In re New England Mut. Life Ins. Co. Litigation

54 F.3d 786

100 Ed. Law Rep. 65

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
In re NEW ENGLAND MUTUAL LIFE INSURANCE COMPANY LITIGATION.
Ronald TIMMONS; Bruce Kelley; Michael Hogan; Alice Lockwood;
David Guterson; Marilyn Vitkevich, on behalf of
themselves and all others similarly
situated, Plaintiffs-Appellants,
v.
NEW ENGLAND MUTUAL LIFE INSURANCE COMPANY, a Massachusetts
corporation; Copley Real Estate Advisors, Inc., a
Massachusetts corporation, Defendants-Appellees.

No. 94-35131.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 10, 1995.
Decided May 17, 1995.

Before: PREGERSON, KOZINSKI, and LEAVY, Circuit Judges.

1

Administration's ("SSA's") examining physician and to the medical

2

MEMORANDUM*

3

Plaintiffs, Ronald Timmons, et al., contributing members of state administered pension plans, appeal from the dismissal of their class action against New England Mutual Life Insurance Company, and Copley Real Estate Advisors, Inc. The Plaintiffs argue that: 1) the district court improperly dismissed their class action claims with prejudice; 2) the district court erroneously concluded that they did not state a statutory claim against New England/Copley under Wash. Rev. Code Sec. 11.100.130 for breach of fiduciary duties; and 3) the district court erroneously concluded that the consolidated and amended complaint did not state a claim under Washington State common law.

4

The district court's decision to dismiss with prejudice is reviewed for an abuse of discretion. Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986). The district court fully outlined its reasons for dismissing with prejudice, the Plaintiffs made no request to further amend the consolidated and amended complaint, and the district court gave clear notice that it was considering dismissal with prejudice. We therefore conclude that this case is not controlled by Schreiber and that the district court did not abuse its discretion in dismissing with prejudice.

5

With respect to the second and third issues, we find no error in the district court's conclusions. See 841 F. Supp. 345, 348-50 (W.D. Wash. 1994). Accordingly, the decision appealed from is

6

AFFIRMED.

*

This disposition is not suitable for publication and may not be cited to or by the courts of this circuit except pursuant to 9th Cir. R. 36-3