $607.20 per 

month.

16. Based upon the terms of the Plans, [the Plaintiff] should be credited 

with approximately 38 years of service and is entitled to a substantially 

greater monthly benefit.

17. [The Plaintiff] or his representative contacted the Plan 

Administrator seeking clarification concerning the amount of benefit 

payable; specifically, he sought information regarding the years of service 

upon which the estimated benefit was based. [The Plaintiff] also informed 

the Plan Administrator of the potential error in calculation of the credited 

years of service.

18. [The Plaintiff] did not receive a response to his first written request 

for clarification and information. His representative sent a second letter 

dated February 6, 2014 renewing his request for clarification and 

requesting specific plan documents.

19. The Plan Administrator and/or the Plan Defendants have failed or 

refused to respond to the requests for clarification.

20. As noted above, in addition to the request for clarification of 

benefits, [the Plaintiff] requested that the Plan Administrator provide 

documents under which the Plan is established or operated, including but 

 2 Plaintiff asserts identical claims against the Teledyne Defendants as well as 

another employer and associated pension plan, Allegheny Technologies Incorporated and 

Allegheny Technologies Incorporated Pension Plan (“the Allegheny Defendants”). The 

Allegheny Defendants answered the Amended Complaint (doc. 68) and did not file a motion to 

dismiss, (see docket sheet).

Case 1:14-cv-00463-KD-C Document 72 Filed 03/11/15 Page 2 of 11
3

not limited to the latest summary plan description, the latest updated plan 

document, the latest annual report, the bargaining agreement or 

agreements applicable to the Plan, the trust agreement, copies of 

predecessor plans and summary plan descriptions, and any contract or 

any other document by which the Plan is established or operated. The 

request was made pursuant to 29 U.S.C. § 1024(b)(4) on about March 6, 

2014. The Plan Administrator has not responded to the request for 

documents despite the fact that more than 30 days have elapsed since the 

request.

21. [The Plaintiff] has exhausted all administrative remedies available 

to remedy his claim.

(Id., ¶¶ 15-21.)

In Count I of the Plaintiff’s Amended Complaint, the Plaintiff seeks a clarification 

regarding his right to future benefits under 29 U.S.C. § 1132(a)(1)(B). (Id., ¶¶ 22-25.) 

Specifically, the Plaintiff contends that the Plan Administrator should recalculate his 

estimated monthly pension benefit using his thirty-eight years of service, rather than 

the substantially shorter period of service upon which the benefit estimate he received 

was based. (Id.) In Count II, the Plaintiff demands relief for the Defendants’ failure to 

respond to the Plaintiff’s request for plan documents. (Id., ¶¶ 26-28.) The Plaintiff 

alleges that “[t]he failure to respond to Plaintiff’s request for plan documents within 

thirty (30) days violates 29 U.S.C. § 1132(c) and is actionable under 29 U.S.C. § 

1132(a)(1)(A).” (Id., ¶ 28.)

The Teledyne Defendants have filed a motion to dismiss the Amended 

Complaint pursuant to Fed. R. Civ. P. 12(b)(6). (Docs. 69 and 70.) The Teledyne 

Defendants argue that the Plaintiff cannot seek a clarification of his right to benefits in 

this Court because he failed to exhaust his administrative remedies. (Doc. 70 at 5-10.) 

The Teledyne Defendants also argue that the Plaintiff cannot pursue relief for the 

Defendants’ alleged failure to provide plan documents because the Plaintiff has not 

specifically alleged that he submitted a written request to the Teledyne Defendants 

Case 1:14-cv-00463-KD-C Document 72 Filed 03/11/15 Page 3 of 11
4

requesting such documents. (Id. at 11-12.) 

In response, the Plaintiff questions whether exhaustion of administrative 

remedies is required, (doc. 61 at 4-5), and argues that, if it is required, that requirement 

should be excused under the circumstances of this case. The Plaintiff did not respond to 

the Teledyne Defendants’ argument regarding the Plaintiff’s failure to specifically allege 

that he submitted a request to the Teledyne Defendants for plan documents. (See id.)

Legal Standard for Rule 12(b)(6) Motion to Dismiss

A Rule 12(b)(6) motion to dismiss for failure to state a claim questions the legal 

sufficiency of a complaint (or portions of a complaint); therefore, in assessing the merits 

of a Rule 12(b)(6) motion, the court must assume that all the factual allegations set forth 

in the complaint are true, see, e.g., United States v. Gaubert, 499 U.S. 315, 327 (1991); Powell 

v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990), and all factual allegations, moreover, are 

to be construed in the light most favorable to the plaintiff, see, e.g., Brower v. County of 

Inyo, 489 U.S. 593, 598 (1989); see also Speaker v. U.S. Dep’t of Health & Human Servs. Ctrs. 

for Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010) (same).

Rule 8(a)(2) generally sets the benchmark for determining whether a complaint’s 

allegations are sufficient to survive a Rule 12(b)(6) motion. See Ashcroft v. Iqbal, 556 U.S. 

662, 677-78 (2009) (“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must 

contain a ‘short and plain statement of the claim showing that the pleader is entitled to 

relief.’ As the Court held in Twombly, . . . the pleading standard Rule 8 announces does 

not require ‘detailed factual allegations,’ but it demands more than an unadorned, the 

defendant-unlawfully-harmed-me accusation.”). Indeed, “[a] pleading that offers 

‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action 

will not do.’” Id. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 

Case 1:14-cv-00463-KD-C Document 72 Filed 03/11/15 Page 4 of 11
5

“Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual 

enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).

To survive a motion to dismiss, a complaint must contain sufficient factual 

matter, accepted as true, to state a claim to relief that is plausible on its 

face. A claim has facial plausibility when the plaintiff pleads factual 

content that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged. The plausibility standard is 

not akin to a probability requirement, but it asks for more than a sheer 

possibility that a defendant has acted unlawfully. Where a complaint 

pleads facts that are merely consistent with a defendant’s liability, it stops 

short of the line between possibility and plausibility of entitlement to 

relief.

Two working principles underlie our decision in Twombly. First, the tenet 

that a court must accept as true all of the allegations contained in a 

complaint is inapplicable to legal conclusions. Threadbare recitals of the 

elements of a cause of action, supported by mere conclusory statements, 

do not suffice. Rule 8 marks a notable and generous departure from the 

hyper-technical, code-pleading regime of a prior era, but it does not 

unlock the doors of discovery for a plaintiff armed with nothing more 

than conclusions. Second, only a complaint that states a plausible claim 

for relief survives a motion to dismiss. Determining whether a complaint 

states a plausible claim for relief will . . . be a context-specific task that 

requires the reviewing court to draw on its judicial experience and 

common sense. But where the well-pleaded facts do not permit the court 

to infer more than the mere possibility of misconduct, the complaint has 

alleged—but it has not show[n]—that the pleader is entitled to relief.

Id. at 678-79 (internal citations and quotation marks omitted); see also id. at 680 (a 

plaintiff must nudge his claims “across the line from conceivable to plausible.”); compare

Speaker, 623 F.3d at 1381 (“[G]iven the pleading standards announced in Twombly and 

Iqbal, [plaintiff] must do more than recite [] statutory elements in conclusory fashion. 

Rather, his allegations must proffer enough factual content to ‘raise a right to relief 

above the speculative level.’”), with Robinson v. Correctional Med. Assocs., Inc., Civil 

Action No. 1:09–cv–01509–JOF, 2010 WL 2499994, at *2 (N.D. Ga. June 15, 2010)

(“Factual allegations in a complaint need not be detailed but ‘must be enough to raise a 

right to relief above the speculative level on the assumption that all the allegations in 

Case 1:14-cv-00463-KD-C Document 72 Filed 03/11/15 Page 5 of 11
6

the complaint are true (even if doubtful in fact).’” (quoting Twombly, 550 U.S. at 555)

(internal citations and emphasis omitted)).

Analysis

I. Failure to Exhaust Administrative Remedies

Although the text of ERISA is silent on the matter, the Eleventh 

Circuit Court of Appeals requires that a plaintiff exhaust her available 

administrative remedies before bringing ERISA claims in federal court. 

