                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 18 2010

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




                            FOR THE NINTH CIRCUIT



ROSALIE A. MOOS-HOLLING,                         No. 09-15366

             Plaintiff - Appellant,              D.C. No. 3:07-cv-06240-SI

  v.
                                                 MEMORANDUM *
BAYER CORPORATION DISABILITY
PLAN,

             Defendant - Appellee.



                    Appeal from the United States District Court
                      for the Northern District of California
                      Susan Illston, District Judge, Presiding

                     Argued and Submitted February 10, 2010
                            San Francisco, California

Before: O’SCANNLAIN, TROTT and PAEZ, Circuit Judges.

       Rosalie Moos-Holling appeals from the district court’s grant of summary

judgment to Bayer Corporation Disability Plan (“BCDP”) following the

termination of her long-term disability (“LTD”) benefits. Following an injury at

home, Moos-Holling was awarded LTD benefits effective March 1, 2003. Those


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
benefits terminated November 30, 2005 for failure to provide medical

documentation relating to her continuing disability. The district court upheld the

termination of benefits, and we affirm.

      The grant of summary judgment and the district court’s “choice and

application of the standard of review to decisions by ERISA fiduciaries” are

reviewed de novo. Nolan v. Heald Coll., 551 F.3d 1148, 1153 (9th Cir. 2009)

(internal quotation omitted). A denial of benefits is reviewed de novo “unless the

benefit plan gives the administrator or fiduciary discretionary authority to

determine eligibility for benefits or to construe the terms of the plan.” Firestone

Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Such a grant of discretion

was present in this case. Therefore, the decision terminating benefits is reviewed

for an abuse of discretion. The structural conflict of interest created by Bayer

Corporation both funding the Trust to pay benefits and making the decision to

award or withhold benefits is a factor to be considered in the abuse of discretion

review. Metro. Life Ins. Co. v. Glenn, 128 S. Ct. 2343, 2348-51 (2008). The

district court properly reviewed the termination of benefits for an abuse of

discretion, applying a heavy dose of skepticism. See Abatie v. Alta Health & Life

Ins. Co., 458 F.3d 955, 968 (9th Cir. 2006) (en banc).




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      The district court was not required to conduct a bench trial on the conflict of

interest created by the Trust, because the court considered all admissible evidence

submitted in the light most favorable to the non-moving party, Moos-Holling.

Nolan, 551 F.3d at 1155. The district court properly refused to consider the sworn

depositions offered by Moos-Holling because they did not satisfy the requirements

for judicial notice under Federal Rule of Evidence 201, and because she “fail[ed] to

establish any ground for the admissibility of these documents.” See United States

v. Alonso, 48 F.3d 1536, 1544 (9th Cir. 1995); Fed. R. App. P. 28(a)).

      The district court did not abuse its discretion by denying Moos-Holling’s

request for a continuance pursuant to Federal Rule of Civil Procedure 56(f). She

failed to identify specific facts that would be revealed through further discovery, or

to explain how the information she sought would preclude summary judgment.

      Despite several requests for documentation, Moos-Holling submitted no

records showing treatment by a medical provider after August of 2004. The last

report from a doctor expressing an opinion as to her disability was dated in

December, 2003. Therefore, in light of the evidence in the administrative record,

BCDP did not abuse its discretion by terminating her LTD benefits, and the district

court did not err by granting summary judgment.

AFFIRMED


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