Free Complaint - District Court of Delaware - Delaware

I I . Case 1 :05-cv-00861-KAJ Document 1 Filed 12/13/2005 Page 1 of 4
I UNITED STATES DISTRICT COURT FOR THE
. - DISTRICT OF DELAWARE
V iiI¤l5E`i.`é£iI6,siééiiéiiiiiibi-fiséiij"I
- UNITED STATES DEPARTMENT OF LABOR, _
I - : CIVIL ACTION
I Plaintiff, _
U v. : No.
` ` UPTIME COMPUTER SERVICES, INC., and I : I
- SCUDDER INVESTMENTS,
‘ I I " I Defendants I
· I- COMPLAINT I .
I . ` I I Elaine L. Chao, Secretary of Labor, United States Department of Labor, hereby alleges:
_. r I JURISDICTION AND VENUE
I II I ` -I 1. This action arises under the Employee Retirement Income Security Act of 1974
- ‘ I U _ ("ERISA" or "the Act"), 29 U.S.C. § 1001, Q gi., and is brought to obtain relief under
_ I Sections 409 and 502 of ERISA, 29 U.S.C. §§ 1109 and 1132, in the form of equitable
I _ I- I remedies that will redress violations, obtain appropriate equitable relief for breaches of
` U I- _ I I I fiduciary duty under ERISA § 409, 29 U.S.C. § 1109, and obtain such further equitable
` I I aI _ relief as may be appropriate to enforce the provisions of Title I of ERISA. _ I
_ I I - - I- 2.- This Court has subject matter jurisdiction over this action pursuant to Section 502(e)(1)
I I I cfERIS_A, 29 U.S.C. § ll32(e)(1).
I _ · II I I I Z3. ‘ _—VenueI with respect to this action lies in the District oIf Delaware, pursuant to Section
_ . - . ‘502(e)(2) of ERISA, 29 U.S.C. § ll32(e)(2).
I _ I ‘ 4. The Uptime Computer Services, Inc. SIMPLE 40l(k)P1an("the Plan") is an employee
` _ I I · II I I benefit plan within the meaning of Section 3(3) of ERISA, 29 U.S.C. § 1002(3), and is,

_ Case 1 :05-cv-00861-KAJ Document 1 Filed 12/13/2005 Page 2 of 4
l - - l - l therefore, subject to the coverage ofthe Act pursuant to Section 4(a) of ERISA, 29 ‘
I I I _ U.S.C. § lO03(a).
A . ` 5. Uptime Computer Services, Inc. ("UCS"), a Delaware corporation, was the administrator
and sponsor of the Plan. -
‘ l 6. In December 2002, UCS terminated operations.
l _ l ` · 7. _ UCS’s corporate status in Delaware is void. `
‘ it 8. _ H For purposes of` this Complaint, the relevant period is defined as January 1, 2002 to date. I ·
. I · THE PARTIES I
` U 9. The Secretary, pursuant to Sections 502(a)(2) and (5) ofthe Act, 29 U.S.C. §§
1132(a)(2) and (5), has the authority to enforce the provisions of Title I of ERISA by,
_ · is l l l among other means, the filing and prosecution of claims against fiduciaries and others _
. ` ‘ l who commit violations of ERISA. l l
l l0. - UCS is the Plan Administrator and thus a fiduciary to the Plan within the meaning of `
` · ‘ l l l ERISA Section $(21), 29 U.S.C. § 1002(2l), and a party in interest with respect to the
U Plan within the meaning of` ERISA Section 3(14)(A), 29 U.S.C. § 1002(1-4)(A). U
__i . 11. I Scudder Investments ("Scudder”) is joined as a party defendant pursuant to Rule 19(a) of
. · l _ '.'- an · - the-Federal Rules of Civil Procedure solely to assure that complete relief can be granted. _
A I I GENERAL ALLEGATIONS
l _` 12. On or about February 1997, UCS established the Plan to provide retirement benefits to l
l l _ eligible participants of the participating employer — UCS.
- -13. l As of September 2005, the Plan had six (6) participants and approximately $17,781.42 in
‘ Plan assets. I
; . l 2 .

