Free Reply Memorandum - District Court of California - California

Case 5:07-cv-02623-RMW

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Filed 09/13/2007

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HARRINGTON, FOXX, DUBROW & CANTER, LLP KEVIN P. McNAMARA, State Bar No. 180690 2 1055 West Seventh Street, 29th Floor Los Angeles, California 90017-2547 3 Telephone (213) 489-3222 Facsimile (213) 623-7929 4 [email protected]
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Attorneys for Defendant RELIANCE STANDARD LIFE INSURANCE 6 COMPANY
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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ) ) Plaintiff, ) ) v. ) ) RELIANCE STANDARD LIFE ) INSURANCE COMPANY; and DOES 1 ) to 100,, ) ) Defendants. ) ) TERRY DEW HORWATH, CASE NO. C07 02623RMW (PVT) RELIANCE STANDARD LIFE INSURANCE COMPANY'S MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO PLAINTIFF'S OPPOSITION TO ITS MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT Date: Time: Ctrm: September 21, 2007 9:00 a.m. 6

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1055 WEST SEVENTH STREET, 29TH FLOOR LOS ANGELES, CALIFORNIA 90017-2547 TELEPHONE (213) 489-3222

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TO PLAINTIFF AND TO HER ATTORNEYS OF RECORD: Defendant RELIANCE STANDARD LIFE INSURANCE COMPANY ("RELIANCE STANDARD") submits its Memorandum of Points and Authorities in reply to plaintiff's Memorandum of Points and Authorities in Opposition to RELIANCE STANDARD's Motion to Dismiss Plaintiff's First Amended Complaint. /// /// /// ///
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C07 02623RMW (PVT)

RSL'S MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO PLAINTIFF'S OPPOSITION

Case 5:07-cv-02623-RMW

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Filed 09/13/2007

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MEMORANDUM OF POINTS AND AUTHORITIES 1. INTRODUCTION. Plaintiff's First Amended Complaint ("FAC") is a mirror image of the original Complaint filed, with the exception that it added the seventh cause of action, which is for benefits under the Employee Retirement Income Security Act ("ERISA"), and changed the second, third, fourth and fifth causes of action from being asserted against all defendants to being asserted against the newly added defendant DYNAMIC DETAILS, INC.1 In any event, plaintiff's first cause of action, for breach of contract, is improper as respects RELIANCE STANDARD, and plaintiff's prayer for relief, paragraphs 1 through 3, is improper, since they are preempted by ERISA. As such, RELIANCE STANDARD's Motion to Dismiss must be granted. 2. PLAINTIFF'S CLAIM FOR BREACH OF CONTRACT, AND THE RELIEF SOUGHT IN PARAGRAPHS 1 THROUGH 3 IS PREEMPTED BY ERISA. As set forth in RELIANCE STANDARD's original Motion to Dismiss, the Court's order granting RELIANCE STANDARD's original Motion to Dismiss, and in RELIANCE STANDARD's Motion to Dismiss the FAC, plaintiff's state law causes of action and prayer for relief are preempted by ERISA. Pilot Life Insurance Co. v. Dedeaux 481 US 41 (1987). This includes claims for breach of contract since ERISA does not permit recovery of "damages". Id., see also Aetna Life Insurance Co. v. Bayona 223 F.3d 1030, 1034 (9th Cir. 2000), Rutledge v. Seyfarth, Shaw, Fairweather & Geraldson 201 F.3d 1212, 1222 (9th Cir. 2000), Kanne v. Connecticut General Life
Reliance Standard notes that plaintiff neither requested, nor did the court expressly grant leave to add a new party. However, since the instant motion was filed on behalf of Reliance Standard, only, as there is no indication that plaintiff has effectuated service upon Dynamic Details, Inc., Reliance Standard merely notes this issue for the Court's convenience. F:\CASE\RAW.3084\PLEADINGS\Reply P&A.wpd C07 02623RMW (PVT) -1RSL'S MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO PLAINTIFF'S OPPOSITION
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1055 WEST SEVENTH STREET, 29TH FLOOR LOS ANGELES, CALIFORNIA 90017-2547 TELEPHONE (213) 489-3222

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Case 5:07-cv-02623-RMW

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Insurance Co. 867 F.2d 489, 493 (9th Cir. 1988), cert denied, 492 US 906 (1989) and Bast v. Prudential Insurance Co. of America (150 F.3d 1003 (9th Cir. 1998). As such, plaintiff may not proceed with a state law cause of action for breach of contract, and may not seek the remedies contained in paragraphs 1 through 3 of the prayer. 3. CONCLUSION. State law causes of action for breach of contract are clearly preempted and thus RELIANCE STANDARD's Motion to Dismiss should be granted as respects plaintiff's first cause of action. Similarly, plaintiff's prayer, paragraphs 1 through 3, is improper since plaintiff prays for general damages, mental suffering and emotional distress, special damages, exemplary and punitive damages. RELIANCE STANDARD's Motion to Dismiss should, therefore, be granted.

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1055 WEST SEVENTH STREET, 29TH FLOOR LOS ANGELES, CALIFORNIA 90017-2547 TELEPHONE (213) 489-3222

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DATED: September 12, 2007

HARRINGTON, FOXX, DUBROW & CANTER, LLP By: /s/ KEVIN P. McNAMARA Attorneys for Defendant RELIANCE STANDARD LIFE INSURANCE COMPANY

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C07 02623RMW (PVT)

RSL'S MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO PLAINTIFF'S OPPOSITION