FICK

v.

METROPOLITAN LIFE INSURANCE

ORDER DENYING PLAINTIFF’S MOTION TO DISMISS COUNTERCLAIM

PAINE, District Judge.

This matter is before the court on Plaintiffs Motion to Dismiss Counterclaim, filed on September 12, 2003 (D.E.# 9). For the reasons set forth below, the court finds that the motion should be denied.

Plaintiff/Counterdefendant (“Fick”) initiated the instant action against defen-danVcounterplaintiff (“MetLife”) to recover,

inter alia,

long term disability benefits allegedly due her under the terms of an employee welfare benefit plan. MetLife responded to the complaint, and brought two counterclaims against Fick: (1) A claim for Equitable Relief Under ERISA Enforcing the Terms of the Plan; (2) A claim for Unjust Enrichment. Plaintiff now moves to dismiss defendant’s Counterclaim under

Knudson

and its progeny.

At the outset, the court notes that Fick’s motion seems to be directed to Count I of the counterclaim; that is, the claim for equitable relief under ERISA. *1316

Indeed, there is no direct mention of Count II in plaintiffs motion. Nonetheless, in the abundance of caution, Met-Life’s Amended Response to the instant motion defends against dismissal of both counts of the counterclaim. The court finds that the instant motion is directed only to Count I, but also notes that it agrees with MetLife’s reasoning why Count II should also remain

1

. Thus, the court will direct its analysis to Count I.

The crux of Fick’s argument is that MetLife fails to set forth a claim for relief under ERISA, pursuant to the holding of

Great-West Life & Annuity Insurance Co. v. Knudson,

534 U.S. 204, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002).

Knudson

concerned the scope of the term “equitable relief’ in actions brought by fiduciaries under 29 U.S.C. § 1132(a)(3). A plan fiduciary sought to enforce a plan subrogation right for medical benefits advanced by the plan against a tort settlement that was held in an attorney’s trust account.

Id.

At 208-209. The Court held that an action for restitution brought under section 1132(a)(3) seeks legal, rather than equitable, relief if it seeks a personal judgment against the defendant from any funds in the defendant’s possession.

See id.

at 213-214. Because the plan participants in

Knudson

were not in possession of the requested funds, the Court construed the action as one seeking to impose personal liability upon the plan participants for a contractual obligation to repay — and, thus, as legal relief.

See id.

However, the court clearly stated that an action for restitution is equitable, and therefore permitted under section 1132(a)(3), when it seeks the return of particular funds or property that (a)

can he traced to the defendant’s possession;

(b) belongs in good conscience to the plaintiff; and (c) has not been dissipated.

Id.

at 213-214, 122 S.Ct. 708(emphasis supplied).

Fick contends that the holding in

Knudson

bars MetLife’s counterclaim. However, the court finds the instant case distinguishable from the facts in

Knudson.

Here, Fick opted to receive her full LTD benefits without any offset for social security (during the pendency of her social security benefits). In so doing, Fick

agreed

to repay the Plan .for any overpayment. This option permitted Fick to receive full plan benefits while awaiting a decision regarding social security, as opposed to having her LTD benefits offset by an estimate of social security award. Subsequent to the option, Fick presumably received benefits from social security. It is this fact that distinguishes the case from Knudson