Opinion
Civil Action No. 01-993, Re: Doc. #s 5, 11, 19
April 22, 2002
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION I. RECOMMENDATION
It is recommended that Defendants' Motion to Dismiss Plaintiff's Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) be dismissed. It is further recommended that Defendants' Cross Motion for Summary Judgment be denied and that Plaintiffs' Motion for Partial Summary Judgment be granted.
Plaintiffs' motion does not identify the extent to which it is "partial" but since neither the motion nor their brief addresses Count II on substantive grounds, the motion shall be construed as addressing only Count I. Therefore, if the District Court adopts this Report and Recommendation, Count II will remain in the case as well as the request for class certification.
II. REPORT
Stanley Pieseski and Patrick Kost ("Plaintiffs") bring this putative class action against Northrop Grumman Corporation and Northrop Grumman Electronic Sensors and Systems Division Pension Plan ("Defendants"), pursuant to the anti-cutback (§ 204(g)) and breach of fiduciary duty (§ 404(a)(1)(D)) provisions of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1054(g) and 29 U.S.C. § 1104(a) respectively. Plaintiffs allege that Defendants have wrongfully denied them a lay-off pension comprised of a subsidized early retirement benefit known as the Permanent Job Separation Pension ("PJS Pension"), benefits to which they allege they are entitled pursuant to the pension plan of Northrop Grumman ("Northrop Plan") due to its nature as a "spin-off" plan of their former employer Westinghouse's pension plan (the "Westinghouse Plan"), which provided PJS benefits.
Plaintiffs' Complaint contains two counts. Count I alleges a violation of ERISA's anti-cutback provision which provides that an accrued benefit of a participant may not be decreased by an amendment of the plan. 29 U.S.C. § 1054(g)(1) Count II alleges that Defendant Grumman breached its fiduciary duty with respect to its administration of the Northrop Plan by incorporating an illegal amendment into its Plan, thereby wrongfully eliminating eligibility for the PJS Pension. 29 U.S.C. § 1104(a)(1)(A).
Plaintiffs bring the suit as a class action on behalf of a class consisting of all persons who were participants in the Westinghouse Plan as of January 1, 1994, who moved to Grumman when Westinghouse sold a division in 1996, and who either were laid off by Grumman after December 31, 1996 or who are still employed by Grumman and who are/may become eligible for the PJS Pension. Plaintiffs request relief in the form of certification as a class action, declaratory judgment that Defendants' implementation of an illegal amendment into the Northrop Plan violates Sections 1054(g) and 1104(a) of ERISA, and a judgment requiring Defendants to pay PJS benefits (plus lost earnings on pension amounts) to the members of the class, plus reasonable costs, expenses and attorney's fees. (See Compl. at p. 11)
Defendants filed a Motion to Dismiss on September 7, 2001. Plaintiffs filed a Motion for Partial Summary Judgment on October 24, 2001, to which Defendants responded by filing a Cross-Motion for Summary Judgment on December 21, 2001. The issues presented are whether Plaintiffs' claims are time-barred, and if not, whether a Third Circuit Court of Appeals' ruling in a related case, Bellas v. CBS, Inc., 221 F.3d 517 (3d Cir. 2000), cert. denied, 121 S.Ct. 843 (2001), applies to the Northrop Plan such that its provision eliminating PJS benefits constitutes an illegal amendment under ERISA, thus requiring Defendants to make payment of PJS benefits to eligible Northrop Plan beneficiaries.
