LANCE M. AFRICK, District Judge.
Before the Court is defendants Building Trades United Pension Trust Fund ("the Fund") and the Fund's Board of Trustees' ("Trustees")
Five days after filing her opposition, Theriot filed a motion for leave to supplement her opposition to defendants' motion with two exhibits, which this Court granted.
Count III of Theriot's second amended complaint alleges that the Fund, through its Trustees, failed to timely produce requested plan documents in violation of ERISA, 29 U.S.C. § 1024(b)(4) and that, therefore, Theriot is entitled to penalties under 29 U.S.C. § 1132(c).
Defendants move for summary judgment on the basis that Theriot did not have standing to request either set of documents under § 1024(b)(4).
Summary judgment is proper when, after reviewing the pleadings, the discovery and disclosure materials on file, and any affidavits, the Court determines that there is no genuine dispute of material fact. See Fed. R. Civ. P. 56. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary judgment need not produce evidence negating the existence of a material fact; it need only point out the absence of evidence supporting the other party's case. Id.; see also Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th Cir. 1986).
Once the party seeking summary judgment carries its burden, the nonmoving party must come forward with specific facts showing that there is a genuine dispute of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The showing of a genuine issue is not satisfied by creating "`some metaphysical doubt as to the material facts,' by `conclusory allegations,' by `unsubstantiated assertions,' or by only a `scintilla' of evidence." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted).
A genuine issue of material fact exists when the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Although the substance or content of the evidence submitted to support or dispute a fact on summary judgment must be admissible . . ., the material may be presented in a form that would not, in itself, be admissible at trial." Lee v. Offshore Logistical & Transp., LLC, 859 F.3d 353, 355 (5th Cir. 2017) (citations omitted). The party responding to the motion for summary judgment may not rest upon the pleadings but must identify specific facts that establish a genuine issue. Anderson, 477 U.S. at 248. The nonmoving party's evidence, however, "is to be believed, and all justifiable inferences are to be drawn in [the nonmoving party's] favor." Id. at 255; see also Hunt v. Cromartie, 526 U.S. 541, 552 (1999).
"[A] district court has somewhat greater discretion to consider what weight it will accord the evidence in a bench trial than in a jury trial." Matter of Placid Oil Co., 932 F.2d 394, 397 (5th Cir. 1991). "[W]here `the evidentiary facts are not disputed, a court in a nonjury case may grant summary judgment if trial would not enhance its ability to draw inferences and conclusions.'" Id. (quoting Nunez v. Superior Oil Co., 572 F.2d 1119, 1124 (5th Cir. 1978)); see also Manson Gulf, L.L.C. v. Modern Am. Recycling Serv., Inc., 878 F.3d 130, 134 (5th Cir. 2017).
Pursuant to 29 U.S.C. § 1024(b)(4),
Section 1132(c) gives courts discretion to award penalty damages for violations of § 1024(b)(4):
A request for plan documents must "provide clear notice to the plan administrator of the information [the plaintiff] desire[s]" to trigger statutory penalties. Van Bael v. United Healthcare Services, Inc., No. 18-6873, 2019 WL 160183, at *3 (E.D. La. Jan. 10, 2019) (Africk, J.) (quoting Kollman v. Hewitt Assocs., LLC, 487 F.3d 139, 145 (3d Cir. 2007); citing Fisher v. Metro. Life Ins. Co., 895 F.2d 1073, 1077 (5th Cir. 1990)) (citations omitted). The "touchstone" of sufficiency "is whether the request provides the necessary clear notice to a reasonable plan administrator which, given the context of the request, should be provided." Center for Restorative Breast Surgery, LLC v. Humana Health Benefit Plan of La., Inc., No. 10-4346, 2015 WL 4394034, at *17 (E.D. La. July 15, 2015) (Fallon, J.) (quoting Kollman, 487 F.3d at 146; citing Fisher, 895 F.2d at 1077). Whether to award statutory penalties for violations of § 1024(b)(4) is within the discretion of the court. 29 U.S.C. § 1132(c)(1).
