                                                                              FILED
                           NOT FOR PUBLICATION                                APR 23 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


FAITH MUNN,                                      No. 10-17757

              Plaintiff - Appellant,             D.C. No. 3:08-cv-01942-VRW

  v.
                                                 MEMORANDUM*
HERTZ LONG-TERM DISABILITY
PLAN; LIFE INSURANCE COMPANY
OF NORTH AMERICA,

              Defendants - Appellees.


                   Appeal from the United States District Court
                     for the Northern District of California
                   Vaughn R. Walker, District Judge, Presiding

                      Argued and Submitted March 15, 2012
                           San Francisco, California

Before: McKEOWN and M. SMITH, Circuit Judges, and ROTHSTEIN, Senior
District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable Barbara Jacobs Rothstein, Senior District Judge for the
U.S. District Court for the Western District of Washington, sitting by designation.
      Plaintiff-Appellant Faith Munn (Munn) appeals from the district court’s

entry of judgment for Defendants-Appellees Hertz Long-Term Disability Plan and

Life Insurance Company of North America (collectively, LINA). Because the

parties are familiar with the factual and procedural history of this case, we repeat

only those facts necessary to resolve the issues raised on appeal. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      Even assuming that de novo review of LINA’s decision is appropriate,

Munn presents no evidence that further dialogue with LINA would have rendered

her claim successful.

      LINA did not fail to credit Munn’s evidence that she had too much pain to

work. In fact, LINA considered Munn’s reports of pain in deciding whether she

was entitled to disability benefits. Munn shows no evidence even on appeal that

her absences during the elimination period stemmed from related ailments as

required by the plan. Munn also does not deny that there were gaps in her time off

work during the elimination period, and she lacked a continuous period of

disability over the period as the plan required. Thus, Munn’s argument to the

contrary fails.

      LINA was not authorized to act as a fiduciary for the plan when engaging in

settlement negotiations. Thus, Munn’s breach of fiduciary duty claim fails because


                                          2
LINA was not given discretionary authority to settle lawsuits filed by plan

participants, and LINA was not acting as a fiduciary when it engaged in settlement

discussions with Munn. See 29 U.S.C. § 1002(21)(A).

      LINA did not violate Munn’s rights under 29 U.S.C. § 1140 by refusing to

settle her lawsuit unless she agreed to certain terms. Munn cannot prevail because

she offers no evidence of any current or future entitlement to have LINA agree to

settle her lawsuit. See West v. Greyhound Corp., 813 F.2d 951, 954 (9th Cir.

1987).

      LINA did not violate 29 C.F.R. § 2560.503-1(g) and 2560.503-1(m)(8) by

failing to tell Munn that she was entitled to a copy of the documents relevant to

LINA’s decision. Under these regulations, LINA had no obligation to tell Munn

she was entitled to a copy of all documents relevant to LINA’s decision. See 29

C.F.R. § 2560.503-1(g), -1(m)(8).

      Munn’s remaining arguments are without merit.

      AFFIRMED.




                                          3
