* Pursuant to 5th C IR . R. 47.5, the court has determ ined that this opi

nio n should not be published and is not precedent except under the limit ed circumstances set fo rth in 5 TH C IR . R. 47.5.4.
- 1 - IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________ No. 05-30605 Summary Calendar

_________________________ JOAN RUBEN GOODWIN, Plaint iff- Appellant,
versus LIBBEY GLASS, INC.; AETNA, INC., Defendants-Appellees.

__________________________________________________ Appeals from the Unites States District Court fo r the Western District of Louisiana (No. 5:03-CV-1353)

__________________________________________________ Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges. PER CURIAM: * Joan Goodwi

n, pro se , challenges the district court’s grant of summary judgment in favor of the defendants-appellees. We affirm. I. FACTS AND PROCEEDINGS Starti ng in March 1981, Goodwi n was employed by Libbey Glass, Inc., (“Libbey”) at Libbey’s facilit y in Shreveport, Loui siana. As an hourly employee, Goodwin was covered by Libbey’s Hourly United States Court of Appeals

Fifth Circuit 

## F I L E D April 18, 2006 Charles R. Fulbruge III Clerk1 The district court and Libbey identified the date as June 25, but the affidavit on which they

rely identifies the date as June 23. Given the resolution of this appeal, the two-day discrepancy is immat erial.

2 Goodwi n was term

inat ed, accordi

ng to Libbey, because she was medically qualified fo r only light duty and no such posi tions were available. She did not challenge the circumstances surrounding her discharge before the district court. - 2 - Em ployees Welfare Benefits Plan (the “Plan”). The Plan was underwritten by Aetna Life Insurance Co. (“Aetna”). In 1992, Goodwi

n sought short-term disabilit y benefit s under the Plan and filed a claim fo r workers’ co mpensation f or i njuries incurred at the work site. To receive the short-term disability benefit s, the Plan’s terms required Goodwi n to submit to Aetna an application for benefits and a physician’s statement of disabilit y. Goodwi n complied with the application procedures and received short-term disabilit y benefit s. The benefits lasted twenty-six weeks and expired on January 12, 1994. In January 1994, Goodwi n settled her pending workers’ compensation claim and received payment in February 1994. While Go odwi n’s last day of actual work was June 23, 1993, 1 she was not term inat ed from Libbey’s employment rolls until March 1, 1994. 2 Goodwi n maint ains that she maint ained periodic contact wit h Libbey’s human resources personnel in Shreveport, but provides no dates or specifics. Someti me near Septem

ber 2002, Goodwi

n contacted Libbey’s of

fice in Toledo, Ohio, fo r the fir st ti me and inquired about receiving permanent and total disability (“PTD”) benefits. A benefit s analyst wit h Libbey’s Corporate Human Resources Office responded by let ter on Septem ber 4, 2002, stati ng that, und e r the terms of the Plan, Goodwi n was required to have submit ted her request to3 The analyst erroneously indicated that the ti me pe ri od was two years. This error was corrected in lat er correspondence to reflect the tw elve month period. Given the resolution of this appeal, the discrepancy is immaterial. - 3 - Aetna wit hin a set ti

me 3 and that there was no record of any PTD status application on file wit h Aetna
or Libbey’s Shreveport office. As a result, the analyst informed Goodwin, she was not eligible fo r PTD benef

it s. In the letter, the analyst explained that Goodwin had the right to appeal the denial decision. In October 2002, a manag er of employee benefits for Libbey sent Goodwin a letter in response to her call requesting information on the procedure to appeal the denial of PTD benefit s. The let ter outlined the filing requirements fo r PTD status (i ncluding a specific correcti on of the analyst ’s error), poi

nt ed out that Goodwi

n had info rmed Libbey that she had no record of submit ti ng any such application, and asked that Goodwi n include any relevant documents she might have in her appeal. The letter also advised Goodwin of the appeal procedure. In December 2002, Goodwi n, th rough counsel, appealed the denial of PTD benefit s. In her let ter, G oodwin contended that she had “contacted members of the personnel department at [Libbey’s] lo cal facilit y at the ti me she became disable[d]” and that “[s]he was info rmed by them that they would process he r claim and she would receive notification thereof.” Goodwin further maint ained that “she had never received anyt hing in wri ti ng from [Libbey] or anyo ne associated wit h [Libbey].” In March 2002, counsel to Libbey informed Goodwin that her appeal for PTD benefit s had been denied because “Ms. Goodwi n failed to ti

mely file her application fo r permanent and total disabilit y benefit s wit h Aetna as required by [the Plan].” The letter included a copy of a benefits booklet that Goodwi

n had received duri

ng the course of her employment and identified the relevant4 On appeal, Goodwi n asserts a variety of claims, many outside the scope of her com plaint and beyo nd the issues presented to and considered by the district court. We limit our review to the question presented to the district court: Goodwin’s entitlement to PTD benefits under the Plan. - 4 - filing inst ructions. On July 18, 2003, Goodwi n filed a com

