       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206
    ELECTRONIC CITATION: 2000 FED App. 0163P (6th Cir.)
                File Name: 00a0163p.06


UNITED STATES COURT OF APPEALS
              FOR THE SIXTH CIRCUIT
                _________________


                                 ;
                                  
 RICHARD L. RAVENCRAFT,
                                  
          Plaintiff-Appellant,
                                  
                                  
                                      No. 98-6137
           v.
                                  
                                   >
 UNUM LIFE INSURANCE              
                                  
          Defendant-Appellee. 
 COMPANY OF AMERICA,

                                  
                                 1
      Appeal from the United States District Court
    for the Eastern District of Kentucky at Ashland.
  No. 97-00076—Henry R. Wilhoit, Jr., District Judge.
                Argued: March 8, 2000
            Decided and Filed: May 12, 2000
  Before: WELLFORD, SILER, and GILMAN, Circuit
                    Judges.
                  _________________
                       COUNSEL
ARGUED: Richard W. Martin, MARTIN, JUSTICE,
VINCENT & LAVENDER, Ashland, Kentucky, for
Appellant. Ann M. Turner, WYATT, TARRANT &
COMBS, Louisville, Kentucky, for Appellee. ON BRIEF:
Richard W. Martin, MARTIN, JUSTICE, VINCENT &

                            1
2        Ravencraft v. UNUM Life Insurance Co. No. 98-6137

LAVENDER, Ashland, Kentucky, for Appellant. Pamela J.
Ledford, WYATT, TARRANT & COMBS, Louisville,
Kentucky, for Appellee.
                     _________________
                         OPINION
                     _________________
  HARRY W. WELLFORD, Circuit Judge. Richard L.
Ravencraft filed suit in Kentucky state court for disability
benefits under an employer-sponsored plan through
defendant, UNUM Life Insurance Company of America
(“UNUM”). Asserting that the plan was governed by the
Employee Retirement Income Security Act (“ERISA”),
29 U.S.C. § 1001, et seq., UNUM removed the case to federal
court based upon federal question jurisdiction. The district
court granted summary judgment in favor of UNUM because
Ravencraft failed to exhaust his administrative remedies.
Ravencraft now appeals from the district court’s grant of
summary judgment and its dismissal with prejudice of his
asserted cause of action.
  Ravencraft, a pharmacist, filed his claim for long-term
disability benefits in September of 1996 because of a knee
replacement and1 a serious potential for the same operation on
the other knee. His employer, insured through UNUM,
denied his claim in February of 1997, over ninety days after
the date that he filed his claim. The denial of benefits
included the following material language:
    We have completed our review of your . . . disability
    claim and have made a final determination regarding . . .
    benefit disability. Our review has concluded that we are
    unable to approve benefits.
      ...

     1
     Ravencraft concedes in his brief that he did receive short-term
benefits after his operation.
6    Ravencraft v. UNUM Life Insurance Co. No. 98-6137        No. 98-6137 Ravencraft v. UNUM Life Insurance Co.                       3

prejudice. Accordingly, we VACATE and REMAND this               If you have new, additional information to support your
case to the district court to dismiss the asserted cause of     request for disability benefits, for instance proof of
action without prejudice.                                       disability during the interim between June 4, 1996 and
                                                                November 19, 1996, please send it to my attention at the
                                                                above address.
                                                                If you do not agree with our decision, you may have it
                                                                reviewed. Should you desire a review, you must send a
                                                                written request, within 60 days of your receipt of this
                                                                notice, to:
                                                                      UNUM
                                                                      LTD Quality Review Section
                                                                      2211 Congress Street
                                                                      Portland, ME 04122-0360
                                                                . . . You may also request copies of pertinent documents
                                                                contained in your file. If UNUM does not receive the
                                                                written request within 60 days of your receipt of this
                                                                notice, our claims decision will be final.
                                                              Rather than submit any new evidence to support his claim, or
                                                              seek documentation for the result, or appeal within the time
                                                              specified, Ravencraft filed suit.2
                                                                                         I. FUTILITY
                                                                We have held in Miller v. Metropolitan Life Ins. Co., 925
                                                              F.2d 979, 986 (6th Cir. 1991), that “[t]he administrative
                                                              scheme of ERISA requires a participant to exhaust his or her
                                                              administrative remedies prior to commencing suit.” This is
                                                              the law in most circuits despite the fact that ERISA does not
                                                              explicitly command exhaustion.           We reiterated that
                                                              exhaustion requirement in Baxter v. C.A. Muer Corp., 941
                                                              F.2d 451, 453-54 (6th Cir. 1991), citing with approval Makar



