IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DAVID M. OSIRES,

Plaintiff,

v.

OREGON TEAMSTER EMPLOYERS

TRUST and THE WILLIAM C.

EARHART COMPANY,

Defendants.

3:15-CV-02067-BR

 

OPINION AND ORDER 

CLIFFORD S. DAVIDSON

Sussman Shank, LLP

1000 S.W. Broadway

Suite 1400

Portland, OR 97205

(503) 227-1111 

Attorneys for Plaintiff

NOELLE E. DWARZSKI

DAVID S. BARLOW

McKenzie Rothwell Barlow & Coughran, P.S.

1325 Fourth Avenue

Suite 910

Seattle, WA 98101

(206) 224-9900 

Attorneys for Defendant Oregon Teamster Employers Trust

1 - OPINION AND ORDER

Case 3:15-cv-02067-BR Document 57 Filed 10/04/16 Page 1 of 20
SARAH N. TURNER

Gordon & Rees, LLP

701 Fifth Avenue, Suite 2100

Seattle, WA 98104

(206) 695-5100 

Attorneys for Defendant William C. Earhart Company

BROWN, Judge.

This matter comes before the Court on the Motion (#37) for

Summary Judgment filed by Defendant Oregon Teamster Employers

Trust and Defendant William C. Earhart Company (WCE).1 For the

reasons that follow, the Court GRANTS Defendants’ Motion for

Summary Judgment and DISMISSES this matter without prejudice to

permit Oregon Teamster Employers Trust’s Board of Trustees to

review Plaintiff’s request for retiree health benefits.

BACKGROUND

The following facts are taken from the parties’ summaryjudgment materials and are undisputed unless otherwise noted.

Plaintiff David Osires worked for United Parcel Service

(UPS)2

 for 33 years. During his employment Plaintiff was a

member of the International Brotherhood of Teamsters and

participated in the Oregon Teamster Employers Trust Health and

1 On June 2, 2016, WCE filed a Joinder (#42) to Oregon

Teamster Employers Trust’s Motion for Summary Judgment with brief

additional arguments.

2

 UPS is not a party to this action.

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Welfare Plan (the Plan). 

Defendant Oregon Teamsters Employers Trust (the Trust) is a

multiemployer, collectively-bargained welfare trust created and

administered pursuant to § 302(c)(5) of the Labor Management

Relations Act (LMRA), 29 U.S.C. § 186(c)(5). It is also an

employee welfare benefit plan as defined by the Employee

Retirement Income Security Act (ERISA), 29 U.S.C. § 1002(1). The

Trust is self-funded and provides both self-funded and insured

welfare benefits to its participants and their dependents. The

Board of Trustees is the named fiduciary of the Trust and

interprets the terms of the Plan and hears participants’ claims

concerning eligibility determinations and other adverse actions. 

Defendant WCE “administers the Plan on behalf of the Trust.” 

Compl. at ¶ 3.

Plaintiff retired from UPS and effective June 30, 2013,

Plaintiff was no longer covered under the Plan. The Trust,

however, also provides retiree welfare benefits to eligible

participants pursuant to the Trust’s Retiree Plan. Accordingly,

on June 26, 2013, the “Trust Office” mailed to Plaintiff a Notice

regarding the termination of his health coverage in which it

advised Plaintiff:

This notice contains important information about

your right to continue health coverage under the

OREGON TEAMSTER EMPLOYERS TRUST. 

Effective June 01, 2013, you are no longer covered

under the Trust because of your reduction in hours

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or termination of employment. You have the right

to elect to continue your Trust health coverages

for up to 18 months by making self-payments. 

To elect COBRA coverage you must complete and sign

the enclosed form and return it to [WEC] at the

address listed on the form. Your election notice

must be returned or postmarked within 60 days of

receipt of this notice or you will permanently

lose the right to continue coverage.

Decl. of Pam Howard, Ex. A at 1. Also on June 26, 2013, the

Trust Office mailed Plaintiff an information package regarding

participation in the Trust’s health-coverage program for retirees

in which it advised Plaintiff:

IMPORTANT NOTICE IF YOU ARE A TEAMSTER-REPRESENTED

EMPLOYEE WHOSE TRUST COVERAGE IS ENDING BECAUSE OF

RETIREMENT

If you are:

• A Teamster-represented Employee;

• Who is losing OTET health coverage

because you are retiring;

You should review this Notice.

