The opinion of the court was delivered by: Ambrose, Chief District Judge
OPINION and ORDER OF COURT
On or about November 28, 2005, pro se Plaintiff Philip A. Garland ("Plaintiff" or "Garland") filed, with leave of court, a 17-count second amended complaint in the above-captioned action against 24 defendants including Defendants Pension Benefit Guaranty Corporation ("PBGC") and Bradley D. Belt ("Belt") (collectively, "PBGC Defendants"). See Docket No. 13. Pending is the PBGC Defendants' Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(5), and 12(b)(6). (Docket No. 72). After a careful review of the submissions by the parties, and for the reasons discussed in this Opinion, the Motion to Dismiss is granted.
Unless otherwise noted, the facts in this section are taken from Plaintiff's Second Amended Complaint.
Plaintiff was employed by Defendant US Airways as a pilot from 1982 until the termination of that employment on or about April 27, 2001.*fn1
At all pertinent times, Plaintiff was a dues-paying member of the Air Line Pilots Association ("ALPA"), the collective bargaining representative for airline pilots, including Plaintiff.
PBGC is a wholly-owned United States government corporation that administers the defined benefit pension plan termination insurance program established by Title IV of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), 29 U.S.C. §§ 1301-1461. See 29 U.S.C. § 1302; Nachman Corp. v. Pension Benefit Guar. Corp., 446 U.S. 359, 362 n.1 (1980). Sponsors of such plans pay premiums to the PBGC, and the Corporation acts as a statutory guarantor, paying benefits to participants of underfunded terminated plans subject to statutory limits. See id. §§ 1307, 1322.
On August 11, 2002, US Airways filed a voluntary petition in the Bankruptcy Court for the Eastern District of Virginia, seeking reorganization relief under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 1101, et seq. See In re U.S. Airways Group, Inc., 296 B.R. 734, 737 (Bankr. E.D. Va. 2003). On January 30, 2003, US Airways filed with the PBGC a notice of its intent to terminate its Pilots' Retirement Income Plan, a defined-benefit pension plan, citing "a serious funding shortfall." Id. at 738. US Airways simultaneously filed a motion in the bankruptcy court for the judicial findings required by ERISA to permit a distress termination of the Plan. See 29 U.S.C.
§ 1341(c)(2)(B)(ii)(IV). The bankruptcy court granted the motion. In re U.S. Airways Group, Inc., No. 02-83984, Order at 1 (Bankr. E.D. Va. Mar. 2, 2003) (citing 29 U.S.C. § 1341(c)(2)(B)(ii)(IV)).
PBGC applied to serve as successor trustee of the US Airways Plan, and its application was granted. See 29 U.S.C. § 1342(b). PBGC and US Airways entered into an agreement setting March 31, 2003 as the plan's termination date. Defendant Belt was the Executive Director of PBGC at all times relevant to the allegations set forth in the Second Amended Complaint. See 2d Am. Compl. ¶ 32.*fn2
In Count 12 of the Second Amended Complaint, Plaintiff alleges that the PBGC Defendants:
"took and commingled private and personal pension benefits due Plaintiff Garland on April 27, 2001, and by gratuitous transfer, into a common government salvage fund" (2d Am. Compl. ¶ 147);
conspired with Defendants US Airways and ALPA and "refused to pay to Plaintiff Garland his earned pension benefits or to make good on any prior offer of settlement to Plaintiff Garland, any reasonable pension and/or severance pay" Id. ¶ 149;
"would refuse Plaintiff Garland his full and complete pension benefit, without reduction or for penalty to withdraw such funds, until the unlawful, arbitration [sic] and capricious age 60 rule" Id.;
"by paying all terminating employees other than Plaintiff Garland in one lump sum, . . . discriminated against Plaintiff Garland in violation of the specific terms of the
plan, and Federal law; and have not administered the plan in accordance with a uniform and nondiscriminatory policy" Id. ¶ 152; and
"acted to conspire to discriminate against Plaintiff Garland in a malicious manner; with intent to hurt Plaintiff Garland; and for the sole reason to deny him his pension benefit because Plaintiff Garland had complained to the EEOC, the NTSB, and the District Court" Id. ¶ 153.
Plaintiff commenced this action on February 7, 2005 by filing an Application to Proceed in Forma Pauperis and attaching thereto a copy of his Complaint. (Docket No. 1). I granted Plaintiff's Application to Proceed in Forma Pauperis on February 10, 2005, and Plaintiff's Complaint was deemed filed on that date. (Docket No. 2). Plaintiff never requested issuance of a summons and none was issued. On June 29, 2005, I granted Plaintiff's Motion to Amend his Complaint. (Docket No. 7). Plaintiff's First Amended Complaint named four new defendants. Again, there was no indication in the record that Plaintiff requested the issuance of a summons and none was issued. Plaintiff did not file a waiver of service of summons or adequate proof of service with respect to either his original or first amended Complaint.
After over 120 days passed from when Plaintiff filed both his original and first amended Complaints, my deputy clerk wrote to Plaintiff requesting that he file, by November 14, 2005, either proof of service or a written explanation of why service had not been made. In response, Plaintiff filed a Motion to amend his Complaint a second time to add a new defendant and new allegations of retaliatory conduct. (Docket No. 11).
I granted Plaintiff's Motion to Amend on or about November 28, 2005, and his 17-count second amended complaint was deemed filed as of that date. (Docket No. 13). The PBGC Defendants filed the instant motion to dismiss and supporting materials on June 30, 2006. (Docket No. 72). Plaintiff opposes the ...