ORDER GRANTING SUMMARY JUDGMENT IN DEFENDANT'S FAVOR ON PLAINTIFF'S GRACE PERIOD NOTICE THEORY

OTIS D. WRIGHT, II, District Judge.

This action returns to this Court on a limited remand from the Ninth Circuit to address a single issue—Plaintiff BGI Life, Inc.'s ("BGI") argument that Defendant American General Life Insurance Company ("AG") breached the contract when BGI did not receive contractually-required notice that the Policy was in its grace period and would lapse upon continued non-payment of premiums.

On August 19, 2011, this Court granted summary judgment in AG's favor on BGI's claims for breach of contract, breach of the duty of good faith and fair dealing, and injunctive relief. (ECF No. 141.) BGI subsequently appealed and the Ninth Circuit affirmed this Court's grant of summary judgment for the reasons stated in the Court's August 19, 2011 Order. (See ECF No. 174.) But the Ninth Circuit remanded the case after finding that this Court never addressed the grace period notice theory in the first instance. (See id.) The Ninth Circuit explained that the record was "ambiguous as to whether the district court intended to grant summary judgment to AG on BGI's grace period notice theory, and as to whether the district court considered that theory fairly presented by the pleadings." (ECF No. 174.) After receipt of the Mandate, the Court reopened this action and asked the parties to file status reports identifying the portions of the record where grace-period notice was discussed. (ECF No. 175.) Both parties complied with the Court's request.1 (ECF Nos. 176, 177.)

Having reviewed the record in this case, in particular the Complaint, the Court finds that BGI's grace period notice theory for breach of contract was never presented in the pleadings. (See ECF No. 1.) While BGI makes allegations with respect to the Policy's grace period in six paragraphs of the Complaint (See ¶¶ 2, 9, 13-15, 18), BGI does not allege that a failure to provide notice of the grace period gives rise to its breach-of-contract claim. The Court finds that the first time that BGI asserts that it should recover for breach of contract based on a lack of notice of the grace period is at summary judgment. As alleged in BGI's Complaint, its breach-of-contract claim is premised solely on an alleged breach of the reinstatement provisions of the Policy. (See Compl. ¶¶ 35-39.) There is no mention of the lack of notice of the grace period in this claim.2 (Id.) Accordingly, the Court GRANTS summary judgment in AG's favor on the grace period notice theory because it was not fairly presented in the pleadings.3 Moreover, summary-judgment proceedings occurred two years after the Complaint was filed and on the eve of trial. At that point it was too late for BGI to amend its pleadings to assert a new theory of recovery.

Furthermore, the Court notes that even if properly alleged in the Complaint, BGI's grace period notice theory would hardly offer the result that BGI seeks— reinstatement of the policy. Assuming for argument's sake that AG did not give notice of the grace period—a fact the parties dispute—that apparent breach of the Policy does not somehow excuse BGI's failure to pay the premiums.

For the reasons discussed above, the Court GRANTS summary judgment in favor of AG with respect to the issue on limited remand from the Ninth Circuit. The Clerk of Court shall once again close this case.

IT IS SO ORDERED.