The Oregon Teamster Employers Trust has

separate retiree programs for Teamster-represented

employees covering Medicare and non-Medicare

retirees. If you wish to participate in either of

these retiree programs, you must apply within six

(6) months of the later of when your Oregon

Teamster Employers Trust coverage ends or your

pension effective date. Failure to apply within

this six-month period will irrevocably end your

ability to participate in the Oregon Teamster

Employers Trust Retiree Program.

This timely enrollment requirement applies

even if you intend to postpone your retiree

coverage because you have other group medical

coverage available or you wish to delay your

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retiree coverage until you are Medicare eligible. 

If you want to postpone your coverage, you still

need to apply within the six month period

identified above and inform the Trust that you are

electing to postpone your coverage.

The rules governing who is eligible lo

participate in the Oregon Teamster Employers Trust

Retiree Plan and retiree application forms are

available from the Trust Office. 

Howard Decl., Ex. A at 3 (emphasis in original). Plaintiff

asserts he did not receive from the Trust Office the June 26,

2013, mailing that contained the Notice and the information

package.

In July 2013 UPS made a “contribution for compensated hours

paid out following Plaintiff’s termination of employment,” which

“provided [Plaintiff with] June 2013 coverage.” The Trust

alleges it sent Plaintiff a second package containing the COBRA

notice and retiree-health coverage information after UPS made the

July 2013 contribution. The Trust Office did not retain a copy

of the second package, and Plaintiff alleges he did not receive

the package. 

It is undisputed that Plaintiff did not apply for the

Trust’s retiree health-coverage program within six months of the

date that his Oregon Teamster Employers Trust coverage ended

(June 30, 2013) or within six months of his pension’s effective

date (October 2013).

On March 16, 2015, Plaintiff contacted the Trust Office to

inquire about enrolling in the Trust’s retiree health-coverage

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plan. At that time Plaintiff advised the Trust Office that he

had been covered under his wife’s group Kaiser Health and Welfare

Plan until January 2015.

On March 17, 2015, the Trust Office mailed Plaintiff a

letter addressing his request to enroll in the Trust’s retiree

health-coverage plan in which it advised:

[T]he Oregon Teamster Employers Trust Health and

Welfare Non Medicare Retiree Plan has specific

criteria which must be met in order to qualify for

participation in this Plan. For complete details,

please refer to pages 10-15 of the enclosed

summary plan description.

David, your active coverage through the Oregon

Teamster Employers Trust FW - Kaiser Plan ended on

June 30, 2013. Your first pension check was

issued in October 2013.

Initial Eligibility Requirements: A Retiree Shall

be eligible to participate in the Retiree Plan

when he or she has satisfied all of the following

requirements:

* * *

David you met these requirements to participate as

a Retiree not eligible for Medicare.

* * *

Timely Application. Application for Retiree Plan

benefits must be made to the Trust Administrative

Office within six months following the later of

the date coverage under a Plan for active

Employees offered by the Trust ceases or the

Retiree's pension effective date. Applications

made after this six month period will be denied

and no coverage will be provided to the Retiree

and Dependents.

David, the Trust Administrative Office has no

record of an application from you for enrollment

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Case 3:15-cv-02067-BR Document 57 Filed 10/04/16 Page 6 of 20
in the Retiree Plan.

At the time the Retiree first qualifies for this

Retiree Plan coverage the Retiree and/or his or

her spouse may make a one-time irrevocable

election to delay medical coverage until he or she

becomes Medicare-eligible.

* * *

David, the Trust Administrative Office has no

record of receiving a request from you for the

onetime irrevocable election to delay medical

coverage until you become Medicare-eligible.

* * *

Based upon review of the Information submitted we

are not able to approve your request for

enrollment in the Oregon Teamster Employers Trust

Non-Medicare Retiree Plan. If you feel this

denial is in error, you have the right to request

an appeal in accordance with the provisions of the

Plan to the Board of Trustee's [sic].

Howard Decl., Ex. B (emphasis in original).

On March 31, 2015, Plaintiff submitted a letter to the Board

of Trustees appealing the denial of his request for enrollment in

the retiree health-coverage plan and stated:

I . . . am petitioning for the retirement medical

health plan. . . . At the time of my retirement I

went to the Pension office at the Lloyd Building

and discussed the requirement and signed paperwork

concerning work outside UPS. I was under the

impression that this was all that was required of

me.

