                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 04-4317
DANIEL BROSTED,
                                                  Plaintiff-Appellant,
                                  v.

UNUM LIFE INSURANCE COMPANY OF AMERICA and
DREISILKER ELECTRIC MOTORS, INC. GROUP LONG TERM
DISABILITY INCOME PLAN,
                                 Defendants-Appellees.

            Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
               No. 03 C 5423—Elaine E. Bucklo, Judge.


      ARGUED JUNE 9, 2005—DECIDED AUGUST 26, 2005


 Before BAUER, RIPPLE, and MANION, Circuit Judges.
  MANION, Circuit Judge. Daniel Brosted sued Unum Life
Insurance Company and the Dreisilker Electric Motors, Inc.
Long Term Disability Income Plan under the Employment
Retirement Income Security Act, 29 U.S.C. §§ 1001 et seq.
(ERISA), alleging the defendants violated their fiduciary
duties by misstating the amount of benefits to which he was
entitled under the Plan. Brosted also alleged an equitable
estoppel claim premised on the misstatement of benefits.
The district court granted the defendants summary judg-
ment. Brosted appeals. We affirm.
2                                                  No. 04-4317

                               I.
   Daniel Brosted began working for Dreisilker Electric
Motors, Inc. (“Dreisilker”) in 1974. In the early 1980s,
Brosted was diagnosed with multiple sclerosis. He nonethe-
less was able to continue working at Dreisilker as a purchas-
ing manager until late 1999, when he was hospitalized for
complications related to multiple sclerosis. In February
2000, after leaving the hospital, Brosted received a written
return-to-work release from his physician. When, in the
spring of 2000, Brosted attempted to return to his job,
Dreisilker refused to allow him back. After considering
filing a disability discrimination suit against Dreisilker,
Brosted instead decided to negotiate with Dreisilker to work
out a solution.
  While negotiating with Dreisilker, Brosted also applied for
disability benefits from the Long Term Disability Plan
(“Plan”) which Dreisilker sponsored, listing his first day of
hospitalization, December 29, 1999, as the last day he
worked before his disability. The Plan provided coverage
for long-term disability income to its participants funded
through the purchase of insurance from Unum Life Insur-
ance Company of America, Inc. (“Unum”).
                      1
  The Unum policy provided that a person is disabled
when Unum determines that the employee is “limited from
performing the material and substantial duties of [his]
regular occupation due to sickness or injury” and has “a


1
  The parties in this case cite to what appear to be the terms of
the insurance policy, as opposed to the Plan. Brosted does not
claim that the Plan provided broader coverage than the insurance
policy used to fund the Plan. Accordingly, we treat the terms of
the insurance policy as mirroring the Plan’s terms and cite those
terms throughout.
No. 04-4317                                                 3

20% or more loss in [his] indexed monthly earnings due to
the same sickness or injury.” The policy further provided
that if a person is disabled, as defined by the policy, Unum
will calculate the monthly disability benefits by: multiplying
the claimant’s monthly earnings by 60% (capped at $6,000)
and subtracting any deductible sources of income, such as
social security benefits. The Policy further defined “monthly
earnings” to mean the claimants’
    gross monthly income from your Employer in effect just
    prior to your date of disability. It includes your total
    income before taxes, but does not include deductions
    made for pre-tax contributions to a qualified deferred
    compensation plan, Section 125 plan, or flexible spend-
    ing account.
  After applying for benefits from Unum, Brosted spoke
with a Unum representative, Molly Neylan, regarding the
amount of benefits for which he qualified. Neylan informed
Brosted that he would receive 60% of his monthly earnings
as benefits, provided he met the policy definition of disabil-
ity. Neylan further informed Brosted that he would shortly
receive a confirmation of the exact dollar amount of his
monthly benefits. On July 27, 2000, Brosted received the
promised letter, in which Neylan wrote: “This plan provides
you with 60% of your basic monthly earnings reduced by
certain other income benefits such as Social Security,
Workers’ Compensation and Pension. Please refer to the
monthly benefit reductions in your certificate of insurance
for full details.” Brosted also received from Unum a check
for $2,596 with an “Explanation of Long Term Disability
Benefits” that listed the amount of net benefits as
“$3,016.00.” (Brosted opted to have the Plan withhold taxes
from the disability check, and $2,596 was the after-tax
benefits total.)
4                                                No. 04-4317

