NORSTAN INCORPORATED, DBA Black Box Network Services v. JENNIFER N. LANCASTER, Estate of James Joseph Lancaster

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORSTAN INCORPORATED, DBA
Black Box Network Services; BLACK
BOX NETWORK SERVICES
EMPLOYEE HEALTH PLAN,
Plaintiffs - Appellees,
v.
JENNIFER N. LANCASTER, Estate of
James Joseph Lancaster; ESTATE OF
JAMES JOSEPH LANCASTER, personal
representative of Jennifer N. Lancaster,
Defendants - Appellants.
No. 12-16897
D.C. No. 2:12-cv-00481-GMS
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Argued and Submitted June 14, 2013
San Francisco, California
FILED
JUL 05 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Before: SCHROEDER, RIPPLE,** and CALLAHAN, Circuit Judges.
Jennifer Lancaster, personal representative of the Estate of James Joseph
Lancaster (the “Estate”) (collectively, Ms. Lancaster and the Estate are the “Estate
Defendants”), filed this interlocutory appeal after the district court granted a
preliminary injunction requested by Norstan Inc., an ERISA plan administrator,
and Black Box Network Services Employee Health Plan (the “Plan”). The district
court’s order enjoined the Estate Defendants from dismissing or accepting
settlement of the Estate’s claims against certain medical services providers without
the written consent of the Plan, other than for amounts “above and beyond the
reasonable value of services and benefits the Plan provided to Lancaster.” Norstan
Inc. v. Lancaster, 12-cv-00481-GMS, 2012 WL 3155575, at *5 (D. Ariz. Aug. 3,
2012). We affirm.1
The Estate Defendants argue that the district court had no jurisdiction to
issue the injunction and that the Estate is not bound by the ERISA plan documents
because the Estate is not a “covered person” under the terms of the ERISA plan.
These arguments are without merit.
** The Honorable Kenneth F. Ripple, Senior Circuit Judge for the U.S.
Court of Appeals for the Seventh Circuit, sitting by designation.
1 Our jurisdiction is predicated on 28 U.S.C. § 1292(a)(1).
2

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Whether a party is “covered” under the terms of an ERISA plan “is a
substantive element of [the] claim, not a prerequisite for subject matter
jurisdiction.” Leeson v. Transamerica Disability Income Plan, 671 F.3d 969, 971
(9th Cir. 2012).
The only argument raised by the Estate Defendants in opposition to the
preliminary injunction is that the Estate is not a “covered person,” but they waived
this argument by not raising it to the district court. Even if it was not waived, the
plan documents’ definition of “covered person” clearly includes the Estate.2
The order of the district court is AFFIRMED.
2 The plan documents define “covered person” as:
(1) any individual who at the time an eligible expense is incurred is
covered under the plan and for which the plan is obligated to provide
coverage, and (2) any individual who has had benefits paid by the
plan. Covered person also includes any person acting on behalf of the
covered person, including but not limited to the covered person’s
attorney and the covered person’s estate.
E.R. 64 (emphasis added).
3

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