The opinion of the court was delivered by: O'neill, J.
On August 29, 2008, the Verizon Employee Benefits Committee filed a complaint for interpleader against Edward Kosinski, Kasia Kocka, Timothy J. Carman and Edward Kosinski as personal representative for the Estate of Loretta Kosinski. On November 19, 2008, Carman filed an answer with a counterclaim and cross-claims against the Kosinski estate and its heirs. On the same day, the Kosinski estate and its heirs filed its answer. On December 3, 2008, the Kosinski estate filed an answer to Carman's counterclaim and cross-claims.
On January 28, 2009, Edward Kosinski, as an administrator of the estate and in his own right, filed a motion to bring in a third-party defendant. On January 29, 2009, I granted Kosinski leave to file a third-party complaint. Later that day, Kosinski filed a third-party cross complaint against Hewitt Associates LLC.
Presently before me are Hewitt's motion to dismiss the third-party cross complaint, Kosinski's response, Hewitt's reply and Kosinski's sur-reply thereto.
Decedent Loretta Kosinski was an employee of Verizon Pennsylvania and a participant in the Verizon Pension Plan.*fn1 The pension plan provided for pre-retirement death benefits. On November 4, 2000, decedent designated her then-husband Timothy Carman as the beneficiary of this death benefit. In May 2006, the couple divorced.
Edward Kosinski alleges that decedent called in May 2006 to remove Carman as the recipient of her benefits but was told by the customer service representative to wait until her divorce was final to avoid additional paperwork. Kosinski alleges that decedent called again after her divorced became finaliz on June 5, 2006. The customer service representative who fielded decedent's June call removed Carman as the recipient of decedent's life insurance and 401K but allegedly told decedent that requests to change the recipient of the pension plan's death benefit must be in writing. Kosinski asserts that this was incorrect and the death benefit recipient should have been changed over the phone at that time.
Decedent died on May 6, 2007 and her pension plan beneficiary remained unchanged. Facing competing claims from Kosinski and Carman for the pension plan death benefit, the Verizon Employee Benefits Committee filed a complaint for interpleader to determine the proper recipient of decedent's death benefit.
The call center, as well as other administrative functions for the pension plan, were the responsibility of third-party plan administrator Hewitt. Kosinski alleges, in his third-party complaint, that Hewitt was negligent*fn2 and seeks "the sums incurred as counsel fees, costs and related expenses in this litigation and for any monies which are payable or are in fact paid to Timothy Carman as a result of any adverse determinations made in this litigation."
Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In ruling on a 12(b)(6) motion, I must accept as true all well-pleaded allegations of fact, and any reasonable inferences that may be drawn therefrom, in plaintiff's complaint and must determine whether "under any reasonable reading of the pleadings, the plaintiff may be entitled to relief." Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (citations omitted). Typically, "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," though plaintiffs' obligation to state the grounds of entitlement to relief "requires 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, 127 S.Ct. 1955, 1964-65 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true (even if doubtful in fact)." Id. (citations omitted). A well-pleaded complaint may proceed even if it appears "that recovery is very remote and unlikely." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). When considering a Rule 12(b)(6) motion, I do not "inquire whether the plaintiff will ultimately prevail, only whether [he is] entitled to offer evidence to support [his] claims." Nami, 82 F.3d at 65, citing Scheuer, 416 U.S. at 236.
The interpleader for the pension plan death benefits is governed by ERISA and thus qualifies for federal question jurisdiction under 28 U.S.C. § 1331. Met Life v. Price, 501 F.3d 271, 277 (3d Cir. 2007). This Court has supplemental jurisdiction for Kosinski's third-party claim pursuant to 28 U.S.C. § 1367 because the claim shares a "common nucleus of operative fact" with the interpleader. United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966); c.f. Prybowski v. U.S. Healthcare, Inc., 245 F.3d 266 (3d Cir. 2001), maintaining pendant jurisdiction over state law claims against physicians and providers while ruling that the original ERISA claim against an HMO which provided federal question jurisdiction was preempted.
Hewitt asserts that the negligence claim should be dismissed because the claim is preempted by ERISA and because it owed no duty to decedent. Kosinski asserts that the claim is not preempted by ERISA because Hewitt "is not a plan ...