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21-817

Ruderman v. Liberty Mutual Group, Inc.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY 

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. 

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST 

CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION 

“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON 

ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at the 

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the

27th day of January, two thousand twenty-two.

Present:

DEBRA ANN LIVINGSTON,

Chief Judge,

ROBERT D. SACK,

Circuit Judge,

BRIAN M. COGAN,

District Judge.*

_____________________________________

JENNIFER RUDERMAN,

Plaintiff-Appellant,

v. 21-817

LIBERTY MUTUAL GROUP, INC., LIBERTY LIFE 

ASSURANCE COMPANY OF BOSTON, FKA LINCOLON

LIFE ASSURANCE COMPANY OF BOSTON, LINCOLN 

FINANCIAL GROUP,

Defendants-Appellees.

_____________________________________

* Judge Brian M. Cogan, of the United States District Court for the Eastern District of New York, sitting 

by designation.
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For Plaintiff-Appellant: MARIO D. COMETTI, Cometti Law Firm, Delmar, New 

York.

For Defendants-Appellees: BYRNE J. DECKER (Ann-Martha Andrews, on the brief), 

Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 

Portland, Maine.

Appeal from a judgment of the United States District Court for the Northern District of 

New York (Hurd, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is AFFIRMED.

Jennifer Ruderman appeals from a March 4, 2021 order of the district court (Hurd, J.) 

dismissing her complaint as preempted by the Employee Retirement Income Security Act of 1974 

(“ERISA”) and denying as futile her cross-motion for leave to amend her complaint to plead for 

recovery under ERISA. See Ruderman v. Liberty Mutual Grp., Inc., No. 1:20-cv-945, 2021 WL 

827693, at *4 (N.D.N.Y. Mar. 4, 2021). On appeal, Ruderman argues that the district court erred 

in denying leave to amend her complaint based on her failure to exhaust administrative remedies 

because, inter alia, administrative review would have been futile and Defendants-Appellees

Liberty Mutual Group, Inc., Liberty Life Assurance Company of Boston, and Lincoln Financial 

Group’s regulatory noncompliance excused the requirement to pursue administrative remedies. 

For the following reasons, we AFFIRM the district court’s dismissal of the complaint and denial 

of leave to amend the complaint. We assume the parties’ familiarity with the underlying facts,

the procedural history of the case, and the issues on appeal, which we reference here only as 

necessary to explain our decision.

* * *

“We review the grant of a motion to dismiss a claim under Rule 12(b)(6) de novo,”

accepting the complaint’s factual allegations as true and drawing all reasonable inferences in 
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Ruderman’s favor pursuant to the “the well-established pleading standard articulated in Bell 

Atlantic Corp. v. Twombly and Ashcroft v. Iqbal.” Sacerdote v. N.Y. Univ., 9 F.4th 95, 106–07

(2d Cir. 2021) (citing Palin v. N.Y. Times Co., 940 F.3d 804, 809 (2d Cir. 2019)). “We review a 

district court’s denial of leave to amend for abuse of discretion, unless the denial was based on an 

interpretation of law, such as futility, in which case we review the legal conclusion de novo.” 

Pyskaty v. Wide World of Cars, LLC, 856 F.3d 216, 224 (2d Cir. 2017) (quoting Panther Partners 

Inc. v. Ikanos Commc’ns, Inc., 681 F.3d 114, 119 (2d Cir. 2012)). 

Ruderman does not directly challenge the district court’s dismissal of her operative

complaint as preempted by ERISA.

1 Under ERISA, a plaintiff may bring a civil action “to 

recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the 

plan, or to clarify his rights to future benefits under the terms of the plan.” ERISA § 502(a)(1)(B), 

codified at 29 U.S.C. § 1132(a)(1)(B). This civil enforcement scheme “completely preempts any 

state-law cause of action that ‘duplicates, supplements, or supplants’ an ERISA remedy.” 