Mason v. Continental Group, Inc., 763 F.2d 1219, 1227 (11th Cir. 1985); 

Counts v. American General Life and Acc. Ins. Co, 111 F.3d 105, 108 (11th Cir. 

1997); Springer v. Wal–Mart Associates' Group Health Plan, 908 F.2d 897, 899 

(11th Cir. 1990). The Eleventh Circuit Court of Appeals applies this rule to 

claims for benefits as well as claims for statutory violations of ERISA. 

Bickley v. Caremark RX, Inc., 461 F.3d 1325, 1328 (11th Cir. 2006).

That being said, there are well-established exceptions to the 

exhaustion requirement, “the most familiar examples perhaps being when 

resort to the administrative route is futile or the remedy inadequate.” 

Amato v. Bernard, 618 F.2d 559, 568 (9th Cir. 1980) (quotation omitted). 

Thus, the application of the exhaustion requirement is committed to the 

district court's sound discretion. Curry v. Contract Fabricators, Inc. Profit 

Sharing Plan, 891 F.2d 842, 846 (11th Cir. 1990) abrogated on other grounds by 

Murphy v. Reliance Standard Life Ins. Co., 247 F.3d 1313 (11th Cir. 2001).

Dickerson v. Physicians Pain Specialists of Ala., P.C., Civil Action No. 10-0337-CG-C, 2011 

WL 4591191, at *4 (S.D. Ala. Oct. 4, 2011).

While the Plaintiff’s Amended Complaint includes the bare allegation that he 

exhausted his administrative remedies, (doc. 67, ¶ 21), the Plaintiff cannot avoid 

dismissal on exhaustion grounds by asserting such a bare and conclusory statement, see 

Variety Children’s Hosp., Inc. v. Century Med. Health Plan, Inc., 57 F.3d 1040, 1042 n.2 (11th 

Cir. 1995) (concluding that the plaintiff could not circumvent the exhaustion 

requirement merely by alleging that “it had complied with ‘all conditions precedent’”).3

 3 The undersigned notes that the Middle District of Florida has concluded in 

multiple instances that a plaintiff’s general allegation that he exhausted administrative remedies 

was sufficient to defeat a motion to dismiss on exhaustion grounds. See Tran Chiropractic 

Wellness Ctr., Inc. v. Aetna Inc., No. 8:14-cv-47-T-36EAJ, 2015 WL 144243, at *5 (M.D. Fla. Jan. 12, 

2015); O’Toole v. Ford Motor Co., No. 6:13-cv-849-ORL-36-CEH-GJK, 2014 WL 2532451, at *4 

Case 1:14-cv-00463-KD-C Document 72 Filed 03/11/15 Page 6 of 11
7

The Plaintiff provides no explanation as to how he exhausted his administrative 

remedies with respect to the Teledyne Defendants. (See docs. 61 and 67.) Based on the 

Plaintiff’s own statements he never contacted the Teledyne Defendants in any manner, 

much less in a manner that satisfied the administrative review requirements. In the 

Amended Complaint, the Plaintiff states that, after Allegheny Technologies Benefit 

Center informed him that he is entitled to $607.20 per month in pension benefits, (doc. 

67, ¶ 15), he sent two letters to the “Plan Administrator” seeking clarification regarding 

his benefits, (id., ¶¶ 17-18). In the Plaintiff’s response brief, he explains that those letters 

were sent to one of the Allegheny entities, (doc. 61 at 4), and not to the Teledyne 

entities, (id. at 7). Moreover, at the time of the hearing on this matter, Plaintiff’s counsel 

conceded that he never submitted any communications to the Teledyne Defendants. 

With respect to the Teledyne Defendants, the Plaintiff argues that his failure to exhaust

administrative remedies should be excused, (id. at 5-7).

Based on the foregoing, the undersigned finds that the Plaintiff failed to exhaust 

his administrative remedies with respect to the Teledyne Defendants. The undersigned 

now considers the question of whether that failure should be excused in this case.

