18‐2668‐cv
Whelehan v. Bank of Am. Benefit Appeals Comm.


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ).
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.


              At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 8th day of May, two thousand nineteen.

PRESENT:        AMALYA L. KEARSE,
                RICHARD C. WESLEY,
                DENNY CHIN,
                          Circuit Judges.

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KATHLEEN WHELEHAN,
             Plaintiff‐Appellant,

                           v.                                      18‐2668‐cv

BANK OF AMERICA BENEFIT APPEALS
COMMITTEE, BANK OF AMERICA, BANK
OF AMERICA PENSION PLAN FOR
LEGACY COMPANIES ‐‐ FLEET ‐‐
TRADITIONAL BENEFIT,
               Defendants‐Appellees.

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FOR PLAINTIFF‐APPELLANT:                           MICHAEL T. HARREN, Trevett Cristo
                                                   P.C., Rochester, New York.

FOR DEFENDANTS‐APPELLEES:                          FALLYN BETH CAVALIERI, Gerber
                                                   Ciano Kelly Brady LLP, Buffalo, New
                                                   York.

              Appeal from a judgment of the United States District Court for the

Western District of New York (Geraci, C.J.).

              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

              Plaintiff‐appellant Kathleen Whelehan appeals the district courtʹs August

15, 2018 judgment dismissing her complaint, which alleges that defendants‐appellees

Bank of America Benefit Appeals Committee, Bank of America, and Bank of America

Pension Plan for Legacy Companies ‐‐ Fleet ‐‐ Traditional Benefit (the ʺPlanʺ)

(collectively, ʺBoAʺ) improperly denied her retirement benefits in violation of the

Employee Retirement Income Security Act of 1974 (ʺERISAʺ). By decision and order

entered August 14, 2018, the district court granted BoAʹs motion to dismiss pursuant to

Rule 12(b)(6) of the Federal Rules of Civil Procedure. We assume the partiesʹ

familiarity with the underlying facts, the procedural history of the case, and the issues

on appeal.

              ʺWe review de novo a district courtʹs grant of a motion to dismiss under

[Rule] 12(b)(6), accepting all factual allegations in the complaint as true and drawing all

reasonable inferences in the plaintiffʹs favor.ʺ Testa v. Becker, 910 F.3d 677, 682 (2d Cir.


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2018) (citations omitted). ʺTo survive a motion to dismiss, a complaint must contain

sufficient factual allegations to state a claim for relief that is plausible on its face.ʺ Id.

I.       Procedural History

               Whelehanʹs attempts to receive benefits under the Plan have been ongoing

for approximately eight years. In 2011, Whelehan first inquired about benefits

purportedly owed to her under the Plan by virtue of her employment with Security

Trust Co. of Rochester, a predecessor of Bank of America. BoA responded that it had

no record of her participation in the Plan but that she could fill out an enclosed ʺPrior

Employment Questionnaireʺ and return it with documentation of her benefit.

Whelehen submitted the questionnaire with certain documents. On September 1, 2011,

BoA replied that it had ʺno record of a vested pension benefitʺ and, accordingly, that

ʺthere [was] no deferred vested pension benefit payable to you from the Plan.ʺ Appʹx

at 38.

               On October 27, Whelehan responded by seeking review of the denial with

additional documents in support of her claim. On November 17, BoA replied that it

was treating Whelehanʹs letter as a formal claim for benefits under the Planʹs claims

procedure and disclosed the claims process. See Whelehan v. Bank of Am. Pension Plan

for Legacy Cos. ‐‐ Fleet ‐‐ Traditional Benefit (ʺWhelehan Iʺ), 5 F. Supp. 3d 410, 415

(W.D.N.Y. 2014). On February 7, 2012, BoA confirmed to Whelehan that it was

denying her claim because she failed to show a vested benefit in the Plan. Id. The



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letter noted that Whelehan had 60 days to appeal the decision and to submit new

evidence and warned her that the Benefit Appeals Committeeʹs review ʺshall be final

and bindingʺ and that ʺ[f]ailure to raise issues or present evidence on review may

preclude those issues or evidence from being presented in any subsequent proceeding

or judicial review of the claim.ʺ Id. (internal quotation marks omitted). Whelehan

appealed the denial to the Benefit Appeals Committee, submitting two new documents.

