into by the parties and signed by the Court on March 29, 1993. However, on December 22, 1993, Bernard Hartnett, a temporary counsel to Schiffli, advised the Court by letter that Mauro had contacted him by telephone and said that he was confused as to why he was in the case, and that he no longer wished to participate in it. Affidavit of Marjorie A. Thomas, dated June 6, 1994 ("Thomas June 6 Aff.") Exhibit D.
Upon receipt of a copy of the letter, the law firm of Pollack & Greene who was then representing Schiffli contacted Mauro. Mauro told them that after speaking with representatives of the defendant Trustees, he no longer wished to participate in the suit. Pollack & Greene so advised the Court by letter dated January 1, 1994. The letter stated that it would "serve as notice to [the Court] of Mr. Mauro's decision." Thomas June 6 Aff. Exhibit E.
This was not the last word from plaintiff Mauro. Plaintiffs have submitted an affidavit signed by him on June 29, 1994 in opposition to the motion to dismiss. There Mauro testifies that he is a Plan participant and that he understands his role in the law suit. He swears that he wishes to continue as a plaintiff, and that he never authorized anyone to withdraw on his behalf. Affidavit of Alexander Mauro.
Movants challenge the subject matter jurisdiction of this Court over the allegations of breach of ERISA fiduciary duties, on the ground that there is not a proper party named as plaintiff. They argue that ERISA does not allow a Plan to bring such a claim in its own right, and that the Act does not provide for federal jurisdiction over such claims brought by a Plan. The motion for summary judgment on the state law claims is on the ground that they are pre-empted by the ERISA claims.
1. The Motion to Dismiss for Lack of Subject Matter Jurisdiction
The motion to dismiss for lack of subject matter jurisdiction is quickly dispensed with. The Court finds that Mauro never withdrew from the case. The parties originally consented to the inclusion of Mauro in order to cure a perceived jurisdictional defect. No argument has been made that this Court would lack subject matter jurisdiction with Mauro in the case.
Accordingly the motion will be denied.
The Court finds that the letters that are now claimed to announce his withdrawal fall short of establishing that fact. First, the letters are somewhat equivocal. The telephone conversations as reported in the letters of counsel reflect more confusion and uncertainty than a fixed and intelligent resolution to withdraw. The Court notes that there is a suggestion in the letter from Pollack & Greene that Mauro's uncertainty may have been the result of an improper communication by defendant trustees with a represented party.
Finally, whatever Mauro intended previously, he has obviously recanted, and is now ready to proceed as plaintiff. The Court will not give jurisdictional weight to such temporary expressions of reluctance or confusion, particularly in the face of his own sworn testimony to the contrary. Consequently, the Court will not reach the parties' many well-briefed arguments concerning this Court's subject matter jurisdiction and the standing of a Plan to sue in the absence of Mauro. Plaintiffs' cross-motion to substitute a real party at interest will be dismissed as moot without prejudice. If, in light of this opinion, plaintiffs still wish for a substitution, they may renew the motion.
2. The Motion for Summary Judgment of the State Law Claims on the Ground that they are Pre-empted by ERISA
(A) ERISA Pre-emption
ERISA pre-empts state laws that "relate to any employee benefit plan." 29 U.S.C. § 1144(a). The Supreme Court has read the pre-emption clause broadly. In Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S. Ct. 1549, 95 L. Ed. 2d 39 (1987), the Court stated:
the phrase "relate to" [is] given its broad common-sense meaning, such that a state law "relate[s] to" a benefit plan "in the normal sense of the phrase, if it has a connection with or reference to such a plan.". The pre-emption clause is not limited to "state laws specifically designed to affect employee benefits plans."
Id. at 47-48, 107 S. Ct. at 1553 (citations omitted) ; see Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739, 105 S. Ct. 2380, 2389, 85 L. Ed. 2d 728 (1985); Shaw v. Delta Air Lines, 463 U.S. 85, 97-98, 103 S. Ct. 2890, 2900, 77 L. Ed. 2d 490 (1983); see also Pane v. RCA Corp., 868 F.2d 631 (3d Cir. 1989) (state law claims for breach of contract, breach of covenant of good faith and fair dealing, and intentional infliction of emotional distress pre-empted by ERISA); Shiffler v. Equitable Life Assurance Soc., 838 F.2d 78 (3d Cir. 1988) (state law claims for breach of duty pre-empted by ERISA).
Despite the broad scope of the pre-emption clause, ERISA does not pre-empt all state law claims. Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 111 S. Ct. 478, 483, 112 L. Ed. 2d 474 (1990). The Supreme Court has stated that "some state actions may affect employee benefit plans in too tenuous, remote, or peripheral a manner to warrant a finding that the law 'relates to' the plan." Shaw, 463 U.S. at 100 n.21, 103 S. Ct. at 2901 n.21. Thus, ERISA would not pre-empt "a generally applicable statute that makes no reference to, or indeed functions irrespective of, the existence of an ERISA plan." Ingersoll-Rand, 111 S. Ct. at 483.
