ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS [DOCKET NO. 18]

DONNA M. RYU, Magistrate Judge.

Before the court is a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by Defendants IBM Retirement Plan (the "Plan") and International Business Machines Corporation ("IBM"). [Docket No. 18.] The court determines that the matter is appropriate for resolution without oral argument pursuant to Civil Local Rule 7-1(b). For the reasons stated below, the motion is granted in part and denied in part.

I. BACKGROUND

The Complaint [Docket No. 1] contains the following allegations.1 The Plan is a "defined benefit plan" within the meaning of the Employment Retirement Income Security Act ("ERISA") § 3(35), 29 U.S.C. § 1002(5). IBM is the "administrator" and "plan sponsor" of the Plan within the meaning of ERISA §§ 3(16)-(17), 29 U.S.C. § 1002(16)-(17). Compl. at ¶¶ 2-3.

Plaintiff Joan Gurasich began working for ROLM Corporation on January 24, 1980. In 1984, IBM acquired ROLM, which then became a division of IBM. As a result of the acquisition, Plaintiff became a "participant" in the Plan within the meaning of ERISA § 3(7), 29 U.S.C. § 1002(7). Plaintiff continues to participate in the Plan today. Compl. at ¶¶ 9-11.

In or around 1989, half of IBM's ROLM division was sold to Siemens AG and called "ROLM Systems"; the other half became a joint venture of IBM and Siemens AG and was called "ROLM Company." Plaintiff continued to work for IBM until she voluntarily resigned on February 15, 1990. On February 19, 1990, Plaintiff began working for Siemens PN. In or around May 1992, Siemens AG acquired IBM's share of ROLM Company. Compl. at ¶¶ 13-14, 17, 22.

From the 1990s until October 2013, IBM sent notices to Plaintiff confirming her participation in the Plan and entitlement to benefits under the Plan. The notices also set forth the amount of her vested pension benefits. On March 12, 2013, Plaintiff notified IBM that she had retired, and subsequently applied to begin receiving pension benefits under the Plan. However, on July 10, 2013, Plaintiff called the IBM Employee Services Center and was told that she was not eligible to receive a pension from the Plan. Compl. at ¶¶ 26-33. On October 1, 2013, Plaintiff received a denial letter from IBM in which IBM claimed that Plaintiff's retirement benefits had been transferred to ROLM pursuant to an agreement between IBM and ROLM. Compl. at ¶ 36.

Plaintiff appealed the denial. She made several requests for a copy of the agreement referenced in the denial letter, but IBM never produced it and then later claimed that it did not rely upon it to deny her claim. Despite Plaintiff's appeal, Defendants upheld the denial of her claim. Compl. at ¶¶ 40-41, 43-51, 53.

Plaintiff then brought this lawsuit, asserting four causes of action: (1) recovery of plan benefits pursuant to 29 U.S.C. § 1132(a)(1)(B), against all Defendants; (2) breach of fiduciary duty in violation of 29 U.S.C. § 1104, against IBM; (3) equitable relief pursuant to 29 U.S.C. § 1132(a)(3), against all Defendants; and (4) failure to provide requested Plan Information in violation of 29 U.S.C. § 1132(c), against all Defendants.

II. LEGAL STANDARDS

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). A court may dismiss a claim "only where there is no cognizable legal theory" or there is an absence of "sufficient factual matter to state a facially plausible claim to relief." Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)) (quotation marks omitted). A claim has facial plausibility when a plaintiff "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citation omitted). In other words, the facts alleged must demonstrate "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)); see Lee v. City of L.A., 250 F.3d 668, 679 (9th Cir. 2001), overruled on other grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).

The Federal Rules of Civil Procedure expressly permit alternate pleading: "A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones." Fed. R. Civ. P. 8(d)(2). "If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient." Id. "Inconsistent pleading" is also expressly permitted. See Fed. R. Civ. P. 8(d)(3) ("A party may state as many separate claims or defenses as it has, regardless of consistency."). "[A] pleading should not be construed as an admission against another alternative or inconsistent pleading in the same case." Aholelei v. Dep't of Pub. Safety, 488 F.3d 1144, 1149 (9th Cir. 2007) (quoting Molsbergen v. United States, 757 F.2d 1016, 1019 (9th Cir. 1985)). A district court should examine the sufficiency of each claim independent of the other claims. Molsbergen, 757 F.2d at 1018-19 (holding that district court erred by construing one cause of action as an admission against another because "the district court should have examined counts one and two of appellant's complaint independently").