The Court will first address the motions that have been filed since defendants filed their motion for summary judgment. The exhibits filed by both Theriot and defendants to supplement the summary judgment record relate to whether Theriot, through her counsel at the time (the Javier Firm),
Theriot swears in her declaration that she:
Defendants filed a motion for sanctions and to strike Theriot's declaration pursuant to the "sham affidavit rule,"
The Court finds good cause to allow defendants to supplement the summary judgment record with the newly discovered evidence because Theriot allegedly did not turn over the Order of Appointment until after defendants moved for summary judgment.
The Court will first consider Theriot's 2017 request. In a letter dated November 1, 2017, Roger Javier ("Javier") of the Javier Firm sent a letter to defendants advising them that he "represent[s] the interests of the estate of Ms. Audry Hamann, and also Debbie Theriot and Carl Panebiango, children of Audry Hamann[.]"
As a preliminary matter, defendants argue that "[b]ecause Deborah Theriot did not become the administrator for the Hamann Estate until November 28, 201[8],
Theriot makes two arguments in her opposition to defendants' motion for summary judgment: first, that defendants are attempting to enforce a "form requirement" for the appointment of an authorized representative that is not in the plan document and, second, that defendants waived their right to raise this argument.
Theriot argues in her opposition to defendants' motion to strike her declaration that she was Ms. Hamann's universal successor pursuant to Louisiana Civil Code Article 935 and, therefore, "could represent Mrs. Hamann to enforce her rights immediately upon her death."
Finally, Theriot argues in her supplemental memorandum in opposition to defendants' motion for summary judgment that "consideration of Plaintiff's claims should have been tolled until such time as a succession representative qualified or until such time as Defendants produced the plan documents giving rise to the Audry Hamann claim."
Theriot argues that defendants are "attempt[ing] to impose a form requirement for the Javier Firm's appointment as the representative of Audry Hamann's estate when no such requirement exists in the plan."
Pursuant to 29 C.F.R. § 2560.503-1(b)(4), a plan's claims procedures will be deemed reasonable only if "[t]he claims procedures do not preclude an authorized representative of a claimant from acting on behalf of such claimant in pursuing a benefit claim or appeal of an adverse benefit determination." However, "a plan may establish reasonable procedures for determining whether an individual has been authorized to act on behalf of a claimant[.]" Id. Theriot argues that defendants are now trying to enforce procedures for determining whether Theriot was authorized to act on behalf of Ms. Hamann when no such "form requirement" was in either the plan document or summary plan description.
The Court finds that Theriot was not an "authorized representative" as contemplated by § 2560.503-1(b)(4) and, therefore, defendants are not attempting to retroactively impose procedures in violation of 29 C.F.R. § 2560.503-1(b)(4). Ms. Hamann did not take affirmative action to authorize Theriot to act on her behalf. Rather, Theriot, by operation of law, gained the right to act on the Estate's behalf on November 28, 2018 as its independent administrator.
Theriot next argues that defendants waived their argument that Theriot had no authority to retain the Javier Firm as counsel for the Estate on November 1, 2017 because defendants did not raise the argument sooner.
The Fifth Circuit has recognized the doctrine of waiver in the ERISA context, and it defines waiver as "the voluntary or intentional relinquishment of a known right." Pitts, 931 F.2d at 357. There is "a clear dividing line as to when waiver claims are available [in the ERISA context]." Price v. Metropolitan Life Ins. Co., No. 04-338, 2008 WL 4187944, at *3 (N.D. Miss. Sept. 8, 2008). "The key element is that waiver must be intentional." Id. "Generally waiver requires proof of the defendant's knowledge, actual or constructive, of the existence of his rights or of all material facts." Lamb v. Provident Ins. Co., No. 2:93CV40, 1994 WL 1890828 at *4 (N.D. Miss. Oct. 4, 1994).
The Fifth Circuit has held that administrators waive their rights to enforce policy provisions when they have full knowledge that a provision is being breached but allow the breach to continue. For example, in Pitts, the defendant's policy required a minimum of ten participating employees in the group insurance plan. 931 F.2d at 353. The defendant continued to accept insurance premiums and cash the plaintiff's premium checks "for five months after learning beyond all doubt that [the plaintiff] was the only employee remaining on the policy." Id. at 357. The Fifth Circuit held that, therefore, the defendant had waived its right to assert the policy violation as a defense to liability under the policy. Id.
