  10-0718-cv
  Dennis C. Kelly v. Handy & Harman, et al.

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

          At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
  Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
  on the 19th day of January, two thousand eleven.

  Present:    ROSEMARY S. POOLER,
              ROBERT A. KATZMANN,
              RICHARD C. WESLEY,
                    Circuit Judges.
  _____________________________________________________

  DENNIS C. KELLY,
                                                          Plaintiff-Appellant,

                     -v.-                                                              10-0718-cv

  HANDY & HARMAN, WHX CORPORATION, HANDY & HARMAN
  SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN, HANDY & HARMAN
  EXECUTIVE POST-RETIREMENT LIFE INSURANCE PROGRAM, HANDY &
  HARMAN PENSION PLAN/WHX PENSION PLAN, HANDY & HARMAN
  MANAGEMENT INCENTIVE PLAN, HANDY & HARMAN LONG-TERM
  INCENTIVE PLAN, INCENTIVE AND NON-QUALIFIED STOCK OPTION
  PLAN, THE HANDY & HARMAN POST-RETIREMENT MEDICAL PLAN,

                                                          Defendants-Appellees.


  For Appellant:              Leslie D. Corwin (Timothy E. Di Domenico, on the brief), Greenberg
                              Traurig, LLP, New York, NY.
For Appellees:          Thomas J. Fleming, Olshan Grundman Frome Rosenzweig & Wolosky
                        LLP, New York, NY.

Appeal from the United States District Court for the Southern District of New York (Gwin, J., sitting
by designation).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of said district court be and hereby is AFFIRMED.

       Dennis C. Kelly appeals the district court’s February 16, 2010 judgment granting Defendants’
motion for summary judgment, denying Kelly’s motion for partial summary judgment, and
dismissing Kelly’s complaint. We assume the parties’ familiarity with the underlying facts,
procedural history, and issues presented on appeal.

        We review the district court’s grant of summary judgment de novo, viewing the evidence in
the light most favorable to the non-moving party and drawing all reasonable inferences in his favor.
Burke v. Kodak Ret. Income Plan, 336 F.3d 103, 109 (2d Cir. 2003). Summary judgment is
appropriate if “there is no genuine issue as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). In an ERISA action where, as here, “written
plan documents confer upon a plan administrator the discretionary authority to determine eligibility,
we will not disturb the administrator’s ultimate conclusion unless it is ‘arbitrary and capricious.’”
Hobson v. Metro. Life Ins. Co., 574 F.3d 75, 82 (2d Cir. 2009) (quoting Pagan v. NYNEX Pension
Plan, 52 F.3d 438, 441 (2d Cir. 1995) (internal quotation marks omitted)).

        “[A] plan under which an administrator both evaluates and pays benefits claims creates the
kind of conflict of interest that courts must take into account and weigh as a factor in determining
whether there was an abuse of discretion, but does not make de novo review appropriate.” Id. at 82-
83 (quoting McCauley v. First Unum Life Ins. Co., 551 F.3d 126, 133 (2d Cir. 2008)). A plaintiff’s
showing that the administrator’s conflict of interest affected the choice of a reasonable interpretation
is one of “several different considerations” that judges must take into account when “review[ing] the
lawfulness of benefit denials.” McCauley, 551 F.3d at 133 (citation omitted). “No weight is given
to a conflict in the absence of any evidence that the conflict actually affected the administrator’s
decision.” Durakovic v. Bldg. Serv. 32 BJ Pension Fund, 609 F.3d 133, 140 (2d Cir. 2010) (citing
Hobson, 574 F.3d at 83).

         In light of these principles, and after an exhaustive review of the record, we conclude that the
district court properly granted Defendants’ summary judgment motion because the plan administrator
did not act arbitrarily or capriciously in denying Kelly’s request for benefits. Accordingly, we affirm
the district court’s grant of summary judgment for Defendants and denial of partial summary
judgment for Kelly, for substantially the same reasons articulated by the district court.

        In addition, the district court did not abuse its discretion in declining to exercise supplemental
jurisdiction over Kelly’s remaining state-law claim after it dismissed all of Kelly’s federal claims
before trial. Indeed, “if a plaintiff’s federal claims are dismissed before trial, ‘the state claims should

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be dismissed as well.’” Brzak v. United Nations, 597 F.3d 107, 113-14 (2d Cir. 2010) (quoting Cave
v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 250 (2d Cir. 2008)).

       Lastly, Kelly requests attorneys’ fees under 29 U.S.C. § 1132(g)(1). Kelly’s request is denied
because he has not shown “some degree of success on the merits” and therefore is not eligible for
an award of attorneys’ fees under Section 1132. Hardt v. Reliance Standard Life Ins. Co., 130 S.
Ct. 2149, 2158 (2010).

        We have considered all of Kelly’s remaining arguments and find them to be without merit.
For the foregoing reasons, the judgment of the district court is AFFIRMED.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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