Elizabeth Reulet Ford, aka Elizabeth Reulet De Bourbon v. McI Communications Corporation Health

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 ELIZABETH REULET FORD, aka
Elizabeth Reulet De Bourbon,
Plaintiff-Appellant,
v.
MCI COMMUNICATIONS
CORPORATION HEALTH AND WELFARE
PLAN, esa MCI Communications No. 03-55216
Corporation Long Term Disability D.C. No.
Plan,  CV-01-05356-GHK
Defendant, OPINION
and
ITT HARTFORD INSURANCE GROUP,
esa Hartford Life & Accident
Insurance Company; HARTFORD
LIFE, esa Hartford Life & Accident
Insurance Company,
Defendants-Appellees. 
Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding
Argued and Submitted
August 3, 2004—Pasadena, California
Filed February 28, 2005
Before: William C. Canby, Jr., David R. Hansen,* and
Johnnie B. Rawlinson, Circuit Judges.
*The Honorable David R. Hansen, Senior U.S. Circuit Judge for the
Eighth Circuit, sitting by designation.
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Opinion by Judge Rawlinson
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COUNSEL
Daniel D. Dydzak, Esq., Los Angeles, California, for the
plaintiff-appellant.
Carolyn A. Knox, Seyfarth Shaw LLP, San Francisco, Cali-
fornia, for the defendants-appellees.
OPINION
RAWLINSON, Circuit Judge:
This case requires us to tread into the thorny thicket of the
separate judgment rule. Having done so, we conclude that
consideration of Rule 58 of the Federal Rules of Civil Proce-
dure and Rule 4 of the Federal Rules of Appellate Procedure
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results in the conclusion that the order granting summary
judgment in this case was sufficiently final and the appeal was
timely. On the merits, we affirm the district court’s ruling that
Elizabeth Ford’s (Ford) ERISA claims fail.
I. Background and Procedural History
A. The Long Term Disability Plan and the Claim
Ford was employed by MCI and was a member of the MCI
Communications Long Term Disability Plan (Plan). The Plan
was established and is maintained by MCI and its successor
corporate entity, Worldcom, Inc., as an employee welfare
benefit plan. MCI is listed as the “Plan Administrator/Plan
Sponsor” in the materials provided to the Plan members. ITT
Hartford Insurance/Hartford Life (Hartford) is the claims
administrator for the plan. The Plan does not list Hartford as
a plan administrator.
Ford has coccidioidomycosis and fibromyalgia, conditions
which she asserts originated during the course and scope of
her work for MCI. Contending that Hartford wrongfully
denied long-term disability (LTD) benefits coverage, Ford
brought this action against Hartford1 asserting claims under
various provisions of the Employee Retirement Income
Security Act (ERISA), 29 U.S.C. § 1001 et seq.
Specifically, Ford sought relief under: 1) 29 U.S.C.
§§ 1132(a)(1)(B) and 1132(a)(2) for wrongful denial of LTD
benefits; 2) 29 U.S.C. § 1132(a)(3) for general equitable
relief; and 3) 29 U.S.C. §§ 1025(c) and 1132(a)(4) for wrong-
ful failure to notify Ford of accrued vested benefits.2
1Ford also sued MCI, but those claims were stayed due to pending
bankruptcy proceedings.
2In her Opening Brief, Ford only addressed the first two claims. There-
fore, the third claim is waived. See Independent Towers of Washington v.
Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“[W]e review only issues
which are argued specifically and distinctly in a party’s opening brief.”)
(citation omitted).
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B. The District Court’s Decision and Ford’s Appeal
Hartford filed a motion for summary judgment on the
ground that it is not a proper party in an action to recover
ERISA benefits. The district court granted summary judgment
in favor of Hartford, holding that Hartford was not a proper
party to the action, being neither the Plan nor the Plan Admin-
istrator.
The Minute order containing the district court’s decision
was entered into the court’s record on November 18, 2002.