The Plaintiff argues that his failure to exhaust should be excused because 

administrative review of his claims in this case would be futile and would not allow for 

an adequate remedy. (Doc. 61 at 5-6.) The Plaintiff explains the futility of 

administrative review as follows:

[Allegheny] has acknowledged its responsibility for a portion of the 

pension benefit and indicated that it believes the Teledyne Plan is 

responsible for another portion of the benefit. Two separate partial 

pensions, however, are less than one full pension. If [Plaintiff]’s pension 

 (M.D. Fla. Mar. 6, 2014); Markwart v. United Parcel Serv., Inc., No. 2:13-cv-186-FtM-38DNF, 2013 

WL 3864347, at *5 (M.D. Fla. July 24, 2013). However, the undersigned finds those cases 

unpersuasive and inapplicable to this case where it is abundantly clear that the Plaintiff failed to 

exhaust his administrative remedies. 

Case 1:14-cv-00463-KD-C Document 72 Filed 03/11/15 Page 7 of 11
8

benefit is paid in part by the [Allegheny] Plan and in part by the Teledyne 

Plan his pension will be incomplete. In other words, while Allegheny 

acknowledges its responsibility to pay for part of the pension, the 

Allegheny multiplier of $24 per month for each year of service is far below 

the $30 per month per year of service in the Teledyne Plan. Because both 

of the Plan Administrators in this case could conceivably determine a 

partial pension is payable to [the Plaintiff], [a]dministrative review would 

be incomplete and merely delay the resolution of the issue in this Court.

(Id. (citation and footnote omitted).) Thus, Plaintiff’s argument hinges on his contention 

that administrative review could conceivably be inadequate. For the Court to excuse 

exhaustion, however, the Plaintiff must make a “’clear and positive’ showing of 

futility.” Bickley, 461 F.3d at 1330 (citing Springer, 908 F.2d at 901); Springer, 908 F.2d at 

901 (citing Makar v. Health Care Corp., 872 F.2d 80, 83 (4th Cir. 1989)); Bryant v. Cmty. 

Bankshares, Inc., No. 2:12-cv-562-MEF, 2014 WL 805917, at *2 (M.D. Ala. Mar. 3, 2014) 

(“[T]o overcome [d]efendants’ motion to dismiss, the [plaintiffs] must make a clear and 

positive showing of futility.” (citing Engelhardt v. Paul Revere Life Ins. Co., 77 F. Supp. 2d 

1226, 1233 (M.D. Ala. 1999))). Here, the Plaintiff’s concern for a conceivably inadequate 

review process is far too weak of a showing. Without ever contacting the Teledyne 

Defendants to address his concerns with his future benefits, the Plaintiff cannot state 

with any certainty what results might be obtained administratively. The Plaintiff’s 

mere belief that there is a possibility that an administrative inquiry will be inadequate 

falls far short of the clear and positive showing of futility needed to warrant excusal of 

the exhaustion requirement. See Springer, 908 F.2d at 901 (holding that showing of 

futility was insufficient where the Plaintiff failed to pursue administrative review 

following the administrator’s denial of her claim); Dickerson, 2011 WL 4591191, at *4

(rejecting the plaintiff’s argument that administrative exhaustion was futile where the 

plaintiff failed to pursue administrative review after her employer’s administrator 

informed her that that she was not eligible for benefits).

Case 1:14-cv-00463-KD-C Document 72 Filed 03/11/15 Page 8 of 11
9

The Plaintiff also argues that his failure to pursue administrative remedies 

should be excused because “[the Plans] fail[ed] to provide plaintiff with information 

regarding the existence of an internal appeal mechanism” and, therefore, “failed to 

provide meaningful access to the review procedure.” (Doc. 61 at 6-7 (citing Curry, 891 

F.2d at 846-47; Cromer-Tyler v. Teitel, 294 F. App’x 504, 507 (11th Cir. 2008)).)4 This 

argument clearly fails because the Plaintiff does not allege that he submitted a request 

for documents to the Teledyne Defendants, specifically, (see doc. 67), and, as discussed 

above, it is clear from the Plaintiff’s response brief and statements in Court that the 

Plaintiff never contacted the Teledyne Defendants or submitted to them any claim or 

request for documents. Furthermore, there is not otherwise any indication that the 

Teledyne Defendants refused to provide the Plaintiff with Plan documents or otherwise 

denied the Plaintiff meaningful access to the administrative review process. The 

Plaintiff can hardly claim that they denied him meaningful access to administrative 

procedures when he made no attempt to request documents or otherwise pursue those 

procedures. 

