United States District Court, E.D. Louisiana
ORDER & REASONS
M. AFRICK, UNITED STATES DISTRICT JUDGE
the Court is a motion to dismiss filed by defendant The
Building Trades United Pension Trust Fund (the “Pension
Fund”). Also made defendant is the Pension
Fund's Board of Trustees (the “Board of
Trustees”). The Pension Fund moves to dismiss
plaintiff Deborah Theriot's (“Theriot”)
claims against it brought pursuant to the Employee Retirement
Income Security Act of 1974 (“ERISA”). Theriot
asserts her claims in her capacity as the court-appointed
independent administrator of the Succession of Audrey L.
Hamann. Theriot filed a response in opposition to
the Pension Fund's motion,  and the Pension Fund filed a
reply. The parties also submitted supplemental
briefing pursuant to this Court's
Pension Fund filed its motion pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, asserting in part that
Theriot failed to state a claim upon which relief can be
granted. Specifically, the Pension Fund argues that
Theriot does not have standing under ERISA to assert her
claims and that she has failed to exhaust available
administrative procedures. The Pension Fund also argues, pursuant
to Rule 12(b)(3), that this district is not the proper venue
for Theriot's lawsuit. For the following reasons, the
motion is granted in part and denied in part, as stated
Court must first address the issue of standing. Along with
its motion, the Pension Fund attached a number of exhibits
that Theriot references in her complaint. At a May 29, 2019
status conference, the parties agreed that the Court may look
beyond the pleadings and consider the exhibits when
considering the motion.Theriot also attached exhibits in
response to the motion to dismiss.
Court finds that the following facts related to Theriot's
standing under ERISA are undisputed:
A. Hamann (“Mr. Hamann”) participated in a
pension plan (“the Plan”) sponsored and
underwritten by the Pension Fund and administered through the
Board of Trustees. Mr. Hamann died on December 30, 2016,
and his wife, Audrey L. Hamann (“Mrs. Hamann”)
became entitled to post-retirement survival benefits by the
express terms of the Plan.
January 11, 2017, Mrs. Hamann submitted her application for
the post-retirement survivor benefit to the Pension
Fund. The application form allows the
applicant to choose how she will receive her benefits: as a
monthly annuity or as a lump sum equivalent. The benefit
illustration sheet explains:
You, the survivor, may instead elect to receive the benefit
as an actuarially equivalent lump sum. If you initially elect
a monthly benefit payment, you may elect at any time in the
future to receive the remainder of the Post-Retirement
Survivor benefit as a lump sum.
Hamann elected to receive her benefits under the monthly
letter dated March 1, 2017, Mrs. Hamann received notice that
her application for survivor benefits had been approved and
that she would receive monthly payments of
$693.63. The letter also advised Mrs. Hamann that
she could elect to receive her benefits in a lump sum
“at any time in the future.” That same
month, the Pension Fund mailed Mrs. Hamann a change form
whereby she could convert her monthly benefits into a lump
sum payment. The Pension Fund instructed Mrs. Hamann
to return the change form “by April 5, 2017 to receive
the payment on May 1, 2017.” Mrs. Hamann completed and
returned the change form, which the Pension Fund received on
April 4, 2017. Mrs. Hamann unfortunately passed away on
April 5, 2017.
Mrs. Hamann's death, her daughter, Theriot, inquired
about the lump sum payment. The Pension Fund sent Theriot
a letter dated April 18, 2017 explaining that she was not
entitled to the lump sum payment:
Plan documents state that the Joint and Survivor benefit is
payable for the survivor's lifetime. Therefore[, ] the
payment dated April 1, 2017 was the final payment Mrs. Hamann
was eligible to receive from this Fund. The paperwork Mrs.
Hamann submitted for a Lump Sum payment was for May 1, 2017
and would not be payable due to the fact that she was not
living at that time.
U.S. Fifth Circuit Court of Appeals has “recognized
that standing is essential to the exercise of jurisdiction
and is a ‘threshold question . . . [that] determin[es]
the power of the court to entertain the suit.'”
