Zisk v. Gannett Company Income Protection Plan et al

Filing 32

ORDER CONTINUING HEARING ON MOTION TO DISMISS AND DIRECTING PARTIES TO SUBMIT JOINT STATUS STATEMENT AND RESPONSE TO SUGGESTION OF STAY, Set/Reset Deadlines as to 19 MOTION to Dismiss . Status report filed by 9/23/2014. Motion Hearing set for 8/26/2014 is CONTINUED to 9/30/2014 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Signed by Judge Yvonne Gonzalez Rogers on 8/21/14. (fs, COURT STAFF) (Filed on 8/21/2014)

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1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 JOHN ZISK, 4 5 6 7 8 9 Plaintiff, v. Case No.: 14-CV-391 YGR ORDER CONTINUING HEARING ON MOTION TO DISMISS AND DIRECTING PARTIES TO SUBMIT JOINT STATUS STATEMENT AND RESPONSE TO SUGGESTION OF STAY GANNETT COMPANY INCOME PROTECTION, LIFE INSURANCE COMPANY OF NORTH AMERICA, Defendant(s). Defendant Life Insurance Company of North America (“LINA”) has filed a motion to dismiss the Second Claim in the First Amended Complaint of Plaintiff John Zisk on the grounds 11 United States District Court Northern District of California 10 that a claim of breach of fiduciary duty against LINA, premised upon the alleged mishandling of a 12 benefit claim, is not actionable under applicable Ninth Circuit law. Plaintiff’s response to the 13 motion is devoted mainly to a discussion of the recent Ninth Circuit decision in Gabriel v. Alaska 14 Electrical Pension Fund, 755 F.3d 647 (9th Cir. 2014), the dissent therein, and the pending petition 15 for rehearing en banc. The Court granted the parties’ prior stipulation regarding consideration of 16 an amicus brief submitted by the Department of Labor in connection with the petition for rehearing 17 en banc in Gabriel, and permitted LINA to file a response addressing the arguments therein. (Dkt. 18 No. 28.) In the interim, the Ninth Circuit directed defendants-appellees in Gabriel to submit a 19 response to the petition for rehearing by August 21, 2014. 20 Based on the foregoing, the Court CONTINUES the hearing in this matter until September 21 30, 2014, at 2:00 p.m. The parties are directed to file a status report on the petition for rehearing in 22 Gabriel no later than September 23, 2014. 23 Should the Ninth Circuit grant the petition for rehearing, the Court is considering a stay of 24 this matter. The parties shall include in the status report a joint statement of their positions on the 25 propriety of a stay. The status report shall be no more than four pages. 26 27 28 IT IS SO ORDERED. Date: August 21, 2014 _______________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE

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