Because the Plaintiff failed to exhaust his administrative remedies, he cannot 

pursue either of his claims against the Teledyne Defendants. See Perrino v. Southern Bell 

Tel. & Tel. Co., 209 F.3d 1309, 1315-16 n.6 (11th Cir. 2000) (confirming that the Eleventh 

Circuit applies the “exhaustion requirement to both ERISA claims arising from the 

substantive provisions of the statute, and ERISA claims arising from an employment 

and/or pension plan agreement” (citations omitted)); Bickley, 461 F.3d at 1328 (same). 

Accordingly, it is RECOMMENDED that the Plaintiffs’ claims against the Teledyne 

 4 In Curry and Cromer-Tyler the Eleventh Circuit affirmed the decisions of the 

district courts to excuse the exhaustion requirement where the defendant failed to respond to 

the plaintiff’s request for plan documents. See Curry, 891 F.2d at 846-47; Cromer-Tyler, 294 F. 

App’x at 507.

Case 1:14-cv-00463-KD-C Document 72 Filed 03/11/15 Page 9 of 11
10

Defendants be DISMISSED and that the DISMISSAL be WITHOUT PREJUDICE5 to 

the Plaintiff refiling those claims after exhausting his administrative remedies.

Conclusion

For the reasons stated herein, the Magistrate Judge RECOMMENDS that the 

Teledyne Defendants’ motion to dismiss (doc. 69) be GRANTED and that the Plaintiff’s

claims against the Teledyne Defendants be DISMISSED WITHOUT PREJUDICE so 

that the Plaintiff may refile his claims after exhausting his administrative remedies.6

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on all parties in the 

manner provided by law. Any party who objects to this recommendation or anything in 

it must, within fourteen (14) days of the date of service of this document, file specific 

written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 

72(b); S.D. ALA. L.R. 72.4. The parties should note that under Eleventh Circuit 

precedent, “the failure to object limits the scope of [] appellate review to plain error 

review of the magistrate judge’s factual findings.” Dupree v. Warden, 715 F.3d 1295, 1300 

(11th Cir. 2013) (emphasis in original). In order to be specific, an objection must identify 

the specific finding or recommendation to which objection is made, state the basis for 

 5 The Plaintiff argues that, if the Court determines that the Plaintiff was required 

to exhaust his administrative remedies, his claims against the Teledyne Defendants should be 

remanded, rather than dismissed. The undersigned, however, has concluded and hereby 

recommends that dismissal without prejudice is appropriate under these circumstances. See 

Bickley, 461 F.3d at 1330 (“[W]e affirm the district court’s dismissal of [the plaintiff’s] complaint 

without prejudice for failure to exhaust his administrative remedies.”); Wallace v. Blue Cross & 

Blue Shield of Ala., Civil Action No. 14-0119-CG-C, 2014 WL 5335823, at *1, 7 (S.D. Ala. Oct. 20, 

2014) (dismissing the plaintiffs’ wrongful denial of benefits claim without prejudice because 

they failed to exhaust administrative remedies).

6 As mentioned above, the Allegheny Defendants have already filed an answer to 

the Plaintiff’s Amended Complaint (doc. 68). Therefore, if the Court adopts this report and 

recommendation and dismisses the Plaintiff’s claims against the Teledyne Defendants, the 

undersigned will enter a schedule for the Plaintiff and the Allegheny Defendants to meet and 

confer and file a report pursuant to Fed. R. Civ. P. 26(f).

Case 1:14-cv-00463-KD-C Document 72 Filed 03/11/15 Page 10 of 11
11

the objection, and specify the place in the Magistrate Judge’s report and 

recommendation where the disputed determination is found. An objection that merely 

incorporates by reference or refers to the briefing before the Magistrate Judge is not 

specific.

DONE this the 11th day of March 2015.

s/WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

Case 1:14-cv-00463-KD-C Document 72 Filed 03/11/15 Page 11 of 11