Similarly, in Rhorer, the Fifth Circuit held that there was a fact issue precluding summary judgment as to whether the plan had waived its right to assert the defense that the employee lacked coverage because he was not actively working. 181 F.3d at 645. The plan knew that the employee was severely ill and had stopped working, but still allowed him to enroll in optional life insurance, accepted his premiums, and failed to return those premiums for over a year. Id. Rhoher and Pitts were primarily concerned with the plan administrator's conduct prior to the application for benefits, and it was that prior conduct that allowed the inference of waiver.
In contrast, Theriot takes issue not with defendants' conduct regarding Ms. Hamann's application for her late husband's benefits or with Ms. Hamann's application for lump-sum payment, but rather with defendants not raising their argument, that Theriot did not have the authority as representative of the Estate to engage the Javier Firm to request documents on November 1, 2017, immediately upon receiving the Javier Firm's letter.
Unlike the administrators in Pitts and Rhoher, defendants, when they responded to the 2017 request, did not know "beyond all doubt" or have any reason to believe for that matter, that the Javier Firm did not properly represent the Estate. See Pitts, 931 F.2d at 357; Rhoher, 181 F.3d at 645; Lamb, 1994 WL 1890828, at *4. The Javier Firm's letter stated that it represented the Estate.
Theriot's claim of waiver is more analogous to the claim in Schadler v. Anthem Life Ins. Co., 147 F.3d 388, 396-97 (5th Cir. 1998). The Fifth Circuit held that it was "unwilling to conclude that the administrator has, by determining that [the plaintiff] was not covered by the [policy], waived the right to interpret any particular provisions of the [policy] once it has been shown that [the plaintiff] was in fact covered." Id. The Fifth Circuit found that the administrator "advanced a non-frivolous argument that the [policy] had never been in effect as to [the plaintiff]," and "therefore was not called upon to make any further benefits determinations or even to interpret the terms of the Plan at all in concluding that [the plaintiff] was not covered." Id. at 396; see also Swenson v. Lincoln National Life Ins. Co., No. 17-0417, 2018 WL 3028954, at *8-9 (W.D. La. June 18, 2018) (holding that the doctrine of waiver was inapplicable to the defendant's allegedly insufficient appeal denial letter because the plaintiff took issue not with the defendant accepting premiums, but rather with the specific contents of the letter).
Similarly, here, defendants advanced a non-frivolous argument that the Estate "did not have standing as a participant or beneficiary under ERISA [when] it requested information from [defendants]" in their answer to Theriot's second amended complaint.
Further, Theriot's assertion that defendants' argument is nothing but "newly conceived procedural deficiencies" is simply incorrect. Defendants stated in their March 2, 2018 letter to the Javier Firm that they "would like to make clear that Ms. Theriot and [her brother] are not Participants, Beneficiaries or Survivors within the meaning of the Plan and as a result the Law."
Theriot argues that regardless of when she was appointed administrator of the Estate, "Louisiana succession law allows Theriot, as Audry Hamann's daughter and heir to her intestate succession," to "represent Mrs. Hamann to enforce her rights immediately upon her death" as Ms. Hamann's universal successor.
In response, defendants argue that only a succession representative, not a universal successor, may represent an estate in pursuing its claim for benefits under ERISA and, therefore, Theriot did not have standing to pursue Ms. Hamann's estate's claim for benefits and request documents until November 28, 2018, when she was appointed independent administrator of the Estate. The question is, therefore, whether Theriot could exercise the rights of the Estate to pursue a claim for benefits under ERISA immediately upon Ms. Hamann's death as universal successor, or whether she only gained this right once she was appointed independent administrator of the Estate.
"The universal successor represents the person of the deceased, and succeeds to all his rights and charges." La. Civ. Code art. 3506. Pursuant to Louisiana Civil Code Article 935, "[i]mmediately at the death of the decedent, universal successors acquire ownership of the estate," and "[p]rior to the qualification of a succession representative only a universal successor may represent the decedent with respect to the heritable rights and obligations of the decedent." Universal successors "may institute all actions that the decedent could have brought unless the estate is under administration, in which case the succession representative is the proper party plaintiff or defendant[.]" Id. Revision Comments (1997) (d). "If a universal successor exercises his rights of ownership after the qualification of a succession representative, the effect of that exercise is subordinate to the administration of the estate." La. Civ. Code art. 938.
