                                                                           FILED
                              NOT FOR PUBLICATION                           NOV 07 2012

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



JAMES WESLEY GRAY,                                No. 10-17472

                Plaintiff - Appellant,            D.C. No. 5:09-cv-03782-HRL

  v.
                                                  MEMORANDUM *
I.B.E.W. LOCAL 332 PENSION TRUST,

                Defendant - Appellee.



                     Appeal from the United States District Court
                        for the Northern District of California
                    Howard R. Lloyd, Magistrate Judge, Presiding **

                              Submitted June 29, 2012 ***


Before:         HUG, FARRIS, and LEAVY, Circuit Judges.

       James Wesley Gray appeals pro se from the district court’s order granting

appellee I.B.E.W. Local 332 Pension Trust’s (“the Plan”) motion to dismiss Gray’s


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
second amended complaint alleging violations of the Employee Retirement Income

Security Act of 1974 (“ERISA”). We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

      We review de novo a district court’s decision on a motion to dismiss for

failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Hinds

Investments, L.P. v. Angioli, 654 F.3d 846, 849-50 (9th Cir. 2011). To survive a

motion to dismiss, a complaint must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face. Id. at 850. Although we

construe a complaint in the light most favorable to the plaintiff, dismissal “is

proper where there is either a lack of a cognizable legal theory or the absence of

sufficient facts alleged under a cognizable legal claim.” Id. We may affirm on any

basis fairly supported by the record. Corrie v. Caterpillar, Inc., 503 F.3d 974, 979

(9th Cir. 2007).

      The second amended complaint asked the court to order the Plan to

compensate Gray for the litigation expenses he incurred as a result of litigation

with his ex-wife in California state courts. Gray alleged that he incurred those

litigation expenses as a result of the Plan’s breach of its fiduciary duty under

ERISA. The district court held that the law does not entitle Gray to recover his

litigation expenses. On appeal, Gray contends that the second amended complaint


                                            2                                      10-17472
was authorized by 29 U.S.C. § 1132(a) and references parts of the first three

subsections of that statute.

      Contrary to Gray’s contentions, because the second amended complaint does

not allege that the terms of the pension plan included coverage of litigation

expenses, § 1132(a)(1)(B) does not authorize the recovery of litigation expenses.

See 29 U.S.C. § 1132(a)(1)(B); Watkins v. Westinghouse Hanford Co., 12 F.3d

1517, 1528 (9th Cir. 1993).

      In addition, because the second amended complaint seeks extra-contractual

consequential damages rather than a remedy for direct injuries to an individual

pension plan account, § 1132(a)(2) does not authorize Gray to recover his litigation

expenses. See 29 U.S.C. § 1132(a)(2); 29 U.S.C. § 1109; LaRue v. DeWolff,

Boberg & Assocs., 552 U.S. 248, 255 (2008) (holding that § 1132(a)(2) “does not

provide a remedy for individual injuries distinct from plan injuries”).

      Finally, because compensation for litigation expenses is a legal remedy

rather than a traditional equitable remedy, § 1132(a)(3) does not provide a basis for

stating a claim here. See Mertens v. Hewitt Associates, 508 U.S. 248, 255-62

(1993); Farr v. U.S. West Communications, Inc., 151 F.3d 908, 915-17 (9th Cir.

1998) (holding that, even though defendants breached their fiduciary duties by

failing to inform plaintiffs about the potential tax consequences of the lump sum


                                          3                                     10-17472
distributions of their pension benefits, § 1132(a)(3) did not authorize recovery of

compensatory damages for the tax benefits losses); McLeod v. Oregon Lithoprint,

Inc., 102 F.3d 376, 378 (9th Cir. 1996) (holding that § 1132(a)(3) did not authorize

compensatory damages where defendants allegedly breached their fiduciary duty

by failing to notify plaintiff that she was eligible to apply for coverage under a

cancer insurance policy).

      Because the second amended complaint seeks a remedy that is not

authorized by ERISA, the complaint fails to state a claim upon which relief can be

granted. See Reynolds Metals Co. v. Ellis, 202 F.3d 1246, 1248-49 (9th Cir. 2000).

The district court therefore did not err when it dismissed the second amended

complaint.

      AFFIRMED.




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