I was under another health plan until the end

January [sic], until it was unexpectedly

cancelled. I tried to contact the Union rep but

was told he was unavailable. . . . I was directed

to the Emhart Co. . . where I was informed of the

time limitation and of a packet of paperwork that

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Case 3:15-cv-02067-BR Document 57 Filed 10/04/16 Page 7 of 20
I did not receive or had [sic] knowledge of. I

was told that my recourse was to petition for the

re-instatement of the benefits since I was over

the 30 day limit by 10 days. I have since

received the packet. I am asking to please be

re-instated to my health benefits plan.

Howard Decl., Ex. C.

On April 9, 2015, the Board of Trustees sent Plaintiff a

letter informing him that the Trust’s Claim Appeal Committee

would hear his claim appeal on May 5, 2013. The Board advised

Plaintiff that if he wanted to make a personal appearance,

“please complete and return the enclosed form by April 23, 2015. 

If not, the Trustees’ decision will be based on the Trust’s

administrative file, your appeal letter and any additional

material you wish to submit.” Decl. of David Barlow, Ex. A at 1.

On April 23, 2015, Plaintiff returned the form that was

enclosed with the Board’s April 9, 2015, letter and checked the

boxes that stated “I am enclosing additional items with this

letter” and “I will not be making a personal appearance but wish

to receive my full appeal file.” Barlow Decl., Ex. B at 1. 

Plaintiff also noted he would be “at the union hall that day for

union meeting please call me if needed.” Id.

On April 29, 2015, the Board sent Plaintiff a letter in

which they noted they had received Plaintiff’s appeal election

form “in which [he] decline[d] to appear at the appeal hearing.” 

Barlow Decl., Ex. C at 1. Also on April 29, 2015, the Board sent

Plaintiff a letter in which it advised him that the Claim Appeal

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Committee would hear his appeal on May 6, 2015. The Board also

enclosed a copy of the administrative file that the Claim Appeal

Committee would review. Barlow Decl., Ex. D at 1. The

administrative file sent to Plaintiff included an index to the

package in which the “nature of [Plaintiff’s] claim” was

described as follows:

Claimant is requesting to participate in the

Retiree Health Plan. Claimant’s active coverage

terminated as of June 20, 2013. He . . . did not

apply for retiree coverage. Claimant indicates he

was covered under an individual plan through

Kaiser until January 31, 2015. He contacted the

Trust on March 24, 2014 about retiree coverage. 

Participation was denied because claimant’s

application was not submitted to the Trust Office

within six months of the later of the end of

Claimant’s active Trust coverage or his pension

effective date. Claimant has stated that he was

unaware of the Plan’s timely application deadline

and asserts that he did not receive COBRA

materials that were mailed by the Trust on 

June 26, 2013.

Barlow Decl., Ex. E at 1.

On May 8, 2015, the Claim Appeal Committee issued a decision

in which it denied Plaintiff’s appeal. In its Memorandum of

Findings and Conclusions the Claim Appeal Committee found:

Upon termination of coverage, claimant was sent a

standard COBRA continuation coverage package from

the Trust Office. It included the Notice attached

as Exhibit A to these Findings and Conclusions. 

This Notice reminds those participating that they

must apply for Retiree Coverage within 6 months of

the later of the date their active coverage ceases

or their pension effective date.

Claimant indicates he did apply to the Western

Conference of Teamsters Pension Plan and that he

9 - OPINION AND ORDER

Case 3:15-cv-02067-BR Document 57 Filed 10/04/16 Page 9 of 20
believed that that would also include his retiree

health coverage. Trustees in attendance noted

that this is an unrelated Trust with a separate

administrative office and that in their experience

retiree health is not discussed when you apply for

a pension with the Western Conference of Teamsters

pension Plan. 

Barlow Decl., Ex. F at ¶¶ 6-7. The Claim Appeal Committee did

not note in its findings that Plaintiff asserted he did not

receive the COBRA Notice or the information package. The Claim

Appeal Committee concluded:

The Plan requires that individuals wishing to

participate in the Retiree Plan apply within 6

months of the later of the date their active

coverage ceases (June 30, 2013) or their pension

effective date (October 1, 2013).

Claimant did not contact the Trust until March 24,

2015, which is more than 6 months after the later

of the above two dates.

The Western Conference of Teamsters Pension Trust

is a separate plan with separate administration

and contacting it for does not meet the Trust’s

Retiree Plan’s timely application requirements. 

Therefore claimant’s request to participate in the

Retiree Plan is denied.

Barlow Decl., Ex. F at ¶¶ 11-14. The Claim Appeal Committee

advised Plaintiff that he had the “right to . . . bring a civil

action under 29 U.S.C. § 1132(a) of ERISA” to challenge the

Committee’s decision.

