IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
April 18, 2012
VIRGINIA C. MOON, ON HER OWN BEHALF AND ON BEHALF OF THE PETERS RUSH HABIB & MCKENNA 401(K) PROFIT SHARING PLAN,
DAVID H. RUSH, MARK A. HABIB, AND JAMES P. MCKENNA, DEFENDANTS.
DAVID H. RUSH, COUNTER-CLAIMANT,
VIRGINIA C. MOON,
The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
The following motions have been noticed for hearing on April 30, 2012: Plaintiff Virginia C. Moon's ("Moon") motion to dismiss Defendant David H. Rush's ("Rush") state counter-claims; and Rush's counter-motion in which Rush seeks dismissal of Moon's complaint for lack of subject matter jurisdiction or, in the alternative, summary judgment on Moon's Employee Retirement Income Security Act ("ERISA") claims. Rush argues in his counter-motion that Moon "does not have statutory standing to bring [her ERISA] claims[,]" because the California Superior Court in the County of Butte entered an order on March 13, 2012 holding that Moon does not have a qualified domestic relations order. (Def.'s Counter-Mot. 1:26-2:8.)
Since Moon alleges federal subject matter jurisdiction is based on her ERISA claims, and Rush's counter-motion challenges Moon's standing to litigate her ERISA claims and seeks in the alternative summary judgment on those claims, Rush's motion will be heard and decided before the Court decides whether to resolve issues presented in Moon's motions.
Therefore, the hearing scheduled for April 30, 2012 is vacated. The hearing on Rush's motions (ECF No. 24) is rescheduled to commence at 9:00 a.m. on June 4, 2012, and the hearing on Moon's dismissal motion (ECF No. 19) is rescheduled to commence at 9:00 a.m. on for July 16, 2012.
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