" of the plan and are clearly not preempted.
C. Availability of Other Relief
Plaintiffs note that if they are not allowed to state a malpractice cause of action against Hewitt, they will be denied a remedy for Hewitt's conduct. Although the absence of a remedy does not undermine ERISA preemption, Olson v. General Dynamics Corp., 951 F.2d 1123, 1127 (9th Cir. 1991), it does distinguish this case from Ninth Circuit decisions which have pointed to the availability of non-ERISA based remedies as an argument in support of preemption. See, e.g., Gibson, 915 F.2d at 417.
Hewitt argues that plaintiffs may seek an equitable remedy under Section 502(a)(3) of ERISA, 29 U.S.C. § 1132(a)(3). Hewitt's argument is incorrect, however, for the Ninth Circuit has disallowed an equitable remedy for plaintiffs in this case. In Mertens et al., 948 F.2d at 612, the Ninth Circuit observed that the only way in which the district court could fashion an equitable remedy which would provide monetary relief to plaintiffs would be to order restitution. The court dismissed this possibility because plaintiffs did not allege that Hewitt had been unjustly enriched by its activities. The court also noted that plaintiffs alleged that Hewitt was paid by Kaiser Steel, not from assets of the plan. Therefore, it was not possible "to frame a claim for restitution in terms of the recovery of plan assets wrongfully obtained by Hewitt." Id.
Because the court finds that there is no preemption of the state malpractice claims in this case, it need not reach the question of whether Hewitt has waived its preemption defense.
III. Jurisdiction Over State Law Claim
In Mertens, et al., 948 F.2d at 614, the Ninth Circuit stated that this court had discretion to entertain Hewitt's state law claim. The Ninth Circuit cited United States Mine Workers of America v. Gibbs, 383 U.S. 715, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966), as authority for this proposition. Gibbs itself counseled against retention of state law claims in federal court if the federal claims were dismissed before trial, id. at 726. However, Ninth Circuit cases have interpreted Gibbs to allow retention of state claims in such situations if retention would advance judicial economy, fairness, and convenience. See, e.g., In re Nucorp Energy Securities Litigation, 772 F.2d 1486, 1491 (1985); Aydin Corp. v. Loral Corp., 718 F.2d 897, 904 (9th Cir. 1983). In this case, retention of Hewitt's state law claim by this court will avoid "imposing unnecessarily on a state court . . . a repetition of pleadings, motions, discovery and other pretrial proceedings." Nucorp, 772 F.2d at 1491. Therefore the court exercises its discretion in favor of retaining Hewitt's state law claim.
For the reasons given above, the court finds that plaintiffs' state law claim is not preempted by ERISA. Accordingly, the court DENIES defendant's motion for summary judgment. The court chooses to retain jurisdiction over Hewitt's state law claim under the pendent jurisdiction doctrine of United Mine Workers v. Gibbs, 383 U.S. 715, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966), and its progeny.
IT IS SO ORDERED.
Dated: July 7, 1992
MARILYN HALL PATEL
United States District Judge