LAUREL BEELER, Magistrate Judge.
Plaintiff Gary Giannini filed a breach of contract claim and a "failure to notify" claim against Defendant Carpenters Pension Trust Fund for Northern California (the "Fund") in state court. The Fund removed the action to federal court moved to dismiss Mr. Giannini's claims, arguing that they are preempted under the Employee Retirement Income Security Act of 1974 ("ERISA"). (Notice of Removal, ECF No. 1; Motion, ECF No. 5.
Because he is proceeding pro se, the court reminded Mr. Giannini that he previously had been provided with a copy of the district court's Handbook for Litigants Without a Lawyer. (See 12/24/2014 Order (Handbook attached).) It also informed Mr. Giannini that he may wish to seek assistance from the Legal Help Center, a free service of the Volunteer Legal Services Program, by calling 415-782-8982, or by signing up for an appointment on the15th Floor of the Federal Courthouse in San Francisco, 450 Golden Gate Avenue, San Francisco, California.
On February 12, 2015, Mr. Giannini filed a letter saying that he does not understand the papers he has received from the Fund's attorneys and reiterating that all he is asking for is the money that he paid into the Fund for almost 29 years. (2/12/2015 Letter, ECF No. 20.) He also asks the court to review the papers attached to the letter, which, although they are not authenticated, appear to be (1) a letter from Mr. Giannini to the Fund that is dated January 16, 2013 in which he informs the Fund that he would like to appeal the Fund's decision, (2) a letter from the Fund to Mr. Giannini dated February 7, 2013 regarding his appeal, (3) a print-out of Mr. Giannini's pension benefit calculation, and (4) the Fund's zone status and annual funding notice for plan year September 1, 2014 through August 31, 2015.
Mr. Giannini's letter is not a First Amended Complaint, and he did not file one by the February 27, 2015 deadline for doing so. And without a First Amended Complaint, the documents he submitted cannot be considered by the court.
In light of Mr. Giannini's pro se status, the court, for this time only, will give him additional time to file a First Amended Complaint that alleges a claim under ERISA § 502(a)(1)(B). If he chooses to do so, he must do so by March 19, 2015. If he does not, the court will dismiss his action without prejudice for failure to prosecute it.
The court also once again reminds Mr. Giannini that he has previously been provided with a copy of the district court's Handbook for Litigants Without a Lawyer, and that he may wish to seek assistance from the Legal Help Center. The court attaches the Handbook and the court's February 5, 2015 order to this order, too.
Finally, in light of the court extending the time for Mr. Giannini to file a First Amended Complaint, the court continues the March 5, 2015 initial case management conference to April 23, 2015 at 11:00 a.m. in Courtroom C, 15th Floor, 450 Golden Gate Avenue, San Francisco, California 94102.
Plaintiff Gary Giannini filed a breach of contract claim and a "failure to notify" claim against Defendant Carpenters Pension Trust Fund for Northern California (the "Fund") in state court. The Fund removed the action to federal court, and now moves to dismiss Mr. Giannini's claims, arguing that they are preempted under the Employee Retirement Income Security Act of 1974 ("ERISA"). (See Notice of Removal, ECF No. 1; Motion, ECF No. 5.
On May 27, 2014, Mr. Giannini filed a complaint in Contra Costa County Superior Court against the Fund for breach of contract and "failure to notify." (Complaint, ECF No. 1 at 8-9.) He seeks $17,500. (Id. at 9.) His complaint refers to allegations made in an "attached declaration," but none was attached. (See id.) His case management statement, however, makes clear that he has sued the Fund for "withholding of retirement funds due to lack of appropriate notice." (Case Management Statement, ECF No. 1 at 10.)
On November 25, 2014, the Fund removed the action to this court, asserting federal question subject-matter jurisdiction. (Notice of Removal, ECF No. 1 at 2.) The Fund argues that federal question jurisdiction exists because Mr. Giannini's claims are "completely preempted" by ERISA. (Id.) It says that "the gravamen of the Complaint[] is to seek benefits from a pension plan governed by" ERISA. (Id.)