Federal Rule of Civil Procedure 15(a) establishes that leave to amend "shall be freely given when justice so requires." However, "[w]hen a proposed amendment would be futile, there is no need to prolong the litigation by permitting further amendment." Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009).

III. DISCUSSION

Defendants move to dismiss the second and third causes of action (for breach of fiduciary duty and equitable relief) because, according to Defendants, they are precluded by Plaintiff's first cause of action (for recovery of plan benefits). Defendants assert that if a plaintiff brings a cause of action for recovery of plan benefits under Section 1132(a)(1)(B), then she is barred from pursuing claims under Section 1132(a)(3). For this position, Defendants rely on the Supreme Court's decision in Varity Corp. v. Howe, 516 U.S. 489 (1996), and three subsequent Ninth Circuit cases, namely, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997), overruled on other grounds Lacey v. Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012), Ford v. MCI Commc'ns Corp. Health and Welfare Plan, 399 F.3d 1076 (9th Cir. 2005) overruled on other grounds by Cyr v. Reliance Standard Life Ins. Co., 642 F.3d 1202 (9th Cir. 2011), and Wise v. Verizon Commc'ns, Inc., 600 F.3d 1180 (9th Cir. 2010).

A. Case Law on Duplicative Section 1132(a)(3) Claims

Section 1132(a)(1)(B) allows a plaintiff to "recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan."

Section 1132(a)(3) authorizes an individual beneficiary under an ERISA plan to bring suit against a plan administrator for equitable relief.2 This includes requests for equitable relief for a plan administrator or sponsor's breach of fiduciary duty. Varity, 516 U.S. at 515 (Section 1132(a)(3) authorizes beneficiaries to bring lawsuits for "`appropriate' equitable relief" for breach of fiduciary obligations). Section 1132(a)(3) is a "catchall" provision, "which provides relief only for injuries that are not otherwise adequately provided for." Forsyth, 114 F.3d at 1474 (describing Varity Corp., 516 U.S. at 512). Thus, the Supreme Court noted, "we should expect that where Congress elsewhere provided adequate relief for a beneficiary's injury, there will likely be no need for further equitable relief, in which case such relief normally would not be `appropriate.'" Varity, 516 U.S. at 515.

This court agrees with other courts in this district that have not read Varity and the Ninth Circuit cases following it to require dismissal at the pleading stage of every Section 1132(a)(3) claim when the complaint also pleads a claim under Section 1132(a)(1)(B).3 Instead, courts have dismissed Section 1132(a)(3) claims at the pleading stage only to the extent they seek relief that is duplicative of relief already sought in another cause of action. See Wise, 600 F.3d at 1190 (upholding dismissal at pleading stage of Section 1132(a)(3) claims seeking equitable relief in the form of removal of ERISA fiduciary and recovery of past and future damages, because they were duplicative of relief sought by plaintiff in her claims under Sections 1132(a)(1)(B) and 1132(a)(2)). See also Caplan, 479 F.Supp.2d at 1112-13 (dismissing Section 1132(a)(3) claim "to the extent it is duplicative of the section 1132(a)(1)(B) claim," but declining to dismiss it insofar as it seeks equitable relief that "might not be available to Plaintiff under the section 1132(a)(1)(B) claim alone"); Brady v. United of Omaha Life Ins. Co., 902 F.Supp.2d 1274, 1279-1285 (N.D. Cal. 2012) (granting motion to dismiss Section 1132(a)(3) claims seeking equitable relief in the form of removal of fiduciary, recovery of past and future benefits, and attorneys' fees, because they were duplicative of forms of relief available under plaintiff's other claims). One of the cases cited by Defendants arrives at the same conclusion. See Roque v. Roofers' Unions Welfare Trust Fund, No.12-cv-3788, 2013 WL 2242455 at *7 (N.D. Ill. May 21, 2013) ("It bears mentioning that the aforementioned precedent does not foreclose simultaneous claims under [Section 1132(a)(1)(B)] and [Section 1132(a)(3)]. Indeed, the door remains open for an ERISA plaintiff to bring a claim under both sections if the claims are truly distinct. Only where [Section 1132(a)(1)(B)] provides adequate relief is identical relief under [Section 1132(a)(3)] unavailable.") (citation omitted).

