Eric RUBIN-SCHNEIDERMAN, Plaintiff-Appellant, v. MERIT BEHAVIORAL CARE CORP., Sati Ahluwalia, M.D., and Empire Blue Cross and Blue Shield, Defendants-Appellees, 121 F. App'x 414

SUMMARY ORDER AFTER ARGUMENT AND UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the District Court is hereby AFFIRMED in part and REMANDED in part. Plaintiff-Appellant Eric Rubin-Schneiderman appeals from the November 13, 2001 opinion and order of the United States District Court for the Southern District of New York (John S. Martin, Jr., Judge) dismissing his complaint, as well as the August 27, 2003 opinion and order of that court adhering to its earlier dismissal. We assume familiarity with the facts of this case and its procedural context.

The parties do not dispute that Aetna Health Inc. v. Davila, 542 U.S. 200, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004), and Cicio v. Does, 385 F.3d 156 (2d Cir.2004), require us to affirm the District Court’s holding that Plaintiffs common-law negligence claims are preempted by ERISA. Accordingly, we affirm that part of the District Court’s dismissal. We also affirm the District Court’s dismissal of Plaintiffs claim for a penalty under ERISA § 502(c), inasmuch as ERISA does not provide for a penalty in this type of situation.

See 29 U.S.C. § 1132(c)(1) (limiting its application to information “required by this subchapter to furnish”) (emphasis added); Bd. of Trs. of the CWA/ITU Negotiated Pension v. Weinstein, 107 F.3d 139, 143 (2d Cir.1997) (holding that 29 U.S.C. § 1024(b)(4)’s reference to “other instruments under which the plan is established or operated” encompasses formal or legal documents under which a plan is set up or managed, not “all documents by means of which the plan conducts operations”).

Finally, as to Plaintiffs request to amend his complaint to assert a fiduciary duty claim under ERISA § 502(a)(3), we note that Plaintiff raised a fiduciary duty claim under ERISA §§ 502(a)(1)(

B) and 502(a)(2) in his Amended Complaint and referred to ERISA § 502(a)(3) in his “wherefore” clause. We also note Justice Ginsburg’s statement in her concurrence in Davila that § 502(a)(3) may “‘allo[w] at least some forms of “make-whole” relief against a breaching fiduciary.’ ” 124 S.Ct. at 2504 (quoting Brief for United States as Amicus Curiae at 27-28 n. 13). Accordingly, we remand this case to the District Court for further consideration of Plaintiffs attempt at amendment of his complaint to assert a claim under ERISA § 502(a)(3). Accordingly, the judgment of the District Court is hereby AFFIRMED in part and REMANDED in part.