  After receiving this letter, on August 1, 2000, Brosted
entered into a release and severance agreement with
Dreisilker. This agreement expressly provided as a condi-
tion precedent that Unum must deem Brosted disabled and
he must secure long-term disability benefits under the Plan.
Unfortunately for Brosted, while he was executing the
release and severance agreement, a Certified Public Accoun-
tant working for Unum reviewed the disability benefits
calculations for Brosted, and discovered that the previous
benefits calculation was incorrect. After properly calculating
Brosted’s benefits, the CPA determined that he would
receive only $2,082.37 per month, $513.63 less than origi-
nally stated. Apparently, the mistake occurred because
Unum’s original calculation was based on Brosted’s basic
monthly wages of $5,026.66, whereas under the policy
terms, that amount should have been reduced by the
amounts Brosted contributed to his 401(k) plan and section
125 flexible spending account, $790.20 and $102.05 respec-
tively.
  On August 16, 2000, Unum informed Brosted of its error
in calculating his monthly disability benefits, notifying him
that the $513.63 overpayment would be deducted from his
second disability check, and that thereafter he would receive
the correct after-tax amount of $2,082.37. Brosted appealed
Unum’s determination of his monthly disability benefits
through the Plan appeal process. On January 16, 2002,
Unum notified Brosted of its decision to uphold its benefits
determination.
  After losing his appeal, Brosted filed suit against Unum
Life Insurance and the Plan, under ERISA, alleging, in count
one, a claim of equitable estoppel and, in count two, breach
of fiduciary duty. Following discovery, the district court
granted the defendants summary judgment. Brosted
appeals.
No. 04-4317                                                      5

                                II.
  On appeal, Brosted argues that the district court erred in
granting the defendants summary judgment on his equita-
ble estoppel and breach of fiduciary duty claims. Brosted
also argues that the district court abused its discretion in
denying his motion for an extension of time for discovery.


A. Motion for an Extension of Time
  We consider first Brosted’s claim that the district court
abused its discretion in denying his motion for an extension
of time for discovery. The district court originally set a
discovery deadline of March 31, 2004. Brosted requested an
eight-week extension, which the district court granted,
establishing a new deadline of May 31, 2004. During late
February and early March, Brosted initiated discovery
requests, seeking the production of documents and noticing
depositions for three individuals—two representatives of
Unum and a Vice President of Dreisilker. On April 7, 2004,
the defendants filed a motion for a protective order, seeking
to limit discovery to the administrative record developed
during Brosted’s appeal of the benefits determination
through the Plan appeal process. This effectively put the
discovery on hold because the district court did not rule on
the defendants’ motion until July 1, 2005, at which time the
district court denied the defendants’ motion for a protective
order. That same day, and apparently before the district
court entered its order on the protective order motion,
                                                            2
Brosted filed a motion to enlarge the discovery deadline.


2
  Brosted’s motion to enlarge time is file stamped July 1, 2004,
and notes that “the Motion to Bar Discovery is still pending.” The
district court’s Minute Order denying the defendants’ motion for
                                                     (continued...)
6                                                      No. 04-4317

On July 12, 2004, the district court denied as moot Brosted’s
motion to enlarge time and reset discovery.
  On appeal, Brosted claims that the district court erred in
denying his motion for an extension of time as moot because
he still needed to depose three witnesses. Brosted further
asserts that he needed to wait until the district court ruled
on the protective order before proceeding with these
depositions, and that the district court should have, there-
fore, granted him an extension of time to complete discov-
ery.
  This court reviews the district court’s decision to deny an
extension of time to conduct discovery for an abuse of
discretion. See, e.g., Campania Management Co., Inc. v. Rooks,
Pitts & Poust, 290 F.3d 843, 850-51 (7th Cir. 2002) (holding
that the district court did not abuse its discretion in denying
a motion to extend discovery filed nine days after the close
of discovery). In this case, in his motion Brosted sought an
extension of time in order to obtain responses from the
defendants to “discovery previously requested.” Prior to
ruling on that motion, the district court denied the defen-
dants’ request for a protective order. Without a protective
order prohibiting discovery, the defendants were forced to
respond to the discovery requests that Brosted had filed
before the discovery deadline. This, as the district court
recognized, made the request for an extension of time to
obtain responses for discovery previously requested moot.
  However, Brosted’s attorney failed to take the depositions
of the three witnesses before the discovery deadline, instead
writing to the defendants’ attorney, stating that those