Coleman v. Champion Int'l Corp./Champion Forest
Prods., 992 F.2d 530, 532 (5th Cir. 1993) (quoting
Warth v. Seldin, 422 U.S. 490, 498 (1975)).
the Pension Fund filed its motion pursuant to Rule 12(b)(6),
the standing inquiry is more appropriately considered under
Rule 12(b)(1). The Pension Fund's “argument that
[Theriot] lacks standing to bring suit under ERISA is
properly considered as a jurisdictional attack under Rule
12(b)(1).” Feingerts v. Feingerts, No.
15-2895, 2016 WL 2744812, at *7 (E.D. La. May 10, 2016)
(citing Piro v. Nexstar Broad, Inc., No. 11-2049,
2012 WL 2089596, at *3 (W.D. La. Apr. 10, 2012); Cobb v.
Cent. States, 461 F.3d 632, 635 (5th Cir. 2006); see
also Lee v. Verizon Comms., Inc., 837 F.3d 523, 533 (5th
Cir. 2016) (“As a matter of subject matter
jurisdiction, standing under ERISA § 502(a) is subject
to challenge through Rule 12(b)(1).”); Mem'l
Hermann Health Sys. v. Pennwell Corp. Med. & Vision
Plan, No. H-17-2364, 2017 WL 6561165, at *4 (S.D. Tex.
Dec. 22, 2017) (recognizing that the Fifth Circuit treats
standing under ERISA as a jurisdictional matter and applying
Rule 12(b)(1)); James v. La. Laborers Health &
Welfare Fund, 766 F.Supp. 530, 531 (E.D. La. 1991)
(Feldman, J.) (considering whether the plaintiff had standing
under ERISA in response to a motion to dismiss for lack of
subject matter jurisdiction pursuant to Rule 12(b)(1)).
to Rule 12(b)(1), “[a] case is properly dismissed for
lack of subject matter jurisdiction when the court lacks the
statutory or constitutional power to adjudicate the
case.” Home Builders Ass'n of Miss., Inc. v.
City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)
(citation omitted). “The burden of proof for a Rule
12(b)(1) motion to dismiss is on the party asserting
jurisdiction.” Ramming v. United States, 281
F.3d 158, 161 (5th Cir. 2001). “When a Rule 12(b)(1)
motion is filed in conjunction with other Rule 12 motions,
the court should consider the Rule 12(b)(1) jurisdictional
attack before addressing any attack on the merits.”
applying Rule 12(b)(1), a court may dismiss an action for
lack of subject matter jurisdiction “on any one of
three separate bases: (1) the complaint alone; (2) the
complaint supplemented by undisputed facts evidenced in the
record; or (3) the complaint supplemented by undisputed facts
plus the court's resolution of disputed facts.”
Spotts v. United States, 613 F.3d 559, 565-66 (5th
subject matter jurisdiction is challenged, the Court first
considers whether the defendant has made a ‘facial'
or a ‘factual' attack upon the complaint.”
Magee v. Winn-Dixie Stores, Inc., No. 17-8063, 2018
WL 501525, at *2 (E.D. La. Jan. 22, 2018) (Vance, J.) (citing
Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.
1981)). “A motion to dismiss for lack of standing is
factual rather than facial if the defendant submits
affidavits, testimony, or other evidentiary materials.”
Id. (internal quotation marks omitted) (quoting
Superior MRI Servs., Inc. v. Alliance Healthcare Servs.,
Inc., 778 F.3d 502, 504 (5th Cir. 2015)). “When a
defendant makes a factual attack on the complaint, the
plaintiff is ‘required to submit facts through some
evidentiary method and has the burden of proving by a
preponderance of the evidence that the trial court does have
subject matter jurisdiction.'” Id.
(quoting Paterson, 644 F.2d at 523). “In the
case of a facial attack, the court ‘is required to look
to the sufficiency of the allegations in the complaint
because they are presumed to be true.'”
Id. (quoting Paterson, 644 F.2d at 523).
