                    Case: 12-13027         Date Filed: 01/17/2013   Page: 1 of 8

                                                                        [DO NOT PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                     ________________________

                                             No. 12-13027
                                         Non-Argument Calendar
                                       ________________________

                                D.C. Docket No. 4:04-cv-00006-MSH

HOMER IRA LOCKHART,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellant,

                                                 versus

BLUE CROSS BLUE SHIELD OF TENNESSEE,
Memphis,
BLUE CROSS BLUE SHIELD OF TENNESSEE,
Chattanooga,
SOUTHERN HEALTH PLAN INC.,

llllllllllllllllllllllllllllllllllllllll                               Defendants-Appellees.
                                       ________________________

                            Appeal from the United States District Court
                                for the Middle District of Georgia
                                  ________________________

                                           (January 17, 2013)

Before MARCUS, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
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      Homer Lockhart appeals pro se the judgment in favor of Blue Cross Blue

Shield of Tennessee in Memphis (Blue Cross of Memphis), its successor entity,

Blue Cross Blue Shield of Tennessee in Chattanooga (Blue Cross of Tennessee),

and its subsidiary, Southern Health Plan Inc., and against Lockhart’s amended

complaint that the companies violated the Employee Retirement Income Security

Act of 1974. 29 U.S.C. § 1132. We affirm.

      In 1996, Lockhart obtained continuation health insurance benefits, under the

Consolidated Omnibus Budget Reconciliation Act, from his former employer,

Burkeen Construction Company. Lockhart retained his coverage through Burkeen

when the company transferred its group insurance policy from another insurer to

Blue Cross of Memphis. Burkeen failed to notify Blue Cross of Memphis that

Lockhart had continuation coverage instead of health benefits as an active

employee, but when the 18-month period for his continuation coverage expired in

May 1998, Lockhart purchased an individual health insurance policy from another

insurance company. In December 1998, when Blue Cross of Memphis learned that

Lockhart had lost his job and relocated to Georgia, the insurance company advised

Lockhart to contact Blue Cross Blue Shield of Georgia, “which serv[ed] the area in

which [he] reside[d].” That month, Lockhart attempted to purchase an individual

conversion policy from Blue Cross of Georgia, but the company refused to issue

Lockhart a policy because of a gap in his coverage. In the meantime, Blue Cross

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of Memphis merged into Blue Cross of Tennessee. Blue Cross of Tennessee

learned about Lockhart’s predicament, and in January 1999, the insurance

company offered Lockhart a conversion policy retroactive to the date that his

coverage had expired with Blue Cross of Memphis. Lockhart rejected the offer.

      In January 2004, Lockhart filed a complaint against the Blue Cross

companies and Southern Health. Lockhart later filed an amended complaint that

Blue Cross and Southern Health had failed to perform their duties as plan

administrators to provide information to Lockhart about his rights under the

Retirement Act, see 29 U.S.C. §§ 1132(c)(1), 1166(a); failed to comply with notice

requirements imposed on employers, id. § 1132(c)(3); and breached their fiduciary

duties, id. § 1132(a)(3). The district court granted partial summary judgment in

favor of Blue Cross and Southern Health and ruled that the companies had not

acted as plan administrators or violated notice requirements. See id. § 1132(c)(1),

(c)(3). After a bench trial before a magistrate judge, the district court entered

judgment against Lockhart’s remaining claim for breach of fiduciary duty. The

district court ruled that Lockhart’s claim was barred by the three-year statute of

limitation and, alternatively, failed for lack of proof that Blue Cross and Southern

Health were fiduciaries.

      Lockhart appeals the partial summary judgment and the final judgment

following the bench trial, and we apply the same standard of review to both

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rulings. We review a summary judgment de novo. Holloman v. Mail-Well Corp.,

443 F.3d 832, 836 (11th Cir. 2006). We also “review de novo the district court’s

interpretation and application of the statute of limitations.” McCullough v. United

States, 607 F.3d 1355, 1358 (11th Cir. 2010) (quoting Baker v. Birmingham Bd. of

Educ., 531 F.3d 1336, 1337 (11th Cir. 2008)).

