                                                                           FILED
                            NOT FOR PUBLICATION                             APR 29 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



CANDACE S. WALTERS,                              No. 11-16762

              Plaintiff - Appellant,             D.C. No. 2:11-cv-00150-JAT

  v.
                                                 MEMORANDUM *
ODYSSEY HEALTHCARE
MANAGEMENT LONG TERM
DISABILITY PLAN; ODYSSEY
HEALTHCARE MANAGEMENT LONG
TERM DISABILITY PLAN
ADMINISTRATOR,

              Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Arizona
                    James A. Teilborg, District Judge, Presiding

                             Submitted April 17, 2013 **
                              San Francisco, California

Before: KOZINSKI, Chief Judge, GRABER and CHRISTEN, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Candace S. Walters appeals from the district court’s dismissal of her action

under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29

U.S.C. §§ 1001–1461. We have jurisdiction under 28 U.S.C. § 1291. We reverse

the district court’s order and remand.

      The complaint alleged that Walters submitted a long-term disability claim to

Odyssey Healthcare Management Long Term Disability Plan (“Odyssey” or

“Plan”). It alleged that Odyssey “refused to process” her claim and that “[a]s a

matter of ERISA law and regulations, [she] is deemed to have fully exhausted all

administrative remedies required under the Plan.”

      Odyssey moved to dismiss the complaint under Federal Rule of Civil

Procedure 12(b)(6), arguing that Walters “fail[ed] to allege facts sufficient to show

that she exhausted the Plan’s internal appeal process before filing suit.” The

district court granted Odyssey’s motion without prejudice, giving Walters leave to

file an amended complaint. Instead, Walters filed an interlocutory appeal in this

court. Because Walters failed to submit an amended complaint, the district judge

later filed an order dismissing her case with prejudice.

      Walters’s complaint alleged that Odyssey refused to process her claim – i.e.,

that Odyssey failed to make any decision on her claim. At this stage in the

proceedings, this statement of fact is sufficient to support Walters’s legal assertion


                                           2
that she should be deemed to have exhausted her administrative remedies.

Accordingly, we reverse the district court’s ruling dismissing Walters’s case and

remand to the district court to permit Odyssey to file an answer to Walters’s

complaint.

      REVERSED and REMANDED.




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