Dillon v. Aon Corporation

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 3, 2001
• Docket: 00-21050
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-21050 Summary Calendar _____________________

CHARLES T.J. DILLON,

Plaintiff-Appellant,

versus

AON CORPORATION,

Defendant-Appellee. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CV-4447 _________________________________________________________________ July 2, 2001 Before JOLLY, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Charles T.J. Dillon appeals the magistrate judge’s order

granting summary judgment for Aon Corporation. The magistrate

judge concluded that Dillon was ineligible for continued severance

benefits under an ERISA plan because he had failed to seek

comparable employment. Dillon contends that Aon waived the right

to assert this argument because of its failure to raise the

argument either during the administrative proceedings or in its

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Answer filed in the district court. We find neither of Dillon’s

arguments persuasive.

First, when an ERISA defendant puts forth a reason for denying

benefits that it failed to assert during the administrative

proceedings, the proper remedy is usually to remand the case to the

plan administrator for the development of a full factual record.

Schadler v. Anthem Life Ins. Co., 147 F.3d 388, 398-99 and n.11

(5th Cir. 1998). Remand is not necessary, however, when it would

be a “useless formality.” Offutt v. Prudential Ins. Co., 735 F.2d

948, 950 (5th Cir. 1984). In this case, Dillon has admitted that

he did not seek further employment after securing a position with

Willis Corroon.

Second, it is doubtful that Aon’s argument regarding Dillon’s

failure to seek comparable employment qualifies as an affirmative

defense. SEE WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D §

1271. However, even if we assume that Aon’s argument is an

affirmative defense, we have often held that technical failure to

comply with Fed. R. Civ. P. 8(c) is not fatal. An affirmative

defense is not waived if (1) the defendant raises the issue at a

“pragmatically sufficient time,” and (2) the plaintiff is not

prejudiced in his ability to respond. Sugar Busters, LLC v.

Brennan, 177 F.3d 258, 271 (5th Cir. 1999). Under the

circumstances of this case, we would conclude that the defense was

not waived.

There is a third reason why the judgment must be affirmed. The magistrate judge also addressed the plan administrator’s reason

for denying benefits to Dillon, namely, that Dillon’s position at

Willis Corroon qualified as “other comparable employment” under the

terms of the plan. The magistrate concluded, “A review of the

original reason given for the termination of [Dillon’s] benefits,

under the abuse of discretion standard, shows that the

administrator’s decision should be upheld.” In his initial brief,

Dillon does not challenge this alternative ground for granting

summary judgment, and the argument on this point is considered

waived. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813

F.2d 744, 748 (5th Cir. 1987).

Accordingly, the judgment is

A F F I R M E D .