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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOHN ZISK,

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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

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United States District Court
Northern District of California

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that a claim of breach of fiduciary duty against LINA, premised upon the alleged mishandling of a

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benefit claim, is not actionable under applicable Ninth Circuit law. Plaintiff’s response to the

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motion is devoted mainly to a discussion of the recent Ninth Circuit decision in Gabriel v. Alaska

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Electrical Pension Fund, 755 F.3d 647 (9th Cir. 2014), the dissent therein, and the pending petition

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for rehearing en banc. The Court granted the parties’ prior stipulation regarding consideration of

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an amicus brief submitted by the Department of Labor in connection with the petition for rehearing

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en banc in Gabriel, and permitted LINA to file a response addressing the arguments therein. (Dkt.

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No. 28.) In the interim, the Ninth Circuit directed defendants-appellees in Gabriel to submit a

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response to the petition for rehearing by August 21, 2014.

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Based on the foregoing, the Court CONTINUES the hearing in this matter until September

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30, 2014, at 2:00 p.m. The parties are directed to file a status report on the petition for rehearing in

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Gabriel no later than September 23, 2014.

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Should the Ninth Circuit grant the petition for rehearing, the Court is considering a stay of

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this matter. The parties shall include in the status report a joint statement of their positions on the

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propriety of a stay. The status report shall be no more than four pages.

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IT IS SO ORDERED.
Date: August 21, 2014

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YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE