
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 95-1440                                    ALVAN H. WOLF,                                 Plaintiff, Appellee,                                          v.                      RELIANCE STANDARD LIFE INSURANCE COMPANY,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS               [Hon. Charles B. Swartwood, III, U.S. Magistrate Judge]                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Stahl and Lynch, Circuit Judges.                                            ______________                                 ____________________            James A.  Young with  whom  Michael J.  Burns, Christie,  Pabarue,            _______________             _________________  ___________________        Mortensen & Young, P.C. and Cheri L. Crow were on brief for appellant.        _______________________     _____________            William E. Bernstein  with whom Barbara S. Liftman and  Weinstein,            ____________________            __________________      __________        Bernstein & Burwick, P.C. were on brief for appellee.        _________________________                                 ____________________                                  December 11, 1995                                 ____________________                      STAHL,  Circuit  Judge.   Plaintiff-appellee  Alvan                      STAHL,  Circuit  Judge.                              ______________            Wolf prevailed  in  his jury-tried  contract  action  against            defendant-appellant Reliance Standard Life  Insurance Company            ("Reliance") for  denial of  disability  benefits.   Reliance            appeals the trial court's ruling  that ERISA preemption is an            affirmative defense which Reliance waived by failing to plead            it timely.  We affirm.                                          I.                                          I.                                          __                                      BACKGROUND                                      BACKGROUND                                      __________                      We begin by  reciting the facts  in the light  most            favorable to the verdict.   See Aetna Cas. Sur. Co.  v. P & B                                        ___ ___________________     _____            Autobody, 43 F.3d 1546, 1552 (1st Cir. 1994).            ________                      Wolf  founded  Brookfield   Factory  Outlet,   Inc.            ("Brookfield"), a  now-defunct chain of shoe  stores.  During            Brookfield's  heyday, Wolf  earned  approximately $8,000  per            month as its President  and Chief Executive Officer.   In the            fall  of  1988,  he  was diagnosed  with  severe  depression,            apparently resulting from business and personal difficulties.            In  the  spring  of  1989, Wolf  experienced  heart  problems            requiring   a  brief   hospitalization.     Thereafter,  Wolf            continued  to work until April  24, 1989, when  he suffered a            massive heart attack.                      From the  time  of Wolf's  depression diagnosis  in            1988  until his heart attack  in 1989, he  actually drew only            $500  per  week  of  his  $8,000  per  month  salary  due  to                                         -2-                                          2            Brookfield's   ongoing   financial  problems.      There  was            conflicting testimony  at trial  as to whether  Wolf actually            was entitled  to the  unpaid remainder  of his  salary, which            Wolf asserted the company owed him as a debt payable.                      The  insurance  policy  under  which   Wolf  sought            recovery  took  effect  on  February  1,  1985.   The  policy            provided a monthly  benefit to a  disabled employee equal  to            sixty percent of "covered  monthly earnings," defined as "the            insured's  basic monthly salary  received from [the employer]            on the  day just before  the date of  total disability."   In            September 1990,  Wolf filed a claim  for disability benefits.            Reliance  denied the claim in May 1991, stating that Wolf had            neither  proved  that he  was  a full-time  employee  when he            became disabled  nor that he  was totally disabled,  and that            Wolf was late giving notice of his claim.                      In  January  1992, Wolf,  a  Massachusetts citizen,            sued Reliance in Massachusetts state court alleging breach of            contract and  unfair trade practices.   Reliance, an Illinois            corporation  with   its  principal   place  of  business   in            Pennsylvania, removed  the suit,  based on diversity,  to the            United   States   District   Court  for   the   District   of            Massachusetts.  28 U.S.C.    1441, 1332.                      The   parties  consented   to  trial   before  U.S.            Magistrate Judge  Charles B. Swartwood  III.  On  October 25,                                         -3-                                          3            1994,  one  week   before  trial,   Reliance  filed   several            motions,1  each asserting,  for the  first time,  that Wolf's            state law  claims were  preempted by the  Employee Retirement            Income  Security Act of 1974  ("ERISA").  29  U.S.C.    1001-            1461.   The trial court denied the motions, ruling that ERISA            preemption was  an affirmative defense which  Reliance waived            by  failing to plead it in a  timely manner.  The trial court            then denied  Reliance leave  to amend its  pleadings, finding            undue delay by Reliance and significant prejudice to Wolf if,            on  the eve  of trial,  Reliance were  allowed to  change the            entire  legal basis for its opposition to Wolf's claim by its            introduction of an ERISA preemption defense.2                        The breach of contract claim was tried to a  jury            on November  2-4, 1994,  resulting in  a special  verdict for            Wolf.   The jury found  that Wolf's basic  monthly salary was            $8,000  per  month  on  the  day  before  he  became  totally            disabled.  The trial court  entered judgment for Reliance  on            the unfair  trade practices claim,  and Wolf does  not appeal            from that judgment.  In December 1994, the trial court issued            a  memorandum  decision  calculating  Wolf's  damages  to  be                                            ____________________            1.  Specifically,  Reliance  filed  motions  to  dismiss  for            failure to state a claim, to strike Wolf's jury trial demand,            and to apply an arbitrary and capricious standard of review.            2.  The  only  previous  indication  of  any  possible  ERISA            preemption  argument in  this litigation  was an  exchange of            letters dated May 31, 1991 and July 29, 1991 between Reliance            and Wolf's  attorney, each making a  single passing reference            to ERISA.                                         -4-                                          4            $196,606.72  plus  interest and  future payments.3   Reliance            then filed a renewed motion  for judgment as a matter  of law            and, alternatively, a motion  for a new trial, and  both were            denied.  This appeal followed.                                         II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________                      The  principal issue  before  us  is whether  ERISA            preemption is jurisdictional, and thus  may be raised at  any            point in  litigation, or an affirmative  defense, waivable if            not pleaded timely.   A  related issue is  whether the  trial            court  abused its  discretion  in denying  Reliance leave  to            amend its pleadings to add an ERISA preemption defense.            A.  ERISA Preemption            ____________________                      Whether ERISA  preemption  is jurisdictional  or  a            waivable  affirmative defense is a pure  question of law that            we review de novo.  See Correa v. Hospital San Francisco, No.                      __ ____   ___ ______    ______________________            95-1167, 1995 WL 627505, at *6 (1st Cir. Oct. 31, 1995).                      Reliance argues that because there is a "compelling            policy"  in favor of application of federal ERISA law to this            claim,  ERISA  preemption  is  jurisdictional4  and therefore                                            ____________________            3.  The parties stipulated that  if Reliance was found liable            to Wolf, the trial court would calculate the damages.            4.  We note  that  although Reliance  did  not use  the  term            "jurisdictional," that is the thrust of its argument.                                         -5-                                          5            nonwaivable.5   The  foundation  of the  argument is  ERISA's            broad  preemption provision: ERISA  [with a  few inapplicable            exceptions] "shall  supersede any and all  State laws insofar            as they may now  or hereafter relate to any  employee benefit            plan .  . .  . "   29 U.S.C.    1144(a).   One of  Congress's            intentions in enacting ERISA,  as divined through legislative            history,  was to  encourage  the growth  of private  employee            benefit  plans  by  replacing   diverse  state  laws  with  a            nationally  uniform federal  common  law regulating  employee            benefit   plans.6     Treating   ERISA  preemption   as  non-            jurisdictional  and therefore waivable would, so the argument            goes,  frustrate  that  intent, subjecting  employee  benefit            plans to  regulation and  litigation under  fifty non-uniform            bodies of state law.  The costs of adapting to and litigating            under non-uniform  state law and the  potential for liability            and  damages beyond  that permitted  under ERISA  would deter            employers from enacting benefits  plans.  Thus, courts should                                            ____________________            5.  See  Insurance Corp.  of Ireland,  Ltd. v.  Compagnie des                ___  __________________________________     _____________            Bauxites de Guinee, 456 U.S. 694, 702 (1982) (explaining that            __________________            subject  matter jurisdiction  is nonwaivable);  see generally                                                            ___ _________            George Lee Flint, Jr.,  ERISA: Nonwaivability of  Preemption,                                    ____________________________________            39 U. Kan.  L. Rev.  297 (1991) (arguing  that courts  should            hold ERISA preemption nonwaivable).            6.  ERISA's House sponsor, Representative Dent, described the            "reservation  to Federal  authority  [of] the  sole power  to            regulate  the field  of  employee benefit  plans" as  ERISA's            "crowning  achievement."     120  Cong.  Rec.  29197  (1974).            Senator Williams commented that ERISA's preemption  will have            the  effect  of "eliminating  the  threat  of conflicting  or            inconsistent State  and local regulation  of employee benefit            plans."  Id. at 29933.                     ___                                         -6-                                          6            hold  that  ERISA   preemption  is  jurisdictional  and   not            waivable, consistent with the congressional intent  to create            and apply  a uniform federal law  regulating employee benefit            plans.                      While the  foregoing argument is not without merit,            it  is precluded by precedent.  The Supreme Court analyzed at            length  the legislative  history  behind  ERISA's  preemption            provision in Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 44-                         ___________________    _______            46, 52-57 (1987), focusing on the civil enforcement scheme of              502(a) of ERISA  (29 U.S.C.   1132(a)), under which  a plan            participant can bring  a suit  for benefits due.   The  Court            concluded  that Congress  intended  to  create  an  exclusive            federal remedy, with a "pre-emptive force . . . modeled after              301"  of the  Labor Management  Relations Act  ("LMRA"), 29            U.S.C.   185.  Pilot Life,  481 U.S. at 52.  Accordingly, the                           __________            Court held that ERISA preempts all state law causes of action            for benefits due under an ERISA plan.  Id. at 57.  Pilot Life                                                   ___         __________            did not present the  question whether ERISA preemption was  a            jurisdictional matter or a  waivable defense, but the Supreme            Court  made clear  that courts  deciding  the scope  of ERISA            preemption  should  look  to LMRA  preemption  decisions  for            guidance.  Id. at 54-55.                       ___                      The  Pilot  Life  decision  explains  that  ERISA's                           ___________            preemption  clause  and  civil  enforcement  scheme  entirely            displaced  state law  causes  of action  for benefits  claims                                         -7-                                          7            under  ERISA  plans.    Id.  at  55-57.    If  state  law  is                                    ___            "displaced,"  then  arguably  there  is  no   subject  matter            jurisdiction over  a state law  cause of action  for benefits            due.   Lack of subject  matter jurisdiction is,  of course, a            nonwaivable defense and may be raised at any time.  Insurance                                                                _________            Corp.  of Ireland, Ltd. v. Compagnie  des Bauxites de Guinee,            _______________________    _________________________________            456 U.S. 694,  702 (1982).   That jurisdictional argument  is            unavailing, however, because  this Circuit has squarely  held            that LMRA preemption is  waivable.  Sweeney v. Westvaco  Co.,                                 __             _______    _____________            926  F.2d 29, 40 (1st Cir.) (Breyer, C.J.), cert. denied, 502                                                        _____ ______            U.S. 899 (1991).  Given that  the Supreme Court in Pilot Life                                                               __________            explicitly  directed courts  to treat  ERISA  preemption like            LMRA preemption, 481 U.S. 51-56, Judge (now Justice) Breyer's            analysis  in   Sweeney  leads  us  to   conclude  that  ERISA                           _______            preemption is also waivable.                      The  rationale behind  Sweeney's holding  that LMRA                                             _________            preemption  is waivable  applies  with equal  force to  ERISA            preemption.   The Sweeney  court began  with  an analysis  of                              _______            International  Longshoremen's Ass'n  v. Davis,  476  U.S. 380            ___________________________________     _____            (1986), a  National Labor  Relations Act  ("NLRA") preemption            case.   See 29  U.S.C.     157, 158.   In Davis,  the Supreme                    ___                               _____            Court  held  that  NLRA  preemption  is  jurisdictional,  and            therefore  nonwaivable, because NLRA  preemption dictates the            choice  of forum (i.e., whether a court or the National Labor                       _____            Relations Board ("NLRB") has  the power to hear the  case) as                                         -8-                                          8            opposed to simply the  choice of law (i.e., whether  state or                                             ___            federal law applies).   See id. at 398-99.   Sweeney stressed                                    ___ ___              _______            that the  Supreme Court itself carefully  limited its holding            in  Davis to    7  and 8 of the NLRA  and not other statutes.                _____            Sweeney,  926  F.2d  at  38.     Those  sections  evidence  a            _______            Congressional intent to "refuse[] to permit parties to submit            such  a  dispute   to  the  courts  even  where  the  parties            themselves wished to do so."  Id. at 38-39.  In Sweeney, this                                          ___               _______            court   determined   that   LMRA  preemption,   unlike   NLRA            preemption, "concerns  what law a decision  maker must apply,                                        ___            not what  forum must decide  the dispute."   926 F.2d  at 39.                      _____            Based  on that  premise,  the panel  in  Sweeney applied  the                                                     _______            converse of  the Davis rule, holding that  LMRA preemption is                             _____            waivable because it affects the choice of law, not the choice            of forum.  Id. at 39-40.                       ___                      Like  LMRA  preemption,   ERISA  preemption  in   a            benefits-due  action does  not  affect the  choice of  forum,            because ERISA's jurisdictional provision provides that "State            courts of  competent jurisdiction and district  courts of the            United States shall have concurrent jurisdiction of actions,"                                     __________ ____________            29  U.S.C.     1132(e)(1)  (emphasis added),  "brought  by  a            participant  or beneficiary  to  recover benefits  due."   29            U.S.C.   1132(a)(1)(B).   The plain language of    1132 tells            us that  if a plaintiff  brought a  "benefits-due" action  in            state court and the  defendant pleaded ERISA preemption, this                                         -9-                                          9            would not deprive the court of  jurisdiction over the subject            matter; rather,  ERISA  preemption in  that  situation  would            dictate the applicable law.   Preemption is, as Sweeney says,                                                            _______            ultimately  "a matter  of Congressional intent,  as embodied,            explicitly or implicitly, in  a particular federal  statute."            Sweeney, 926 F.2d at 38.  In  considering that intent, we are            _______            guided by a number of factors.  It is instructive, though not            necessarily  dispositive,  that ERISA,  like  the  statute in            Sweeney,  is a choice  of law rather  than a  choice of forum            _______            statute.  We  also believe that  the interests in  uniformity            which  Congress hoped  to serve  in ERISA  did not  extend to            permitting defendant corporations,  often more  sophisticated            about ERISA than individual plaintiffs, to sit on their hands            and  not  claim  the defense  until  the  last  minute.   Cf.                                                                      ___            Williams  v. Ashland Eng'g Co.,  Inc., 45 F.3d  588, 593 (1st            ________     ________________________            Cir.)  (emphasizing the importance  of protecting against the            strategic  use of  a last  minute ERISA  preemption defense),            cert. denied, 116 S.  Ct. (1995).  That employers  were meant            _____ ______            to enjoy the benefits  of uniformity did not mean  they could            not forego those benefits.                      Other  courts,   including  the  Fifth   and  Ninth            Circuits have held  that ERISA preemption  is waivable.   See                                                                      ___            Dueringer v. General  Am. Life  Ins. Co., 842  F.2d 127,  130            _________    ___________________________            (5th Cir. 1988) (holding  that ERISA preemption is waivable);            Gilchrist  v. Jim Slemons Imports,  Inc., 803 F.2d 1488, 1497            _________     __________________________                                         -10-                                          10            (9th Cir. 1986) (same); Rehabilitation Inst. of Pittsburgh v.                                    __________________________________            Equitable Life  Assur. Soc'y,  131 F.R.D. 99,  101 (W.D.  Pa.            ____________________________            1990) (same), aff'd, 937 F.2d 598 (3d Cir. 1991).                          _____                      An apparent majority of state courts addressing the            question have  reached the  same conclusion.   See  Gorman v.                                                           ___  ______            Life Ins. Co. of N. Am., 811  S.W.2d 542, 546 (Tex.) (holding            _______________________            that  ERISA preemption is waivable when it does not deprive a            state  court of  jurisdiction),  cert. denied,  502 U.S.  824                                             _____ ______            (1991); Curry  v. Cincinnati  Equitable Ins. Co.,  834 S.W.2d                    _____     ______________________________            701,  703 (Ky. Ct. App. 1992) (same); Hughes v. Blue Cross of                                                  ______    _____________            N. Cal., 263 Cal. Rptr. 850, 861 (Cal. Ct. App. 1989) (same),            _______            cert. dismissed, 495 U.S. 944  (1990); Associates Inv. Co. v.            _____ _________                        ___________________            Claeys, 533  N.E.2d 1248, 1251 (Ind. Ct. App. 1989).  But see            ______                                                _______            Chestnut-Adams Ltd.  Partnership  v. Bricklayers  and  Masons            ________________________________     ________________________            Trust  Funds of  Boston,  Mass., 612  N.E.2d 236,  238 (Mass.            _______________________________            1993) (holding  that the  preemption intended by  Congress in            enacting ERISA is so  broad as to make it  jurisdictional and            therefore nonwaivable); Barry v. Dymo Graphic Sys., Inc., 478                                    _____    _______________________            N.E.2d 707, 712 (Mass. 1985) (same).7                      Accordingly,  we hold  that ERISA  preemption in  a            benefits-due action is  waivable, not jurisdictional, because                                            ____________________            7.  We are, of course, not bound by the Massachusetts Supreme            Judicial Court's  interpretation of a federal  statute or the            Congressional intent behind it.                                         -11-                                          11            it  concerns  the  choice of  substantive  law  but does  not            implicate the power of the forum to adjudicate the dispute.8                      We  now   turn  to  the   question  whether   ERISA            preemption   must  be  pleaded  as  an  affirmative  defense.            Federal  Rule  of  Civil   Procedure  8(c)  requires  that  a            responsive pleading set  forth certain enumerated affirmative            defenses  as  well  as  "any  other  matter  constituting  an            avoidance or affirmative defense."  Fed. R. Civ. P. 8(c); see                                                                      ___            generally  5 Charles  A. Wright  & Arthur R.  Miller, Federal            _________                                             _______            Practice and Procedure   1271 (1990).  The First Circuit test            ______________________            for  whether  a given  defense  falls  within  the Rule  8(c)            "residuary" clause is whether  the defense "shares the common            characteristic of  a bar to the right of recovery even if the            general complaint were  more or less admitted  to."  Jakobsen                                                                 ________            v.  Mass.  Port Auth.,  520 F.2d  810,  813 (1st  Cir. 1975).                _________________            ERISA preemption  shares  this characteristic  insofar as  it            would bar  Wolf  from recovering  on his  state law  contract            claim   even  if   Reliance   admitted  Wolf's   allegations.            Therefore  we hold  that ERISA  preemption in  a benefits-due            action  is an affirmative defense and, as such, it is subject            to waiver if not timely pleaded.                                            ____________________            8.  Our holding  is limited to ERISA  preemption of benefits-            due  actions.   ERISA permits  several other  types of  civil            actions (e.g., for injunctive relief, for breach of fiduciary            duty, etc.) subject to  exclusive jurisdiction in the federal            courts rather than concurrent jurisdiction.  See 29 U.S.C.                                                            ___            1132(a)(1)(A), 1132(a)(2)-(6), 1132(e)(1).                                         -12-                                          12                      Several courts, including  this Circuit in  dictum,                                                                  ______            have held that ERISA  preemption in benefits-due actions must            be pleaded timely as an affirmative defense.  See Williams v.                                                          ___ ________            Ashland Eng'g Co.,  Inc., 45 F.3d  588, 593 & n.7  (1st Cir.)            ________________________            (stating, in dictum, that  ERISA preemption is an affirmative                         ______            defense, but finding no waiver when pleaded six months before            summary  judgment),  cert.  denied,  116 S.  Ct.  51  (1995);                                 _____  ______            Dueringer, 842 F.2d at 129-130 (5th Cir.  1988) (holding that            _________            ERISA preemption must be  pleaded as an affirmative defense);            Rehabilitation Inst.,  131 F.R.D.  at 100-01 (W.D.  Pa. 1990)            ____________________            (same), aff'd,  937  F.2d 598  (3d  Cir. 1991);  Gorman,  811                    _____                                    ______            S.W.2d  at 546 (Tex. 1991)  (same); Curry, 834  S.W.3d at 703                                                _____            (Ky.  Ct.  App. 1992)  (same);  but  see Chestnut-Adams,  612                                            ___  ___ ______________            N.E.2d at 238 (Mass. 1993)  (holding that ERISA preemption is            jurisdictional and therefore not waivable).            B.  Amendment of the Pleadings            ______________________________                      Having  concluded  that  ERISA  preemption   is  an            affirmative  defense,  it   follows  that  the   trial  court            correctly   treated   Reliance's  attempt   to   raise  ERISA            preemption   as  a   motion  seeking   leave  to   amend  the            pleadings.9   We now address  whether the trial  court abused            its discretion in denying Reliance leave to amend.                                            ____________________            9.  At  oral argument on  the eleventh-hour motions, Reliance            conceded the true goal  of the motions: "It's not  to dismiss            the complaint per se,  it's just to substitute ERISA  for the                          ___ __            breach of contract under state law."                                         -13-                                          13                      Whether  or  not  to   grant  leave  to  amend  the            pleadings is within the discretion of the trial court and the            court's  decision will  be reversed  only upon  a showing  of            abuse of that discretion.  Manzoli v. Commissioner, 904  F.2d                                       _______    ____________            101, 107 (1st Cir. 1990).                      Failure to  plead an affirmative  defense generally            results in waiver of  the defense and its exclusion  from the            case.  Conjugal Partnership  v. Conjugal Partnership, 22 F.3d                   ____________________     ____________________            391, 400 (1st  Cir. 1994).   