2
  (...continued)
a protective order is stamped filed, July 1, 2004, 4:09 p.m., and the
order is stamped as docketed July 2, 2004.
No. 04-4317                                                         7

depositions were continued. On appeal, Brosted justifies this
failure by arguing that he needed access to the documents
being withheld before he could depose the three witnesses.
That may well be true. Perhaps when Brosted belatedly
requested an extension of time for discovery, had he argued
that he needed additional time to depose the witnesses
because he had yet to receive the documents, the court
might have granted his request. But the primary problem
with his motion is that he did not seek an extension until a
month after the discovery deadline had passed. Thus,
pursuant to Fed. R. Civ. P. 6(b)(2), Brosted was required to
show excusable neglect for failing to comply with the
                       3
discovery deadline. But in seeking an extension of time,
Brosted did not argue that excusable neglect existed, nor did
he claim that he could not have deposed those witnesses
within the discovery time period because of the pending
motion for the protective order. On appeal, Brosted also
fails to argue that he satisfied the excusable neglect standard
established by Rule 6(b). Given that Brosted had already
received one extension, waited until one month after the
extended discovery deadline expired to file a motion to


3
   Fed. R. Civ. P. 6(b) provides: “When by these rules or by a
notice given thereunder or by order of court an act is required or
allowed to be done at or within a specified time, the court for
cause shown may at any time in its discretion (1) with or without
motion or notice order the period enlarged if request therefor is
made before the expiration of the period originally prescribed or
as extended by a previous order, or (2) upon motion made after
the expiration of the specified period permit the act to be done
where the failure to act was the result of excusable neglect; but it
may not extend the time for taking any action under Rules 50(b)
and (c)(2), 52(b), 59(b), (d) and (e), and 60(b), except to the extent
and under the conditions stated in them.”
8                                                No. 04-4317

further extend the deadline, and failed to claim excusable
neglect for missing the deadline, we conclude that the
district court did not abuse its discretion in denying the
request. Campania Management, 290 F.3d at 850.


B. Equitable Estoppel
  As to the merits of Brosted’s claims, he first contends that
the district court erred in granting the defendants summary
judgment on his equitable estoppel claim. In support of his
claim, Brosted asserts that he detrimentally relied on
Unum’s misrepresentation of the amount of his disability
benefits. Based on the amount stated in the July 27, 2001,
letter, he entered into a release and severance with
Dreisilker. Brosted maintains that had he known that he
would have been entitled to only $2,082.37 under the Plan,
he would not have executed the release. Instead, Brosted
claims, he would have demanded that Dreisilker accommo-
date his disability and allow him to return to work. Brosted
explains that once he returned to Dreisilker with such an
accommodation, he would have stopped contributing to the
401(k) and 125 spending plans, so as to increase the salary
base for purposes of the disability plan. Then, after four
months—the time period the Plan used to calculate the
salary base for benefits determinations—he could claim
disability and leave Dreisilker and obtain higher benefits
under the Plan.
   The district court rejected Brosted’s theory of equitable
estoppel, concluding that because Brosted claimed that he
was disabled when he applied for benefits under the Plan,
he could not reverse himself and present a theory during
litigation premised on his ability to return to work at
Dreisilker. As the district court noted, he could not have
reasonably relied upon the July 27 letter because he “filed
No. 04-4317                                                        9

his employee statement in connection with his application
for disability benefits on July 17, 2000, stating that he had
                                           4
been disabled since December 30, 1999.”
  Brosted counters by arguing that even if he were disabled
for purposes of the Plan, there was still a factual dispute as
to whether he could still do his job at Dreisilker with a
                                                             5
reasonable accommodation. However, even if true,
Brosted’s claim still fails because to prevail on an equitable
estoppel claim, among other things, Brosted must establish
a knowing misrepresentation by the defendant. Coker v.
Trans World Airlines, Inc., 165 F.3d 579, 585 (7th Cir. 1999).
See also Decatur Memorial Hosp. v. Connecticut Gen. Life Ins.
Co., 990 F.2d 925, 926-27 (7th Cir. 1993) (stating that
“[a]rguments that negligent misrepresentations ‘estop’
sponsors or administrators from enforcing the plans’ written
terms have been singularly unsuccessful”). Here, Brosted
failed to present any evidence that the defendants made a
knowing misrepresentation as to the amount of benefits he
would receive under the Plan. Therefore, he cannot succeed
on his equitable estoppel claim, and the district court
properly granted the defendants summary judgment on this
claim.
C. Breach of Fiduciary Duty
  In Count II, Brosted presented a breach of fiduciary duty
claim under § 502(a)(3) of ERISA. 29 U.S.C. § 1132(a)(3). To


