2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-9-2014

Marc Cooper v. Alliance Oral Surgery LLC

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-4479

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Recommended Citation

"Marc Cooper v. Alliance Oral Surgery LLC" (2014). 2014 Decisions. Paper 1221.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 13-4479

_____________

MARC N. COOPER, DDS, 

 Appellant

v.

ALLIANCE ORAL SURGERY, LLC; LINCROFT ORAL & 

MAXILLOFACIAL SURGERY 401(K) PLAN 16-562923; 

JOHN FRATTELLONE, individually and as Trustee; SHARI KENT, Trustee 

_____________

On Appeal from the United States District Court

for the District of New Jersey 

District Court No. 3-13-cv-01126

District Judge: Honorable Anne E. Thompson

 

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

November 18, 2014

Before: SMITH, HARDIMAN, and BARRY, Circuit Judges

(Filed: December 9, 2014) 

_____________________

 OPINION

_____________________ 

 

SMITH, Circuit Judge.

 

 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does 

not constitute binding precedent.
2

The allegations in this case are that of a textbook breach of contract claim. 

Plaintiff alleged that: (i) pursuant to an employment agreement, Defendants were 

to enroll him in a retirement plan; (ii) Plaintiff did the work required of him under 

the agreement; and (iii) Defendants failed to properly enroll him. We will affirm 

the District Court’s grant of summary judgment for Defendants on all claims. 

I.

The District Court properly held that Plaintiff’s state-law claims based on 

failure to enroll a beneficiary are preempted by the Employee Retirement Income 

Security Act of 1974 (“ERISA”) because they “relate to” an employee benefit 

plan.1 See 29 U.S.C. § 1144(a); Hampers v. W.R. Grace & Co., 202 F.3d 44, 45-46

(1st Cir. 2000); cf. Menkes v. Prudential Ins. Co. of Am., 762 F.3d 285, 295-96 (3d 

Cir. 2014) (contract and related claims about “benefits owed” under ERISA plans 

were “expressly preempted”).

II.

In addition to his preempted state-law claims, Plaintiff also alleged that 

Defendants’ conduct violated ERISA. Without reaching the merits, the District

Court granted summary judgment to Defendants on the grounds that Plaintiff failed

to exhaust his administrative appeals and that such failure was not excused on 

 

1 The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367 and 

29 U.S.C § 1132(e)(1); we have jurisdiction pursuant to 28 U.S.C. § 1291.
3

account of futility. The District Court properly considered the applicable fivefactor test for futility from Harrow v. Prudential Ins. Co. of Am., 279 F.3d 244, 

250 (3d Cir. 2002), examined the facts in the light most favorable to Plaintiff and 

found that no factors weighed in Plaintiff’s favor. Plaintiff’s unsupported 

assertions do not rise to the level of the “clear and positive showing of futility,” 

required under Harrow, and the District Court did not abuse its discretion in so 

concluding.

2

 Id. at 249.

Plaintiff also maintains that the exhaustion requirement does not apply at all 

to the extent that he is alleging a breach of fiduciary duty. But “[p]laintiffs cannot 

circumvent the exhaustion requirement by artfully pleading benefit claims as 

breach of fiduciary duty claims.” Harrow, 279 F.3d at 253.

III.

Plaintiff argues that the District Court should not have granted summary 

judgment on the futility issue without allowing him an opportunity to take 

discovery. But Plaintiff did not follow the requirements of Federal Rule of Civil 

Procedure 56(d)3in form, substance or spirit, and no discovery was outstanding at 

 

2 Although “[w]e review de novo the applicability of exhaustion principles, 

because it is a question of law[, w]hen the District Court declines to grant an 

exception to the application of exhaustion principles, we review for abuse of 

discretion.” Id. at 248. (internal citations omitted). 

3

“When a party opposing summary judgment believes that s/he needs additional 

time for discovery, Rule 56(d) specifies the procedure to be followed. . . . [A] party 
4

the time of the District Court’s grant of summary judgment. Accordingly, Plaintiff 

is not entitled to relief. Cf. Sames v. Gable, 732 F.2d 49, 51 (3d Cir. 1984) 

(vacating grant of summary judgment where the district court knew that “discovery 

requests pertinent to the central issues of fact were outstanding”).

IV.

Having considered the remainder of Plaintiff’s arguments and concluded that 

they are without merit, we will affirm the District Court’s grant of summary 

judgment for Defendants.

 

seeking further discovery in response to a summary judgment motion [must] 

submit an affidavit specifying, for example, what particular information is sought; 

how, if uncovered, it would preclude summary judgment; and why it has not 

previously been obtained.” Pa. Dep’t of Pub. Welfare v. Sebelius, 674 F.3d 139, 

157 (3d Cir. 2012) (internal citations, quotations and brackets omitted).