plaint in the Western District of Loui siana, asserting various rights under her employment contract. On August 11, 2003, Goodwin filed another pleading which the district court treated as an amended com plaint
. In her amended complaint, Goodwin styled her claim as one under the Em ployee Reti

rement Income Security Act (“ERISA”), 29 U.S.C. § 1001, et seq . On August 12, 2003, contending that Libbey had not answered the complaint, Goodwin
mo ved for a default judgment. Default was entered, and the matter was referred to the magistrate judge. On August 21, 2003, Libbey appeared and moved to set aside the default. The motion was granted, and Libbey answered Goodwi n’s com plaint
. Later, Libbey filed a mo tion for summary judgment, contending that Goodwi n did not make a timely application for PTD benefits under the Plan. The district court agreed and entered summary judgment in favor of Libbey. Goodwin appeals. 4 II. STANDARD OF REVIEW This court reviews a grant of summary judgment de novo and applies the same standards as the district court. See Riverw ood Int’l Corp. v. Employers Ins. of Wausau , 420 F.3d 378, 382 (5th Cir. 2005). Summary judgment is appropriate if the pleadings, affidavits, and other summary judgment evidence show that there is no genuine issue of mat erial fact and that the mo vant is entitled to a judgment as a mat ter of law. F E D . R. C IV . P. 56(c); Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986); R iverwood Int’l , 420 F.3d at 382. For summary judgment, the initial burden falls on the5 In the absence of a claim filing procedure in a plan, “a clai m shall be deemed filed when a wri tten or oral com

munication is made by the claimant
. . . r easonably calculated . . . to bri ng the claim to the attention of the person or organizational unit which handles claims fo r benefit s under the plan. . . .” Estate of Bratton , 215 F.3d at 523 (citing 29 C.F.R. § 2560.503-1(d) & (d)(3)). - 5 - mo vant to identify eit her “t hose portions of the record it believes demonstrate the absence of a genuine issue of mat erial fact,” Lincoln Gen. Ins. Co. v. Reyna , 401 F.3d 347, 349 (5th Cir. 2005),
or “an absence of evidence to support the nonmoving party ’s case,” Martinez v. Schlumberger, Ltd. , 338 F.3d 407, 411 (5th Cir. 2003). If the movant does either, the burden shifts to the nonmovant to show, by mo re than mere allegation, the existence of a genuine fact issue fo r tri al. R eyna , 401 F.3d at 349–50. At all times, “[a]ll evidence and reasonable inferences must be viewed in the light mo st favorable to the nonmovant.” Id. at 350. III. DISCUSSION The issue before this court is whether Goodwi n is entitled to recover PTD benefits. Libbey contends that Goodwi

n is not because she did not ti mely com ply wit h the claim filing procedure set out i n t he Plan. Goodwin does not contest Libbey’s reading of the Plan; rather, she maintains that she complied. We hold that she did not. ERISA “sets certai

n minimum requirements fo r the claims procedures that plans are required to fo llo w in processing benefit s claims brought by participants and beneficiaries.” E state of Bratton
v. Nat’l Union Fire In s. Co. , 215 F.3d 516, 523 (5th Ci r. 2000). A claim is not “filed” until “the requirements of a reasonable claim filing procedure of a plan have been met .” I d. S ee also 29 C.F.R. § 2560.503-1(e) (providing “a claim fo r benefit s is a request fo r a plan benefit or benefits made by
a claimant in accordance wit h a plan’s reasonable procedure fo r filing benefit claims”). 5 Goodwi n does not assert that the claims procedures set out i n t he Plan are unreasonable or otherwise violate- 6 -

ERISA or it s implement ing regulations. Accordingly, for her claim to be considered filed, she must have complied with the procedures set out in the Plan. The Plan provides clear inst ructions on filing PTD benefit s claims. Under the caption “How to File a Claim,” the Plan provides:

Your claim fo r permanent and total disabilit y benefit s must be filed wit h the insurance com

pany wit hin 12 mo nt hs aft e r you stop acti ve work. In order to file a claim fo r permanent and total disabilit y benefit s, yo u must com

plete the appropriate claim form and furnish a Physician’s Statement com

plete d by yo ur attendi

ng physician. These forms are available in yo ur Personnel Department. The insurance com

pany may requ est that y ou be examined by an independent physician of it s choice, but at no cost to y ou. The decision as to whether yo u are permanently and totally disabled will be made by the insurance com pany and will be based on the nature and extent of your disability. A Plan summary reiterates the basic requirements: “Aetna must receive written notice of claim at its Home Office wit hin 12 mo nt hs aft er yo u stop acti ve work. Proof of the permanent and total disability must be received no later than 12 months after premium payments stop.” Goodwi n maint ains that the deadline to file her claim fo r PTD benefit s was not March 1995 because she was unaware that she was discharged in March 1994. As Libbey poi nt s out, Goodwi

n of fers no com

petent evidence in support of this position. By contrast, Libbey refers to Goodwi n’s deposition, in which she testi fied that she was aware in March 1994 that she no lo nger was worki ng fo r Libbey. This evidence is corroborated by correspondence, which Goodwin admitted to receiving, that indicated that her employment had ended. Given the state of record evidence, the district court correctl y co ncluded that Goodwin had until March 1995 to file for PTD benefits under the Plan.- 7 -

