Concha

Opinion by Judge REINHARDT; Partial Concurrence and Partial Dissent by Chief Judge WALLACE.

Pano Concha, M.D. and his ex-wife Marta Concha (“the Conchas”), on behalf of the Pano Concha, M.D., Professional Corporation Defined Benefit Plan (“the Plan”), appeal the district court’s decisions in two separate actions. In Appeal No. 93-55478 (“Concha I ”), the Conchas appeal the district court’s dismissal of their complaint, which alleged that the defendants violated their duties to the Plan under the Employee Retirement Income Security Act (“ERISA”) and under state law. We affirm the dismissal of the Conchas’ state law claims, but reverse the part of the dismissal of their ERISA claims that is challenged on appeal. We conclude that the Conchas have standing under ERISA and that they have stated claims against all the defendants. '

After the dismissal of the Conchas’ state law claims in Concha I, the Conchas filed a new complaint in state court. When the defendants removed that action to federal court and the district court refused to remand, the Conchas filed a notice purporting to dismiss the action without prejudice. The district court subsequently entered an order dismissing with…

concurring and dissenting:

I concur in the majority opinion in Concha I but dissent with respect to Part III (Concha II).

I believe the district court was incorrect to dismiss the claims in Concha II with prejudice, and the majority’s attempt to construd the Conchas’ Rule 41(a) notice of dismissal as one asking for a dismissal “with prejudice” is wholly unconvincing in light of the record.

The following events serve to put this issue in focus. Concha I was filed on July 2,1992. *1510 Concha II was filed in state court on November 17,1992, and was removed to the federal court on February 1, 1993. The Conchas moved to remand-the claims in Concha II back to state court on February 10, 1993. On February 16, 1993, the district court dismissed Concha I with prejudice. On March 8, 1993, the parties and the district judge signed a stipulation and order, stating that in the event the Conchas’ February 10, 1993, motion to remand is denied, the Conchas will dismiss Concha II but “preserv[e] any and all appeal rights.” The district court denied the Conchas’ motion to remand on March 15, 1993, and entered an order to that effect on March 24, 1993. On April 12, 1993, the London defendants…