     Case: 11-60513     Document: 00511746972         Page: 1     Date Filed: 02/03/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                         February 3, 2012

                                     No. 11-60513                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



BOBBY SERTON,

                                                  Plaintiff - Appellant
v.

LOCKHEED MARTIN CORPORATION,

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 4:09-CV-162


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Bobby Serton appeals the district court’s summary
judgment disposing of his claim for disability benefits under his former
employer’s retirement plan. The district court rendered summary judgment that
Serton failed to exhaust his administrative remedies and that Serton failed to
file suit before the close of the statute of limitations period. We AFFIRM.




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-60513   Document: 00511746972      Page: 2   Date Filed: 02/03/2012



                                  No. 10-10460

      This court reviews a grant of summary judgment de novo, applying the
same standards as the district court. Hernandez v. Yellow Transp., Inc., 641
F.3d 118, 124 (5th Cir. 2011). Summary judgment is proper “if the movant
shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). For purposes
of this determination, we construe the evidence in the record in the light most
favorable to the nonmovant. Dillon v. Rogers, 596 F.3d 260, 267 (5th Cir. 2010).
We can affirm a district court’s grant of summary judgment on any basis
established by the record.     Hernandez, 641 F.3d at 130.       Serton’s former
employer, Defendant-Appellee Lockheed Martin Corporation, moved for
summary judgment on three issues: failure to exhaust administrative remedies,
statute of limitations, and laches. The district court granted the motion on the
exhaustion of remedies and statute of limitations issues, but declined to consider
laches. Because we find the statute of limitations issue dispositive, we consider
only that issue.
      Serton started working for Lockheed in 1984. In addition to regular
retirement benefits, Lockheed’s retirement plan provides a disability pension in
the event an employee suffers a qualifying disability. In June 1997, Serton
suffered a back injury while working. The injury forced Serton to stop working
for Lockheed on January 31, 1998. On January 30, 1998, Serton submitted an
application for a disability pension under the retirement plan. On or about
February 12, 1998, Lockheed mailed a notice of denial to Serton’s address. The
notice stated a deadline for administrative appeal “within 60 days after the
receipt of the notice of denial.” The parties agree that Lockheed mailed the
notice to Serton’s address. But the record contains no further indication that it
was received at that address, or that it ever came into Serton’s personal
possession.   At deposition, Serton testified that he simply does not recall
whether he received the notice. Lockheed alleges that the letter was sent by

                                        2
   Case: 11-60513    Document: 00511746972      Page: 3   Date Filed: 02/03/2012



                                  No. 10-10460

first class mail, but there is no evidence of how the notice was sent, except for
the words “certified mail, signed receipt requested,” printed on the notice’s
letterhead. The record contains no receipt confirming delivery to Serton’s home.
In January and February of 1998, Serton and his then-spouse Bettie Serton were
undergoing a highly contentious divorce. Serton speculates in his briefing that
Bettie Serton may have kept, destroyed, or inadvertently disposed of the notice
without bringing it to Serton’s attention. But there is no evidence in the record
indicating whether she did that or not.
      Serton never prosecuted an administrative appeal of the denial of his
benefits. Beginning in September, 1999, he was incarcerated for contempt
during the divorce proceeding. Officials attempted to have him committed, but
he was ultimately released in August 2002. Serton filed the instant suit over
seven years later, on November 24, 2009.
      The parties agree that Lockheed’s administration of the retirement plan
is governed by the Employee Retirement Income Security Act (“ERISA”), 29
U.S.C. § 1001, et seq. ERISA provides no specific limitations period for claims
to enforce plan rights, and we apply analogous state statutes of limitation. Hall
v. Nat’l Gypsum Co., 105 F.3d 225, 230 (5th Cir. 1997). The parties agree that
the analogous statute of limitations is the three-year period found in Section 15-
1-49 of the Mississippi Code. Mississippi’s discovery rule will toll the statute of
limitations until the plaintiff should have reasonably known of his cause of
action. Blailock ex. rel. Blailock v. Hubbs, 919 So. 2d 126, 130 (Miss. 2005). But
plaintiffs “must exercise reasonable diligence in determining whether an injury
suffered is actionable,” in order to benefit from the discovery rule. Id.
      A cause of action for wrongful denial of benefits owed under an ERISA
plan accrues when a request for benefits is denied. Hall, 105 F.3d at 230. In
this case, that happened in February 1998.         The most generous possible
application of the discovery rule to the circumstances of this case would toll the

                                        3
   Case: 11-60513   Document: 00511746972      Page: 4   Date Filed: 02/03/2012



                                  No. 10-10460

start of the three-year limitations period until August 2002, when Serton was
released from incarceration. He does not allege, much less supply evidence, that
he made any effort to discover what became of his application for disability
benefits during the seven years between his release and the filing of this suit in
November 2009.
      AFFIRMED.




                                        4
