                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           APR 24 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ELIZABETH L.; et al.,                            No.   15-15893

              Plaintiffs-Appellants,             D.C. No. 3:13-cv-02554-SC

 v.
                                                 MEMORANDUM*
AETNA LIFE INSURANCE COMPANY,

              Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Northern District of California
                      Samuel Conti, District Judge, Presiding

                            Submitted April 17, 2017**
                             San Francisco, California

Before: D.W. NELSON and IKUTA, Circuit Judges, and SEABRIGHT,*** Chief
District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable J. Michael Seabright, United States Chief District
Judge for the District of Hawaii, sitting by designation.
      Elizabeth L. et al., individually and as representatives of the class of

similarly situated individuals (“Appellants”), appeal the district court’s order

granting summary judgment in favor of Aetna Life Insurance Company (“Aetna”).

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Appellants asserted two distinct causes of action, claiming that Aetna

(1) improperly denied Appellants benefits under the terms of the plans, and

(2) breached its fiduciary duty by inconsistently applying the terms of the plans to

similarly situated plan participants. The district court dismissed the first cause of

action with prejudice, holding that Appellants failed to demonstrate entitlement to

benefits under the plans. The district court then sua sponte dismissed the entire

case with prejudice as a sanction for Appellants’ failure to comply with the court’s

prior orders, without reaching the merits of Appellants’ second cause of action for

breach of fiduciary duty.

      With respect to the first cause of action, the district court correctly held that

the plain meaning of the plans foreclosed Appellants’ interpretation that certain

facilities themselves can constitute Behavioral Health Providers for purposes of

satisfying the plans’ 24/7 care requirements. Because those facilities do not have

licensed clinical professionals on-site on a 24/7 basis, Appellants failed to state a




                                           2
claim for benefits under the plans. 29 U.S.C. § 1132(a)(1)(B); Ashcroft v. Iqbal,

556 U.S. 662, 677 (2009).

      With respect to the second cause of action, which the district court did not

reach on the merits, Appellants failed to address in their opening brief whether the

district court abused its discretion in dismissing the case as a sanction for

Appellants’ repeated violations of the court’s prior orders. “We generally do not

consider issues that are not raised in the appellant’s opening brief,” Brown v.

Rawson-Neal Psychiatric Hosp., 840 F.3d 1146, 1148 (9th Cir. 2016), and we

decline to exercise our discretion to do so here. We therefore find this issue

waived.

      Because the district court did not address the merits of Appellants’ second

cause of action, the claim for breach of fiduciary duty is not properly before us.

      AFFIRMED.




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