                                                                             FILED
                            NOT FOR PUBLICATION
                                                                              JAN 30 2017
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


TRUSTEES OF THE U.A. LOCAL 38                     No.   14-16543
DEFINED BENEFIT PENSION PLAN;
LAWRENCE MAZZOLA, Jr.,                            D.C. No. 4:13-cv-05528-YGR

              Plaintiffs-Appellants,
                                                  MEMORANDUM*
 v.

TRUSTEES OF THE PLUMBERS AND
PIPE FITTERS NATIONAL PENSION
FUND; WILLIAM P. HITE,

              Defendants-Appellees.


                  Appeal from the United States District Court
                     for the Northern District of California
                Yvonne Gonzalez Rogers, District Judge, Presiding

                     Argued and Submitted December 13, 2016
                             San Francisco, California

Before: O’SCANNLAIN, GOULD, and M. SMITH, Circuit Judges.

      Trustees of the U.A. Local 38 Defined Benefit Pension Plan (“Local 38”)

appeal the district court’s dismissal of its declaratory judgment action against the



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Trustees of the Plumbers and Pipe Fitters National Pension Fund (“National”). We

dismiss for lack of subject matter jurisdiction.

      In its complaint, Local 38 asserted that the district court had subject matter

jurisdiction over Local 38’s claims pursuant to 29 U.S.C. § 1132(e)(1), Employee

Retirement Income Security Act of 1974 (ERISA) § 502(e)(1), and 28 U.S.C.

§ 1331, because ERISA completely preempts National’s underlying state-law

breach of contract claim. If a state-law claim is completely preempted by ERISA

§ 502(a), then federal courts have federal question subject matter jurisdiction. See

Fossen v. Blue Cross & Blue Shield of Mont., 660 F.3d 1102, 1107 (9th Cir. 2011)

(“Conflict preemption under ERISA § 502(a) . . . confers federal subject matter

jurisdiction for claims that nominally arise under state law. . . . [S]tate-law claims

may be removed to federal court if the ‘complete preemption’ doctrine applies.”

(citations omitted)); Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581

F.3d 941, 945 (9th Cir. 2009) (“Complete preemption under [ERISA] § 502(a) is

‘really a jurisdictional rather than a preemption doctrine, [as it] confers exclusive

federal jurisdiction in certain instances where Congress intended the scope of a

federal law to be so broad as to entirely replace any state-law claim.’” (quoting

Franciscan Skemp Healthcare, Inc. v. Cent. States Joint Bd. Health & Welfare

Trust Fund, 538 F.3d 594, 596 (7th Cir. 2008)).


                                           2
      “[A] state-law cause of action is completely preempted if (1) an individual,

at some point, could have brought the claim under ERISA § 502(a)[], and

(2) . . . there is no other independent legal duty that is implicated by a defendant’s

actions.” Fossen, 660 F.3d at 1107–08 (quoting Marin Gen. Hosp., 581 F.3d at

946 (internal quotation marks omitted)). Both parts of this two-prong test must be

met for a state-law claim to be completely preempted. See id.

      National’s breach of contract claim is not completely preempted, and the

district court did not have subject matter jurisdiction. Neither prong of the

preemption test is satisfied. The first prong is not satisfied because National could

not have brought an action under ERISA § 502(a). National could not bring its

breach of contract claim under ERISA § 502(a)(2) because the Trustees of Local

38 do not exercise any control of National’s plan assets, and are therefore not

fiduciaries of National’s plan. See 29 U.S.C. § 1132(a)(2), ERISA § 502(a)(2); 29

U.S.C. § 1002(21)(A)(i); cf. Bos v. Bd. of Trs., 795 F.3d 1006, 1011–12 (9th Cir.

2015). National also could not have brought its action under ERISA § 502(a)(3)

because it is seeking damages for breach of contract, not equitable relief, and

because National is not seeking to address a violation of ERISA or an ERISA plan.

29 U.S.C. § 1132(a)(3), ERISA § 502(a)(3).




                                           3
      The second prong also is not satisfied. In evaluating the second prong, the

question “is whether the complaint relies on a legal duty that arises independently

of ERISA.” Marin Gen. Hosp., 581 F.3d at 950. “If there is some other

independent legal duty beyond that imposed by an ERISA plan, a claim based on

that duty is not completely preempted . . . .” Id. at 949.

      Here, the underlying breach of contract claim is not preempted because it

does not meet either the first or the second prong of the preemption test. Local

38’s obligation to remit money to National is based on the United Association

Pension Fund Reciprocal Agreement, and arises from a legal duty imposed by that

contract, not by an underlying ERISA plan. Because Local 38 had an independent

legal duty outside of ERISA, National’s breach of contract claims are not

completely preempted, and there is no federal question subject matter jurisdiction.1

      DISMISSED.




      1
        National’s Motion To Dismiss Appeal As Moot is denied for lack of
subject matter jurisdiction.
                                           4
