                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 11 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    STEPHEN SIMON, individually and
    as ultimate assignee of Humanistic
    Mental Health Foundation,

                Plaintiff-Appellant,                     No. 00-1331
                                                     (D.C. No. 99-B-1791)
    v.                                                     (D. Colo.)

    CYPRUS AMAX MINERALS
    HEALTH CARE PLAN; CHRIS
    CROWL, individually and as Plan
    Administrator,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before EBEL , ANDERSON , and KELLY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Plaintiff Stephen Simon appeals the district court’s order dismissing his

claims brought pursuant to the civil enforcement provision of the Employee

Retirement Income Security Act (ERISA), 29 U.S.C. § 1132(a).        1
                                                                        We exercise

jurisdiction under 28 U.S.C. § 1291 and affirm.

      Plaintiff sued on his own behalf and as the assignee of Humanistic Mental

Health Foundation (Humanistic), which had provided medical services to an

individual referred as “J.W.” Plaintiff sought to recover money from defendants,

who are an ERISA health insurance plan and its administrator, for the medical

services provided to J.W. J.W. had assigned his claim for benefits to Humanistic,

which in turn, had assigned the claim to plaintiff. The district court determined

that plaintiff lacked standing to bring an ERISA action, and dismissed the case for

failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6).

      As a preliminary matter, we address defendants’ motion to dismiss this

appeal on the ground that plaintiff’s appellate brief was filed late. Plaintiff

served his brief within the time allotted by this court’s letter dated October 18,



1
       Plaintiff refers in his appellate brief to state law, constitutional, and civil
rights claims. Although his complaint mentions these claims, they are not
supported by well-pleaded factual contentions and do not withstand dismissal.
See Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991).

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2000. Under the circumstances, we will consider the merits, rather than dismiss

because of “minor technical defects.”     See Denver & Rio Grande W. R.R. v.

Union Pac. R.R. , 119 F.3d 847, 848 (10th Cir. 1997).

       Turning to the merits, we review de novo an order dismissing a complaint

for failure to state a claim for relief under Rule 12(b)(6) of the Federal Rules of

Civil Procedure, using the same standard applied by the district court.     See

Ordinance 59 Ass’n v. United States Dep’t of Interior Sec’y       , 163 F.3d 1150, 1152

(10th Cir. 1998). “We accept as true all well-pleaded facts, as distinguished from

conclusory allegations, and view those facts in the light most favorable to the

nonmoving party.”     Maher v. Durango Metals, Inc. , 144 F.3d 1302, 1304 (10th

Cir. 1998). Dismissal of a complaint pursuant to Rule 12(b)(6) will be upheld

only if “it appears beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief.”      Conley v. Gibson , 355

U.S. 41, 45-46 (1957).

       Plaintiff asserts that he has standing to sue under ERISA’s civil

enforcement provision, 29 U.S.C. § 1132(a). “[T]he standing question . . . is

whether the . . . statutory provision on which the claim rests properly can be

understood as granting persons in the plaintiff’s position a right to judicial relief.”

Warth v. Seldin , 422 U.S. 490, 500 (1975) (footnote omitted). Under § 1132(a),

an action may be brought by a participant, a beneficiary, the Secretary of Labor, a


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fiduciary, or under limited circumstances, a State or employer. § 1132(a).

Plaintiff claims he has standing as, or through, a beneficiary. ERISA defines a

“beneficiary” as “a person designated by a participant . . . who is or may become

entitled to a benefit” under an employee benefit plan.       29 U.S.C. § 1002(8). A

“participant” is defined as “any employee or former employee . . . who is or may

become eligible to receive a benefit of any type from an employee benefit

plan . . . .” Id. § 1002(7). Under the facts before us, J.W. is an ERISA

“participant.”

       Plaintiff does not qualify as a “beneficiary” because he was not “designated

by a participant.” Rather, he is the assignee of an assignee of a participant.

       “ERISA carefully enumerates the parties entitled to seek relief under

[§ 1132(a)] . . . .”    Franchise Tax Bd. v. Constr. Laborers Vacation Trust    , 463

U.S. 1, 27 (1983). The remedial provisions are part of a “comprehensive and

reticulated statute.”     Nachman Corp. v. Pension Benefit Guar. Corp.      , 446 U.S.

359, 361 (1980). ERISA’s enforcement provisions, “crafted with such evident

care,” indicate that Congress intended to limit the available remedies to those

included in the statute.     Mass. Mut. Life Ins. Co. v. Russell   , 473 U.S. 134, 145,

147 (1985). Plaintiff has not established that Congress intended to grant an

ERISA remedy to an assignee of an assignee of a plan participant. Accordingly,

we decline to expand the remedial and enforcement provisions. Because plaintiff


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does not qualify as a party entitled to the ERISA civil enforcement provisions, he

does not have standing to bring this action. Therefore, the district court’s

dismissal was correct. Other jurisdictions have also rejected on the same basis

similar claims brought by plaintiff.      Simon v. Value Behavioral Health, Inc.       , 208

F.3d 1073, 1081 (9th Cir. 2000),       cert. denied , 121 S. Ct. 843 (2001);   Simon v.

Belwith Int’l, Inc. , No. 00-1680, 2001 WL 111651, at *1 (6th Cir. Jan. 31, 2001)

(unpublished); Simon v. Quaker Oats Employee Benefit Plan            , No. 00-2342, 2000

WL 1657967, at *1 (7th Cir. Nov. 1, 2000) (unpublished),           petition for cert. filed ,

(U.S. Feb. 26, 2001 ) (No. 00-1650).

       Plaintiff complains that the district court did not grant him an opportunity

to amend his complaint. The record reflects that he did not request such an

opportunity. Therefore, no error occurred.

       Defendants’ motion to dismiss and motion for sanctions are denied.

Plaintiff’s requests for oral argument and an initial en banc hearing are denied.

The judgment of the United States District Court for the District of Colorado is

AFFIRMED. The mandate shall issue forthwith.



                                                           Entered for the Court



                                                           Stephen H. Anderson
                                                           Circuit Judge

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