Teitel Ex Rel. Frishberg v. Deloitte & Touche Pension Plan

SUMMARY ORDER Plaintiff-Appellant Jeffrey H. Teitel appeals the district court’s rulings of August 26, 2008 and December 1, 2009 respectively dismissing his putative ERISA class-action claim for failure to exhaust administrative remedies and then denying his motion for reconsideration of that dismissal. As before the district court, Teitel contends that it would have been futile for him to exhaust his administrative remedies with the defendants. We assume the parties’ familiarity with the underlying facts and procedural history of the case. For the reasons given by the district court, claims such as Teitel’s generally require full exhaustion of administrative remedies before they may be heard by a federal court. See also Kennedy v. Empire Blue Cross & Blue Shield, 989 F.2d 588, 594 (2d Cir.1993). After reviewing the issues on appeal and the record of proceedings below, it is apparent that Teitel has not made “a clear and positive showing that pursuing available administrative remedies would be futile.” Davenport v. Harry N. Abrams, Inc., 249 F.3d 130, 133 (2d Cir.2001) (per curiam) (internal quotation marks and emphasis omitted). Indeed, outside of this lawsuit, Teitel has not even contacted the defendants about his claim. Cf. id. (informal correspondence between plaintiff and defendant regarding denial of benefits insufficient to establish futility). For the reasons clearly annunciated by the district court in its two rulings, the defendants’ rejection of similar claims made by two other individuals does not, on the record presented, show that it would have been futile for Teitel to pursue his own claims. Nor does the defendants’ choice to defend this action on its merits in the district court operate ex post facto to make exhaustion futile. Id. at 134. We have considered all of Teitel’s remaining arguments and conclude that they are without merit. Accordingly, the judgment of the district court is AFFIRMED.