As universal successor, Theriot had the right to institute all actions that Ms. Hamann could have brought, such as Ms. Hamann's claim for benefits under the pension plan, immediately upon Ms. Hamann's death. See La. Civ. Code art. 935, Revision Comments (1997) (d). Theriot was also subsequently appointed independent administrator of the Estate, so she had the authority to act on behalf of the Estate with respect to Ms. Hamann's claim for benefits both prior to and following her appointment as succession representative. See La. Civ. Code arts. 935, 938.
Defendants argue that because Louisiana Civil Code Article 935 states that "only a universal successor may represent the decedent with respect to the heritable rights and obligations of the decedent," and Ms. Hamann's claim for benefits under ERISA is a nonheritable right, Theriot could only bring an action under ERISA and request documents on behalf of the Estate once she was appointed independent administrator.
Defendants are mistaken for two reasons: first, a claim for benefits is a heritable right which survives the death of a participant or beneficiary under ERISA and, second, under Louisiana law an independent administrator does not have the power to enforce a set of rights that a universal successor otherwise cannot in the absence of an independent administrator.
In regard to defendants' first error in reasoning, it is well settled that a claim for benefits under ERISA survives the death of a plan participant or beneficiary. The claim for benefits passes to the decedent's estate and confers derivative standing to representatives of the estate to sue on the decedent's behalf, provided that there is a colorable claim to benefits. James, 766 F. Supp. at 533-34 (finding that a succession representative could sue derivatively on behalf of the deceased for a claim to benefits under ERISA); see also Ibson v. Healthcare Services, Inc., 877 F.3d 384, 388 (8th Cir. 2017) (holding that "it is the representative of a deceased participant's estate that has standing to sue for breach of ERISA fiduciary duties" and, therefore, a legal representative of the decedent's estate must bring the claim for benefits, not the decedent's heir in her personal capacity) (citations omitted); Harrow v. Prudential Ins. Co. of America, 279 F.3d 244, 248 (3d Cir. 2002) ("Because Congress intended ERISA to be remedial, ERISA actions survive death." (citing 29 U.S.C. § 1001(b); Duchow v. N.Y. State Teamsters Conference Pension & Retirement Fund, 691 F.2d 74, 78 (2d Cir. 1982)).
In regard to defendants' second error in reasoning, defendants fail to cite any authority which states that a claim for benefits under ERISA and the accompanying collateral right to request documents to pursue the claim do not pass to a decedent's universal successor, but rather only to the independent administrator of the estate.
Therefore, Ms. Hamann's right as a beneficiary under the Plan to request documents under 29 U.S.C. § 1024(b)(4) to pursue a claim for benefits passed to her estate immediately upon her death and, Theriot, as universal successor, had the authority to exercise this right to request documents on behalf of the Estate on November 1, 2017.
Finally, Theriot argues that "consideration of [p]laintiff's claims should have been tolled until such time as a succession representative qualified or until such time as [d]efendants produced the plan documents giving rise to the Audry Hamann claim."
Theriot's argument is inapposite and completely irrelevant as to whether she had authority to represent the Estate on November 1, 2017 and, therefore, had standing to make the 2017 request. There was no time restriction on when Theriot could request documents once appointed the independent administrator of the Estate, because neither the 2017 Plan nor 29 U.S.C. § 1024(b)(4) impose a time limit on requesting documents.
Theriot, through the Javier Firm, had standing to request documents pursuant to 29 U.S.C. § 1024(b)(4) on November 1, 2017, because she was acting on behalf of the Estate. The next issue is whether defendants complied with Theriot's 2017 request. The Javier Firm's letter requested:
Defendants sent the Javier Firm a copy of the plan agreement current through 2017 (the "2017 Plan") in response to the request.
A claimant does not have to request a document under § 1024(b)(4) using its precise name, but the request must be "sufficiently clear" to provide "notice to the plan administrator of the information" the claimant desires. Van Bael, 2019 WL 160183, at *3; see also Center for Restorative Breast Surgery, 2015 WL 4394034, at *17. However, Theriot's request did not "provide clear notice to [defendants]" such that a reasonable plan administrator would have known Theriot was also requesting the summary plan description, 1990 plan document, and collective bargaining agreement. See Van Bael, 2019 WL 160183, at *3; Center for Restorative Breast Surgery, 2015 WL 4394034, at *17. The Javier Firm's letter requested a complete copy of the plan agreement and defendants fulfilled this request by producing the 2017 Plan.
