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Theresa Lucerto v. Fmr A/K/A Fidelity Investments

March 7, 2011

THERESA LUCERTO PLAINTIFF,
v.
FMR A/K/A FIDELITY INVESTMENTS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Pisano, District Judge.

NOT FOR PUBLICATION

OPINION

Plaintiff Theresa Lucerto, proceeding pro se, brings this action against Fidelity Investments Institutional Operations Company, Inc. ("Fidelity"), pled as "FMR, a/k/a Fidelity Investments, Fidelity Management Trust Co.", alleging that Fidelity improperly serviced her retirement plan assets. Presently before the Court is a motion by Fidelity to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) and/or for summary judgment under Rule 56. Because in resolving the motion the Court relies upon materials outside of the pleadings, the Court shall address it as a motion for summary judgment. Plaintiff has not opposed the motion.*fn1 For the reasons below, Fidelity's motion shall be granted.

I. Background

The Court finds that the following facts are supported by the evidence of record and are undisputed:

Plaintiff was formerly employed by DHL, where she maintained a 401(k) investment account in the DHL Retirement Savings Plan ("the Plan"). See Complaint ("Comp.") ¶ 4-5; see also Declaration of Michael Zwirko ("Zwirko Decl."), Ex. 1 (Summary Plan Description ("SPD") for the Plan), Ex. 2 (Plaintiff's last 401(k) account statement from the Plan). Fidelity provided certain record-keeping and administrative services to the Plan, as directed by DHL. Comp. ¶ 1, 5; Zwirko Decl. ¶ 3.

Under the Plan, participants may choose the investments for their 401(k) account assets from many investment options. Zwirko Decl., Ex. 1 (SPD) at 11. At some point during her employment, Plaintiff affirmatively elected to invest her 401(k) account assets in various mutual funds. See id., Ex. 2 (Plaintiff's last 401(k) account statement from the Plan); Id., Ex, 1 at 11 (SPD, showing that 401(k) assets would be invested in the "Fidelity Freedom Fund" if no other investment was specified).

Upon termination employment with DHL, a participant in the Plan may instruct Fidelity to roll over a 401(k) account to an IRA, in which case the participant's investments would be transferred directly to the IRA. See id. ¶ 4 and Ex. 1 (SPD) at 7. On March 28, 2008, after the termination of Plaintiff's employment with DHL in February 2008, Plaintiff instructed Fidelity to roll over her 401(k) account assets into an IRA. Id., Ex. 3 at lines 167-75, 183-84, 218-31, 241-53 (transcript of Plaintiff's call to Fidelity, directing her 401(k) account to be rolled over). Plaintiff did so by instructing Fidelity, via telephone, to initiate the transfer of assets from her 401(k) account to her IRA, and completing Fidelity's IRA application whereby she consented to its customer and custodial agreements. Id., Ex. 3 at lines 167-75, 183-84, 218-31, 241-53, Ex. 5 (Plaintiff's IRA application) at 3 (acknowledging agreement to the Fidelity Brokerage Retirement Customer Account Agreement, Fidelity IRA Custodial Agreement, and Fidelity IRA Disclosure Statement); see also id., Ex. 6 (Fidelity Brokerage Retirement Customer Account Agreement), Ex. 7 (Fidelity IRA Custodial Agreement); Ex. 8 (Fidelity IRA Disclosure Statement).

During Plaintiff's call with Fidelity, Plaintiff was informed that Fidelity could roll over her 401(k) investments "in-kind," meaning her IRA assets would be in the same mutual funds in which her 401(k) assets were invested. Id., Ex. 3 at lines 142-67, 220-31. Fidelity's phone representative specifically explained to Plaintiff which of her holdings would rollover "in-kind", which of her holdings would be liquidated, and the dollar amount associated with both the in-kind and liquidation transactions and Plaintiff indicated that she understood. Id., Ex. 3 at lines 142-67, 220-231. Plaintiff was also informed that, when the assets were transferred to her IRA, she could modify her investments as she desired. Id., Ex. 3 at lines 148-55, 230-31.

FIDELITY: Now the amount that is going to rollover is $23, 225.77. LUCERTO: Ok, is there anytime I should wait for this, I mean, is it going to go up or is, like what happens?

FIDELITY: Well some of your stock is going to roll over in kind like your Fidelity Growth, your Fidelity Diversified International, and the Rainier Small MidCap is all going to be moved over in kind.

LUCERTO: Ok.

FIDELITY: About $7,526.46 is going to be cashed out and actually rollover ...


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