4
  The application form in the record appears to list December 29,
1999, as the date of disability, although the writing is difficult to
decipher, which may explain the district court’s reference to
December 30, 1999.
5
  Dreisilker’s human resource manager concluded that Brosted’s
employment position could not be modified to accommodate
Brosted’s disability.
10                                                No. 04-4317

state a claim for breach of fiduciary duty under ERISA, the
plaintiff must establish: (1) that the defendants are plan
fiduciaries; (2) that the defendants breached their fiduciary
duties; and (3) that the breach caused harm to the plaintiff.
Kamler v. H/N Telecomm. Serv., Inc., 305 F.3d 672, 681 (7th
Cir. 2002).
   Without considering whether Brosted presented sufficient
evidence of these elements to support his breach of fidu-
ciary duty claim, the district court instead granted the
defendants summary judgment on the basis that Brosted
could not sue for breach of fiduciary duty because his claim
was really one for the denial of benefits under § 502(a)(1)(B)
of ERISA. 29 U.S.C. § 1132(a)(1)(B). The district court further
held that Brosted was seeking monetary damages and not
equitable relief, and therefore could not recover under §
502(a)(3) for breach of fiduciary duty. Brosted argues in
response that he did not seek damages under the terms of
the Plan, pursuant to § 502(a)(1)(B). Rather, Brosted main-
tains that he is pursuing a separate and distinct legal cause
of action under § 502(a)(3) for breach of fiduciary duty, and
that he is seeking the equitable remedy of restitution, which
is available under § 502(a)(3). 29 U.S.C. § 1132(a)(3).
  In support of his position, Brosted cites Bowerman v. Wal-
mart Stores, Inc., 226 F.3d 574 (7th Cir. 2000). In Bowerman,
the plaintiff had been denied medical coverage for her
pregnancy because of a short lapse in her employment with
the defendant. Id. at 577. The lapse occurred because the
Plan documents failed to adequately explain the relation-
ship between COBRA coverage and regular coverage. Id. at
590-91. Also, the defendant improperly explained to
Bowerman the role of interim coverage to ensure continuity
of coverage. Id. Bowerman sued for breach of fiduciary duty
under § 502(a)(3) of ERISA. Id. After explaining that
§ 502(a)(3) allowed for only equitable remedies and not
No. 04-4317                                                 11

money damages, this court held:
    In this case, we see no reason why that remedy cannot
    take the same form as the remedy fashioned by the
    district court with respect to the equitable estoppel
    claim. Ms. Bowerman ought to have an opportunity to
    tender the COBRA payment that would have been paid
    if the Plan had lived up to its obligation to inform her
    fully of the operation of the Plan. If she makes that
    payment, the Plan then must pay the maternity-related
    medical expenses that it has refused to pay in reliance
    on the pre-existing condition limitation.
Id. at 592.
  The defendants maintain that Brosted’s reliance on
Bowerman is misplaced, arguing that, unlike the plaintiff in
Bowerman, who sought equitable relief in the form of
retroactive reinstatement of the plan, the remedy that
Brosted seeks is purely monetary. However, as we noted in
Health Cost Controls v. Skinner, 44 F.3d 535, 537 n.5 (7th Cir.
1995), “[r]estitution may be in the form of monetary relief.
Thus, although [the plaintiff] clearly cannot recover com-
pensatory damages under section 502(a)(3), if it successfully
makes out a claim for restitution, admittedly an equitable
action, it may be entitled to monetary relief.”
  We need not wade into this morass, however, because the
facts, read in the light most favorable to Brosted, fail as a
matter of law to establish that the defendants breached their
fiduciary duty. The evidence presented to the district court
at the summary judgment phase merely established that an
employee of Unum miscalculated and overstated the
amount of benefits which Brosted would receive under the
Plan. There was no evidence that the defendants intention-
ally misrepresented the amount of benefits due Brosted.
This is significant, because, as Brosted acknowledges in his
12                                                No. 04-4317