An obvious example was provided when the Supreme Court held that a general garnishment statute is not pre-empted even though it operates to garnish benefits payable under an ERISA plan. Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 108 S. Ct. 2182, 100 L. Ed. 2d 836 (1988); see also Shaw, 463 U.S. 85, 103 S. Ct. 2890, 77 L. Ed. 2d 490 (no pre-emption of law forbidding discrimination in employee benefits on the basis of pregnancy). In other cases, the "relates to" standard is not as clear and has led to unpredictable results. In Perry v. P*I* E Nationwide, Inc., 872 F.2d 157 (6th Cir. 1989), employees alleged breach of fiduciary duty, lack of consideration and fraud against their employer when they were induced to accept an irrevocable pay cut in exchange for a benefits package that did not live up to the employer's representations. The Sixth Circuit held that the fiduciary duty and lack of consideration claims were pre-empted, but that the fraud count was not. Id. at 162.
The extent of ERISA's pre-emption of state law governing outside professionals who provide services to ERISA plans has been described as "problematic," Jay Conison, The Federal Common Law of ERISA Plan Attorneys, 41 Syracuse L. Rev. 1049, 1083 (1990), and "unresolved." James F. Gorden, et al., Handbook on ERISA Litigation, § 5.03(A) at 5-25 (1992). Suits over benefits are so clearly within the scope of ERISA's preemption provision that they provide little guidance with regard to professional service providers. As discussed below, the case law is clear that state law claims against investment advisor fiduciaries are pre-empted, but this fact is not helpful where, as here, the status of defendants as investment advisors is at issue in the case. Most cases which have dealt in the area of pre-emption of claims against outside professionals do not propound any universally applicable rationale for their holdings, and so have little weight outside of their specific factual background. Consequently, where the role of defendants in the transaction complained of is either unclear, or settled but not on point with a controlling case, lower courts must attempt to derive some rule of general application from the case law in order to resolve the question before it.
There are two different formulations of general principle extant in the Circuits as to when ERISA will pre-empt state law governing a given situation. In the Second Circuit, Aetna Life Ins. Co. v. Borges, 869 F.2d 142 (2d Cir.), cert. denied, 493 U.S. 811, 107 L. Ed. 2d 25, 110 S. Ct. 57 (1989) said:
Laws that have been ruled preempted are  those that provide an alternative cause of action to employees to collect benefits protected by ERISA,  refer specifically to ERISA plans and apply solely to them, or  interfere with the calculation of benefits owed to an employee.
Id. at 146.
On the other hand, the Fifth Circuit has held that "a state law relates to a benefit plan if it affects relations among the principal ERISA entities-the employer, the plan, the plan fiduciaries, and the beneficiaries." Sommers Drug Stores Co. Employee Profit Sharing Trust v. Corrigan Enters., Inc., 793 F.2d 1456 (5th Cir. 1986), cert. denied, 479 U.S. 1089, 107 S. Ct. 1298, 94 L. Ed. 2d 154 (1987).
Aetna also noted that where a law operated in an area of traditional state power or regulatory authority it would weigh against pre-emption. 869 F.2d at 146. The Second Circuit has often relied on this reasoning. See, e.g., Rebaldo v. Cuomo, 749 F.2d 133, 138 (2d Cir. 1984) (state hospital regulation); AT&T Co. v. Merry, 592 F.2d 118, 121 (1979) (family law implications of garnishing spouses benefits). Sommers disapproved of this factor as without basis in the statutory language. 793 F.2d at 1468 (quoting 29 U.S.C. § 144(c)(2)).
The Court's research has not uncovered a clear preference between the two, or a statement of its own general policy on the part of the Third Circuit. In Painters of Philadelphia Dist. Coun. No. 21 Welfare Fund v. Price Waterhouse, 879 F.2d 1146 (3d Cir. 1989), the Third Circuit appeared to apply elements of both the Sommers and the Aetna rule. Painters held first that accountants did not become fiduciaries to a plan when they performed yearly audits for it. 879 F.2d at 1149-51. The court further held that ERISA did not provide a cause of action against the auditors who did not participate in a breach of fiduciary duty, but merely failed to report it to the plan's trustees. Id. at 1152. Finally, the court held that a professional malpractice claim against the accountants was not pre-empted by ERISA. Id. at 1152-53 & n.7.
Because the decision turned so heavily on the finding that the accountants were not fiduciaries to the plan, the case appears to follow the reasoning of Sommers in defining the scope of ERISA pre-emption by the relationships between the ERISA entities themselves. On the other hand, Painters also alludes to the rationale of traditional state regulation employed in Aetna:
State law has traditionally prescribed the standards of professional liability and, in the absence of clear indicia in the Act or legislative history, we are reluctant to ascribe to Congress an intention to intrude in this area. . . . We feel that professional malpractice actions brought by a plan are directly analogous to the situation in Mackey,3 Congress did not intend to preempt a whole panoply of state law in this area. Thus we conclude that ERISA does not generally preempt state professional malpractice actions.