UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
December 2, 2010
BEILIANG LOH, PLAINTIFF,
MILAGRO RICHARDSON-BROWNE, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Hillman, District Judge
This matter comes before the Court upon Defendants' Motions to Dismiss Plaintiff's Complaint.*fn1 (Docs. 7 & 8). Defendant Sjogren filed a Motion to Dismiss Plaintiff's Complaint for lack of subject matter jurisdiction and failure to state a claim. Defendant Richardson-Browne filed a Motion to Dismiss Plaintiff's Complaint for failure to properly effect service and that sovereign immunity bars the suit. For the reasons expressed below, Defendant Sjogren's Motion to Dismiss shall be granted and Defendant Richardson-Browne's Motion to Dismiss shall be denied as moot.
Plaintiff, an employee of Whibco, Inc. (hereinafter "Whibco"), challenges Whibco's removal of $8,396.00 from his 401(k) retirement account in the Whibco, Inc. Non-Union Retirement Plan (hereinafter "Plan").*fn3 In 2006, the Internal
Revenue Service (hereinafter "IRS") announced that individuals may contribute a maximum of $15,500 to their 401(k) account for 2007.*fn4 Sometime in 2007, Plaintiff contributed $15,500 to his 401(k) account. On August 31, 2009, Defendant Richardson-Browne, an IRS agent performing an audit of Whibco's plan, mailed IRS Form 4565 to Whibco. This form instructed the company to remove $8,396.00 from Plaintiff's 401(k) account. According to the letter, in order to remain in accordance with the Plan provisions, the $8,396.00 must be removed because it represented money deposited into Plaintiff's 401(k) account that was in excess of 15% of his compensation. Shortly after receiving this form, Whibco removed $8,396.00 from Plaintiff's 401(k) account without informing him of the withdrawal.
Plaintiff filed this Complaint on January 6, 2010. He requests, in essence, that the Court nullify IRS Form 4565 sent by Defendant Richardson-Brown, return of $8,396.00*fn5 to his 401(k) account and partial compensation of $175.00 from each party to fully compensate his $350.00 filing fee. On March 25, 2010, Defendant Richardson-Browne moved for dismissal and the following day Defendant Sjogren moved for dismissal. Plaintiff opposes both Motions.
A. Standard for Motion to Dismiss*fn6
When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6), a court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the plaintiff. Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005). It is well settled that a pleading is sufficient if it contains "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).
A district court, in weighing a motion to dismiss, asks "'not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009) ("Our decision in Twombly expounded the pleading standard for 'all civil actions' . . . ." (citation omitted)). Under the Twombly/Iqbal standard, the Third Circuit has instructed a two-part analysis. First, a claim's factual and legal elements should be separated; a "district court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Iqbal, 129 S. Ct. at 1950).
Second, a district court "must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 211 (quoting Iqbal, 129 S. Ct. at 1950). "[A] complaint must do more than allege the plaintiff's entitlement to relief." Id.; see Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) ("The Supreme Court's Twombly formulation of the pleading standard can be summed up thus: 'stating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element. This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." (quoting Twombly, 550 U.S. at 556)). The defendant bears the burden of showing that no claim has been presented. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005).
B. Plaintiff Does Not Have a Private Right of Action Under § 401(k) of the IRS Code.
Plaintiff seemingly challenges the legality of employer-based contribution caps and Whibco's removal of $8,396.00 from his 401(k) account. Plaintiff specifically contends that the Court should interpret § 401(k) of the IRS Code in a manner that does not "demonstrate prejudice against lower salaried workers who wish to make a greater contribution to their retirement accounts." (Doc. 1). Defendant Sjogren argues that Plaintiff's Complaint should be dismissed because § 401(k) of the IRS Code does not establish a private right of action.
Plaintiff brings his claim under § 401(k) of the IRS Code. It is well established that an individual may not file suit to enforce a federal law unless Congress authorizes private enforcement. McGovern v. City of Philadelphia, 554 F.3d 114, 116 (3d Cir. 2009); Three Rivers Ctr. for Indep. Living v. Hous.
Auth. of City of Pittsburgh, 382 F.3d 412, 419-20 (3d Cir. 2004). To determine whether Congress created a private enforcement right of action under a federal statute, courts must ascertain "(1) whether Congress intended to create a personal right in the plaintiff; and (2) whether Congress intended to create a personal remedy for that plaintiff." McGovern, 554 F.3d at 116; Alexander v. Sandoval, 532 U.S. 275, 286 (2001) ("The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy"). Both inquiries must be answered affirmatively before a court may conclude that Congress granted a private right of action. McGovern, 554 F.3d at 116.
After an examination of § 401 of the IRS Code, the Court cannot conclude that Congress intended to create either a personal right or remedy for the Plaintiff. Courts in other jurisdictions have also reached the same conclusion. See e.g. Reklau v. Merch. Nat. Corp., 808 F.2d 628, 631 (7th Cir.); Cowan v. Keystone Emp. Profit Sharing Fund, 586 F.2d 888, 890 n. 3 (1st Cir 1978) (Plaintiff "has also argued that he has a cause of action under I.R.C. § 401. He has not spelled out any plausible theory supporting this position, however, and we can think of none. This section does not appear to create any substantive rights that a beneficiary of a qualified retirement trust can enforce"); Wiesner v. Romo Paper Products Corp. Emp. Ret. Plan, 514 F.Supp. 289, 291 n.2 (E.D.N.Y. 1981). This Court must dismiss Plaintiff's Complaint.*fn7 Section 401 of the IRS Code does not grant Plaintiff a private cause of action, therefore, he lacks standing to proceed.*fn8
For the reasons expressed above, Defendant Sjogren's Motion to Dismiss  shall be granted and Defendant Richardson-Browne's Motion to Dismiss  shall be denied as moot. An appropriate order will be entered.
NOEL L. HILLMAN, U.S.D.J.
s/ Noel L. Hillman At Camden, New Jersey