Thereafter, on December 2, 2014, the Fund filed a motion to dismiss Mr. Giannini's action because his claims are completely preempted by ERISA. (Motion, ECF No. 5.) Although Mr. Giannini was served with the motion, he failed to file an opposition to it within the deadline for doing so. Nevertheless, in light of Mr. Giannini's pro se status, the court issued an order extending the deadline for him to file an opposition and making clear to him that if he did not file an opposition, he risked having the court grant the Fund's motion and dismiss his action. (12/24/2014 Order, ECF No. 11.) Mr. Giannini then filed a opposition on January 8, 2015, which states (in the declaration attached to it) that he "was never informed hat [he] was supposed to send a copy of my [Social Security Disability Insurance] award letter to [the Fund] within 90 days of receiving it." (Opposition, ECF No. 13 at 6.
Upon further review of the Fund's notice of removal, it became clear that the Fund had not adequately supported its assertion of federal question jurisdiction. Accordingly, on January 23, 2015, the court sua sponte ordered the Fund to show cause why the action should not be remanded back to state court. (OSC, ECF No. 16.
A court may dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) when it does not contain enough facts to state a claim to relief that is plausible on its face. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 557.). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (internal citations and parentheticals omitted).
In considering a motion to dismiss, a court must accept all of the plaintiff's allegations as true and construe them in the light most favorable to the plaintiff. See id. at 550; Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Vasquez v. Los Angeles County, 487 F.3d 1246, 1249 (9th Cir. 2007). If the court dismisses the complaint, it should grant leave to amend even if no request to amend is made "unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Cook, Perkiss and Liehe, Inc. v. Northern California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990)). But when a party repeatedly fails to cure deficiencies, the court may order dismissal without leave to amend. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (affirming dismissal with prejudice where district court had instructed pro se plaintiff regarding deficiencies in prior order dismissing claim with leave to amend).
The Fund argues, in both its notice of removal and its motion to dismiss, that Mr. Giannini's claim is completely preempted by ERISA. The court agrees.
A state law claim may be subject to "complete preemption" or "conflict preemption" under ERISA. If a state law claim is subject to complete preemption under the civil enforcement provisions of ERISA § 502(a), it may be removed under 28 U.S.C. § 1441. See 28 U.S.C. § 1441 (defendant may remove case brought in state court if federal district courts have original jurisdiction); 28 U.S.C. § 1331 (federal district courts have original jurisdiction over claims arising under the Constitution, treaties, or laws of the United States); Marin General Hosp., v. Modesto & Empire Traction Co., 581 F.3d 941, 944-46 (9th Cir. 2009).
If, however, a state claim is subject only to conflict preemption under ERISA § 514(a), ERISA provides only a federal defense. See 29 U.S.C. § 1144(a) (relevant provisions of ERISA shall supersede state law insofar as they relate to any non-exempt ERISA employee benefit plan); Marin General Hosp., 581 F.3d at 949. What this means is that with conflict preemption, a state claim is not converted into an action "arising under federal law," and removal is improper. Metro. Life Ins. Co., 481 U.S. at 64; see also Marin General Hosp., 581 F.3d at 945.
As the removing party, the Fund has the burden of proving that jurisdiction exists. That requires the Fund to demonstrate by a preponderance of the evidence that Mr. Giannini's state law claims are subject to complete preemption under ERISA § 502(a). See Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 403-04 (9th Cir. 1996); Nishimoto v. Federman-Bachrach & Assoc., 980 F.2d 709, 712 n.3 (9th Cir. 1990). To do this, the Fund must prove that Mr. Giannini's state law claims are encompassed in ERISA's civil enforcement scheme set forth in ERISA § 502(a) by showing the following: (1) that Mr. Giannini at some point in time could have brought its claims under ERISA § 502(a)(1)(B); and (2) there is no other independent legal duty implicated by the Fund's denial of retirement benefits. See Marin General Hosp., 518 F.3d at 946 (quoting test set forth in Aetna Health Inc. v. Davila, 542 U.S. 200, 210 (2004)).