No other document was filed by the court reflecting the
court’s summary judgment. The district court record does not
reflect that the minute order was served on either party.
Ford’s attorney received the minute order on January 2, 2003,
when the district court faxed it at the request of a law clerk
working for Ford’s counsel. As a result, Ford was not aware
that her action had been dismissed until after the expiration of
the 30-day period to file a timely appeal pursuant to
Rule 4(a)(1) of the Federal Rules of Appellate Procedure.
Ford argues that this Court should excuse her admittedly
untimely notice of appeal, because the district court did not
serve the decision upon the parties and she filed her appeal
within thirty days3 of learning of the district court’s grant of
summary judgment.
Ford also appeals the district court’s grant of summary
judgment in favor of Hartford. Specifically, Ford maintains
that the Court erred in determining that Hartford was not a
proper party to this action, because Hartford “functioned as”
the Plan Administrator. Additionally, Ford asserts that Hart-
ford was liable as a fiduciary.
3Thirty days from January 2, 2003, the date the district court faxed the
district court’s order to Ford’s attorney, was February 1, 2003, a Saturday.
February 3, the date Ford filed the notice of appeal, was a Monday.
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II. Standard of Review
“The timeliness of a notice of appeal is reviewed de novo.”
Feldman v. Allstate Ins. Co., 322 F.3d 660, 665 (9th Cir.
2003) (citation omitted). A grant of summary judgment is
reviewed de novo. The court must determine, after viewing
the evidence in the light most favorable to the nonmoving
party, whether the district court correctly applied the relevant
substantive law and whether any genuine issues of material
fact exist for trial. Fortyune v. Amer. Multi-Cinema Inc., 364
F.3d 1075, 1080 (9th Cir. 2004). Likewise, this Court reviews
de novo the district court’s interpretation of ERISA. Everhart
v. Allmerica Fin. Life Ins. Co., 275 F.3d 751, 753 (9th Cir.
2001). Summary judgment may be affirmed on any ground
supported by the record. High Sierra Hikers Ass’n v. Black-
well, 390 F.3d 630, 638 (9th Cir. 2004).
III. Analysis
A. Timeliness of the Appeal
[1] Rule 4(a)(1)(A) of the Federal Rules of Appellate Pro-
cedure (Appellate Rule 4) provides that “[i]n a civil case . . .
the notice of appeal . . . must be filed with the district clerk
within 30 days after the judgment or order appealed from is
entered.” Fed. R. App. P. 4(a)(1)(A). A judgment or order is
not entered within the meaning of this rule unless it is entered
in compliance with Rule 58 of the Federal Rules of Civil Pro-
cedure (Rule 58). Casey v. Albertson’s, Inc., 362 F.3d 1254,
1258 (9th Cir. 2004). Rule 58(a)(1) provides that “every judg-
ment must be set forth on a separate document.” Id. at 1257
(alterations omitted).
Although neither party raised the separate judgment
requirement of Rule 58(a)(1), we may sua sponte bring this
issue to the attention of the parties, and we did so at oral argu-
ment. See Corrigan v. Bargala, 140 F.3d 815, 817 (9th Cir.
1998) (explaining request for supplemental briefing when the
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parties did not address whether or not a separate judgment
was entered and the record was unclear). Accordingly, the
question we now face is whether the district court’s minute
order suffices as a separate document to satisfy Rule 58(a)(1).
[2] “The separate document requirement exists so that the
parties will know exactly when the judgment has been entered
and they must begin preparing post-verdict motions or an
appeal.” Casey, 362 F.3d at 1258 (citation and alteration omit-
ted). In Casey, we held that the failure to file a separate judg-
ment did not preclude appeal where the parties believed that
a final judgment had been entered. Id. at 1258-59. We relied
in part on the fact that the minute order ended with the lan-
guage “IT IS SO ORDERED.” Id. at 1259 (quoting Beaudry
Motor Co. v. Abko Props., Inc., 780 F.2d 751, 754-55 (9th
Cir. 1986)). We also relied upon the fact that the unsuccessful
party filed a Rule 60(b) motion to set aside the order, evincing
a belief that the judgment was final.