The court now examines whether the relief sought by Plaintiff in her second and third causes of action is duplicative of relief available to her under her other causes of action.

B. Application of Case Law to Plaintiff's Second and Third Causes of Action

1. Second Cause of Action: Breach of Fiduciary Duty

In her breach of fiduciary duty claim, Plaintiff alleges that "[i]n its management and administration of the IBM Plan, IBM, as the Plan Administrator, failed to use the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use, in violation of 29 U.S.C. §1104."4 Compl. at ¶ 68. Plaintiff alleged that IBM breached its fiduciary duty to her by, among other things:

Compl. at ¶ 69. Plaintiff alleges that "[a]s a result of IBM's breach of its fiduciary duties, [Plaintiff] has not received the benefits to which she is entitled under the IBM Plan requiring her to hire legal counsel and to expend money an[d] incur unexpected costs and expenses." Compl. at ¶ 70. Plaintiff therefore alleges that she "is entitled to be made whole under ERISA through an Order enforcing the provisions of the IBM Plan, plus accumulated interest, reasonable attorneys' fees, and such other relief as may be appropriate pursuant to 29 U.S.C. § 1132(a)(2) and (3)."5 Compl. at ¶ 71.

To the extent that Plaintiff's breach of fiduciary duty claim seeks equitable relief under Section 1132(a)(3) for payment of past and future benefits, it is duplicative of Plaintiff's first cause of action. However, the relief Plaintiff seeks includes not only recovery of plan benefits but also other forms of equitable relief, including a declaration that Defendants have breached their fiduciary duties to Plaintiff and a make-whole remedy to compensate her for losses suffered as a result of Defendants' breach of fiduciary duties, in the form of equitable restitution. Compl. at 13-14. Under these circumstances, the court cannot conclude that the equitable relief that Plaintiff seeks under Section 1132(a)(3) for breach of fiduciary duty is entirely foreclosed. Accordingly, the court denies the motion to dismiss with respect to this claim.6

2. Third Cause of Action: Equitable Relief

Plaintiff's claim for equitable relief under Section 1132(a)(3) is explicitly pleaded as an alternative theory of recovery to her Section 1132(a)(1)(B) claim. Plaintiff alleges that she relied upon Defendants' promises that she would continue to receive benefits under the Plan even after her employment terminated, and that Defendants did not provide Plaintiff with any notice of the transfer of her benefits under the Plan to another entity. Compl. at ¶¶ 73-75. "Therefore, should this Court determine that [Plaintiff] is not entitled to benefits under the IBM Plan, th[e]n she requests `appropriate equitable relief' . . . for Defendants' misrepresentations and breach of fiduciary duties, either through: equitable surcharge (in an amount equal to Plaintiff's losses due to Defendants[`s] representations and/or non-disclosures regarding the IBM Plan); equitable reformation (by rewriting and/or modifying the IBM Plan in order to permit [Plaintiff] to recover benefits); or equitable estoppel (by estopping Defendants from denying benefits)." Compl. at ¶ 77.

This claim is clearly distinct from Plaintiff's Section 1132(a)(1)(B) claim for recovery of benefits under the Plan, as it only applies in the alternative, in the event that Plaintiff is not entitled to benefits under the Plan. See CIGNA Corp. v. Amara, ___ U.S. ___, 131 S.Ct. 1866 (2011) (Section 1132(a)(1)(B) does not authorize a district court to reform an ERISA plan to conform with what plan's sponsor had promised, since it authorizes court to enforce but not to alter plan terms, but plaintiffs could bring claim under Section 1132(a)(3) for equitable relief in the form of reforming the plan). This claim therefore does not seek relief duplicative of the relief sought by Plaintiff in her first claim. Accordingly, the motion to dismiss is denied as to this claim as well.

IV. CONCLUSION

For the above reasons, the motion is denied, except that Plaintiff's claim for breach of fiduciary duty premised on 29 U.S.C. § 1132(a)(2) is dismissed with leave to amend. Any amended complaint must filed within one week of the date of this order.

IT IS SO ORDERED.