Wit h respect to f

iling her PTD benefits application, Goodwin asserts that she submitted a claim wit hin the twel

ve mo nt hs allo tt ed in the Plan. However, at summary judgment, Goodwin produced no proof that she ever com pleted or submit ted a wri

tten application fo r PTD benefit s. She similarly failed to p r oduce any evidence that she obtai ned or submit ted a physician’s statement of disabilit y regarding PTD status. Finally, Go odwi n submit ted no evidence that any application packet was submitted to Aetna according to the terms of the Plan. Again, by contrast, Libbey produced com petent summary judgment evidence showing that there is no genuine factual issue that Goodwin failed to comply timely with the PTD benefits claim procedure set out in the Plan. Libbey’s Human Resources Manager testified in an affidavit that a full search of Goodwin’s insurance file, personnel file, and employment record produced no indication that Goodwi

n ever made a wri

tten application fo r PTD benefit s to Libbey. Similarly, a Claims Manager fo r Aetna testi fied in an affidavit that, based on a thorough review of Goodwi n’s claims files and other relevan

t records, Aetna never received an application for PTD benefits on Goodwin’s behalf. Goodwi

n did produce some evidence, but none sufficient to demonstrate a genuine issue of mat erial fact. For example, Goodwin provided various applications and physician’s statements relating to her request fo r short-term disabilit y benefit s. However, those documents do not show that she made a claim fo r PTD benefit s. To the contrary, her ability to produce evidence of compliance wit h the filing procedure fo r those claims makes her inabilit y to demonstrate proper filing fo r the PTD benefit s mo re stark. In addition, Goodwi

n produced an affidavit from Marget Howard, who testi fied that Goodwi n went to Libbey’s Human Resource s department and requested to be placed on light duty. When- 8 -

Goodwi n was told that no light duty posi tions were available, Howard recounts that she “personally heard [Goodwi

n] ask fo r her permanent total disabilit y” benefit s if no jo bs were available to her. This evidence does not go far enough. Even taken as true with all positive inferences, Howard’s statement th at Goodwi

n orally requested PTD benefits from Libbey does not show that Goodwin submitted ti mely writ ten notice of a claim or a physician’s statement as required under the Plan. Finally, Goodwi

n relies on an undated, unsigned notation on a worksheet that was attached to a let ter to Goodwi

n from Libbey, which was dated September 23, 1998, and titled “VESTED PENSION BENEFITS.” The letter was drafted in response to a telepho ne call by Goodwin to Libbey inquiring about her pension bene fit s. A benefits manager for Libbey signed the letter and attached various employment records, including the worksheet, in support of the let ter’s conclusion. The worksheet had been com pleted in March 1995 by a different Libbey employee. At the bottom of the worksheet, a hand-written notation provides “Aetna turned down her PTD request.” Goodwi n contends that this notation is enough to create a tri able issue of whether she submit ted a claim fo r PTD benefits. It is not. The notation is und ated and, as such, proves nothi ng about the timing of the filing of any claim. The notation was written in a different handwriting and with different color ink t han the info rmation entered by the Libbey employee on the worksheet. Moreover, the worksheet was created
on March 23, 1995, which was more than a year after Goodwin’s termination date. Indeed, Goodwi n’s reading of the notation does not com port wit h her version of events because she admit ted in her deposition that Aetna never received an application. Further, she conceded in deposition that she had no documentary evidence of any correspondence relevant to her claim from 1994 to 2002. Even in the light most favorable to Goodwin, the notation does not create a genuine issue of fact.6 Two add it io nal issues warrant mention. First, after default was entered, Libbey made an

appearance and mo ved to have the default set aside. The magistrate judge granted Libbey’s motion. Starti ng from the understanding that default judgments are “‘generally disfavored in the law’ and th us ‘should not be granted on the claim, wit hout mo re, that the defendant had failed to meet a procedural ti me requirement,’” we note that an order setti ng aside a default is reviewed fo r abuse of discretion. Lacy v. Sitel Corp. , 227 F.3d 290, 292 (5th Cir. 2000). Where, as here, Libbey responded quickly to the notice of default, Goodwi n suffered no prejudice from the distric t court’s setti ng aside the default judgment, and Libbey prof fered a merit orious defe nse to the claim, there is no abuse of discretion. See id . at 292–94. Second, Libb ey’s mo tion to stri ke portions of Goodwin’s record excerpts is DENIED as mo ot. - 9 - In sum, Goodwi

n contends, wit hout proof , that she ti

mely filed her PTD benefit s claim as provided for by the Plan. Overwhelmingly, Libbey has shown just the opposite. By reference to
com petent summary judgment evidence, Libbey has demonstrated a lack of genuine issues of mat erial fact. Because Goodwin did not file for PTD benefits in accordance with the Plan’s terms, Libbey was entitled to a judgment as a matter of law. 6 IV. CONCLUSION Finding no error, we AFFIRM.