The Fund has met its burden. As for the first prong of the Davila test, Mr. Giannini could have brought his claims under ERISA § 502(a)(1)(B). The Plan Administrator for the Fund, Mr. Price, stated that the Fund was established by, and is administered in accordance with, ERISA, and the Plan and its Summary Plan Description confirms this. (Price Decl., ¶ 3, ECF No. 17-1 at 2; id., Ex. 1, ECF No. 17-1 at 75, 94.) It is a covered plan. ERISA § 502(a)(1)(B) says that a civil action may be brought by a participant or beneficiary "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." Mr. Giannini filed this action to recover the $17,500 that he believes he is owed under his ERISA-covered pension plan. Thus, he could have brought his claims under ERISA § 502(a)(1)(B).
The second prong of the Davila test is met "where there is no other independent legal duty that is implicated by a defendant's actions." Davila, 542 U.S. at 210. State law legal duties are not independent of ERISA where "interpretation of the terms of [the] benefit plan forms an essential part" of the claim, and legal liability can exist "only because of [the] administration of ERISA-regulated benefit plans." Id. at 211. Here, the basis of Mr. Giannini's claims is that the Plan did not properly administer the Plan (i.e., it breached its obligations under the Plan), and he alleges no other independent legal duty violated by the Plan. The court also cannot discern one.
Accordingly, the court finds that the second prong of the Davila test also is satisfied. Because both Davila prongs are satisfied, the court finds that Mr. Giannini's breach of contract claim and "failure to notify" claim are completely preempted by ERISA and thus must be dismissed with prejudice. See Guenther v. Lockheed Martin Corp., No. 5:11-CV-00380-EJD, 2012 WL 1155647, at *3 (N.D. Cal. Mar. 30, 2012) (dismissing with prejudice plaintiff's preempted breach of contract claim).
Based on the foregoing, the court grants the Fund's motion and dismisses with prejudice Mr. Giannini's breach of contract claim and his "failure to notify" claim with prejudice. However, because it is not clear whether it would be futile to allow Mr. Giannini to allege a claim against the Fund under ERISA § 502(a)(1)(B), the court dismisses without prejudice Mr. Giannini's complaint. See Pizza v. Fin. Indus. Reg. Auth., Inc., No. C-13-0688 MMC, 2013 WL 1891405, at *4 (N.D. Cal. May 6, 2013) (dismissing complaint without prejudice where it was not clear whether an amendment to allege ERISA claims necessarily would be futile); Puccio v. Standard Ins. Co., No. 12-cv-04640-JST, 2013 WL 1411155, at *6 (N.D. Cal. Apr. 8, 2013) (dismissing plaintiff's preempted defamation claim with prejudice but allowing plaintiff leave to amend to add a claim under ERISA).
Accordingly, Mr. Giannini may file a First Amended Complaint that alleges a claim under ERISA § 502(a)(1)(B) by February 27, 2015. Because he is proceeding pro se, the court reminds Mr. Giannini that the court previously provided him with a copy of the district court's Handbook for Litigants Without a Lawyer. (See 12/24/2014 Order (Handbook attached).) It provides instructions on how to proceed at every stage of a case, including discovery, motions, and trial. It may be download a copy at
The court also informs Mr. Giannini that he may wish to seek assistance from the Legal Help Center, a free service of the Volunteer Legal Services Program, by calling 415-782-8982, or by signing up for an appointment on the15th Floor of the Federal Courthouse in San Francisco, 450 Golden Gate Avenue, San Francisco, California. At the Legal Help Center, pro se litigants are able to speak with an attorney who may be able to provide basic legal help but not representation.