On November 2, 2018, Theriot's current counsel sent a letter
After not hearing from defendants, Theriot's counsel sent another letter on December 19, 2018, requesting all of the same documents.
Defendants argue that the Estate did not have standing to make the 2018 requests because the "Estate had failed to exhaust available administrative procedures and was barred from challenging [defendants'] benefit denial decision long before November 2, 2018."
Theriot argues that defendants failed to produce, in violation of § 1024(b)(4): (1) the 1990 Plan document; (2) the collective bargaining agreement; (3) contracts for claims administration; (4) the fidelity bond; and (5) any errors and omissions policy or fiduciary policy.
Defendants may only be subject to statutory penalties for those documents that were clearly requested and whose production 29 U.S.C. § 1024(b)(4) requires.
Theriot argues that defendants should have produced the 1990 plan document because it "governed Mr. Hamann's non-forfeitable rights at the time of his retirement[.]"
As previously discussed, a claimant does not have to request a document under § 1024(b)(4) using its precise name, but the request must be "sufficiently clear" to provide "notice to the plan administrator of the information" the claimant desires. Van Bael, 2019 WL 160183, at *3. Theriot's request falls short of this notice requirement. Theriot does not even identify which provisions in her requests would include the 1990 plan document and collective bargaining agreement. Therefore, the Court finds that defendants did not violate § 1024(b)(4) by failing to produce the 1990 plan document or collective bargaining agreement.
Even if Theriot's request for "a complete copy of the Plan Document, applicable amendments and all records evidencing adoption of same, in effect as of December 30, 2016 and as of March 1, 2017" could be construed as requesting the 1990 plan document, Theriot still would not have been entitled to it under § 1024(b)(4).
Theriot cites Hartman v. Dana Holding Corp., 978 F.Supp.2d 957, 968 (N.D. Ind. 2013), which held that an ERISA claimant may be entitled to outdated plan documents "if they contain information necessary for her to understand and assert her rights under the plan." The court in that case reasoned that a claimant may be entitled to outdated plan documents when "a claims administrator expressly relied on such documents because, under those circumstances, the participant would need to `have access to [the outdated documents] in order to understand what the claim administrator [was] doing and to effectively assert his rights under the plan.'" Id. (quoting Mondry v. American Family Mut. Ins. Co., 557 F.3d 781, 800 (7th Cir. 2009)).
Here, defendants relied upon language in the current plan agreement, the 2017 Plan, to deny Theriot's claim for benefits
Theriot clearly requested in her 2018 requests "[a]ny contracts for claim administration existing between [t]he Fund as plan sponsor and any third party."
Theriot argues that contracts for claims administration are other instruments under which the plan is operated because "[a]ny contract by which a person or party involves itself in the administration of claims is a document that governs the operation of the Fund, and may result in that third party being considered a fiduciary under the plan."
Defendants argue in response that no contracts for claims administration exist because the Fund is self-administered by its own employees.
Theriot clearly requested in her 2018 requests "any Fidelity bond issued to [the Fund]."
Theriot cites 29 U.S.C. § 1112, which requires every fiduciary of an employee benefit plan and every person who handles funds or other property of an employee benefit plan to be bonded, and concludes that "[b]ecause this document is a requirement for [d]efendants to operate as plan fiduciaries, it is an instrument under which the plan is established or operated that [d]efendants must produce."
Defendants do not address Theriot's request for "any Fidelity bond" in their motion for summary judgment, but asserted in their letter to Theriot's counsel on January 4, 2019 that any fidelity bond issued to the fund is not an instrument under which the Fund is established or operated, and therefore outside the scope of 29 U.S.C. § 1024(b)(4).
The Fourth Circuit, which also agrees with the majority of circuits and construes § 1024(b)(4)'s catch-all provision narrowly, was confronted with this same question in Faircloth v. Lundy Packing Co., 91 F.3d 648, 654 (4th Cir. 1996). The court held that § 1024(b)(4) did not encompass the bonding policy insuring the plan against fiduciary misconduct because "the bond policy does nothing to set up or manage the [plan]."