Montefiore Med. Ctr. v. Teamsters Loc. 272, 642 F.3d 321, 327 (2d Cir. 2011) (quoting Aetna 

Health Inc. v. Davila, 542 U.S. 200, 209 (2004)). Given that Ruderman’s operative complaint 

sought a declaratory judgment of her entitlement to long-term disability benefits and alleged 

1 Ruderman implies that the district court improperly referenced documents outside of the 

complaint. See Appellant’s Br. at 12. To the extent that she appeals the district court’s decision 

on this basis, we disagree. While a court considering a Rule 12(b)(6) motion to dismiss “may 

review only a narrow universe of materials,” the court may consider “documents appended to the 

complaint or incorporated in the complaint by reference” as well as “document[s] not expressly 

incorporated by reference in the complaint [that are] nevertheless ‘integral’ to the complaint.” 

Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (citations and some internal quotation marks 

omitted). Here, the district court did not err in considering Ruderman’s benefits policy and 

correspondence between Ruderman and Defendants-Appellees regarding her benefits status. See

Ruderman, 2021 WL 827693, at *1 n.2. Even if we concluded that Ruderman’s complaint did 

not expressly incorporate these documents by reference, the documents were certainly “integral”

to the complaint given the nature of her claims.
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breach of contract under state law, the district court correctly concluded that ERISA preempted 

her claims.

Ruderman does, however, contest the district court’s denial of leave to amend her 

complaint as futile based on her failure to exhaust administrative remedies.2

 Under Federal Rule 

of Civil Procedure 15, when a party requests leave to amend a pleading before trial, the court 

“should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Yet “it is well 

established that leave to amend a complaint need not be granted when amendment would be futile.” 

Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). 

“Futility is a determination, as a matter of law, that proposed amendments would fail to cure prior 

deficiencies or to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.” 

Panther Partners, 681 F.3d at 119 (citing Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 

50 (2d Cir. 1991)). 

Ruderman principally argues that the district court should have granted leave to amend her 

complaint because pursuing administrative review of her claims would have been futile, therefore

2 In challenging the denial of leave to amend her complaint, Ruderman briefly suggests that 

Defendants-Appellees acted in “bad faith,” thus excusing her failure to exhaust administrative 

remedies. See Appellant’s Br. at 19 n.2. Ruderman did not formally assert this argument before 

the district court, and the “law in this Circuit is clear that where a party . . . advances arguments 

available but not pressed below, . . . waiver will bar raising the issue on appeal.” Paese v. 

Hartford Life & Accident Ins. Co., 449 F.3d 435, 446 (2d Cir. 2006) (internal quotation marks and 

citation omitted). Yet even if we entertained Ruderman’s claim of bad faith, her cursory assertion 

does not provide sufficient basis to excuse her failure to exhaust administrative remedies. See, 

e.g., Saladin v. Prudential Ins. Co. of Am., 337 F. App’x 78, 80 (2d Cir. 2009) (rejecting an 

administrative futility claim based on bad faith where the plaintiff “had the opportunity to identify 

[the alleged] errors and seek administrative correction”); Greifenberger v. Hartford Life Ins. Co., 

131 F. App’x 756, 759 (2d Cir. 2005) (rejecting an administrative futility claim based on bad faith 

where “[t]he complaint contain[ed] no allegations indicating [the provider’s] bad faith” and 

“merely assert[ed] that [the provider] denied coverage for long term disability benefits that were 

properly due”).
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excusing the requirement that she exhaust administrative remedies. In particular, she asserts that 

she would have submitted the “exact same evidence,” Appellant’s Br. at 17, on administrative 

review as she provided on a prior appeal that resulted in the reclassification of her benefits; that 

Defendants-Appellees’ conduct “exposed . . . a ruse to end an expensive payout of [her] benefits,”

Appellant’s Br. at 19; and that Defendants-Appellees refused to consider “any further 

documentation,” Appellant’s Br. at 22, in evaluating her claim. We disagree.