On November 2, 2015, Plaintiff filed a pro se Complaint in

this Court against the Trust in which he sought “the right to

[his] medical benefits . . . which [he is] entitled to as a

10 - OPINION AND ORDER

Case 3:15-cv-02067-BR Document 57 Filed 10/04/16 Page 10 of 20
retiree through the Western Conference of Teamsters Pension

Trust.”

On February 25, 2016, the Court appointed counsel for

Plaintiff.

On April 5, 2016, Plaintiff filed a First Amended Complaint

against the Trust and WCE in which he asserts Defendants violated

§ 1132(a)(1)(B) of ERISA when they denied Plaintiff enrollment in

the retiree health-coverage plan. Plaintiff seeks damages and

equitable relief in the form of an injunction requiring

Defendants to offer Plaintiff “another six-month window during

which he may enroll in the subsidized Retiree Plan.” Compl. at 

¶ 32.

On June 2, 2016, the Trust filed a Motion for Summary

Judgment for Failure to Exhaust the Trust’s Claim Appeal

Procedures. On June 2, 2016, WCE filed a Joinder to Defendant

Oregon Teamster Employers Trust’s Motion for Summary Judgment. 

The Court took Defendants’ Motion under advisement on 

July 28, 2016. 

STANDARDS

Summary judgment is appropriate when “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Washington Mut. Ins. v. United

States, 636 F.3d 1207, 1216 (9th Cir. 2011). See also Fed. R.

11 - OPINION AND ORDER

Case 3:15-cv-02067-BR Document 57 Filed 10/04/16 Page 11 of 20
Civ. P. 56(a). The moving party must show the absence of a

dispute as to a material fact. Rivera v. Philip Morris, Inc.,

395 F.3d 1142, 1146 (9th Cir. 2005). In response to a properly

supported motion for summary judgment, the nonmoving party must

go beyond the pleadings and show there is a genuine dispute as to

a material fact for trial. Id. "This burden is not a light one

. . . . The non-moving party must do more than show there is

some 'metaphysical doubt' as to the material facts at issue." In

re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)

(citation omitted). 

A dispute as to a material fact is genuine "if the evidence

is such that a reasonable jury could return a verdict for the

nonmoving party." Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). The court must draw all

reasonable inferences in favor of the nonmoving party. Sluimer

v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010). "Summary

judgment cannot be granted where contrary inferences may be drawn

from the evidence as to material issues." Easter v. Am. W. Fin.,

381 F.3d 948, 957 (9th Cir. 2004)(citation omitted). A “mere

disagreement or bald assertion” that a genuine dispute as to a

material fact exists “will not preclude the grant of summary

judgment.” Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)

12 - OPINION AND ORDER

Case 3:15-cv-02067-BR Document 57 Filed 10/04/16 Page 12 of 20
(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.

1989)). When the nonmoving party's claims are factually

implausible, that party must "come forward with more persuasive

evidence than otherwise would be necessary." LVRC Holdings LLC

v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citation omitted). 

The substantive law governing a claim or a defense

determines whether a fact is material. Miller v. Glenn Miller

Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006). If the

resolution of a factual dispute would not affect the outcome of

the claim, the court may grant summary judgment. Id.

DISCUSSION

Defendants move for summary judgment as to Plaintiff’s claim

on the ground that Plaintiff failed to exhaust the Trust’s

mandated appeal procedures. 

ERISA requires every plan to establish claim procedures. 

29 U.S.C. § 1133. ERISA requires the procedures to include

provisions governing the appeal of adverse benefit

determinations. 29 C.F.R. § 2560.503-1(b). In addition, the

Ninth Circuit has consistently held benefit-plan participants are

required to exhaust plan administrative procedures before filing

an action in court. See, e.g., Vaught v. Scottsdale Healthcare

Corp. Health Plan, 546 F.3d 620, 626 (9th Cir. 2008) (“[W]e have

consistently held that before bringing suit . . . an ERISA

13 - OPINION AND ORDER

Case 3:15-cv-02067-BR Document 57 Filed 10/04/16 Page 13 of 20
plaintiff claiming a denial of benefits must avail himself . . .

of a plan's own internal review procedures before bringing suit

in federal court.” (citation and quotation marks omitted));

Probert v. Kalamarides, 528 F. App’x 741, 742 (9th Cir. 2013)

(“The district court properly dismissed [the plaintiff’s ERISA]

claim . . . that defendants improperly withheld his pension

benefits, because . . . [the plaintiff] failed to exhaust his

administrative remedies.”); Amato v. Bernard, 618 F.2d 559, 568

(9th Cir. 1980)(“[F]ederal courts have the authority to enforce

the exhaustion requirement in suits under ERISA, and . . . as a

matter of sound policy they should usually do so.”).

