Norine Sylvia Cave v. Delta Dental of California

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORINE SYLVIA CAVE,
Plaintiff-Appellant,
v.
DELTA DENTAL OF CALIFORNIA,
Defendant-Appellee,
and
DELTA OF CALIFORNIA,
Defendant.
No. 18-17134
D.C. No. 3:18-cv-01205-WHO
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick, District Judge, Presiding
Submitted December 11, 2019**
Before: WALLACE, CANBY, and TASHIMA, Circuit Judges.
Norine Sylvia Cave appeals pro se from the district court’s judgment in her
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
DEC 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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action under the Employee Retirement Income Security Act of 1974 (“ERISA”).
We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Hebbe v.
Pliler, 627 F.3d 338, 341 (9th Cir. 2010) (dismissal under Fed. R. Civ. P.
12(b)(6)); Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004) (summary
judgment). We affirm.
The district court properly dismissed Cave’s breach of fiduciary duty claim
because Cave failed to allege facts sufficient to state a plausible claim. See 29
U.S.C. §§ 1132(a)(2), 1132(a)(3); Gabriel v. Alaska Elec. Pension Fund, 773 F.3d
945, 954 (9th Cir. 2014) (“A claim [under § 1132(a)(3)] fails if the plaintiff cannot
establish . . . that the remedy sought is appropriate equitable relief . . . .” (citation
and internal quotation marks omitted)); Wise v. Verizon Commc’ns, Inc., 600 F.3d
1180, 1189 (9th Cir. 2010) (“To allege a fiduciary breach under § 1132(a)(2), [the
plaintiff] must allege that the fiduciary injured the benefit plan or otherwise
jeopardize[d] the entire plan or put at risk plan assets.” (citation and internal
quotation marks omitted, some alterations in original)).
The district court properly granted summary judgment on Cave’s claim for
penalties because Cave failed to raise a genuine dispute of material fact as to
whether defendant failed to produce documents that a plan administrator is
required to produce. See Lee v. ING Groep, N.V., 829 F.3d 1158, 1162 (9th Cir.
2016) (“Penalties under 29 U.S.C. § 1132(c)(1) can only be assessed against plan

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administrators for failing to produce documents that they are required to produce
as plan administrators.” (citation and internal quotation marks omitted)).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
We reject as without merit Cave’s contentions that counsel for defendant and
the district judge had conflicts of interest.
AFFIRMED.

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