Unpublished Disposition, 844 F.2d 792 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 844 F.2d 792 (9th Cir. 1988)

No. 86-6531.

United States Court of Appeals, Ninth Circuit.

Before FARRIS and REINHARDT, Circuit Judges, and HAROLD D. McKIBBEN** , District Judge.

In his brief, as well as at oral argument, Roveda waived any right to pursue the argument that the Employee Retirement Income Security Act of 1974 does not preempt his state law claims. Roveda has advised us that he wishes to pursue only ERISA claims against Hughes Aircraft. Cf. Pilot Life Insurance Co. v. Dedeaux, 107 S. Ct. 1549 (1987) (ERISA preempts state common law tort and contract claims where they relate to an employee benefit plan, are of general application, and not specifically directed at the insurance industry); Scott v. Gulf Oil Corp., 754 F.2d 1499, 1504-05 (9th Cir. 1985) (ERISA preempts claims based on state common law where conduct challenged is part of the administration of an employee benefit plan). Accordingly, we need not address the district court's ruling regarding ERISA's preemption of the state law claims.

Roveda argues that extra contractual damages should be available under Sec. 502(a) (3) of ERISA, 29 U.S.C. § 1132(a) (3). Clear precedent in this circuit prohibits such damages. Sokol v. Bernstein, 803 F.2d 532, 538 (9th Cir. 1986); see also Hancock v. Montgomery Ward Long Term Disability, 787 F.2d 1302, 1306-07 (9th Cir. 1986) (trial court did not abuse its discretion in denying additional discovery regarding employee's demand for extra contractual damages, in part because such damages are not available under Sec. 502(a) (3)0. Our careful review of Roveda's argument and citations does not convince us that the en banc court should consider reversal of that authority.



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3


Honorable Howard D. McKibben, United States District Judge for the District of Nevada, sitting by designation