Courts had dismissed ERISA cases for lack of subject matter jurisdiction when the plaintiff was not a plan “participant, beneficiary or fiduciary.” Harris v. Provident Life Accident Ins. Co., 26 F.3d 930, 934 (9th Cir. 1994).
Not any more in the Ninth Circuit. The issue is now merely an element of the ERISA case. Rather than a subject matter motion, attorneys in the Ninth Circuit are advised to fashion their motions to dismiss as a “failure to state a claim.”
Here’s the case of Leeson v Transamerica Disability Income Plan, __F.3d__ (9th Cir. January 23, 2012) ( “The issue of participant status goes to the merits of the claim and not to the subject matter jurisdiction of the district court.”)(Overrules prior Ninth Circuit precedent including Curtis v. Nevada Bonding Corp. (9th Cir. 1995) 53 F. 3d 1023, 1027)).
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