facts indicating that Smith submitted a “claim for benefits” as a participant or beneficiary of an 25 ERISA-governed plan. See 29 U.S.C. § 1133. 26 Overall, the FAC does not plausibly establish that Smith has a stake in the funds in 27 question. It also does not plausibly allege that defendants did anything wrong. In effect, the FAC 1 says only that approximately $21,318.43 was transferred out of Smith’s wife’s plan in 2008 for 2 unknown reasons. Dkt. No. 35 at 2. Nothing in the FAC pushes this transfer into the realm of an 3 ERISA violation, even assuming the statute applies, or any other wrongful conduct. As the FAC 4 currently stands, it is equally probable that the transfer was proper, which is not enough for 5 purposes of Rule 8. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Where a complaint pleads 6 facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between 7 possibility and plausibility of entitlement to relief.’”) (quoting Bell Atl. Corp. v. Twombly, 550 8 U.S., 544, 557 (2007)). 9 It is also worth noting that, assuming ERISA applies, the FAC does not establish that 10 Smith exhausted his administrative remedies. See Vaught v. Scottsdale Healthcare Corp. Health 11 Plan, 546 F.3d 620, 626 (9th Cir. 2008) (plaintiffs generally must exhaustive administrative 12 remedies under the relevant benefit plan prior to bringing suit under ERISA). And while statute of 13 limitations questions are typically not appropriate for resolution in a pleadings motion, see Dkt. 14 No. 33 at 3, the FAC should offer some facts explaining why Smith had no reason to believe he 15 was a beneficiary between his wife’s death in 2007 and the notice he received from the Social 16 Security Administration (SSA) in 2020. See N. Cal. Retail Clerks Unions & Food Emps. Joint 17 Pension Tr. Fund v. Jumbo Mkts., Inc., 906 F.2d 1371, 1372 (9th Cir. 1990) (four-year statute of 18 limitations applies to ERISA claims). 19 The Court is sympathetic to Smith’s likely feelings of surprise and concern after getting 20 the rather mysterious notice from the SSA. Even so, the FAC cannot go forward in its present 21 posture, and so it is dismissed with leave to amend. This will be the final opportunity to amend. 22 Alternatively, the parties may wish to put their pencils down and figure out a way to settle a claim 23 of approximately $21,000 without incurring more fees and attorney time. A common-sense 24 settlement seems eminently attainable here. Defendants should consider running Smith’s wife’s 25 name through their benefit and contribution plan databases to determine whether she was a 26 participant, and if so, what happened to her account. The Court is not ordering this step at this 27 time, but it would seem to be a reasonable and humane thing to do in this situation. 1 Smith may file an amended complaint by January 31, 2023. The amended complaint must 2 || be consistent with this order and may not add any new claims or parties without the Court’s prior 3 approval. Failure to amend by the deadline will result in dismissal under Federal Rule of Civil 4 || Procedure 41(b). The case is stayed in all other respects pending further order. 5 IT IS SO ORDERED. 6 || Dated: January 11, 2023 7 8

JAMES JONATO

9 United ptates District Judge 10 11 12

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