                                                                  2
                                                                   Ravencraft returned to work with his employer, under protest, in
                                                              June of 1997 following a period in which he did not receive any disability
                                                              benefits.
4       Ravencraft v. UNUM Life Insurance Co. No. 98-6137                      No. 98-6137 Ravencraft v. UNUM Life Insurance Co.             5

v. Health Care Corp. of Mid-Atlantic, 872 F.2d 80, 83 (4th                     reviewing the fiduciaries’ actions.” Makar, 872 F.2d at 83
Cir. 1989).                                                                    (emphasis added.).
  While recognizing this clear Sixth Circuit authority,                          In this case, Ravencraft has failed to show that the review
Ravencraft maintains that under the circumstances of this case                 procedures are insufficient or unfair, or that an available
he was not required first to exhaust his administrative                        remedy is inadequate. Ravencraft has thus, as a matter of law,
remedies before filing suit because his pursuit of such                        failed to meet his burden to show futility so as to excuse the
remedies would have been futile. See Springer v. Wal-Mart                      usual exhaustion requirement. Weiner v. Klais and Co., 108
Assocs.’ Group Health Plan, 908 F.2d 897, 899 (11th Cir.                       F.3d 86, 90 (6th Cir. 1997); Makar, 872 F.2d at 83.
1990). Because we review a grant of summary judgment de                        Accordingly, we AFFIRM the grant of summary judgment in
novo, Costantino v. TRW, Inc., 13 F.3d 969, 974 (6th Cir.                      favor of UNUM.
1994), we look to the authorities, above cited, as well as the
pertinent, virtually uncontested, factual circumstances to                       II. DISMISSAL WITH OR WITHOUT PREJUDICE
resolve this controversy.
                                                                                  In a Rule 59(e) motion, Ravencraft requested that the court
  We reject Ravencraft’s assertion that the administrative                     amend its order of summary judgment to direct that the action
process would have been futile based simply on the fact that                   be dismissed without prejudice. He urged the district court to
the employer filed its denial of benefits beyond the ninety-day                adopt the conclusion in Makar, wherein the appellate court
requirement set out in ERISA.3 UNUM’s actions do not                           dismissed the case without prejudice and remanded to the
bespeak that it ignored the claim, nor did UNUM fail to give                   district court “to allow [the claimants] the opportunity to
Ravencraft’s claim due consideration. That the “plan                           pursue their [administrative] remedies.” Makar, 872 F.2d at
administrator . . . and trustees who review appeals share                      83. See Baxter, 941 F.2d at 454 n.1. Thus, under those
common interests or affiliations” is also insufficient to show                 circumstances, this court held that the dismissal with
futility.4 See Amato v. Bernard, 618 F.2d 559, 569 (9th Cir.                   prejudice was proper. Id.
1980). The policy required “a full and fair review of the
claim,” if a claimant sought a review or submitted additional                    Ravencraft claims that this case is factually similar to
documents to that end. As stated in Makar, review or                           Makar and not Baxter because the district court dismissed his
exhaustion “enables plan fiduciaries to efficiently manage                     case solely based on his failure to exhaust his administrative
their funds; correct their errors; interpret plan provisions; and              remedies. Consequently, he argues, the district court should
assemble a factual record which will assist a court in                         have dismissed the case without prejudice to pursue those
                                                                               remedies.
                                                                                 Baxter is distinguishable from the circumstances in this
    3
                                                                               case because the plaintiff in Baxter lost on both the merits and
      Plaintiff concedes that the 90-day period may be extended up to an       on the basis of procedural deficiency. Baxter cited Makar
additional 90 days if special circumstances so warrant.                        with approval, and the latter involved only procedural failure
    4
                                                                               on the part of the plaintiff. Makar is therefore akin to the
       We are not persuaded by Ravencraft’s argument that since his            facts in this case.
employer directed him to return to work shortly before the time for
administrative appeal expired that this circumstance indicates futility. The     Under these circumstances, we believe the district court
fact is that plaintiff failed to pursue his available administrative review
procedure.                                                                     should have exercised its discretion to dismiss without
