Lehr et al v. Perri Electric, Inc., et al

Filing 101

ORDER signed by Senior Judge William B. Shubb on 8/29/2019 re 91 Motion to Dismiss: Perri Electric Inc. Profit Sharing Plan and Perri Electric Profit Sharing Trust Fund have improperly brought their motion to dismiss (Docket No. 91) under Feder al Rule of Civil Procedure 12(b)(1). Because this motion concerns a substantive element of plaintiffs' claims, see id. at 979, and matters outside the pleadings, the court will treat this motion as one for summary judgment under Rule 56. See Fed. R. Civ. P. 12(d). The motion is currently set for hearing on September 9, 2019. Accordingly, the parties shall file any evidence and supplemental briefs they may wish to be considered on the motion by 9/3/2019. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PAUL LEHR and COLLEEN LEHR,
Plaintiffs,

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No. 2:17-cv-1188 WBS AC

v.

ORDER

FRANK M. PERRI; PERRI ELECTRIC,
INC., a California Corporation;
PERRI ELECTRIC INC. PROFIT
SHARING PLAN; PERRI ELECTRIC
INC. PROFIT SHARING TRUST FUND;
and DOES 1-50,
Defendants.

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----oo0oo----

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Perri Electric Inc. Profit Sharing Plan and Perri

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Electric Profit Sharing Trust Fund have improperly brought their

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motion to dismiss (Docket No. 91) under Federal Rule of Civil

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Procedure 12(b)(1).

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Plan, 671 F.3d 969, 977 (9th Cir. 2012) (“[W]hether a plaintiff

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has statutory standing in an ERISA action is a merits-based

See Leeson v. Transam. Disability Income

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determination, not a subject matter jurisdiction issue.”).

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Because this motion concerns a substantive element of plaintiffs’

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claims, see id. at 979, and matters outside the pleadings, the

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court will treat this motion as one for summary judgment under

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Rule 56.

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for hearing on September 9, 2019.

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file any evidence and supplemental briefs they may wish to be

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considered on the motion by September 3, 2019.

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See Fed. R. Civ. P. 12(d).

IT IS SO ORDERED.
Dated:

August 29, 2019

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The motion is currently set

Accordingly, the parties shall