Rosile v. Aetna Life Ins. Co.

972 F.2d 357 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order. Carolyn ROSILE, Plaintiff-Appellant, v. AETNA LIFE INSURANCE COMPANY, a Connecticut corporation; the Boeing Company, a Delaware corporation; the Boeing Employee Welfare Benefit Plan, also known as Group Life Policy 707, a legal entity; the Welfare Benefit Plans Committee, the plan administrator for Group Life Policy 707, Defendants-Appellees. No. 91-3340. United States Court of Appeals, Tenth Circuit. July 29, 1992. Before JOHN P. MOORE, BARRETT and BRORBY, Circuit Judges. ORDER AND JUDGMENT* JOHN P. MOORE, Circuit Judge. [1] After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument. [2] In this action commenced under the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001-1461 (ERISA), Plaintiff appeals the district court's order granting Defendants' motion for summary judgment on Plaintiff's claims for failure to pay benefits, breach of fiduciary duty, and violation of 29 U.S.C. § 1132(c). This court reviews a district court's summary judgment decision de novo, viewing the record in the light most favorable to the nonmoving party. Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Imposition of a penalty under § 1132(c) is left to the district court's discretion. 29 U.S.C. § 1132(c). [3] On appeal, Plaintiff argues that the district court erred in granting Defendants' summary judgment motion on these claims and erred in determining that Plaintiff had abandoned a claim asserted under 29 U.S.C. § 1106. Upon careful consideration of the record and the parties' arguments on appeal, we AFFIRM for substantially the reasons stated in the district court's Memorandum and Order dated October 2, 1991. Footnotes [-s] * This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3