As Ruderman recognizes, “the federal courts — including this Circuit — have recognized 

a ‘firmly established federal policy favoring exhaustion of administrative remedies in ERISA 

cases.’” Paese v. Hartford Life & Accident Ins. Co., 449 F.3d 435, 443 (2d Cir. 2006) (quoting 

Kennedy v. Empire Blue Cross & Blue Shield, 989 F.2d 588, 594 (2d Cir. 1993)). “The exhaustion 

requirement, however, is not absolute.” Kirkendall v. Halliburton, Inc., 707 F.3d 173, 179 (2d 

Cir. 2013). “We do not require plaintiffs to exhaust their administrative remedies where they 

‘make a clear and positive showing that pursuing available administrative remedies would be 

futile.’” Id. (quoting Kennedy, 989 F.2d at 594). For instance, we have excused the failure to 

exhaust administrative remedies where the provider “informed [the plaintiff] that he had exhausted 

any administrative remedies available,” and the recent denial of the plaintiff’s benefits under a 

“more lenient” standard suggested to “any reasonable person” the futility of pursuing an 

administrative claim under a stricter standard. Paese, 449 F.3d at 449 (internal quotation marks 

and citations omitted). 

Here, Ruderman’s allegations fall short of the “clear and positive showing,” Kennedy, 989 

F.2d at 594, required to excuse her failure to exhaust administrative remedies. Even if we were 

to determine that Ruderman’s factual allegations indicate she would be unlikely to succeed on 

administrative appeal, we cannot conclude that “any reasonable person,” Paese, 449 F.3d at 449, 
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in her position would not pursue administrative review. Furthermore, as with administrative

futility claims that we have previously rejected, there is “no evidence in the record that [Ruderman] 

even notified [Defendants-Appellees] of any disputed claim,” Kennedy, 989 F.2d at 595 (emphasis 

in original), before filing suit. See also Greifenberger v. Hartford Life Ins. Co., 131 F. App’x 

756, 759 (2d Cir. 2005) (finding insufficient showing of futility where the plaintiff “made no 

attempt . . . to notify the insurer that she disputes its denial of benefits” (citing Kennedy, 989 F.2d

at 593–95)). And to the extent that Ruderman asserts that the reclassification of her disability

after her previous appeal indicates the futility of further administrative review, “this [C]ourt has 

expressly ruled that such allegations are insufficient to establish futility, particularly where a 

plaintiff has made no attempt whatsoever to file an administrative claim.” Id. (citing Kennedy, 

989 F.2d at 593–95); cf. Teitel v. Deloitte & Touche Pension Plan, 420 F. App’x 116, 116 (2d Cir. 

2011) (finding insufficient showing of futility based on the provider’s denial of similar claims by 

other individuals). In fact, Ruderman’s success in appealing the initial termination of her benefits

suggests that “administrative rejection of her challenge was not a foregone conclusion.” Saladin 

v. Prudential Ins. Co. of Am., 337 F. App’x 78, 80 (2d Cir. 2009). Thus, the district court 

appropriately rejected Ruderman’s contention of the futility of administrative review and, by 

extension, properly denied leave to amend the complaint in light of her failure to exhaust 

administrative remedies.

Ruderman also asserts that Defendants-Appellees did not comply with their regulatory

obligations, therefore excusing her failure to exhaust administrative remedies. She argues that 

the September 11, 2018 letter stating that she was entitled to benefits under a different

classification of disability should have included notice of her right to appeal because the

reclassification qualified as an “adverse benefit determination” that triggered notice requirements.
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In addition, she claimsthat the December 3, 2019 letter informing her of the impending termination 

of her benefits and her right to appeal “did not present or identify any new information or 

justification for [the benefits] determination,” Appellant’s Br. at 20, and attempted “to salvage 

[the] obvious failure to give timely notice” of her right to appeal, Appellant’s Br. at 21. Again, 

we disagree. 

