Galina Kopelev v. the Boeing Company; Boeing Employee Benefit Plans Committee; Boeing Employee Vip Plan

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GALINA KOPELEV,
Plaintiff-Appellant,
v.
THE BOEING COMPANY; BOEING
EMPLOYEE BENEFIT PLANS
COMMITTEE; BOEING EMPLOYEE
VIP PLAN,
Defendants-Appellees,
and
BOEING COMPANY VOLUNTARY
INVESTMENT PLAN,
Defendant.
No. 21-55937
D.C. No.
2:20-cv-05805-VAP-KS
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief District Judge, Presiding
FILED
DEC 9 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Submitted December 7, 2022**
San Francisco, California
Before: WALLACE, FERNANDEZ, and SILVERMAN, Circuit Judges.
Galina Kopelev appeals pro se from the district court’s dismissal with
prejudice of her breach of fiduciary duty claim1 under the Employee Retirement
Income Security Act of 19742 (“ERISA”). She also appeals from the denial of her
motion for reconsideration of the dismissal. We review de novo a dismissal
pursuant to Federal Rule of Civil Procedure 12(b)(6),3 and we review denial of
leave to amend and denial of a motion for reconsideration for abuse of discretion.4
We affirm.
To state a claim under 29 U.S.C. § 1132(a)(3), Kopelev must allege facts to
establish that: (1) she has a “remediable wrong, i.e., that the plaintiff seeks relief to
redress a violation of ERISA or the terms of a plan,” and (2) she seeks “appropriate
** The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
1 29 U.S.C. § 1132(a)(1), (3).
2 Pub. L. No. 93-406, § 1, 88 Stat. 829, 829.
3 See Vaughn v. Bay Env’t Mgmt., Inc., 567 F.3d 1021, 1024 (9th Cir. 2009);
Burgert v. Lokelani Bernice Pauahi Bishop Tr., 200 F.3d 661, 663 (9th Cir. 2000).
4 United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d
1047, 1058 (9th Cir. 2011) (leave to amend); United Nat’l Ins. Co. v. Spectrum
Worldwide, Inc., 555 F.3d 772, 780 (9th Cir. 2009) (motion for reconsideration).
2

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equitable relief.” Gabriel v. Alaska Elec. Pension Fund, 773 F.3d 945, 954 (9th
Cir. 2014). Kopelev does not adequately allege facts to establish that the
Appellees violated ERISA or the terms of the plan or that the Appellees breached
their fiduciary duty by failing to inform her affirmatively of the December 2018
distribution, or by withholding taxes from the distribution.
Dismissal with prejudice was not an abuse of discretion because any
amendment of the ERISA claim would have been futile. See Gonzalez v. Planned
Parenthood of L.A., 759 F.3d 1112, 1116 (9th Cir. 2014); cf. Kroessler v. CVS
Health Corp., 977 F.3d 803, 815 (9th Cir. 2020).
Denial of the motion for reconsideration was proper. The district court did
not err in dismissing Kopelev’s ERISA action pursuant to Rule 12(b)(6), and
Kopelev did not present the district court with new evidence or argue that there
was an intervening change in controlling law. See United Nat’l Ins., 555 F.3d at
780.
AFFIRMED.
3

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