
    SEVERSTAL WHEELING, INC. Retirement Committee, Timothy S. Rogers, William Drew Landon, Richard Caruso, The Wheeling Corrugating Company Retirement Security Plan, the Salaried Employees’ Pension Plan of Severstal Wheeling, Plaintiffs-Appellants, v. WHX CORPORATION, Defendant-Appellee.
    
    15-2866
    United States Court of Appeals, Second Circuit.
    August 30, 2016.
    
      Appearing for Appellants: Robert Joseph Barton (Matthew A. Smith, on the brief), Cohen Milstein Sellers & Toll PLLC, Washington, D.C.
    Appearing for Appellee: Lisa C. Sol-bakken, (Deana Davidian, on the brief), Arkin Solbakken LLP, New York, NY.
    Present: ROSEMARY S. POOLER, GERARD E. LYNCH, SUSAN L. CARNEY, Circuit Judges.
    
      
      , The Clerk of Court is respectfully directed to amend the caption as above.
    
   SUMMARY ORDER

Appellants appeal from the August 12, 2015 judgment of the District Court for the Southern District of New York (Goren-stein, M.J.), dismissing their complaint' against WHX Corporation for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

Appellant Severstal Wheeling, Inc, Retirement Committee (the “Committee”) is a named fiduciary under the Employee Retirement Income Security Act of 1974 (“ERISA”) of two defined contribution plans sponsored for the employees of Sev-erstal Wheeling, Inc. (collectively, the “Plans”). Until late 2008, the Plans were funded and maintained through a trust sponsored by the WHX Corporation (“Combined Trust”). The Combined Trust pooled the’ Plans’ assets with assets from other employee benefit plans sponsored by WHX. After Severstal Wheeling, Inc. separated from WHX, a portion of the assets was transferred from the Combined Trust to a separate trust holding the Plans’ assets (the “Severstal Trust”). Before and after the transfer, the Plans were managed by the WPN Corporation, whose sole employee was Ronald LaBow. The Committee, along with other named fiduciaries of the Plans and the Plans’ individual members, sued WHX, WPN and LaBow on behalf of the Plans. The Appellants brought claims against WHX under Section 502(a)(2) and (a)(3) of ERISA, 29 U.S.C. § 1132(a)(2), (a)(3), for breach of its own fiduciary duty and knowing participation in WPN’s breach of fiduciary duty. The district court granted WHX’s motion to dismiss the complaint on the ground that the complaint failed to allege that WHX exercised authority and control over, and thus was a fiduciary of, the Severstal Trust, and because the Complaint did not sufficiently allege an entitlement to equitable relief, which is the only relief available for knowing participation in a fiduciary breach by a non-fiduciary.

We “review a District Court’s grant of a motion to dismiss under Rule 12(b)(6) for failure to state a claim de novo, ‘accepting the complaint’s factual allegations as true and drawing all reasonable inferences in the plaintiffs favor.’ ” Carpenters Pension Tr. Fund of St. Louis v. Barclays PLC, 750 F.3d 227, 232 (2d Cir. 2014) (quoting Steginsky v. Xcelera Inc., 741 F.3d 365, 368 (2d Cir. 2014)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial -plausibility when the plaintiff pleaded factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation and internal quotation marks omitted).

The- district court dismissed Counts I and II of the Complaint on the basis that the Complaint failed to adequately allege WHX’s fiduciary status. The term “fiduciary” is defined in Section 3(21)(A) of ERISA as follows:

[A] person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan.

29 U.S.C. § 1002(21)(A). “[Wjhether or not an individual or entity is an ERISA fiduciary must be determined by focusing on the function performed, rather than on the title held.” Blatt v. Marshall & Lassman, 812 F.2d 810, 812 (2d Cir. 1987). “An entity need not have absolute discretion with respect to a benefit plan in order to be considered a fiduciary; rather, fiduciary status exists with respect to any activity enumerated in the statute over which the entity exercises discretion or control.” Id. (citations omitted).

The Committee alleges that a reasonable inference can be drawn from its complaint that WHX is a fiduciary in regard to the November 3 transfer because it “exercised actual control over the disposition of plan assets.” Appellants’ Br. at 28. But the Second Amended Complaint alleged no facts to support a claim that WHX had a role in determining which assets to transfer to the Severstal Trust, nor any facts that support a claim that they “conspired” with WPN or Ronald La-Bow in the transfer at issue. Appellants contend that WHX’s contract with WPN allowed WHX unilaterally to withdraw assets from the Combined Trust, and that WHX exercised that power. There are no allegations in the Complaint, however, linking the retained right to withdraw assets with the selection and transfer of assets to the Severstal Trust. Indeed, the Complaint itself alleges that WPN and LaBow—not WHX—directed the transfer of the assets. Thus, the allegations of the Complaint are clear that WHX did not “exercise authority or control regarding the disposition of plan assets[,] ... [and] [consequently, because [WHX] does not come within the statutory definition of ERISA, the district court correctly held that [WHX] is not ... liable for breach of fiduciary duty.” LoPresti v. Terwilliger, 126 F.3d 34, 41 (2d Cir. 1997).

Although conceding that the Complaint did not request equitable relief for WHX’s alleged participation in WPN’s fiduciary breach, the Committee argues, for the first time on appeal, that equitable relief is available in the form of restitution and disgorgement and the district court should not have dismissed its claim simply because it sought the wrong form of relief. Although it may be error to dismiss a complaint simply because it names the wrong form of relief, see Powell v. Nat’l Bd. of Med. Examiners, 364 F.3d 79, 86 (2d Cir. 2004), the Complaint did not contain sufficient allegations to suggest any entitlement to equitable relief. Even if we construed the Complaint to seek “restitution,” that would not render the requested relief equitable in nature. Whether relief is legal or equitable depends on “the basis for [the plaintiffs] claim and the nature of the underlying remedies sought.” Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 213, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002) (alterations in original) (internal quotation marks omitted). The “key factor” in determining whether “restitution” is legal or equitable “is whether a claimant was seeking restitution from a defendant’s general funds, in which case the claim was legal, or whether a claimant was seeking to recover money that could be traced to ... particular [property] held by a defendant, in which case the claim was equitable.” Cent. States, Se. & Sw. Areas Health & Welfare Fund v. Gerber Life Ins. Co., 771 F.3d 150, 155 (2d Cir. 2014); see also Great-West, 534 U.S. at 213, 122 S.Ct. 708. Here, Appellants do not seek in the Complaint “money that can be traced to” a particular fund or particular property held by- WHX. Notwithstanding Appellants’ arguments to the contrary, the Complaint alleges only an interest in 10% “of the total assets” held in the Combined Trust rather than a 10% stake in any particular asset. App’x at 65 (emphasis added). Thus, the district court correctly held that Count III failed to state a claim upon which relief can be granted.

We have considered the remainder of Appellants’ arguments and find them to be without merit. Accordingly, the judgment of the district court hereby is AFFIRMED. 
      
      . At oral argument, Appellants argued, for the first time, that WHX had a fiduciary duty with respect to the transfer of assets to the Severs-tal Trust due to an agreement between the Committee and WHX to transfer 10% of each asset held in the Combined Trust. That argument was not raised below and is accordingly waived.
     