A. Statement of Facts
Plaintiffs were long-time employees of Westinghouse Electric Corporation ("Westinghouse," which later changed its name to CBS) and while employed at Westinghouse, were participants in the Westinghouse Plan. (1st Payne Aff. ¶¶ 3, 5 (Doc. # 13)). On March 1, 1996, Plaintiffs' employment was transferred to Defendant Northrop Grumman Corporation ("Grumman") when Grumman acquired from Westinghouse the facility where Plaintiffs worked. (2d Payne Aff. ¶ 3 (Doc. # 24)
The Westinghouse Plan contained a subsidized early retirement benefit called the Permanent Job Separation Pension for employees meeting stated age and service requirements who were laid off for lack of work. (Westinghouse Plan, pp. 65-60, attached as Exh. A to Doc. # 6). In 1994, Westinghouse adopted an amendment to its Plan (the "1994 Amendment") which purported to eliminate the PJS Pension after September 1, 1998. See Bellas v. CBS, Inc., 221 F.3d 517, 520 (3d Cir. 2000), cert. denied, 121 S.Ct. 843 (2001) (hereinafter Bellas). The 1994 Amendment was carried over into the Northrop Plan governing retirement benefits for Westinghouse employees who went to work for Northrop in 1996. (Northrop Plan, pp. 69-74, attached as Exh. A to Doc. # 13). The Northrop Plan also provided for the elimination of PJS benefits after September 1, 1998. (Id. at pp. 69-70, § 16.01(f), § 16.02(a)). The Court of Appeals for the Third Circuit has subsequently declared Westinghouse's 1994 Amendment eliminating PJS benefits to be an illegal amendment in violation of Section 204(g) of ERISA. See Bellas v. CBS, Inc., 73 F. Supp.2d 500 (W.D. Pa. 1999), aff'd, 221 F.3d 517, 538 540 (3d Cir. 2000)
Plaintiffs and others were laid off by Grumman in 1999 under circumstances which satisfied all pre-1994 Amendment conditions for entitlement to the PJS Pension. Plaintiffs requested PJS benefits, but Defendants refused to award them to employees laid off after September 1, 1998. (2d Payne Aff. at ¶¶ 6-8 (Doc. # 24)). Plaintiffs filed suit on May 31, 2001, seeking to have Northrop's implementation of Westinghouse's 1994 Amendment in the Northrop Plan declared 1) illegal under Section 204(g) and 2) a breach of fiduciary duty under Section 404(a) of ERISA, and to have their PJS benefits restored.
B. Standard for Summary Judgment
Summary judgment is appropriate if, drawing all inferences in favor of the non-moving party, "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial" or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty-Lobby, Inc., 477 U.S. 242, 248 (1986)
C. Discussion
Defendants initially moved to dismiss the Complaint on the basis that Plaintiffs failed to state any cognizable claim under ERISA. As Plaintiffs have subsequently filed a Motion for Partial Summary Judgment and Defendants responded with their own Cross-Motion for Summary Judgment on all claims, Defendants' Motion to Dismiss Plaintiffs' Complaint Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Doc. # 5) should be dismissed as moot. As a threshold issue, Defendants have raised the statute of limitations as an affirmative defense to Plaintiffs' claims.
1. Plaintiffs' Claims are Not Time-Barred Under the Statutes of Limitation Applicable Under ERISA,
Defendants argue in their Cross-Motion for Summary Judgment that Plaintiffs' ERISA claims are untimely as they are premised on a pension plan amendment that was effective "more than seven years before they filed their lawsuit." (Defs.' Br. in Supp. of Mot. for Summ. J. at 1 (Doc. # 20)). Defendants contend that the operative date from which even the longest statute of limitations applicable (six years) should run is January 1, 1994, the effective date of the 1994 Amendment by Westinghouse which narrowed and ultimately eliminated the PJS Pension in the Westinghouse Plan (the Northrop Plan was not created until 1996). (See Westinghouse Plan, Exh. A., cover page, attached to Id.). As Plaintiffs filed suit on May 31, 2001, Defendants argue that Plaintiffs' claims are time-barred because they were filed more than six years after the effective date of the 1994 Amendment.
