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SMITH v. SYDNOR

No. 98-2235.

184 F.3d 356 (1999)

N. Glenn SMITH, For himself and all Plan Participants similarly situated on behalf of the James McGraw, Inc., 401(k) Plan, Plaintiff-Appellant, v. George SYDNOR, Jr.; The Mcgraw Group, Incorporated, Defendants-Appellees.

United States Court of Appeals, Fourth Circuit.

Decided July 9, 1999.

Attorney(s) appearing for the Case

Richard K. Bennett, McSweeney, Burtch & Crump, P.C., Richmond, Virginia, for Appellant. Adriaen Meredith Morse, Jr., Leclair Ryan, P.C., Richmond, Virginia, for Appellees. David J. Walton, McSweeney, Burtch & Crump, P.C., Richmond, Virginia, for Appellant. Stephen T. Gannon, James A. Murphy, Stephen T. Perkins, Leclair Ryan, P.C., Richmond, Virginia, for Appellee McGraw Group; Hugh M. Fain, III, David Shane Smith, Spotts, Smith, Fain & Buis, P.C., Richmond, Virginia, for Appellee Sydnor.

Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.

Reversed and remanded by published opinion. Judge WILLIAMS wrote the opinion, in which Judge NIEMEYER and Judge TRAXLER joined.

OPINION

WILLIAMS, Circuit Judge:

N. Glenn Smith appeals the district court's Rule 12(b)(6) dismissal without prejudice of his derivative action under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.A. §§ 1001-1461 (West 1999). The district court concluded that although Smith's amended complaint...

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