[DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS
                                                              FILED
                  FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                    ________________________ ELEVENTH CIRCUIT
                                                          JUNE 17, 2008
                           No. 07-15799                 THOMAS K. KAHN
                       Non-Argument Calendar                CLERK
                     ________________________

                  D. C. Docket No. 06-00278-CV-CG

CAROL-LYNN FETTERHOFF,

                                                           Plaintiff-Counter
                                                       Defendant-Appellant,

                                versus

LIBERTY LIFE ASSURANCE COMPANY,

                                                         Defendant-Counter
                                                         Claimant-Appellee,

ST. PAUL FIRE AND MARINE
INSURANCE COMPANY,

                                                        Defendant-Appellee.

                     ________________________

              Appeal from the United States District Court
                 for the Southern District of Alabama
                    _________________________

                            (June 17, 2008)
Before TJOFLAT, BLACK and KRAVITCH, Circuit Judges.

PER CURIAM:

      Pro-se appellant Carol-Lynn Fetterhoff appeals the district court’s dismissal

of her complaint for benefits under her employer St. Paul Fire and Marine

Insurance Company’s (“St. Paul”) long-term disability benefits plan, insured by

Liberty Life Assurance Company (“Liberty Life”), under the Employee Retirement

Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132(a)(1)(B).

      Fetterhoff had been receiving long-term disability benefits through Liberty

Life from 1999 until July 2000, when Liberty Life denied Fetterhoff’s claim for

continued benefits. Fetterhoff appealed the denial and Liberty Life notified her

that it would uphold the denial on January 11, 2001. On May 3, 2006, Fetterhoff

filed a complaint against Liberty Life and St. Paul in which she alleged that her

policy qualified as a benefits plan under ERISA and that Liberty Life had

arbitrarily and in bad faith rejected her claim for benefits. Liberty Life answered

the complaint and averred that the complaint was time-barred, and filed a counter

claim against Fetterhoff. Fetterhoff then sought to amend her complaint to add

wrongful discharge, breach of fiduciary duty, and punitive damage claims. The

district court dismissed the claim for punitive damages, denied the motion to

amend the complaint as futile, and dismissed the complaint as time-barred. This



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appeal followed.

      1. Motion to Amend

      We generally review the denial of a motion to amend a complaint for an

abuse of discretion, but review questions of law de novo. Williams v. Bd. of

Regents of Univ. Sys. of Ga., 

, 1291 (11th Cir. 2007). “A party may

amend [its] pleading once as a matter of course at any time before a responsive

pleading is served.” Fed.R.Civ.P. 15(a). After a responsive pleading is served, “a

party may amend its pleading only with the opposing party’s written consent or the

court’s leave . . . when justice so requires.” 

may deny a motion to

amend on numerous grounds, including futility of the amendment. Brewer-

Giorgio v. Producers Video, Inc., 

, 1284 (11th Cir. 2000) (internal

quotations omitted). An amendment is futile where it fails to state a claim for

relief. Daewoo Motor Am., Inc. v. General Motors Corp., 

, 1260-61

(11th Cir. 2006), cert. denied, 

(2007).

      Under ERISA, a beneficiary may commence 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.” 29 U.S.C. § 1132(a)(1)(B). Further, a beneficiary may bring an action for

breach of fiduciary duty under 29 U.S.C. § 1109. 29 U.S.C. § 1132(a)(2). ERISA



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does not provide for extra-contractual relief or punitive damages under 29 U.S.C.

§§ 1109, 1132(a)(1)(B), or 1140. Mass. Mut. Life Ins. Co. v. Russell, 

, 144, 

, 3091, 

(1985) (§ 1109); Godfrey v.

BellSouth Telecomms., Inc., 

, 761 (11th Cir. 1996) (§§ 1132 and

1140).

         Additionally, ERISA contains no statute of limitations for claims to recover

benefits under § 1132(a)(1)(B) or claims of wrongful termination under § 1140.

Northlake Reg’l Med. Ctr. v. Waffle House Sys. Employee Benefit Plan, 

, 1303 (11th Cir. 1998); Musick v. Goodyear Tire & Rubber Co., Inc., 

, 137-38 (11th Cir. 1996). However, under the statute, a plaintiff cannot

commence an action for breach of fiduciary duty “three years after the earliest date

on which the plaintiff had actual knowledge of the breach or violation.” 29 U.S.C.