“Ultimately, a motion to dismiss for lack of subject
matter jurisdiction should be granted only if it appears
certain that the plaintiff cannot prove any set of facts in
support of his claim that would entitle plaintiff to
relief.” Ramming, 281 F.3d at 161 (quoting
Home Builders Ass'n, 143 F.3d at 1010).
under ERISA, pursuant to 29 U.S.C. § 1132(a), is limited
to participants, beneficiaries, and fiduciaries.
Coleman, 992 F.2d at 533. The Fifth Circuit
strictly construes the class of claimants enumerated in
§ 1132(a). Cobb, 461 F.2d at 635;
Coleman, 992 F.2d at 534 (“[O]ur previous
decisions have hewed to a literal construction of §
beneficiary is “a person designated by a participant,
or by the terms of an employee benefit plan, who is or may
become entitled to a benefit thereunder.” 29 U.S.C.
§ 1002(8). “In order to qualify as a beneficiary,
an individual must have a ‘reasonable or colorable
claim to benefits.'” Feingerts, 2016 WL
2744812, at *7 (quoting Crawford v. Roane, 53 F.3d
750, 754 (6th Cir. 1995)); see also Cobb, 461 F.3d
at 635-36 (holding that, to have standing as a beneficiary
under ERISA, a plaintiff must show a designation of
beneficiary status by a participant or the terms of the plan
and a colorable entitlement to benefits).
argues that as administrator of Mrs. Hamann's estate, she
has standing to bring these claims on Mrs. Hamann's
behalf. Specifically, Theriot asserts that she has derivative
standing. The Fifth Circuit recognizes both
independent standing and derivative standing under ERISA.
Hermann Hosp. v. MEBA Med. & Benefits Plan, 845
F.2d 1286, 1287-89 (5th Cir. 1988), overruled on other
grounds by Access Mediquip, L.L.C. v. UnitedHealthcare Ins.
Co., 698 F.3d 229 (5th Cir. 2012) (mem.)). A party has
independent standing when he or she is an enumerated party
under § 1132(a). Id. “But one who lacks
the narrow status of a participant or beneficiary may
nevertheless sue derivatively on behalf of a participant or
beneficiary.” James, 766 F.Supp. at 532
(discussing Hermann and finding that a succession
representative could sue derivatively on behalf of the
Pension Fund does not dispute that provided Theriot is the
administrator of Mrs. Hamann's estate, she would have
standing under ERISA if Mrs. Hamann's estate is entitled
to benefits from the Pension Fund.” Therefore,
the Pension Fund asserts that this Court must determine
whether Mrs. Hamann's estate is entitled to benefits
under the Plan-i.e., whether it has a colorable
claim to the benefits-to determine whether Theriot has
argues that it would be inappropriate for the Court to
resolve the merits of the underlying benefits claim to
determine her standing. However, the Fifth Circuit allows
such an inquiry:
Although it may not be advisable to interpret the terms of
the plan at this jurisdictional stage, [the Court is] bound
to do so by Coleman, which interpreted the term
“payable” under the plan to determine whether the
descendant and heir of the plan participant qualified as a
beneficiary. Further, the definition of
“beneficiary” directs the courts to look to the
terms of the plan at the jurisdictional stage to decide
whether the terms “designate” a plaintiff as a
beneficiary or whether they provide plaintiff with a
colorable claim for benefits.
Cobb, 461 F.3d at 637.
parties do not dispute that Mrs. Hamann was a beneficiary of
Mr. Hamann's Joint and Survivor benefits while she was
alive. Rather, the Pension Fund argues that Mrs. Hamann's
estate is not a beneficiary entitled to the lump sum payment
because the benefits were no longer payable when she
VIII Section 1(a) of the Plan, which provides for Joint and
Survivor and Optional Forms of Benefit, states:
(1) [I]n the event of [the participant's] death after his
Retirement, two-thirds of such reduced monthly Benefit shall
continue to be paid to the Participant's Surviving Spouse
for life . . . .
