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

Filing 17

ORDER signed by Senior Judge William B. Shubb on 10/17/2017 DENYING 9 Defendants' Motion to Dismiss. (Kirksey Smith, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PAUL LEHR and COLLEEN LEHR, 12 13 14 15 16 17 18 CIV NO. 2:17-01188 WBS GGH Plaintiffs, v. ORDER RE: MOTION TO DISMISS FRANK M. PERRI, PERRI ELECTRIC, INC, a California Corporation, PERRI ELECTRIC INC. PROFIT SHARING PLAN, PERRI ELECTRIC INC. PROFIT SHARING FUND, and DOES 1-50, , Defendants. 19 20 Plaintiffs Paul and Colleen Lehr brought this action 21 against defendants Frank M. Perri, Perri Electric, Inc., Perri 22 Electric Inc. Profit Sharing Plan, Perri Electric Inc. Profit 23 Sharing Fund, and Does 1-50 alleging violations of the Employee 24 Retirement Security act of 1974 (“ERISA”), 29 U.S.C. §§ 25 1132(a)(1)(B) and 1132(a)(3). 26 Frank M. Perry and Perri Electric, Inc. Motion to dismiss for 27 failure to state a claim. 28 Before the court is defendants’ It is alleged in the complaint that Frank M. Perri was 1 1 the sole shareholder and executive officer of the entity 2 defendants; that Frank M. Perri acted as the authorized 3 representative of the Plan(s) and made affirmative claims on the 4 Plan(s) behalf to obtain insurance compensation and restitution 5 on behalf of the Plan(s); that Frank M. Perri did not use the 6 ERISA designated insurance and restitution proceeds for the 7 benefit of the Plan(s) or beneficiaries, but rather used them for 8 his own personal and/or business benefit, and; that Frank M. 9 Perri and his entities failed and refused to respond to questions 10 regarding the status of the Plan(s) and failed and refused to 11 provide the Plan(s) documentation to plaintiffs. 12 Because the foregoing facts are sufficient to state a 13 claim, IT IS HEREBY ORDERED that defendants’ motion to dismiss 14 be, and the same hereby is, DENIED. 15 Dated: October 17, 2017 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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