Trustees of Southern California Bakery Drivers Security Fund v. Middleton

MEMORANDUM

Bakery Drivers sued South Bay for breach of fiduciary duties under the Employment Retirement Income Securities Act (“ERISA”). Bakery Drivers and South Bay are multi-employer employee benefit plans. From 1987 to 2001, Bakery Drivers contracted with South Bay to provide its members with death and dismemberment benefits in exchange for per-participant monthly payments. In Trustees of the So. California Bakery Drivers See. Fund v. Middleton, 474 F.3d 642 (9th Cir. 2007) (Middleton I), we held that South Bay breached its fiduciary duty to Bakery Drivers by failing to apply surplus funds received under the contracts for the exclusive benefit of plan participants. On remand, the district court entered judgment, construing Middleton Fs mandate to prevent it from adjudicating South Bay’s affirmative defenses. We affirm the district court.

1. Although the Middleton I mandate did not make this point explicitly, the district court should have decided the merits of South Bay’s affirmative defenses. An appellate court’s mandate leaves for the trial court’s consideration any issue not expressly or impliedly resolved by the appellate court. Filth v. United States, 554 F.2d 990,…