(4) With respect to a Participant whose Surviving Spouse is
eligible for a Benefit under this subsection (a), the
Participant's Surviving Spouse may request, in writing,
to receive a lump sum payment at any
time which is the Actuarial Equivalent of the
Benefits payable under this subsection (a), in lieu of such
Hamann initially received her benefits in the form of a
monthly annuity, but she later elected to receive the
benefits as a lump sum. The Pension Fund advised Mrs. Hamann
that, if she wished to receive the lump sum payment, she
should complete and return the change form “by April 5,
2017 to receive the payment on May 1,
2017.” The Pension Fund also advised Mrs.
Hamann that the lump sum benefit would be $64, 825.10 as of
May 1, 2017. Mrs. Hamann completed the change form,
indicating that she “wish[ed] to receive the remainder
of the benefits payable to [her] in a lump sum, ” and
the Pension Fund received the change form before her
death.Theriot contends that, because the
Plan's provision, copied above, allowed Mrs. Hamann to
elect to receive the lump sum “at any time, ” and
because she did so before her death, Mrs. Hamann's estate
is entitled to the benefits.
Court finds that the phrase “at any time” refers
to the time at which the surviving spouse may request receipt
of a lump sum. The Plan allows the surviving spouse to elect
a lump sum at any time after the election of monthly
benefits. This interpretation is made clear by the benefit
illustration sheet that Theriot cites in her second amended
complaint, which explains: “If you initially elect a
monthly benefit payment, you may elect at any time in the
future to receive the remainder of the Post-Retirement
Survivor benefit as a lump sum.” But the
inquiry does not end there.
Plan's provisions do not contain any language referencing
the change form's effective date or the date on which the
benefits would convert from monthly payments to the lump sum.
Neither Theriot nor the Pension Fund has directed the Court
to any language in the Plan or any other documents that
reference the effective date or conversion date for the
Plan provides that, if and when the surviving spouse elects
to receive the benefits as a lump sum, the surviving spouse
will receive the actuarial equivalent of the benefits
payable. As previously mentioned, the Pension
Fund informed Mrs. Hamann that, if it received her change
form by April 5, 2017, she would receive her lump sum benefit
of $64, 825.10-to replace her monthly benefit-on May 1, 2017.
The Pension Fund received Mrs. Hamann's change form on
April 4, 2017 when the benefits were clearly payable.
the Plan clearly provides that the surviving spouse shall
receive the participant's reduced monthly benefits for
life. There is no dispute that Mrs. Hamann was alive when she
elected to receive the lump sum of her remaining benefits and
that she was alive when the Pension Fund received her change
form. While the Pension Fund advised Mrs. Hamann that she
would receive the lump sum on May 1, 2017, nothing in the
Plan, the benefit illustration sheet, or the Pension
Fund's correspondence with Mrs. Hamann suggests that her
election would become invalid or that she would no longer be
entitled to the lump sum payment if she died before May 1,
Pension Fund has been unable to adequately explain why Mrs.
Hamann did not become entitled to the lump sum-the remainder
of her benefits-before her death. At this jurisdictional
stage, the Court finds that Theriot, on behalf of Mrs.
Hamann's estate, had a reasonable or colorable claim
entitling the estate to benefits. Therefore, Theriot, on
behalf of Mrs. Hamann's estate, has standing to assert
Pension Fund also argues that venue is improper in the
Eastern District of Louisiana. Rule 12(b)(3) of the Federal
Rules of Civil Procedure authorizes a defendant to move for
dismissal due to improper venue. “The district court of
a district in which is filed a case laying venue in the wrong
division or district shall dismiss, or if it be in the
interest of justice, transfer such case to any district or
division in which it could have been brought.” 28
U.S.C. § 1406(a). “The burden is on the plaintiff
to establish that his chosen district is a proper
venue.” Stewart v. Marathon Petroleum Co. LP,
No. 17-7775, 2018 WL 4352825, at *2 (E.D. La. Sept. 12, 2018)
(Africk, J) (citations omitted). “[T]he Court must
accept as true all allegations in the complaint and resolve
all conflicts in favor of the plaintiff.” Braspetro
Oil Servs. Co. v. Modec (USA), Inc., 240 Fed.Appx. 612,
615 (5th Cir. 2007).