[3] Exactly the same language was used in the minute order
terminating this case. Ford similarly manifested a belief that
the judgment was final by filing an appeal. See Casey, 362
F.3d at 1259 (discussing the filing of an appeal as an
acknowledgment of finality). Informed by our rulings in
Casey and Beaudry, we are persuaded that the separate docu-
ment rule does not preclude a finding that the district court’s
judgment was sufficiently final in this case. See id.
Our determination that the minute order entered in this case
constituted a final judgment despite the separate document
requirement embodied in Rule 58 does not end our inquiry.
We must now turn to the second complication in this case—
the district court’s failure to give parties notice of entry of
judgment, in this case effectuated by entry of a minute order.
There are two procedural rules that potentially govern the
timeliness of an appeal when the court failed to enter a sepa-
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rate judgment document and failed to provide notice of entry
of the court’s ruling resolving the case.
The first potentially applicable rule is Rule 58 of the Fed-
eral Rules of Civil Procedure, as amended. In 2002, Rule 58
was amended to add a provision specifying when judgment is
entered for purposes of the procedural rule. See Fed. R. Civ.
P. 58, Advisory Committee Notes, 2002 Amendments.4
As amended, Rule 58 provides:
. . .
(b) Time of Entry. Judgment is entered for pur-
poses of these rules:
(1) if Rule 58(a)(1) does not require a separate
document, when it is entered in the civil docket
under Rule 79(a),5 and
(2) if Rule 58(a)(1) requires a separate document,6
when it is entered in the civil docket under
Rule 79(a) and when the earlier of these events
occurs:
(A) when it is set forth on a separate document, or
(B) when 150 days have run from entry in the civil
docket under Rule 79(a).
Fed. R. Civ. P. 58(b).
4No comparable provisions existed prior to these amendments.
5Compliance with Rule 79(a) is not contested.
6There is no dispute that the ruling granting summary judgment is one
of the rulings for which a separate document is required under Rule 58.
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[4] The 2002 Amendments were effective Dec. 1, 2002.
Fed. R. Civ. P. 58, Credit(s). As of that date, entry of a judg-
ment required to be entered by separate document is effective
when the earlier of two events occurs: (1) a separate judgment
document is entered, or (2) 150 days have run from the entry
of the [non-separate] order in the docket. Fed. R. Civ. P.
58(b)(2). The minute order in this case was entered on
November 18, 2002. Because no separate judgment document
was entered, the amended rule would result in entry of judg-
ment 150 days after November 18, or April 17, 2003. The
notice of appeal, filed on February 3, 2003, was therefore
timely.7
This conclusion is supported by two subsections of Fed. R.
App. P. 4. Rule 4(a)(1)(A) provides, with exceptions not rele-
vant here, that a notice of appeal must be filed “within 30
days after the judgment or order appealed from is entered.”
Rule 4(a)(7)(A)(ii) provides that a judgment required by Fed.
R. Civ. P. 58(a) to be set forth on a separate document is “en-
tered” when the earlier of two events has occurred: the judg-
ment is set forth on a separate document or 150 days have run
from entry of the judgment in the civil docket under Fed. R.
Civ. P. 79(a).
Considering these two rules together results in the follow-
ing outcome: Because no separate document was filed, judg-
ment was entered 150 days after November 18, 2002, the date
7Prior to the amendments to Rule 58, the lack of a separate document
resulted in the appeal period never beginning to run at all. See, e.g., Corri-
gan v. Bargala, 140 F.3d 815, 819 (9th Cir. 1998) (holding that the time
to file an appeal never began to run because the clerk failed to enter a sep-
arate judgment as required by Rule 58). Accordingly, if the 2001 version
of the procedural rules were applied, Ford’s appeal would be timely with-
out question. However, because we apply the rules in effect at the time the
appeal is decided, the amended rule governs. See Austin v. City of Bisbee,
Ariz., 855 F.2d 1429, 1432 (9th Cir. 1988) (“An appellate court must
apply the law in effect at the time it renders its decision.”) (citation omit-
ted).