ERISA does not contain a statute of limitations for a Section 204(g) violation. Gluck v. Unisys Corp., 960 F.2d 1168, 1179 (3d Cir. 1992). In such circumstances, the Court of Appeals for the Third Circuit has stated that "[i]n the absence of an applicable ERISA limitation, the courts thus apply the statute of limitations for the state claim most analogous to the ERISA claim pursued." Id., citing Vernau v. Vic's Market, Inc., 896 F.2d 43, 45 (3d Cir. 1990). Gluck provides that
claims to recover benefits that were bargained for but have not yet become payable most closely resemble contract claims for anticipatory breach, and are governed by Pennsylvania's four-year state of limitations measured from the time when a claimant first knows that the benefit has been infringed or removed . . . other ERISA claims, such as those seeking to reinstate an improperly removed non-bargained-for benefit . . . have no counterpart in Pennsylvania law and are thus governed by Pennsylvania's general six-year statute of limitations . . . claims asserting . . . improper reduction of early retirement benefits are claims founded on complex issues of statutory interpretation. They are subject to Pennsylvania's six-year statute of limitations.960 F.2d at 1181-82. Later court decisions have followed Gluck in holding that a claim for improper reduction of early retirement benefits under ERISA is a claim "founded upon complex issues of statutory interpretation and therefore . . . subject to Pennsylvania's six year statute of limitations." See, e.g., Engelhart v. Consolidated Rail Corp., 1994 WL 285030 at * 3 (E.D. Pa. June 27, 1994). As Plaintiffs' Complaint in Count I recites a Section 204(g) ERISA claim for the improper reduction of early retirement benefits, (Compl. ¶¶ 35-36), a six-year statute of limitations applies to their Section 204(g) claim.
Contrary to Defendants' view, under the applicable six-year statute of limitations period Plaintiffs' Section 204(g) ERISA claim was timely filed because the statute begins to run, not from the "effective" date of the amendment, but rather from the date of its "adoption.
Gluck provides that "[t]he validity of the employees' claims based on section 204(g) . . . depends solely on the actual date of adoption of the 1984 amendment [at issue in the case]." 960 F.2d at 1185 (emphasis added). The Plaintiffs in Gluck, however, failed to raise the argument that it is the adoption date of a plan amendment, and not the effective date of said amendment, from which the statute of limitations runs, and were thus precluded from doing so on appeal. Id.
In contrast, Plaintiffs in the instant case have argued that while the illegal amendment resulting in a cut-back of their early retirement benefits might have initially become "effective" under the Westinghouse Plan in 1994, the operative date in this case is the 1994 Amendment's "adoption" by Grumman into its Northrop Plan which came into being on March 1, 1996. (Compl. ¶ 4; Plts.' Br. in Opp. to Cross-Mot. for Summ. J. at 14 (Doc. # 23)); see also Gluck, 960 F.2d at 1179-79 n. 7 ("We note that occasionally the adoption of an amendment occurs after its effective date."). Following Gluck, the operative date for the running of the six-year statute of limitations applicable to Plaintiffs' Section 204(g) claim is "the date the amendment was adopted," 960 F.2d at 1185, which here is March 1, 1996, the date when Grumman adopted the 1994 Amendment by incorporating it into the Northrop Plan. Plaintiffs' Section 204(g) ERISA claim, filed on May 31, 2001, is therefore timely filed within the six-year limit.
Defendants argue alternatively that, pursuant to Gluck, a more restrictive four-year statute of limitations period should apply to Plaintiffs' Section 204(g) ERISA claim because the PJS benefits at issue were "bargained-for" benefits. (Defs.' Br. in Supp. of Cross-Mot. for Summ. J. at 7 (Doc. # 20)). In support of this theory, Defendants allege in their brief that "Plaintiffs in this case were members of the Federation of Independent Salaried Unions. . . ." (Id.).
In addition to the fact that a statement in a brief is not evidence which can be considered pursuant to Rule 56(c), this factual allegation would not constitute evidence that Plaintiffs bargained for the Westinghouse Plan, the Northrop Plan, or the PJS benefits at issue that were offered in both plans. Further, Gluck states that the four-year limitations period applies to "claims to recover benefits that were bargained for but have not yet become payable" because they "most closely resemble contract claims for anticipatory breach"; here, Plaintiffs' Section 204(g) claim includes recovery of retirement benefits that have become due and payable, and so does not resemble a contract claim for anticipatory breach. As such, Defendants have not demonstrated that the four-year statute of limitations cited in Gluck is applicable to Plaintiffs' Section 204(g) claim; rather, as stated above, Pennsylvania's six-year catch-all statute of limitations is applicable and Plaintiffs' claim was timely filed.
Defendants also argue that Plaintiffs' Section 401(a) breach of fiduciary duty claim is time-barred. ERISA provides a limitations period for breach of fiduciary duty actions, limiting them to
the earlier of (1) six years after . . . the date of the last action which constituted a part of the breach or violation, . . . or (2) three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation. . . .29 U.S.C. § 1113. Defendants state that under a six-year statute of limitations, Plaintiffs' Section 401(a) claim is untimely because the operative date for the six-year statute is January 1, 1994, the date of the 1994 Amendment. They cite Gluck's holding that a breach of fiduciary duty accrues on the date the plan was amended to include the challenged provision (i.e., its adoption date). 960 F.2d at 1179.