to ERISA, 29 U.S.C. § 1132(e)(2), an action “may
be brought in the district where the plan is administered,
where the breach took place, or where a defendant resides or
may be found . . . .” The Pension Fund asserts that the
Pension Fund resides in, is administered in, and is
maintained in the Eastern District of
Wisconsin. The Pension Fund asserts that the only
basis for venue in the Eastern District of Louisiana is if
the breach occurred in this district. The parties
do not dispute that the alleged breach was the Pension
Fund's denial of the lump sum payment to Mrs.
answer the question of where the breach took place, the
Pension Fund relies on Orgeron v. Moran Towing
Corp., No. 93-4164, 1994 WL 462995 (E.D. La. Aug. 22,
1994). The plaintiff in Orgeron had applied for, but
was denied, long-term disability benefits. 1994 WL 462995, at
*1. The district court held that the breach did not occur in
Louisiana and that venue was improper in the Eastern District
of Louisiana because the plaintiff never received long-term
disability benefits in Louisiana. Id. at *1-2. The
court in Orgeron relied on Brown Schools, Inc.
v. Florida Power Corp., 806 F.Supp. 146 (W.D. Tex.
1992), which “distinguished alleged breaches involving
payments which had been made to a beneficiary within the
district and then ceased, from alleged breaches in which
payments were simply denied, with no transactions taking
place within the district at all . . . .”
Orgeron, 1994 WL 462995, at *2. In Orgeron,
no payments had been made in the Eastern District at all.
Pension Fund argues that Mrs. Hamann never received the type
of benefit at issue in this litigation-the lump sum survivor
benefit-in the Eastern District of Louisiana. Specifically,
the Pension Fund argues, without providing any legal support,
that the lump sum survivor benefit is a different benefit
than the monthly survivor benefits Mrs. Hamann had been
there to be no dispute between the parties that the breach at
issue was the denial of the lump sum payment of Mrs.
Hamann's survivor benefits to Mrs. Hamann's estate,
and that there is no dispute that Mrs. Hamann was receiving
said survivor benefits in monthly payments and residing in
the Eastern District of Louisiana when she died, the Court
finds that the benefits at issue were received in this
district and that venue is proper. See French v. Dade
Behring Life Ins. Plan, No. 09-394, 2010 WL 2360457, at
*2 (M.D. La. Mar. 23, 2010) (“While not yet addressed
by the Fifth Circuit, several district courts within this
circuit have either held or assumed that ERISA venue is
proper where a plan participant/beneficiary receives or was
to receive benefits.”).
the Pension Fund argues that counts I, II, IV, and V of
Theriot's second amended complaint should be dismissed
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure for failure to exhaust administrative remedies.
to Rule 12(b)(6), a district court may dismiss a complaint or
part of a complaint when a plaintiff fails to set forth
well-pleaded factual allegations that “raise a right to
relief above the speculative level.” See Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007);
Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007). The complaint “must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 547)).
facially plausible claim is one in which “the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. If the well-pleaded
factual allegations “do not permit the court to infer
more than the mere possibility of misconduct, ” then
“the complaint has alleged-but it has not
‘show[n]'-‘that the pleader is entitled to
relief.'” Id. at 679 (quoting Fed.R.Civ.P.
8(a)(2)) (alteration in original).
assessing the complaint, a court must accept all well-pleaded
facts as true and liberally construe all factual allegations
in the light most favorable to the plaintiff. Spivey v.
Robertson, 197 F.3d 772, 774 (5th Cir. 1999).
Furthermore, “the Court must typically limit itself to
the contents of the pleadings, including attachments
thereto.” Admins. of the Tulane Educ. Fund v.
Biomeasure, Inc., 08-5096, 2011 WL 4352299, at *3 (E.D.
La. Sept. 6, 2011) (Vance, J.) (citing Collins v. Morgan
Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000)).