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the order was entered on the docket, or April 17, 2003. Ford’s
notice of appeal was filed on February 3, 2003, before the
judgment was deemed entered under Rule 58.
The fact that the appeal was filed before entry of judgment
under the terms of Rule 58 is not problematic, because Appel-
late Rule 4(a)(2) provides that the filing of a premature notice
of appeal “is treated as filed on the date of and after the
entry.” Fed. R. App. P. 4(a)(2). In sum, we hold that Ford’s
notice of appeal was timely under Appellate Rule 4(a), as
construed in harmony with Rule 58.
B. Ford’s claim under 29 U.S.C. § 1132(a)(1)(B)
Now that we have untangled the complicated procedural
thicket around this case, we turn to the merits of the appeal.
29 U.S.C. § 1132(a)(1)(B) provides that “[a] civil action
may be brought by a participant or beneficiary . . . to recover
benefits due to [her] under the terms of [her] plan, to enforce
[her] rights under the terms of the plan, or to clarify [her]
rights to future benefits under the terms of the plan[.]” 29
U.S.C. § 1132(a)(1)(B).
[5] ERISA authorizes actions to recover benefits against the
Plan as an entity, 29 U.S.C. § 1132(d)(1), and against the
Plan’s administrator. See 29 U.S.C. § 1132(a)(1)(B); see also
Everhart, 275 F.3d at 754. In Everhart, the claimant sued the
insurance company that served as the claims administrator.
Id. at 752-54. We compared Gelardi v. Pertec Computer
Corp., 761 F.2d 1323, 1324 (9th Cir. 1985) and similar cases
limiting ERISA actions brought under 29 U.S.C.
§ 1132(a)(1)(B) to the Plan as an entity, with Taft v. Equitable
Life Assur. Soc’y, 9 F.3d 1469, 1471 (9th Cir. 1993) and anal-
ogous cases upholding actions against plan administrators.
Everhart, 275 F.3d at 754. We concluded that “[u]nder either
Gelardi or Taft and their respective progeny, [the claimant]
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may not sue the plan’s insurer for additional ERISA plan ben-
efits.” Id. (emphasis in the original).
ERISA defines a plan administrator as “the person specifi-
cally so designated by the terms of the instrument under
which the plan is operated[.]” 29 U.S.C. § 1002(16)(A)(i).
The Plan in this case designated MCI as the plan administra-
tor and Hartford as the claims administrator.
Ford argues that Hartford is the plan administrator because
it had discretionary authority to determine eligibility for bene-
fits and was functioning as the plan administrator. The Plan
Administrator, MCI, delegated the “exclusive discretion,
authority, responsibility, and right to interpret and construe
the Plan’s terms and to determine all questions of eligibility
under the Plan and to exercise the fullest discretion permitted
by law regarding Plan administration” to the claims adminis-
trators, including Hartford.
The “discretion” argument was considered and rejected by
us in Everhart:
The dissent proposes a new test for suits under
§ 1132(a)(1)(B) whereby suits for benefits could be
brought against a party that is neither the plan itself
nor the plan administrator, but that makes “the dis-
cretionary decisions as to whether benefits were
owed.” Dissent at 17345. The dissent cites no
authority for this proposition. It is contrary to the
cases discussed in text in this and other circuits that
limit § 1132(a)(1)(B) suits to plans or plan adminis-
trators, and—significantly—it seems to confuse or
conflate a § 1132(a)(1)(B) suit with a § 1132(a)(3)
suit for breach of fiduciary duty . . .
275 F.3d at 754 n.3 (citation omitted).
[6] That said, we explicitly rejected the argument that an
insurer who “controlled the administration of the plan and
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made the discretionary decisions as to whether benefits were
owed” could be sued under § 1132(a)(1)(B). See id. at 759
(Reinhardt, J., dissenting).