§ 1113(2). Actual knowledge requires more than mere “notice that something was

awry.” Brock v. Nellis, 

, 755 (11th Cir. 1987). Instead, the plaintiff

“must have had specific knowledge of the actual breach of duty upon which he

sues.” 

claims are completely preempted by ERISA where (1) there is a

relevant ERISA plan, (2) the plaintiff has standing to sue under that plan, (3) the

defendant is an ERISA entity, and (4) the complaint seeks compensatory relief akin



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to that available under § 1132(a), which is normally a claim for benefits under the

plan. See Jones v. LMR Int’l, Inc., 

, 1178 (11th Cir. 2006). If a

state insurance law is completely preempted by ERISA, the exemption of 29

U.S.C. § 1144(b)(2)(a) does not apply. Cotton v. Mass. Mut. Life Ins. Co., 

, 1282 n.14 (11th Cir. 2005). Completely preempted state law claims are

recharacterized as ERISA claims and arise under federal law. 

.

       Here, the court did not abuse its discretion. The district court properly

denied the motion to amend the complaint because Fetterhoff’s amended claims

were futile. Any state-law claim of wrongful termination, bad faith, breach of

contract, or breach of fiduciary duty was completely preempted by ERISA and was

time-barred by the policy’s one-year contractual limitations period. Further,

Fetterhoff’s claim for breach of fiduciary duty was time-barred by ERISA’s three-

year statute of limitations.

       2. Motion to Dismiss

       We review de novo a “district court’s grant of a motion to dismiss under

[Fed.R.Civ.P.] 12(b)(6) for failure to state a claim, accepting the allegations in the

complaint as true and construing them in the light most favorable to the plaintiff.”1


       1
        “A court is generally limited to reviewing what is within the four corners of the
complaint on a motion to dismiss.” Bickley v. Caremark RX, Inc., 

, 1329 n.7

                                              5
Castro v. Sec’y of Homeland Sec., 

, 1336 (11th Cir. 2006).

       Fetterhoff argues that the district court erred in dismissing her initial

complaint as time-barred because (a) the policy was not covered by ERISA

pursuant to 29 U.S.C. § 1321(b)(11), (b) the policy’s one-year contractual

limitations period conflicted with the state’s statute of limitations, requiring the

court to apply the statute of limitations pursuant to the policy’s conformity clause,

and (c) and Liberty Life and St. Paul failed to provide her with notice of her right

to sue for benefits and the policy’s time limitation pursuant to 29 C.F.R.

§ 2560.503-1(g).2

       Upon review of the record, we find no reversible error. First, the doctrine of

judicial estoppel prevents a party from presenting an inconsistent position after

successfully maintaining that position in an earlier proceeding. New Hampshire v.

Maine, 

, 749, 

, 1814, 

(2001). Judicial

estoppel is appropriate where (1) the party’s later position is “clearly inconsistent”

with its earlier position, (2) the party succeeded in persuading the court to accept


(11th Cir. 2006). “If, on a motion for judgment on the pleadings, matters outside the pleadings
are presented to and not excluded by the court, the motion must be treated as one for summary
judgment under [Fed.R.Civ.P.] 56.” Fed.R.Civ.P. 12(d). However, a district court may consider
a document attached to a motion to dismiss without converting the motion into a motion for
summary judgment where, as here, the document is central to the plaintiff’s claim, and its
authenticity is not challenged. Day v. Taylor, 

, 1276 (11th Cir. 2005).
       2
          Because Fetterhoff failed to argue the issue of punitive damages in her initial brief, the
issue is deemed abandoned on appeal.

                                                  6
its earlier proposition, and (3) the party would derive an unfair advantage or

impose an unfair detriment on the opposing party if not estopped. 

at

749-51. Thus, Fetterhoff was judicially estopped from arguing that ERISA did not

control the policy because her complaint premised relief on ERISA and the district

court relied on that premise in ruling on her motion to amend.

      Second, as noted above, ERISA does not provide a statute of limitations for

suits brought under 29 U.S.C. § 1132(a)(1)(B) to recover benefits. Northlake

Reg’l Med. 

. Although we generally apply the most closely

analogous limitations period, in this case contract law, from the state in which the

action was brought, Harrison v. Digital Health Plan, 

, 1238-39, 1241

(11th Cir. 1999), where the parties have contractually agreed upon a limitations

period, borrowing a state’s statute of limitations is unnecessary. Northlake Reg’l

Med. 

.

      Here, the district court properly determined that the policy’s contractual one-

year statute of limitations applied because it did not conflict with the state’s statute

of limitations for contracts. Thus, because Fetterhoff filed her complaint more than

one year after she exhausted her administrative remedies with Liberty Life, her

complaint was time-barred under the policy’s one-year limitation period for filing

legal action. Finally, the notice provisions of 29 C.F.R. § 2560.503-1(g) did not



                                            7
apply because Fetterhoff filed her claim for benefits prior to January 1, 2002.

      Accordingly, we AFFIRM.




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