Id. BoA denied the final appeal and informed Whelehan that she could seek review in

federal court. Id. at 416.

                 Whelehan thereafter brought suit in the United States District Court for

the Western District of New York challenging BoAʹs determination as arbitrary and

capricious. On March 17, 2014, after the close of discovery, the district court (Telesca,

J.) upheld the Planʹs determination and granted summary judgment in favor of

defendants. Id. at 424‐25. Whelehan moved for reconsideration, and the district court

denied the motion with prejudice. Whelehan v. Bank of Am. Pension Plan for Legacy Cos.

‐‐ Fleet ‐‐ Traditional Benefit, No. 12‐cv‐6279, 2014 WL 4285028 (W.D.N.Y. Aug. 29, 2014).

On October 30, 2015, this Court affirmed the district courtʹs ruling. Whelehan v. Bank of

Am. Pension Plan for Legacy Cos. ‐‐ Fleet ‐‐ Traditional Benefit, 621 F. Appʹx 70, 72 (2d Cir.

2015) (summary order), cert. denied, 136 S. Ct. 2463 (2016).

              On December 21, 2016, approximately six months after her petition for a

writ of certiorari was denied by the Supreme Court, Whelehan submitted a new claim



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to benefits in the Plan supported by new documentation. Whelehan received no

response to this 2016 request. On August 18, 2017, Whelehan commenced the present

suit, alleging wrongful denial of benefits, failure to follow claims procedures, failure to

produce documents, and breach of fiduciary duty.

II.    Discussion

              This Court is ʺfree to affirm an appealed decision on any ground which

finds support in the record, regardless of the ground upon which the trial court relied.ʺ

Leecan v. Lopes, 893 F.2d 1434, 1439 (2d Cir. 1990); see, e.g., Headley v. Tilghman, 53 F.3d

472, 476 (2d Cir. 1995). As Whelehan acknowledges, her claim in Whelehan I was

brought as an appeal of a denial of benefits and resulted in a final judgment on the

merits. To the extent Whelehan seeks to relitigate her claim for benefits, she is barred

from doing so by res judicata. See TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 499

(2d Cir. 2014). Under the doctrine of res judicata, or ʺclaim preclusion,ʺ a final

judgment on the merits of a claim precludes the parties relitigating that claim. See id.;

EDP Med. Comput. Sys., Inc. v. United States, 480 F.3d 621, 624 (2d Cir. 2007). Upon such

a final judgment, res judicata bars further litigation of that claim, not only with respect

to every matter that was offered and received but also with respect to any other matter

that the parties had a full and fair opportunity to offer for that purpose. See Manhattan

Eye Ear & Throat Hosp. v. NLRB, 942 F.2d 151, 155‐56 (2d Cir. 1991). These principles




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are applicable to claims under ERISA. See Nemaizer v. Baker, 793 F.2d 58, 60‐61 (2d Cir.

1986).

              All of Whelehanʹs claims as to BoAʹs 2017 failures to respond or provide

documents, and its alleged failure to administer the Plan solely in the interest of

participants, are relevant only if Whelehan was a Plan participant during the period for

which she seeks (and previously sought) benefits. These claims in the present

litigation were properly dismissed because Whelehan had already litigated her claim to

the same pension benefits and had failed to establish that, at the time relevant to her

claim to benefits, she was a Plan participant. See Whelehan, 621 F. Appʹx at 73 n.4.

Accordingly, Whelehanʹs complaint fails to state a plausible claim for relief, and the

district court properly granted BoAʹs motion to dismiss.

                                      *      *      *

              We have considered all of Whelehanʹs remaining arguments and find

them to be without merit. For the foregoing reasons, the judgment of the district court

is AFFIRMED.

                                          FOR THE COURT:
                                          Catherine OʹHagan Wolfe, Clerk of Court




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