SAXTON v. CENTRAL PENNSYLVANIA TEAMSTERS PENSION FUND, (E.D.Pa. 2003)

FRANKLIN VAN ANTWERPEN, District Judge

AND NOW, this 9^th day of December, 2003, upon consideration of Defendants' Motion to Dismiss Plaintiffs' Amended Complaint, filed on September 26, 2003, Plaintiffs' Memorandum In Opposition To Defendants' Motion To Dismiss Amended Complaint, filed on October 28, 2003, and Defendants' Reply Memorandum Of Law In Further Support Of Defendants' Motion To Dismiss Plaintiffs' Amended Complaint, filed on November 14, 2003, consistent with the foregoing Opinion, it is hereby ORDERED:

1. Defendants' Motion To Dismiss is GRANTED IN PART and DENIED IN PART as follows:

a. Count 1, Count III, Count IV, Count V, Count VI and Count VII of Plaintiffs' Amended Complaint are DISMISSED in their entirely WITH PREJUDICE;

b. Defendants' Motion To Dismiss Count II of Plaintiffs' Amended Complaint is GRANTED IN PART and DENIED IN PART as follows:

i. Plaintiffs' breach of fiduciary duty claims for Defendants' alleged inappropriate amendments to the 1999 Trust Agreement are DISMISSED WITH PREJUDICE;

ii. Defendants' Motion To Dismiss Plaintiffs' breach of fiduciary duty claims for Defendants' alleged improper issuance of the "thirteenth check" is DENIED;

iii. Defendants' Motion To Dismiss Plaintiffs' breach of fiduciary duty claims for Defendants' alleged failure to prudently and effectively monitor the performance of investment advisors and managers responsible for the investment of plan assets is DENIED;

iv. Plaintiffs' prohibited transaction claim for Defendants' alleged improper issuance of the "thirteenth check" is DISMISSED WITHOUT PREJUDICE to Plaintiffs' right to file a Second Amended Complaint;

v. Plaintiffs' prohibited transaction claim for Defendants' alleged inappropriate amendments to the 1999 Trust Agreement is DISMISSED WITH PREJUDICE.