. I I- Case 1 :05-cv-00861-KAJ Document 1 Filed 12/13/2005 Page 3 of 4
I I I I`14. I -Scudder is the custodian for the assets held in the Plan.
- ` 15. In 2002, UCS ceased operations and stopped making contributions to the Plan.
_ . 16. Since UCS ceased operations, it has not taken fiduciary responsibility for the operation
‘ I I . and administration of the Plan and its assets, nor has it appointed anyone to assume said
I I I I U responsibility. p
I I 17. Since UCS ceased operations, participants and beneficiaries of the Plan have not been
_ - I - -. ableto obtain distributions from the Plan of their individual account balances. I
I I- Q_ g y a VIOLATIONS . I
I I _I I I I 18. Pursuant to Rule l0(c) of the Federal Rules of Civil Procedure, the Secretary adopts by
I I - I reference the averments and allegations of paragraphs 1-17, inclusive. `
I ‘ _ 19I By the actions and conduct described in paragraphs 15-17, UCS as fiduciary ofthe Plan,
I . I_ ` a. failed to discharge its duties with respect to the Plan solely in the
- - interest of the participants and beneficiaries and for the exclusive purpose of providing
I benefits to participants and its beneficiaries and defraying reasonable expenses of
_ U - I · administering the Plan, in violation of ERISA § 404(a)(l)(A), 29 U.S.C. §
i I ‘ I ` 1l04(a)(1)(A); and
I . I` ‘ I ‘ I I _ III I b. failed to discharge its duties with respect to the Plan solely in the
I ‘ - U interest of the participants and beneficiaries and with the care, skill, prudence, and
- I n` I _ diligence under the circumstances then prevailing that a prudent man acting in a like
I I I I _ __I- capacity and familiar with such matters would use in the conduct of an enterprise of a like _ ‘
‘ I I- `- ‘ _ character and with like aims, in violation of ERISA § 404(a)(1)(B), ‘
_ - 29 U.S.C. § 1l04(a)(l)(B); I ‘ I

I - _ Case 1 :05-_cv—00861-KAJ Document 1 Filed 12/13/2005 Page 4 of 4
I I PRAYER FOR RELIEF I
I ` · II I _ WHEREF ORE, the Secretary prays that this Coun; enter an Order:
_ I I I A. I Removing defendant UCS from its position as fiduciary with respect to the Plan
I. U I . and appointing an independent fiduciary to administer the Plan in order to
i _ I I ‘ I effectuate its termination and the distribution of Plan assets to the participants and
_ I . _ beneficiaries;
I I .I _ B.- Directing defendant Scudder Investments to turn the assets of the Plan over to the
[ I independent fiduciary appointed by the Court to administer the Plan; I
I I U I _ I I . IC. Awarding the Secretary the costs of this action; and
_I I _ _ _ I D. Ordering such further relief as is appropriate and just. I
_ I _ _ Howard M. Radzely _
. ‘ ` . Y Solicitor of Labor .
_ I ‘I Catherine Oliver Murphy .
‘ Regional Solicitor
//t 3;% KLEEWQ)
‘ - _ - ‘ I Mark V. Swirslcy p
` . · Attorney -
I IU.S. DEPARTMENT OF LABOR . _ .
I I p - I I Colm F. Connolly —
_ ‘ II _ — I . United States Attomey
. n _-_- _. _ ‘
- - . . . . _ I . _ Rudolph C ntreras
` I . . · . ` Chief; Civil Division
- ··‘_ ’ - _ . Assistant United States Attorney ‘ _
‘ _‘ _‘ . . ` _ District of Delaware ‘
‘ - · __ ` 1007 N. Orange Street, Suite 700 - -
- I Wilmington, DE 19899-2046 -
. _- _ _ _ . (302) 573-6277 ext. 154
` I _ Attorneys for Plaintiff I _ ` . I
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