brief, this court held in Vallone v. CNA Financial Corp., 375
F.3d 623, 642 (7th Cir. 2004), that a breach of fiduciary duty
claim premised on a misstatement requires an intent to
deceive. Specifically, in Vallone this court held “while there
is a duty to provide accurate information under ERISA,
negligence in fulfilling that duty is not actionable.” Id. That
is because ERISA allows a plan fiduciary to “rely on infor-
mation, data, statistics or analyses furnished by persons
performing ministerial functions for the plan, provided that
he has exercised prudence in the selection and retention of
such persons.” 29 C.F.R. § 2509.75-8. Thus, in Schmidt v.
Sheet Metal Workers’ Nat. Pension Fund, 128 F.3d 541 (7th Cir.
1997), this court rejected a breach of fiduciary duty claim
premised on a misstatement made by a clerical employee of
the Plan, noting: “There is no evidence that the Trustees in
this case were involved in any way with [the] misstatement.
Nor has [the plaintiff] attempted to show that the Trustees
failed to exercise due care either in hiring or retaining [the
person making the misstatement] or in training her to
respond to inquiries from plan participants.” Id. at 548. The
Schmidt court then concluded: “We therefore agree with the
district court that [the] misstatements would not in these
circumstances support a breach of fiduciary duty claim
against the Trustees.” Id. at 548.
  Alternatively, Brosted argues that the defendants
breached their fiduciary duty by overcharging Dreisilker.
Some additional facts are necessary to understand this
theory. During discovery, Brosted learned that Dreisilker
had been paying Unum premiums to fund the insurance
policy based upon a percentage of its employees’ monthly
base wages, without deducting 401(k) contributions.
However, the insurance policy Unum issued provided
benefits based on the employee’s wage reduced by deferred
compensation (such as 401(k)) contributions. Unum admit-
No. 04-4317                                              13

ted in a February 6, 2002, letter to Dreisilker that the
premiums charged had been incorrectly calculated and that
Dreisilker had overpaid. The letter maintained, though, that
the Plan terms would control, and that Dreisilker could
either request the elimination of the deferred compensation
term from the Plan, or arrange for the premiums to be
recalculated, prospectively. Unum did not offer to reim-
burse Dreisilker for the past overpayments, and there is
nothing in the record to indicate how Dreisilker and Unum
resolved this problem.
  After learning that Unum had overcharged Dreisilker for
premiums on the Plan, in opposing Unum’s motion for
summary judgment, Brosted argued to the district court that
Unum had been unjustly enriched and that therefore, he
was entitled to benefits based on the premiums paid,
namely benefits unreduced by the 401(k) and 125 flexible
spending plan contributions. The district court rejected
Brosted’s theory, concluding that Brosted was improperly
seeking to amend the complaint at the summary judgment
stage.
  Brosted challenges the district court’s reasoning on
appeal, contending that his unjust enrichment argument
was not a separate claim, but rather supported his breach of
fiduciary duty claim, which he had alleged in his complaint.
Alternatively, Brosted argues that the district court should
have allowed him to amend his complaint to allege an
unjust enrichment claim since he did not learn of Unum’s
overcharging until right before the deadline for filing
summary judgment motions. However, even if Brosted
properly presented this theory to the district court, he
cannot succeed on this claim because Dreisilker paid 100%
of the premiums and did not require any out-of-pocket
contribution by Brosted. Thus, Unum’s overcharging of
premiums did not impact Brosted, as Brosted paid nothing,
14                                               No. 04-4317

and he received exactly the benefits specified in the Plan.
This proves fatal because to recover on a breach of fiduciary
duty claim, the plaintiff must establish the alleged breach
caused the plaintiff an injury. Kamler, 305 F.3d at 681.
However, any injury here was to Dreisilker, not Brosted.
Therefore, on the merits, Brosted loses, and, since we can
affirm on any basis in the record, Sherrod v. Lingle, 223 F.3d
605, 614 (7th Cir. 2000), we need not delve into the question
of whether Brosted improperly presented a separate claim
or merely asserted an alternative factual theory based on the
claim alleged in his complaint.


                             III.
  Unum’s representative made a mistake when she calcu-
lated the amount of benefits due Brosted under the Plan.
However, because there is no evidence that this mistake was
anything other than an inadvertent error, Brosted cannot
succeed on an equitable estoppel or breach of fiduciary duty
claim. Brosted is also not entitled to recover from the
defendants based on Unum’s overcharging of premiums
since his employer paid the premiums in their entirety.
Finally, the district court did not abuse its discretion in
denying Brosted’s request for an extension of the discovery
deadline because Brosted waited until the deadline had
already passed to make the request. For these and the
foregoing reasons, we AFFIRM.
No. 04-4317                                            15

A true Copy:
       Teste:

                      _____________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                USCA-02-C-0072—8-26-05