An affirmative  defense must  be            pleaded in the  answer in  order to give  the opposing  party            notice  of the defense and  a chance to  develop evidence and            offer arguments to controvert the defense.  Knapp Shoes, Inc.                                                        _________________            v. Sylvania Shoe  Mfg. Corp.,  15 F.3d 1222,  1226 (1st  Cir.               _________________________            1994).                      Reliance  conceded  at  oral  argument  that  ERISA            preemption was  an affirmative defense.   It argued, however,            that having raised in its answer a  broad "failure to state a            claim  upon which relief may be granted" defense, see Fed. R.                                                              ___            Civ.  P. 12(b)(6), this defense  allowed it to  later, a week            before trial, raise the specific defense of ERISA preemption.            Cf.  Williams, 45  F.3d  at 593.    In Williams,  this  court            ___  ________                          ________            enunciated a  test to determine when  a general, non-specific            defense of  failure to state  a claim,  see Fed.  R. Civ.  P.                                                    ___            12(b)(6),  as Reliance  originally  filed, is  sufficient  to            preserve the affirmative defense  of ERISA preemption.  "[A]n                                         -14-                                          14            inquiring   court   must   examine   the  totality   of   the            circumstances  and make  a practical,  commonsense assessment            about  whether  Rule  8(c)'s core  purpose  --  to  act as  a            safeguard against  surprise and unfair prejudice  -- has been            vindicated."   Id.  In  Williams, the defendant  raised ERISA                           ___      ________            preemption well before the close of discovery, and six months            prior to  the filing  of cross-motions for  summary judgment.            Id.  The issue was  briefed by both sides on summary judgment            ___            and thus we found that no "ambush" had occurred.  Id.  In the                                                              ___            instant  case,   however,  Reliance  did   not  raise   ERISA            preemption  in its answer,  at the pretrial  hearings, in the            pretrial  memoranda, or  at any  point during  discovery, but            rather  raised it  only five  days before  trial.10   As this            Circuit  recently  said in  another  case  of waiver,  "[t]he            chronology  of the  case  speaks volumes  about  the lack  of            timeliness."  Correa v.  Hospital San Francisco, No. 95-1167,                          ______     ______________________            1995 WL 627505, at *8 (1st Cir. Oct. 31, 1995).                      The trial  court denied  leave to amend  because of            the  undue delay by Reliance  in raising the  issue11 and the                                            ____________________            10.  Reliance argues that the previously  referenced exchange            of letters was sufficient to put Wolf on notice that Reliance            intended to  pursue an ERISA  preemption defense.   See supra                                                                ___ _____            note 2.  We cannot agree that the passing references in those            letters  are the  legal equivalent of  pursuing a  defense in            court.            11.  When the trial judge asked Reliance at oral argument why            ERISA preemption  was not raised earlier,  counsel explained:            "I   sat  down  a  couple  weeks  ago  to  start  doing  jury            instructions and things  in the case  and realized that  this                                         -15-                                          15            substantial prejudice to Wolf if amendment  were allowed.  It            is well within  a court's discretion to find  prejudice where            the amendment "substantially changes  the theory on which the            case  has been proceeding and is proposed late enough so that            the opponent would  be required to engage  in significant new            preparation."  See 6 Wright & Miller,  supra,   1487, at 623.                           ___                     _____            This  is precisely such a case: Reliance sought to change the            theory of the case  five days before trial, which  would have            forced  Wolf to conduct  additional discovery,  research, and            preparation  on the  ERISA-related issues.12   We  hold that,            based  on  these  considerations,   there  was  no  abuse  of            discretion in denying leave to amend.            C.  Reliance's Other Arguments            ______________________________                      We have considered appellant's other  assertions of            error and find them to be without merit.                                         III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                      For the foregoing reasons, the judgment of the            trial court is Affirmed.  Costs to appellees.                           Affirmed   Costs to appellees                           ________   __________________                                            ____________________            was a case that  should be done by ERISA . . .  .  I had made            myself . . .  knowledgeable about ERISA in the last couple of            weeks.  It's not an area of my normal practice."            12.  Despite the  briefing by both  parties on the  merits of            ERISA preemption,  we have  no occasion to  reach the  issue,            because we find that the argument was waived.                                         -16-                                          16