Theriot clearly requested in her 2018 requests "any Errors and Omissions or Fiduciary Policy issued to [the Fund] in force as of the dates listed above."
Theriot argues that defendants should have produced any errors and omissions or fiduciary policies issued to the Fund because "these are formal legal documents that govern the plan's operations[.]"
29 U.S.C. § 1110 permits "a plan [to] purchas[e] insurance for its fiduciaries or for itself to cover liability or losses occurring by reason of the act or omission of a fiduciary, if such insurance permits recourse by the insurer against the fiduciary in "an instrument under which the Plan is `operated' because the policy is indispensable to the operation of the plan." Id. the case of a breach of a fiduciary obligation by such fiduciary[.]" Theriot provides no support for the claim that errors and omissions or fiduciary policies are "other instruments under which the plan is established or operated," and the Court finds no support for the argument that § 1024(b)(4) encompasses such policies. Therefore, defendants did not violate § 1024(b)(4) by failing to produce any errors and omissions or fiduciary policies issued to the Fund.
Even if Theriot was entitled to some or all of her requested documents pursuant to § 1024(b)(4), the Court would still not exercise its discretion to award statutory penalties. Any administrator who fails or refuses to comply with §1024(b)(4) may, within the court's discretion, be held personally liable to the requesting party for up to $100 for each day after the date of refusal. § 1132(c)(1)(B). See Kidder v. Aetna Life Ins. Co., No. 14-665, 2016 WL 1241549, at *9 (W.D. Tex. Mar. 28, 2016) (citing Paris v. Profit Sharing Plan for Emp. of Howard B. Wolf Inc., 637 F.2d 357, 362 (5th Cir. 1981)) ("The imposition of a statutory penalty [for violations of § 1024(b)(4)] is within the discretion of the district court."). "As a penalty provision section 1132(c) must be strictly construed." Fisher, 895 F.2d at 1077 (citing Ivan Allen Co. v. United States, 422 U.S. 617, 626-27 (1975)).
Although not statutorily required, courts in the Fifth Circuit typically do not award penalties under 29 U.S.C. § 1132(c) unless the claimant shows that the administrator acted in bad faith by withholding the documents or that the claimant was prejudiced in pursuing her claim by not having the requested documents. See Godwin v. Sun Life Assur. Co. of Canada, 980 F.2d 323, 327 (5th Cir. 1992) (holding that "prejudice is one factor a district court may consider in exercising its discretion"); Keaton v. Sedgwick Claims Management Services, Inc., No. 17-223, 2018 WL 2027747, at *10 (W.D. Tex. Apr. 30, 2018) (listing bad faith by the administrator and the existence of any prejudice to the plan participant as factors courts consider when deciding whether to award statutory penalties); Kidder, 2016 WL 1241549, at *10 ("Courts in the Fifth Circuit regularly deny a request for penalty damages when the plaintiff does not allege bad faith by the defendant or show that it has been somehow prejudiced."); Mouton v. Mobil, No. 00-1403, 2001 WL 963957, at *11 (S.D. Tex. June 18, 2001) (denying a request for statutory penalties because the administrator's failure to send requested documents was inadvertent and not in bad faith).
In Kidder, the claimant specifically asked for a document enumerated in § 1024(b)(4), and the administrator failed to produce it. 2016 WL 1241549, at *9. However, because the request was sent more than a year after the claimant's deadline to file a second appeal had expired, and the claimant alleged no other facts that indicated the existence of prejudice to him in preparing for the lawsuit or bad faith on the part of the administrator, the court declined to award statutory penalties. Id. at *10. The court also found it relevant that the document requested would not have offered the claimant a more detailed explanation as to why his benefits were denied. Id.
Similarly, here, Theriot requested documents well after her deadline to appeal had passed. Theriot had sixty days from March 2, 2018, to appeal the adverse benefit determination, but did not request the documents until November 2, 2018.
Furthermore, Theriot fails to provide any evidence of bad faith on the part of defendants beyond mere conclusory allegations.
For the foregoing reasons,