C. Ford’s claim under 29 U.S.C. § 1132(a)(2)
ERISA authorizes the Secretary or a Plan participant, bene-
ficiary, or fiduciary to bring a suit for appropriate relief under
29 U.S.C. § 1109. 29 U.S.C. § 1132(a)(2).
Section 1109 provides:
Any person who is a fiduciary with respect to a plan
who breaches any of the responsibilities, obligations,
or duties imposed upon fiduciaries by this subchap-
ter shall be personally liable to make good to such
plan any losses to the plan resulting from each such
breach, and to restore to such plan any profits of
such fiduciary which have been made through use of
assets of the plan by the fiduciary, and shall be sub-
ject to such other equitable or remedial relief as the
court may deem appropriate, including removal of
such fiduciary.
[7] However, “[a] fiduciary’s mishandling of an individual
benefit claim does not violate any of the fiduciary duties
defined in ERISA.” Amalgamated Clothing & Textile Work-
ers Union, AFL-CIO v. Murdock, 861 F.2d 1406, 1414 (9th
Cir. 1988). Ford is foreclosed from seeking and receiving “an
individual remedy for damages under [29 U.S.C. § 1109(a)]
because that type of remedy [is] not consistent with ERISA’s
emphasis on the relationship between a fiduciary and the
employee benefit plan as a whole.” Id.
D. Ford’s claim under 29 U.S.C. § 1132(a)(3)
29 U.S.C. § 1132(a)(3) authorizes “a participant, benefi-
ciary, or fiduciary (A) to enjoin any act or practice which vio-
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lates any provision of this subchapter or the terms of the plan,
or (B) to obtain other appropriate equitable relief (i) to redress
such violations or (ii) to enforce any provisions of this sub-
chapter or the terms of the plan[.]” 29 U.S.C. § 1132(a)(3).
“To establish an action for equitable relief under . . . 29
U.S.C. § 1132(a)(3), the defendant must be an ERISA fidu-
ciary acting in its fiduciary capacity, and must violate ERISA-
imposed fiduciary obligations[.]” Mathews v. Chevron Corp.,
362 F.3d 1172, 1178 (9th Cir. 2004) (citations, internal quota-
tion marks, and alteration omitted).
[8] The Supreme Court has held that “[29 U.S.C.
§ 1132(a)(3)] is a catchall provision that acts as a safety net,
offering appropriate equitable relief for injuries caused by
violations that [29 U.S.C. § 1132] does not elsewhere ade-
quately remedy.” Great-West Life & Annuity Ins. Co. v.
Knudson, 534 U.S. 204, 221 n.5 (2002) (citation, internal quo-
tation marks, and alteration omitted) (emphasis added).
Because Ford asserted specific claims under 29 U.S.C.
§§ 1132(a)(1)(B) and 1132(a)(2), she cannot obtain relief
under 29 U.S.C. § 1132(a)(3), ERISA’s “catchall” provision.
See id.
In sum, Ford failed to raise a material question of fact
regarding Hartford’s liability under ERISA, either as a claims
administrator or a fiduciary. Because specific claims were
asserted under discrete ERISA provisions, the “catchall” pro-
vision is not available as a source of relief. Thus, entry of
summary judgment in favor of Hartford was proper. See For-
tyune, 364 F.3d at 1080.
IV. Conclusion
No separate document was entered setting forth the judg-
ment in this case. Because Ford appealed within the time lim-
its set forth in Appellate Rule 4(a), as construed in harmony
with Rule 58, her appeal was timely. We affirm the district
court’s grant of summary judgment in favor of Hartford
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because: 1) ERISA claims may not be brought against the
claims administrator; 2) claims asserting a breach of fiduciary
duty are not cognizable when the asserted breach is predicated
upon the mishandling of an individual claim; and 3) Ford’s
assertion of claims under specific ERISA provisions pre-
cluded relief under ERISA’s “catchall” provision.
AFFIRMED.
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