    10-3786
    First Unum Life Ins. Co. v. Wulah


                          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 FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. 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 TO 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 20th day of December, two thousand twelve.

    PRESENT:
                Robert A. Katzmann,
                Barrington D. Parker,
                Richard C. Wesley,
                       Circuit Judges.
    _________________________________________________________

    First Unum Life Insurance Company,

                     Plaintiff-Counter Claimant-Counter Defendant-Appellee,

                     v.                                                 10-3786

    Teah Wulah,

                Defendant-Counter Claimant-Counter Defendant-Appellant.
    _________________________________________________________

    FOR PLAINTIFF-APPELLEE:                      Louis DiGiaimo, Of Counsel, McElroy, Deutsch,
                                                 Mulvaney & Carpenter, LLP, Morristown, NJ.

    FOR DEFENDANT -APPELLANT:                    Teah Wulah, pro se, Bronx, NY.
     Appeal from a judgment of the United States District Court for the Southern District of
New York (Francis, M.J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the appeal is DISMISSED in part and the judgment of the district court is

AFFIRMED in part.

       Defendant-Appellant Teah Wulah, proceeding pro se, appeals from the district court’s

judgment (1) granting the summary judgment motion of Plaintiff-Appellee First Unum Life

Insurance Company (“First Unum”) in its action for reimbursement of disability benefits under

the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq.; and (2)

denying Wulah’s motion for summary judgment on his counterclaim against First Unum for the

payment of withheld disability benefits under ERISA. We assume the parties’ familiarity with

the underlying facts, the procedural history of the case, and the issues on appeal.

       First, we must consider whether First Unum’s claim has been rendered moot by Wulah’s

recent bankruptcy discharge. “[I]f an event occurs while a case is pending on appeal that makes

it impossible for the court to grant any effectual relief whatever to a prevailing party, the appeal

must be dismissed” as moot. Church of Scientology of California v. United States, 506 U.S. 9,

12 (1992) (internal quotation marks omitted). Here, Wulah was granted a discharge in Chapter 7

bankruptcy proceedings during the pendency of the appeal. The parties appear to agree that the

intervening event has rendered this portion of Wulah’s appeal moot. Indeed, the discharge

appears to encompass the monetary judgment that First Unum obtained against him in this case

given that none of the exceptions to dischargeability seem to apply to First Unum’s award. See

11 U.S.C. § 523(a) (listing debts excepted from a bankruptcy discharge); 11 U.S.C. § 524(a)

(providing that a bankruptcy discharge “voids any judgment at any time obtained, to the extent

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that such judgment is a determination of the personal liability of the debtor with respect to any

debt discharged under [Chapter 7 of the Bankruptcy Code]”). Accordingly, Wulah’s appeal from

this portion of the judgment is moot.

       With respect to Wulah’s appeal from the portion of judgment denying his motion for

summary judgment on his counterclaim, we affirm for substantially the same reasons as those

stated by the magistrate judge in his thorough and well-reasoned decision.1 Even if Wulah never

received a summary plan description (“SPD”) from First Unum, as required by ERISA, the

magistrate judge correctly determined that Wulah provided no evidence to show that he was

likely prejudiced by his purported lack of an SPD. See Weinreb v. Hospital for Joint Diseases

Orthopaedic Institute, 404 F.3d 167, 171 (2d Cir. 2005) (“[A]n ERISA claim premised on the

complete absence of an SPD . . . requires a showing of likely prejudice.”). In fact, Wulah failed

to present any evidence of prejudice despite our specific statement on a prior appeal that Wulah

would be given a chance to present evidence on remand. First Unum Ins. Co. v. Wulah, 364 F.

App’x 673, 674 (2d Cir. 2010) (summary order).

       We have considered Wulah’s remaining arguments and find them to be without merit.

Therefore, the appeal is DISMISSED in part and the judgment is AFFIRMED in part.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




       1
         The magistrate judge decided this case with the consent of the parties, pursuant to 28
U.S.C. § 636(c).

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