“[T]he Court may consider documents that are
essentially ‘part of the pleadings'-that is, any
documents attached to or incorporated into the
plaintiff's complaint by reference that are central to
the plaintiff's claim for relief.” Zerangue
v. Lincoln Nat'l Life Ins. Co., No. 19-1939, 2019 WL
2058984, at *2 (E.D. La. May 9, 2019) (Feldman, J.) (quoting
Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d
285, 288 (5th Cir. 2004)). “Dismissal is appropriate
when the complaint ‘on its face show[s] a bar to
relief.'” Cutrer v. McMillan, 308
Fed.Appx. 819, 820 (5th Cir. 2009) (quoting Clark v.
Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)).
following facts alleged in Theriot's second amended
complaint relate to the Pension Fund's motion to dismiss
for failure to exhaust administrative remedies:
alleges that the April 18, 2017 letter, by which the Pension
Fund first informed Theriot that the estate was not entitled
to the lump sum payment, did not meet the criteria for a
proper claim denial under ERISA. On November 1, 2017,
Theriot's then-counsel allegedly wrote to the Fund
requesting copies of Plan documents. Theriot asserts that the
Pension Fund responded to that letter on November 21, 2017
with an incomplete copy of Plan documents, and failed to
include plan amendments, a current summary plan description
(“SPD”), and other documents necessary to
establish the Plan.
alleges that on January 5, 2018, Theriot's then-counsel
wrote to the Pension Fund requesting payment of the
outstanding lump sum benefit. Theriot claims that the
Pension Fund responded by letter dated March 2, 2018,
offering its explanation as to why Theriot was not entitled
to payment of the lump sum benefit and advising her that she
had no right to appeal an adverse plan determination or file
a lawsuit because such time to pursue a claim had
expired. Theriot claims that the Pension Fund
also advised in the March 2, 2018 letter that it had
concluded that she had failed to exhaust her administrative
remedies available under the Plan, foreclosing her ability to
seek judicial review.
claims that on November 2, 2018, her current counsel wrote to
the Pension Fund requesting a decision with respect to
Theriot's original claim for benefits or, to the extent
that the Pension Fund considered the November 2, 2018 letter
as an administrative appeal, requesting a submission date
permitting receipt and review of evidence to support
Theriot's appeal. Theriot asserts that she also
requested documents, including a complete copy of plan
documents applicable to Theriot's claim and other
administrative records that evidence the handling of
contends that she did not receive a response to the November
2, 2018 letter, so her counsel wrote to the Pension Fund
again on December 19, 2018.Theriot claims that the Pension
Fund responded by letter dated January 4, 2019, wherein the
Pension Fund allegedly recharacterized its March 2, 2018
letter, asserting that it treated Theriot's counsel's
January 5, 2018 letter “in all respects like a claim or
appeal” of benefits and that the March 2, 2018 letter
included the necessary information that a claim or appeal
denial must include to comply with ERISA procedural
requirements. Theriot asserts that the January 4, 2019
letter also advised Theriot that it already fulfilled her
request for a full copy of plan documents and that the
Pension Fund again advised her that a request for review of
the adverse benefits decision was untimely.
Pension Fund argues that Theriot's claim for benefits in
count I of her second amended complaint should be dismissed
for failure to exhaust available administrative
procedures. “Fifth Circuit precedent instructs
that ‘claimants seeking benefits from an ERISA plan
[must] first exhaust available administrative remedies under
the plan before bringing suit to recover
benefits.'” Zerangue, 2019 WL 2058984, at
*2 (quoting Crowell v. Shell Oil Co., 541 F.3d 295,
308 (5th Cir. 2008)). “The policies underlying the
exhaustion requirement are to: (1) uphold Congress'
desire that ERISA trustees be responsible for their actions,
not the federal courts; (2) provide a sufficiently clear
record of administrative action if litigation should ensue;
and (3) assure that any judicial review of fiduciary action
(or inaction) is made under the arbitrary and capricious
standard, not de novo.” Meza v. Gen.
Battery Corp., 908 F.2d 1262, 1279 (5th Cir. 1990)
(internal quotation marks omitted) (quoting Denton v.