As discussed above, however, the operative date for the amendment in the instant case is March 1, 1996, rather than January 1, 1994, as 1996 was when Grumman promulgated the Northrop Plan into which it adopted the illegal 1994 Amendment. As such, the six-year statute of limitations on Plaintiffs' Section 401(a) ERISA claim began to run on March 1, 1996, and therefore Plaintiffs' claim, filed on May 31, 2001, was timely filed within the six year limit.
Plaintiffs' claim would also be timely under the three-year statute of limitations because Plaintiffs did not have actual knowledge of Defendants' alleged breach or violation of Section 401(a) until Defendants filed their Motion to Dismiss on September 7, 2001 in which they stated with finality their position that Plaintiffs were not entitled to the PJS Pension. (See generally Mem. in Supp. of Defs.' Mot. to Dismiss (Doc. # 6)). Prior to that time, Defendants had not definitively rejected Plaintiffs' claims for PJS benefits, and had even implied, as recently as May 18, 2001, that the PJS Pension might still be granted to them. (See Exhibits G and I, attached to 2d Payne Aff. (Doc. # 24)). Under either limitations period provided by ERISA for a Section 401(a) violation, then, Plaintiffs' claims were timely filed and so Defendants' Cross Motion for Summary Judgment should be denied.
2. The Northrop Plan Contains an Illegal Amendment in Violation of Section 204(g) of ERISA.
The Court of Appeals for the Third Circuit held in Bellas that the 1994 Amendment to the Westinghouse Plan, which purported to eliminate the PJS Pension, was unlawful because the PJS Pension constitutes an early retirement benefit and a retirement-type subsidy, both of which are protected, as accrued benefits, against reduction or elimination under Section 204(g) of ERISA. See Bellas v. CBS, Inc., 221 F.3d 517, 533 (3d Cir. 2000). Likewise, Defendants' adoption of the 1994 Amendment into the Northrop Plan, effectively denying Plaintiffs their PJS Pension benefits, also constitutes a similarly illegal amendment of the Northrop Plan and is therefore a violation of Section 204(g) of ERISA.
Defendants argue that they cannot be liable for PJS Pension benefits because 1) the Northrop Plan never contained a provision to provide these benefits and 2) Northrop never "amended" the Northrop Plan. They argue that if the Plan contained no PJS Pension benefit, then no retirement benefit existed that was eliminated by an illegal amendment, and such an elimination is a requirement to prove a violation of Section 204(g) of ERISA. Defendants claim that the Northrop Plan "was established by Northrop Grumman upon its acquisition of certain assets from plaintiffs' prior employer [Westinghouse] in 1996 and included from its inception the provision that plaintiffs now challenge as an allegedly illegal "amendment.'" (Defs.' Mem. in Supp. of Mot. to Dismiss at 2 (Doc. # 6)). As the illegal amendment was enacted by Defendants' predecessor corporation, rather than by Defendants, who simply incorporated it into their Northrop Plan, Defendants claim that they eliminated nothing and merely made a new plan with fewer benefits which did not include the PJS Pension. Such action would be compatible with ERISA, they argue, because ERISA "neither mandates the creation of pension plans nor dictates the benefits to be afforded once a plan is created." Dade v. North American Philips Corp., 68 F.3d 1558, 1561 (3d Cir. 1993), quoted in Hein v. Federal Deposit Insur. Corp., 88 F.3d 210, 215 (3d Cir. 1996)
Section 204(g) of ERISA prohibits any "plan amendment which has the effect of (A) eliminating or reducing an early retirement benefit or a retirement-type subsidy." 29 U.S.C. § 1054(g)(1). The provision likewise prohibits any elimination or reduction of protected pension benefits with respect to any plan participant who satisfies the pre-amendment conditions for such benefits either before or after the amendment. Id. Plaintiffs argue that as the Court of Appeals for the Third Circuit in Bellas has declared Westinghouse's 1994 Amendment eliminating PJS benefits an illegal amendment, likewise Northrop Grumman's adoption of the same amendment into its Plan also constitutes an illegal amendment that wrongfully eliminates their PJS benefits.
