Unpublished Disposition, 852 F.2d 1289 (9th Cir. 1988)

MEMORANDUM^* 

The trial court dismissed the ERISA claim for lack of subject matter jurisdiction. The dismissal was based on the court's finding that the attorney defendants were not fiduciaries for purposes of ERISA. Although we disagree with the district court's conclusion on the jurisdictional issue, we affirm.

The district court expressly treated the jurisdictional issue as a summary judgment motion. In doing so, the court considered numerous declarations submitted by the parties and concluded that the defendants could not be fiduciaries for purposes of ERISA. The district court's dismissal of the ERISA claim can therefore be characterized as a grant of summary judgment.

In Nieto v. Ecker, No. 87-5598, slip op. at 5053 (9th Cir. 1988), we held that attorneys can be fiduciaries under ERISA only if they exercise authority over the plan in a manner other than by usual professional functions. We have reviewed the record. There is no genuine issue of material fact as to the defendants' status. Any involvement the defendants had with the plan was in their usual professional functions. We also reject the contention that the ERISA claim can be based on the defendants' alleged knowing participation with fiduciaries in the breach of a trust. In Nieto, we rejected the notion that a non-fiduciary can be liable under Sec. 409(a) of ERISA for abetting a fiduciary in the breach of a trust. Id. at 5054-55.

Because the ERISA claim was dismissed from the action, the district court did not abuse its discretion in dismissing the state claims, which were based on the defendants' alleged malpractice.

AFFIRMED.