Defendants do not dispute Plaintiff exhausted his appeal

procedures with respect to the matters that Plaintiff alleged in

his March 31, 2015, letter to the Board of Trustees in which he

appealed the first denial of his request to enroll in the

retirement health-coverage plan. Defendants, however, note

Plaintiff alleged new matters in his First Amended Complaint that

were not raised before or considered by the Claim Appeal

Committee; for example, Plaintiff’s allegations that:

1. He tried to enroll in the retiree health-coverage plan

through means other than those he alleged in his March

2015 letter;

2. The Trust did not adequately investigate whether

Plaintiff was provided with notice of the enrollment

14 - OPINION AND ORDER

Case 3:15-cv-02067-BR Document 57 Filed 10/04/16 Page 14 of 20
procedure or whether it would suffer prejudice if

Plaintiff was enrolled; and

3. He was only 14 days late in applying for coverage.

Defendants assert the correct forum for Plaintiff to raise

new issues and to present new evidence is before the Board of

Trustees rather than this Court. Defendants, therefore, contend

the Court should dismiss this matter to allow the Board of

Trustees to reconsider Plaintiff’s request for coverage in light

of the additional information that Plaintiff provides in his

First Amended Complaint. 

Plaintiff does not dispute exhaustion of the plan appeal

process is generally required under ERISA or that he raises new

issues and presents new evidence in this matter that was not

considered by the Claim Appeal Committee in its 2015 review of

the denial of Plaintiff’s claim. Plaintiff, however, contends

reconsideration of this matter by the Board of Trustees would be

futile, and, therefore, the Court should exercise its discretion

to waive the exhaustion requirement and to deny Defendants’

Motions for Summary Judgment. 

“A district court has discretion to waive the exhaustion

requirement, Southeast Alaska Conservation Council v. Watson, 697

F.2d 1305, 1309 (9th Cir. 1983), and should do so when exhaustion

would be futile.” Horan v. Kaiser Steel Ret. Plan, 947 F.2d

1412, 1416 (9th Cir. 1991). See also K.M. v. Regence Blueshield,

15 - OPINION AND ORDER

Case 3:15-cv-02067-BR Document 57 Filed 10/04/16 Page 15 of 20
No. C13–1214 RAJ, 2014 WL 801204, at *14 (W.D. Wa. Feb. 27,

2014)(same); Burnett v. Raytheon Co. Short Term Disab. Basic Ben.

Plan, 784 F. Supp. 2d 1170, 1184 (C.D. Cal. 2011)(same); Stickle

v. SCIWestern Market Support Ctr., L.P., No. CV 08–083–PHX–MHM,

2008 WL 4446539, at *18 (D. Ariz. Sept. 30, 2008)(same). 

“The futility exception is ‘designed to avoid the need to

pursue an administrative review that is demonstrably doomed to

fail.’” A.F. v. Providence Health Plan, 157 F. Supp. 2d 899, 909

(D. Or. 2016)(quoting Diaz v. United Agr. Emp. Welfare Benefit

Plan & Trust, 50 F.3d 1478, 1485 (9th Cir. 1995)). “‘[B]are

assertions of futility’” are not sufficient to invoke the

exception, and “‘a Plan's refusal to pay does not, by itself,

show futility.’” Id. (quoting Foster v. Blue Shield of Cal., 

No. CV 05-03324 DDP (Ssx), 2009 WL 1586039, at *5 (C.D. Cal. 

June 3, 2009)).

Here Plaintiff points to the exchanges between his counsel,

Clifford Davidson, and defense counsel, David Barlow, after

Davidson was appointed. According to Plaintiff, those exchanges

establish reconsideration by the Board of Trustees would be

futile. On February 29, 2016, Davidson emailed Barlow and

stated: 

My firm has accepted the court's appointment as

Mr. Osires’ counsel. We will be drafting an

amended complaint.

Before I do that, and before everyone incurs

expense, I would like to propose the following. 

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Case 3:15-cv-02067-BR Document 57 Filed 10/04/16 Page 16 of 20
Based on my review of the materials you sent

(thank you, by the way) and those my client has

provided to me, I believe it is highly likely that

Judge Brown would remand Mr. Osires' case to your

client for a new administrative hearing where 

Mr. Osires could be present. Rather than go

through filing an amended complaint and briefing

this issue, would your client agree to hold that

re-hearing now? If your client reaches the same

conclusion as last time, then we know what we're

litigating about. 

