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Theriot v. Building Trades United Pension Trust Fund

United States District Court, E.D. Louisiana

July 17, 2019


         SECTION I

          ORDER & REASONS


         Before the Court is a motion to dismiss filed by defendant The Building Trades United Pension Trust Fund (the “Pension Fund”).[1] Also made defendant is the Pension Fund's Board of Trustees (the “Board of Trustees”).[2] 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.[3] Theriot filed a response in opposition to the Pension Fund's motion, [4] and the Pension Fund filed a reply.[5] The parties also submitted supplemental briefing[6] pursuant to this Court's order.[7]

         The 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.[8] 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.[9] The Pension Fund also argues, pursuant to Rule 12(b)(3), that this district is not the proper venue for Theriot's lawsuit.[10] For the following reasons, the motion is granted in part and denied in part, as stated herein.


         The 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.[11]Theriot also attached exhibits in response to the motion to dismiss.[12]


         The Court finds that the following facts related to Theriot's standing under ERISA are undisputed:

         Robert 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.[13] 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.[14]

         On January 11, 2017, Mrs. Hamann submitted her application for the post-retirement survivor benefit to the Pension Fund.[15] The application form allows the applicant to choose how she will receive her benefits: as a monthly annuity or as a lump sum equivalent.[16] 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.[17]

         Mrs. Hamann elected to receive her benefits under the monthly annuity option.[18]

         In a 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.[19] The letter also advised Mrs. Hamann that she could elect to receive her benefits in a lump sum “at any time in the future.”[20] That same month, the Pension Fund mailed Mrs. Hamann a change form whereby she could convert her monthly benefits into a lump sum payment.[21] The Pension Fund instructed Mrs. Hamann to return the change form “by April 5, 2017 to receive the payment on May 1, 2017.”[22] Mrs. Hamann completed and returned the change form, which the Pension Fund received on April 4, 2017.[23] Mrs. Hamann unfortunately passed away on April 5, 2017.[24]

         After Mrs. Hamann's death, her daughter, Theriot, inquired about the lump sum payment.[25] 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.[26]


         The 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)).

         Although 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)).

         Pursuant 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.” Id.

         When 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 Cir. 2010).

         “When 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).


         Standing under ERISA, pursuant to 29 U.S.C. § 1132(a), is limited to participants, beneficiaries, and fiduciaries. Coleman, 992 F.2d at 533.[27] 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 § 1132(a).”).[28]

         A 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).

         Theriot 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.[29] 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 deceased).

         “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.”[30] 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 standing.[31]

         Theriot argues that it would be inappropriate for the Court to resolve the merits of the underlying benefits claim to determine her standing.[32] 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.

         The 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 died.[33]

         Article 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 Benefits.[34]

         Mrs. 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.”[35] 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.[36]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.[37]

         The 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.”[38] But the inquiry does not end there.

         The 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 change form.

         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.[39] 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.

         Furthermore, 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, 2017.

         The 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 her claims.


         The Pension Fund also argues that venue is improper in the Eastern District of Louisiana.[40] 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).

         Pursuant 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.[41] The Pension Fund asserts that the only basis for venue in the Eastern District of Louisiana is if the breach occurred in this district.[42] The parties do not dispute that the alleged breach was the Pension Fund's denial of the lump sum payment to Mrs. Hamann's estate.

         To 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. Id.

         The 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 receiving.[43]

         Finding 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.”).


         Finally, 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.

         Pursuant 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)).

         A 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).

         In 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.”[44] 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)).


         The following facts alleged in Theriot's second amended complaint relate to the Pension Fund's motion to dismiss for failure to exhaust administrative remedies:

         Theriot 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.[45] On November 1, 2017, Theriot's then-counsel allegedly wrote to the Fund requesting copies of Plan documents.[46] 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.[47]

         Theriot alleges that on January 5, 2018, Theriot's then-counsel wrote to the Pension Fund requesting payment of the outstanding lump sum benefit.[48] 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.[49] 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.[50]

         Theriot 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.[51] 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 Theriot's claim.[52]

         Theriot 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.[53]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.[54] 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.[55]


         The 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.[56] “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)).

         “This 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)).

         In 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)).

         Article 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 Procedure.
. . .
(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 or files;
(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 ...

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