to diversify the investments of the Plan so as to minimize the risk of large losses as required by 29 U.S.C. § 1104(a)(1)(C). The Court held in its October 1987 Memorandum Opinion that the trustees had no discretion as to the investment of the funds; thus, summary judgment is granted as to Count Three.
Count Four alleges that the trustees violated the terms of the Plan documents by failing to limit the amount of contributions to the Plan which employers made in violation of 29 U.S.C. § 1104(a)(1)(D). The Court finds that genuine issues of material fact exist as to this count, and thus, the Court denies defendant trustees' motion as to Count Four.
In Count Five, plaintiffs allege that the trustees authorized the assessment of "surrender charges" and/or "early withdrawal penalties" against the account balances of participants in violation of 29 U.S.C. §§ 1053 and 1054(a) and (g). In the Court's October 1987 Memorandum Opinion, it was held that the trustees were not fiduciaries as to decisions regarding surrender charges. Accordingly, defendant trustees' motion for summary judgment is granted as to this count.
In Count Six, plaintiffs allege that trustees Boswell, Howard, and Andrews, as fiduciaries to the Plan, violated 29 U.S.C. § 1106(a)(1)(C) by investing Plan assets in group annuity contracts issued by National Western; purchasing with Plan assets group annuity contracts issued by National Western; and paying Plan assets to National Western in the form of premiums, commissions, fees, charges penalties, and/or compensation. Again, this leads the Court back to its October 1987 Opinion in which it held that the "trustees are not fiduciaries so far as investment decisions and surrender charges are concerned." Accordingly, summary judgment is granted as to Count Six.
Aiding and Abetting
The trustees also claim that they should be granted summary judgment on plaintiffs' claim that they aided and abetted in National Western's fiduciary breaches. The trustees argue that (1) this claim was not specifically set forth in the complaint, and thus it cannot be raised; and (2) that even if it can be raised, plaintiffs fail to make a factual or legal case of aiding and abetting.
The trustees admit that the aiding and abetting theory was raised in interrogatories and in various prior pleadings. However, they claim that the fact that it was not specifically listed in the complaint is a fatal flaw. Rule 8(a) of the Federal Rules of Civil Procedure requires that "[a] pleading which sets forth a claim for relief . . . shall contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Rule 8(e) states that "pleadings shall be simple, concise, and direct. No technical forms of pleadings or motions are required." Fed. R. Civ. P. 8(e). Rule 8(f) requires that all pleadings be "construed as to do substantial justice." Fed. R. Civ. P. 8(f).
It is readily recognized that "a complaint must be read broadly to determine whether it provides the defendant with fair notice of the claim and presents a claim which would, if proved, entitle the claimant to relief." Grogan v. General Maintenance Service, Co., 246 U.S. App. D.C. 154, 763 F.2d 444, 449 (1985) (citing Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 101-03, 2 L. Ed. 2d 80 (1957); see also Schiavone v. Fortune, 477 U.S. 21, 106 S. Ct. 2379, 2383, 91 L. Ed. 2d 18 (1986). Although neither the Court nor the parties are required to fabricate a claim which is not part of the complaint, where the gist of the complaint is clear, and where the facts set forth the legal claim such that the parties are not prejudiced, the complaint should be read broadly to incorporate such a claim. See, e.g., Grogan v. General Maintenance Service Co., 763 F.2d at 449; Hanson v. Hoffman, 202 U.S. App. D.C. 42, 628 F.2d 42, 53 (1980) (stating that the Federal Rules of Civil Procedure do not require a plaintiff to set out the facts in detail or plead the legal theories upon which he bases the claim); Genentech v. Bowen, 676 F. Supp. 301, 307-08 (D.D.C. 1987).
The trustees concede that the theory of aiding and abetting was clearly set forth in interrogatories and in pleadings filed about April 1988. The trustees have been on notice of this claim, and have not been prejudiced by plaintiffs' raising the allegation. In fact, the element necessary to prove aiding and abetting is set forth in the complaint -- knowing participation in fiduciary breaches.
See, e.g., Fink v. National Savings & Trust Co., 249 U.S. App. D.C. 33, 772 F.2d 951 (1985); Brock v. Hendershott, 840 F.2d 339, 342 (6th Cir. 1988); Lowen v. Tower Asset Management, Inc., 829 F.2d 1209, 1220-21 (2d Cir. 1987); Thornton v. Evans, 692 F.2d 1064 (7th Cir. 1982); Freund v. Marshall & Ilsley Bank, 485 F. Supp. 629 (W.D. Wis. 1979). Accordingly, the trustees' motion for summary judgment on the aiding and abetting claim is denied. The Court further determines that insufficient evidence has been presented to justify summary judgment as to the merits of this claim at this time. Accordingly, the Court also denies the defendant trustees' motion for summary judgment on the merits of plaintiffs' aiding and abetting claim.
Defendant trustees' motion for summary judgment is granted in part and denied in part. The Court grants the trustees' motion for summary judgment as to Counts One, Three, Five, and Six. The Court denies the trustees' motion for summary judgment as to Counts Two and Four and the aiding and abetting claim.