In order to prove a violation of Section 204(g) of ERISA, Plaintiffs must show that Northrop illegally amended its Plan with the result of wrongfully eliminating their early retirement benefits. While Northrop did not formally amend its Plan to eliminate the PJS benefits, Northrop did adopt the illegal amendment into its Plan upon its conception and construed the illegal amendment to have the effect of denying the Plaintiffs the protected benefit.
The Third Circuit has held that a plan interpretation, in addition to a plan amendment, which has the effect of denying protected benefits constitutes an illegal amendment prohibited by Section 204(g) of ERISA:
[W]e must first determine whether there has been an "amendment" that reduced [the employee's] accrued benefits under the Plan. There is no evidence in the record that the actual text of the Plan was amended or modified in any way. This determination does not end our inquiry, however. An erroneous interpretation of a plan provision that results in the improper denial of benefits to a plan participant may be construed as an "amendment" for the purposes of ERISA § 204(g). Therefore, if [the employer] improperly denied [the employee] unreduced early retirement benefits, [the employer's] action could be construed as a Plan amendment, and ERISA § 204(g) would apply. The critical question is whether the employer's interpretation of the Plan improperly denied accrued benefits to the employee.
Hein, 88 F.3d at 216-17 (emphasis added). Defendants in the instant case effectively "amended" the Northrop Plan when they erroneously interpreted the 1994 Amendment, which eliminated the PJS Pension in the Westinghouse Plan, as giving them similar authority to eliminate the PJS Pension from their continuation of the Plan by adopting the illegal 1994 Amendment into the Northrop Plan. This action is sufficient to constitute an "amendment" of the Northrop Plan for purposes of a Section 204(g) violation of ERISA, as provided for in Hein.
Further, contrary to Defendants' view that under ERISA they had no obligation to provide the same benefits in the Northrop Plan as provided in the Westinghouse Plan because ERISA does not "dictate the benefits to be afforded once a plan is created," Hein, 88 F.3d at 215, because Northrop's Plan was a continuation plan, rather than a newly created plan, Defendants were obligated under ERISA to provide commensurate benefits. Section 208 of ERISA provides that in a "spin-off" situation, the transferee plan (here, the Northrop Plan) must provide benefits equal to those provided by the transferor plan (the Westinghouse Plan)
A pension plan may not merge or consolidate with, or transfer its assets or liabilities to, any other plan. . . . unless each participant in the plan would (if the plan then terminated) receive a benefit immediately after the merger, consolidation, or transfer which is equal to or greater than the benefit he would have been entitled to receive immediately before the merger, consolidation, or transfer (if the plan had then terminated) . . .29 U.S.C. § 1058 (emphasis added). In other words, "a plan spinoff is permissible only if the participants would receive no less on a hypothetical termination of the plan just after the spin-off than they would have received on a hypothetical termination just before the spin-off." Dade v. North American Philips Corp., 68 F.3d 1558, 1563 (3d Cir. 1995)
There is no question that the Northrop Plan constitutes a "spin-off plan" within the meaning of Section 208 of ERISA. When Westinghouse sold off its division to Northrop Grumman, Northrop used assets from the Westinghouse Plan to establish the new pension plan for those employees. (1st Payne Aff. ¶¶ 7 and 8 and Exhibits C and D attached thereto (Doc. # 13)). The Northrop Plan clearly stated that it was the successor plan to the Westinghouse Plan with respect to Plaintiffs, (Id., Exhibit A, p. 1, Section 1.05), and that it was "intended to be a continuation of the Westinghouse Plan . . . ." (Id., p. 128, Section E.01(a)). Further, the Northrop Plan "assumes the liabilities of the Westinghouse Plan with regard to those participants of the Westinghouse Plan who became Employees of . . . Northrop Grumman. . . ." (Id., p. 128, Section E.01(b)).
