Amex Assurance Company, Plaintiff-Appellant/cross-Appellee v. Calvin Ellison, Defendant-Appellee/cross-Appellant

956 F.2d 1166 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. AMEX ASSURANCE COMPANY, Plaintiff-Appellant/Cross-Appellee, v. Calvin ELLISON, Defendant-Appellee/Cross-Appellant. Nos. 90-56238, 91-55173. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 5, 1992. Decided March 6, 1992. Before BRUNETTI, O'SCANNLAIN and T.G. NELSON, Circuit Judges. 1 MEMORANDUM * 2 Amex's complaint sought a declaratory judgment that the benefits it had paid to Ellison for long-term disability had been wrongfully acquired by him since he was not, in fact, totally disabled. Although not artfully pled, federal jurisdiction was stated in Amex's claim that the policy was issued to an employee welfare benefit plan under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001-1461 . 3 Ellison filed a motion to dismiss for lack of subject matter jurisdiction pursuant to FED.R.CIV.P. 12(b)(1). Although matters extraneous to the complaint were…