ERISA defines an “adverse benefit determination” as a “denial, reduction, or termination 

of . . . a benefit.” 29 C.F.R. § 2560.503–1(m)(4)(i). Plan administrators must “provide a 

claimant with written or electronic notification of any adverse benefit determination,” and such

notice must include “a statement of the claimant’s right to bring a civil action.” Id. § 2560.503–

1(g)(1); see also Halo v. Yale Health Plan, Dir. of Benefits & Recs. Yale Univ., 819 F.3d 42, 48 

(2d Cir. 2016). “In the case of a claim for disability benefits, if the plan fails to strictly adhere to 

all the [regulatory] requirements . . . with respect to a claim, the claimant is deemed to have 

exhausted the administrative remedies available under the plan.” 29 C.F.R. § 2560.503–

1(l)(2)(i). “[D]efendants who give inadequate notice of the right to administratively appeal a 

denial of benefits are thus precluded . . . from asserting failure to exhaust administrative remedies 

as a defense.” Strom v. Siegel Fenchel & Peddy P.C. Profit Sharing Plan, 497 F.3d 234, 246 (2d 

Cir. 2007) (alteration in original) (quoting Veltri v. Bldg. Serv. 32B–J Pension Fund, 393 F.3d 318, 

324 (2d Cir. 2004)). 

Ruderman’s allegations fail to assert regulatory noncompliance that would excuse her 

failure to exhaust administrative remedies. As to the September 11, 2018 letter, we agree with 

the district court’s conclusion that the letter “did not qualify as a denial, reduction, or termination 

of benefits” requiring notice of the right to appeal. Ruderman, 2021 WL 827693, at *4. 

Although the letter announced her new disability classification and provided a termination date for 
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benefits based on that disability, this reclassification followed Defendants-Appellees’ initial 

termination of her long-term disability benefits and subsequent reversal of that decision. As a 

result, the letter did not mark a “reduction” of her benefits but rather a continuation of her benefits 

under a different classification. See, e.g., Fortier v. Hartford Life & Accident Ins. Co., 916 F.3d 

74, 82 (1st Cir. 2019) (holding that a letter that “gave reasons for the extension of benefits” and 

“warned of the new termination date of those benefits” did not constitute an “adverse benefit 

determination”). As to the December 3, 2019 letter, Ruderman’s arguments largely concern the 

merits of Defendants-Appellees’ benefits determination rather than regulatory compliance. 

Moreover, the letter notified Ruderman of her right to appeal the determination. 

Finally, Ruderman contends that denial of leave to amend her complaint was “premature”

since the failure to exhaust administrative remedies serves as an affirmative defense rather than a 

jurisdictional requirement. Appellant’s Br. at 11. She correctly notes that “a plaintiff’s failure 

to exhaust administrative remedies when bringing a claim for benefits pursuant to [ERISA] does 

not mean we lack subject matter jurisdiction, but rather is an affirmative defense, subject to waiver, 

estoppel, futility, and similar equitable considerations.” Paese, 449 F.3d at 439 (citation omitted). 

Yet “[a] district court has discretion to deny leave for good reason, including futility.” McCarthy 

v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007) (citing Foman, 371 U.S. at 182). 

Thus, the district court could consider whether granting Ruderman leave to replead under ERISA 

would be futile due to her failure to exhaust administrative remedies. See Leonelli v. Pennwalt 

Corp., 887 F.2d 1195, 1198–99 (2d Cir. 1989) (upholding the denial of leave to “recast [the] 

remaining common law causes of action as ERISA claims on the ground of futility” in part because 

the plaintiff “made no attempt, as required, to exhaust the administrative remedies provided”). 
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Given our conclusion that the district court properly denied leave to amend because 

Ruderman failed to exhaust her administrative remedies, we need not consider her other 

arguments. Accordingly, we AFFIRM the judgment of the district court. 

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk