                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 04a0121n.06
                            Filed: November 22, 2004

                                          Case No. 03-1148

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


WILLIAM F. FALANDAYS,                     )
                                          )
      Plaintiff-Appellant,                )
                                          )                     ON APPEAL FROM THE
             v.                           )                     UNITED STATES DISTRICT
                                          )                     COURT, EASTERN DISTRICT
PENN TREATY AMERICAN CORP.;               )                     OF MICHIGAN
UNITED INSURANCE GROUP AGENCY,            )
INCORPORATED,                             )
                                          )
      Defendants-Appellees.               )
                                          )
__________________________________________)

BEFORE: SUHRHEINRICH, BATCHELDER and COLE, Circuit Judges

        ALICE M. BATCHELDER, Circuit Judge. William Falandays appeals the order of the

district court granting summary judgment to the defendants on Falandays’s claims of breach of

contract and violation of ERISA. We have carefully reviewed the record, the applicable law and the

parties’ briefs, and we conclude that, with respect to the breach of contract claim, the district court’s

opinion thoroughly and accurately sets out both the undisputed facts and the governing law, and that

no jurisprudential purpose would be served by the issuance of a full written opinion by this court.

For the reasons stated in the district court’s opinion, we will affirm the judgment dismissing with

prejudice the breach of contract claim.

        We further conclude that although the district court erred in finding that no genuine issue

remained for trial with regard to Falandays’s claim that he had not been informed of the 401(k) plan
by United Insurance Group Agency, Incorporated (“UIG”), the ERISA claim nonetheless must be

dismissed without prejudice for failure to exhaust administrative remedies.          See Miller v.

Metropolitan Life Ins. Co., 925 F.2d 979, 986 (6th Cir.1991) (“[t]he administrative scheme of

ERISA requires a participant to exhaust his or her administrative remedies prior to commencing

suit.”).

           Accordingly, we AFFIRM the portion of the judgment of the district court dismissing with

prejudice the breach of contract claim, and we VACATE the portion of the judgment dismissing

with prejudice the ERISA claim, and we REMAND that claim to the district court with instructions

that it be dismissed without prejudice.




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