NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 18-2224
                                   ________________

                                KRISTINE GUARIGLIA,

                                                  Appellant

                                             v.

        UNITED FOOD & COMMERICAL WORKERS LOCAL 464A UNION
                   WELFARE SERVICE BENEFIT FUND

                                   ________________

                      Appeal from the United States District Court
                               for the District of New Jersey
                         (D.C. Civil Action No. 2-18-cv-00002)
                      District Judge: Honorable Susan D. Wigenton
                                    ________________

                                 Argued January 15, 2019

             Before: AMBRO, HARDIMAN, and FUENTES, Circuit Judges

                             (Opinion filed: August 6, 2019)

                                   ________________

                                       OPINION*
                                   ________________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Steve L. Kessel, Esquire (Argued)
Drazin & Warshaw
25 Reckless Place
P.O. Box 8909
Red Bank, NJ 07701

      Counsel for Appellant

Mark Hanna, Esquire (Argued)
Murphy Anderson
1401 K Street, N.W.
Suite 300
Washington, DC 20005

      Counsel for Appellee


AMBRO, Circuit Judge

      We review the District Court’s dismissal of a claim under the Employee

Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., seeking to

compel an employer-sponsored healthcare plan to pay medical expenses. The Court held

the claim was barred by res judicata stemming from its dismissal of a similar claim in a

prior case with the same parties. We need not assess whether that application of res

judicata was correct because, on a separate ground, we conclude the District Court was

correct to dismiss the complaint. We thus affirm.

      I.     Background

      Kristine Guariglia is a participant in an employer-sponsored healthcare plan (the

“Plan”) administered by defendant-appellee Local 464A United Food and Commercial

Workers Union Welfare Service Benefit Fund (the “Fund”). The Plan is an employee

welfare benefit plan under ERISA. It is “not a primary plan or a secondary plan but


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rather a tertiary plan and payer of last resort.” (App. 025a.) In other words, the Fund will

pay benefits only when payments from other sources are unavailable. (See, e.g., App.

025a.) It extends this payer-of-last-resort concept to medical expenses in particular,

reiterating that it “does not cover healthcare expenses for which a third party is

responsible to pay.” (App. 026a.)

       In April 2012 Guariglia was injured when she tripped due to a pothole. She filed

that year a lawsuit in New Jersey state court (the “Liability Action”) alleging that

numerous third parties were liable for her injuries. She also filed a claim for

reimbursement of medical expenses under the Plan, but the Fund denied that claim.

Dissatisfied with the Fund’s decision, Guariglia filed in 2013 an action in the District

Court (“Guariglia I”) seeking to compel the Fund to pay her medical expenses. She

argued, among other things, that it must pay them irrespective whether she signed a

reimbursement agreement or did not pursue medical expenses as a form of damages in

the Liability Action.

       The District Court disposed of Guariglia I by granting a motion to dismiss filed by

the Fund. Guariglia v. Local 464A United Food & Commercial Workers Union Welfare

Serv. Ben. Fund, 

(D.N.J. Nov. 25, 2013). The Court held that (1) the

Fund’s demand for a reimbursement agreement as a condition for advancing medical

expenses did not violate ERISA, and (2) under the Plan the Fund was not required to

advance or reimburse Guariglia’s medical expenses at that time. 

       In the wake of Guariglia I, Guariglia continued to pursue her claims against third

parties in the Liability Action, but she did not amend that action to include medical

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expenses, apparently because of a tactical decision made by her counsel based on a belief

that to seek medical expenses would create a conflict of interest. See Guariglia I, 

, at *4. Moreover, she did not include those expenses notwithstanding

having signed a reimbursement agreement with the Fund in which she promised to do so.

(App. 037a–038a.)

       In May 2017 a jury entered a verdict in favor of the defendants in the Liability

Action. Within a few weeks after the verdict, Guariglia’s attorney sent a letter to the

Fund asserting that “[s]ince Ms. Guariglia’s medical expenses are not recoverable from a

third-party, by virtue of the jury’s verdict, those bills should now properly be paid under

the terms of your plan.” (App. 061a.) The Fund denied that claim (App. 063a–065a), so

Guariglia filed this second action in the District Court. It granted the Fund’s motion to

dismiss the complaint, holding her claim was barred by res judicata based on the Court’s

order dismissing the complaint in Guariglia I. Guariglia appeals to us.

       II.    Discussion1

       The District Court dismissed Guariglia’s claim as barred by res judicata, and the

parties devoted most of their briefing to that issue. However, we may affirm dismissal of

a complaint on any ground presented by the record. See Munroe v. Central Bucks Sch.

Dist., 

, 469 (3d Cir. 2015). We perceive one such ground here. Indeed, it

almost jumps from the record: as a condition to receiving a reimbursement of medical



1
 The District Court had jurisdiction under 29 U.S.C. § 1132(e)(1) and 28 U.S.C. § 1331.
We have jurisdiction under 28 U.S.C. § 1291 and review de novo dismissal of the
Complaint. Vorchheimer v. Phila. Owners Ass’n, 

, 105 (3d Cir. 2018).
                                             4
expenses from the Fund, Guariglia signed an agreement promising first to seek those

expenses from third parties who may be liable for them. (App. 037a–038a.) But then,

notwithstanding that agreement, she chose not to expand the Liability Action to seek

those medical expenses at any point in the ensuing five years. (See Transcript of Oral

Argument at 14.) In other words, by her own admission, she did not fulfill her promises

under the reimbursement agreement and, accordingly, was not entitled to receive payer-

of-last-resort benefits under the Plan. In these circumstances, the Fund was clearly

within its discretion to deny her claim. See Fleisher v. Standard Ins. Co., 

,

120–21 (3d Cir. 2012).

                              *      *      *      *      *
       We affirm the District Court’s dismissal of the complaint.




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