Decl. of Clifford Davidson, Ex. 1 at 2. Barlow responded that

same day: “I will ask the Board. I am sure I will be asked why

you believe the court would order a new hearing since he was

offered in writing the chance to appear at the May appeals

meeting.” Davidson Decl., Ex. 1 at 1. Davidson, in turn,

advised Barlow:

Thank you for your willingness to approach the

board. Among other things, Mr. Osires should be

afforded another hearing because:

(1) Mr. Osires (mis-)understood that his

interests were being represented at the

hearing, as evidenced by his handwritten

notation on the attached form.

(2) The attached Correspondence Tracking

indicates that there was a disruption in

the process of generating the

continuation coverage/COBRA packet,

calling into question both whether the

packet was ever sent and whether the

hearing panel sufficiently investigated

the matter;

(3) The Correspondence Tracking notes (p. 2

of 2) contain inaccuracies suggesting

that they are unreliable (e.g., the date

of UPS' supplemental payment);

(4) Despite my request in our phone call,

your client adduced no evidence that the

continuation/COBRA packet was actually

mailed to my client; and

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Case 3:15-cv-02067-BR Document 57 Filed 10/04/16 Page 17 of 20
(5) Mr. Osires would explain that he missed

the deadline by only 14 days.

In short, the court would remand for further

development of the facts in this case - facts

indicating that there should have been further

investigation, and that Mr. Osires made himself

available for the hearing and believed (whether

erroneously or not) that his interests were being

represented. Your client should bear in mind that

Oregon is a notice prejudice state, wherein your

client will have to convince a judge that your

client has suffered prejudice through an

application that is 14 days late from a man who

paid into a program for over 30 years.

Davidson Decl., Ex. 1 at 1. On March 8, 2016, Barlow sent

Davidson a letter in which he noted: “I have reviewed your

correspondence with the Trust. The Trust believes that the

appeal was properly handled and decided. As a result, the Trust

is not agreeable to remanding the matter for a new hearing.” 

Davidson Decl., Ex. 2 at 1.

Plaintiff asserts Barlow’s March 8, 2016, letter advising

Davidson that the Trust “is not agreeable to remanding the matter

for a new hearing” establishes the fact that reconsideration of

this matter by the Board of Trustees would be futile. Defendant,

however, notes on April 12, 2016, after Plaintiff filed his First

Amended Complaint, Barlow “notified Mr. Davidson that the Board

of Trustees, after reviewing the allegations in the First Amended

Complaint, was willing to hold a second appeal hearing at the

next quarterly appeal meeting on May 3, 2016 given the

allegations that Plaintiff would have appeared on May 6, 2015.” 

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Case 3:15-cv-02067-BR Document 57 Filed 10/04/16 Page 18 of 20
Decl. of David Barlow at ¶ 27. According to Barlow, “[o]n 

April 22, 2016, Mr. Davidson notified my office that the

Plaintiff did not see the point in having a second appeal heard

and would not participate in the appeal process.” Id. at ¶ 28.

As noted, the Ninth Circuit has made clear that “‘a Plan's

refusal to pay does not, by itself, show futility.’” Diaz, 50

F.3d at 1485. In addition, Defendant concedes Plaintiff has

raised issues and presented facts that were not before the Claim

Appeal Committee when they denied Plaintiff’s initial appeal

regarding his request for coverage. Moreover, Davidson believed

as recently as February 2016 that the Court could and should

remand the matter to the Board for further review based on the

facts presented and issues raised by Plaintiff in Davidson’s

email and alleged in Plaintiff’s First Amended Complaint.

On this record and in the exercise of its discretion, the

Court concludes Plaintiff’s request for benefits should be heard

by the Board of Trustees Claim Appeal Committee to consider the

facts, argument, and evidence that Plaintiff relies on in his

First Amended Complaint and in his Response to Defendants’ Motion

for Summary Judgment. Accordingly, the Court grants Defendants’

Motion for Summary Judgment and dismisses this matter without

prejudice so that Plaintiff’s request for benefits may be heard

in its entirety by the Board of Trustees Claim Appeal Committee

. 

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CONCLUSION

For these reasons, the Court GRANTS Defendants’ Motion (#37)

for Summary Judgment and DISMISSES this matter without prejudice.

IT IS SO ORDERED.

DATED this 4th day of October, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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