First Nat'l Bank of Waco, Tex., 765 F.2d 1295, 1300
(5th Cir. 1985)).
requirement is not one specifically required by ERISA, but
has been uniformly imposed by the courts in keeping with
Congress' intent in enacting ERISA.” Hall v.
Nat'l Gypsum Co., 105 F.3d 225, 231 (5th Cir. 1997);
see also Medina v. Anthem Life Ins. Co., 983 F.2d
29, 33 (5th Cir. 1993) (“[W]e have fully endorsed the
prerequisite of exhaustion of administrative remedies in the
ERISA context.”) (citations omitted). “Dismissal
of a complaint is appropriate when the proper procedure has
not been followed for filing a claim and administrative
remedies have not been exhausted.” Long v. Aetna
Life Ins. Co., No. 14-403, 2014 WL 4072026, at *3 (E.D.
La. Aug. 18, 2014) (Africk, J.) (citing Medina, 983
F.2d at 33). A plaintiff fails to exhaust administrative
remedies when she does not file a timely administrative
appeal. Moss v. Unum Grp., 638 Fed.Appx. 347, 349-50
(5th Cir. 2016) (citing Lacy v. Fulbright &
Jaworski, 405 F.3d 254, 257 (5th Cir. 2005)).
order to trigger the running of the administrative appeal
period, notice of the adverse benefit determination need only
substantially comply with ERISA's notice requirements, 28
U.S.C. § 1133 and 29 C.F.R. § 2560.503-1(g).
McGowan v. New Orleans Emps. Int'l Longshoremen's
Ass'n, 538 Fed.Appx. 495, 498 (5th Cir. 2013)
(“Strict compliance with ERISA is not necessary . . . .
Fifth Circuit precedent makes clear that substantial
compliance will suffice to trigger the running of the
administrative appeal period.”) (per curiam) (citing
Lacy, 405 F.3d at 257). “In assessing whether
the administrator has ‘substantially complied' with
the applicable procedural requirements, the court must
‘consider[ ] all communications between an
administrator and plan participant to determine whether the
information provided was sufficient under the
circumstances.'” Baptist Mem. Hosp.-DeSoto,
Inc. v. Crain Automotive, Inc., 392 Fed.Appx. 288, 293
(5th Cir. 2010) (quoting Wade v. Hewlett-Packard Dev. Co.
LP Short Term Disability Plan, 493 F.3d 533, 539 (5th
Cir. 2007), abrogated on other grounds by Hardt v.
Reliance Standard Life Ins. Co., 560 U.S. 242 (2019)).
XIII, Section 3 of the Plan provides, in relevant part:
(a) Notice of Denial of Claim. The Administrative Manager or
the Eligibility Committee of the Trustees shall give written
notice to a Participant or to his beneficiaries, dependents
or authorized other legal representatives, as may be
appropriate (collectively referred to in these Benefit Review
Procedures as “Participant”), whenever there has
been denied in whole or in part such Participant's claim
with respect to his eligibility for, or amount of, his
Benefits. Such notice shall be given within 90 days . . .
after the receipt of Participant's claim and shall
include the following:
(1) The specific reason or reasons for the denial;
(2) Reference to pertinent parts of the Plan on which the
denial is based;
(3) A description of any additional material or information,
if any, necessary for the Participant to perfect his claim
and, where appropriate an explanation of why such material or
information is necessary;
(4) An explanation of this Fund's Benefit Review
. . .
(b) Request for Review. The following subsections (1), (2)
& (3) shall govern requests for review of claims that
have been denied . . . .
(1) Within 60 days after the receipt, by the Participant, of
the notice described in and required to be given pursuant to
subsection (a), wherein the Participant's claim for
Benefits is denied in whole or in part, . . . the Participant
may, in writing,
(i) Request a review by the Eligibility Committee of such
denial of such a claim;
(ii) Request an inspection of designated, pertinent documents
(iii) Submit issues and comments, as well as additional or
supplemental material or information which may have been
requested in the notice of denial . . . .
(2) As part of such written request for review, a Participant
may request a hearing before the Eligibility ...