As the Bellas court made clear, one of the liabilities of the Westinghouse Plan towards its employees was the provision of PJS Pension benefits to eligible employees regardless of the 1994 Amendment which eliminated them, because the 1994 Amendment was an illegal amendment under ERISA. Likewise, as the Northrop Plan is "spin-off plan" under Section 208 of ERISA within which Westinghouse "transferred its liabilities" to Northrop under the Plan, Northrop is also responsible for the liability of providing the PJS Pension to its eligible workers and cannot invoke the illegal 1994 Amendment to deny its employees benefits equal to those provided in the Westinghouse Plan, in this case the purportedly eliminated PJS Pension benefits.
Relevant Treasury Regulations also provide authority for the proposition that early retirement benefits and retirement-type subsidies may not be eliminated under a new plan following a "spin-off." Section 204(q) of ERISA is mirrored by an identical anti-cutback provision in Section 411(d)(6) of the Internal Revenue Code, 26 U.S.C. § 411(d)(6). Treasury Regulations that interpret IRC § 411(d)(6) also apply to Section 204(g) of ERISA. See 29 U.S.C. § 1201(c) (quoted in Gillis v. Hoechst Celanese Corp., 4 F.3d 1137, 1145 (3d Cir. 1993), as mandating that "[r]egulations prescribed by the Secretary of the. Treasury under Sections 410(a), 411, and 412 of [IRC] . . . shall also apply to [their counterparts in ERISA]'").
Treasury Regulation § 1.411(d)-4 addresses the issue of whether protected early retirement benefits can be eliminated through the device of a plan spin-off and concludes:
The prohibition against the reduction or elimination of Section 411(d)(6) protected benefits already accrued applies to plan mergers, spinoffs, transfers, and transactions amending or having the effect of amending a plan or plans to transfer plan benefits.26 C.F.R. § 1.411(d)-4, QA-2, ¶(a)(3) (1992); see also 26 C.F.R. § 1.411(d)-4, QA 3 ¶(a)(1) (1992) ("Section 411(d)(6) protected benefits may not be eliminated by reason of transfer or any transaction amending or having the effect of amending a plan or plans to transfer benefits."). The already-accrued PJS Pension benefits at issue here, likewise, may not be eliminated under the Northrop Plan because of its status as a continuation or spin-off plan of the Westinghouse Plan. The same protection accorded to the PJS Pension under Bellas also applies to the identical PJS Pension at issue here.
Finally, it should be no bar to recovery for Plaintiffs that they did not become eligible for their PJS Pension benefits until after their transfer to Northrop and the implementation of the illegal amendment. Even after early retirement benefits are eliminated from a plan, transferred employees may still qualify for those benefits if they meet the pre-amendment eligibility requirements while working for their successor employer:
if [the transferor employer] had continued to employ plaintiffs after terminating its early retirement plan, plaintiffs would be able to qualify for early retirement benefits at a later date by meeting the plan's pretermination requirements . . . this same result should . . . obtain when the employees continue in their same jobs for a successor employer.
Gillis, 4 F.3d at 1145-46. In Bellas, the court held that Westinghouse employees, even after the effective date of the 1994 Amendment, could qualify for PJS benefits by meeting the preamendment conditions of eligibility. In Gillis, the court held that the combined effect of Sections 208 and 204(g) of ERISA in the context of a plan spin-off is to require the plan to fund the early retirement benefits for those who would qualify after the transfer by service to a successor employer. Gillis, 4 F.3d at 1145, cited In Dade, 68 F.3d at 1563-64. Likewise, Plaintiffs here can similarly qualify for the PJS benefits under the Northrop Plan if they meet the pre-amendment eligibility conditions of the same provision in the Westinghouse Plan. As such, Plaintiffs' Motion for Partial Summary Judgment on Count I of their Complaint should be granted.
III. CONCLUSION
For the reasons discussed above, it is recommended that. Defendants' Motion to Dismiss Plaintiff's Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) be dismissed as moot. It is further recommended that Defendants' Cross-Motion for Summary Judgment be denied and that Plaintiffs' Motion for Partial Summary Judgment be granted as to Count I.
In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.1.4(B) of the Local Rules for Magistrates, the parties are allowed ten (10) days from the date of service to file objections to this report and recommendation. Any party opposing the objections shall have seven (7) days from the date of service of objections to respond thereto. Failure to file timely objections may constitute a waiver of any appellate rights.