               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

                         _____________________

                              No. 00-21050
                            Summary Calendar
                         _____________________



CHARLES T.J. DILLON,

                                                      Plaintiff-Appellant,

                                  versus

AON CORPORATION,

                                              Defendant-Appellee.
_________________________________________________________________

      Appeal from the United States District Court for the
                    Southern District of Texas
                       USDC No. H-99-CV-4447
_________________________________________________________________
                            July 2, 2001
Before JOLLY, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Charles T.J. Dillon appeals the magistrate judge’s order

granting summary judgment for Aon Corporation.               The magistrate

judge concluded that Dillon was ineligible for continued severance

benefits   under   an   ERISA   plan   because   he   had   failed   to   seek

comparable employment.     Dillon contends that Aon waived the right

to assert this argument because of its failure to raise the

argument either during the administrative proceedings or in its


     *
      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this opinion should not be published and is not precedent except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.
Answer filed in the district court.               We find neither of Dillon’s

arguments persuasive.

     First, when an ERISA defendant puts forth a reason for denying

benefits    that   it     failed   to    assert   during       the   administrative

proceedings, the proper remedy is usually to remand the case to the

plan administrator for the development of a full factual record.

Schadler v. Anthem Life Ins. Co., 147 F.3d 388, 398-99 and n.11

(5th Cir. 1998).        Remand is not necessary, however, when it would

be a “useless formality.”          Offutt v. Prudential Ins. Co., 735 F.2d

948, 950 (5th Cir. 1984).          In this case, Dillon has admitted that

he did not seek further employment after securing a position with

Willis Corroon.

     Second, it is doubtful that Aon’s argument regarding Dillon’s

failure to seek comparable employment qualifies as an affirmative

defense.     SEE WRIGHT & MILLER, FEDERAL PRACTICE       AND   PROCEDURE: CIVIL 2D §

1271.      However, even if we assume that Aon’s argument is an

affirmative defense, we have often held that technical failure to

comply with Fed. R. Civ. P. 8(c) is not fatal.                       An affirmative

defense is not waived if (1) the defendant raises the issue at a

“pragmatically sufficient time,” and (2) the plaintiff is not

prejudiced in his ability to respond.                 Sugar Busters, LLC v.

Brennan,    177    F.3d     258,   271    (5th    Cir.     1999).        Under   the

circumstances of this case, we would conclude that the defense was

not waived.

     There is a third reason why the judgment must be affirmed.
The magistrate judge also addressed the plan administrator’s reason

for denying benefits to Dillon, namely, that Dillon’s position at

Willis Corroon qualified as “other comparable employment” under the

terms of the plan.       The magistrate concluded, “A review of the

original reason given for the termination of [Dillon’s] benefits,

under     the   abuse   of   discretion   standard,   shows   that   the

administrator’s decision should be upheld.”      In his initial brief,

Dillon does not challenge this alternative ground for granting

summary judgment, and the argument on this point is considered

waived.    See Brinkmann v. Dallas County Deputy Sheriff Abner, 813

F.2d 744, 748 (5th Cir. 1987).

     Accordingly, the judgment is

                                                      A F F I R M E D .