      The district court correctly concluded that Blue Cross and Southern Health

were not plan administrators under section 1132(c)(1). The Retirement Act

provides that a plan beneficiary may recover a civil penalty if his plan

administrator “fails or refuses to comply with a request for any information which

such administrator is required . . . to furnish,” 29 U.S.C. § 1132(c)(1), about the

beneficiary’s rights under the Act, id. § 1166. A plan administrator is either “the

person specifically so designated by the terms of the instrument under which the

plan is operated,” id. § 1002(16)(A)(i), or a company acting as a plan

administrator, see Hunt v. Hawthorne Assocs., Inc., 119 F.3d 888, 915 (11th Cir.

1997). The enrollment agreements between Blue Cross, Southern Health, and

Burkeen stated that Burkeen would “act as the ‘plan administrator’ for all purposes

under ERISA including any and all reporting, disclosure or other fiduciary

requirements.” Other undisputed evidence also established that Burkeen controlled

the administration of the plan. Blue Cross and Southern Health supplied to

Burkeen the benefit booklets and other materials regarding the health insurance

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program, and Burkeen agreed in its enrollment agreements to distribute the

materials to its employees and to provide Blue Cross information necessary to

prepare documents such as identification cards. Burkeen also agreed to “provide

all notice and other documentation required under COBRA”; underwrite and

administer continuation coverage; and notify Blue Cross of new enrollees and any

qualifying event of a plan participant. And Darlene Brock, the Director of

Membership Services for Blue Cross, averred in a supporting affidavit that

Burkeen administered its continuation coverage and failed to notify Blue Cross or

Southern Health when Lockhart’s continuation coverage expired.

      The district court also correctly concluded that Blue Cross and Southern

Health were not subject to the notice requirements of section 1132(c)(3). Section

1132(c)(3) requires “[a]ny employer maintaining a plan . . . to meet [certain] notice

requirement[s]” in the Act. 29 U.S.C. § 1132(c)(3). An employer is “any person

acting directly as an employer, or indirectly in the interest of an employer, in

relation to an employee benefit plan . . . .” Id. § 1002(5). Lockhart identified

Burkeen as his employer in his amended complaint, his response to the motion for

summary judgment, and his exceptions to the statement of undisputed material

facts submitted by Blue Cross. Lockhart argues, for the first time, that Blue Cross

qualified as an employer by acting in the interest of Burkeen, but we will not

consider a legal theory “not [presented to] the district court and raised for the first

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time in an appeal.” Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331

(11th Cir. 2004).

      The district court also did not err in ruling that Lockhart’s complaint for

breach of fiduciary duty was untimely. An action “with respect to a fiduciary’s

breach of any responsibility, duty, or obligation” under the Retirement Act must be

commenced within “three years after the earliest date on which the plaintiff had

actual knowledge of the breach or violation.” 29 U.S.C. § 1113(2). Lockhart

testified that he knew by March of 1999 that Blue Cross and Southern Health had

violated his rights under the Retirement Act, but Lockhart waited until January

2004, long after the limitation period had expired, to file his complaint. See Brock

v. Nellis, 809 F.2d 753, 755 (11th Cir. 1987). Lockhart argues that Blue Cross and

Southern Health committed fraudulent concealment in May 1999 by asserting that

they were not obliged to notify Lockhart of his right to purchase conversion

coverage, but those assertions could not conceal the alleged wrongdoing of which

Lockhart was already aware. See Morton’s Mkt., Inc. v. Gustafson’s Dairy, Inc.,

198 F.3d 823, 832 (11th Cir. 1999).

      Lockhart also raises three other alleged errors, none of which warrant relief.

First, Lockhart argues that five exhibits to his motion to take judicial notice did not

appear in the record at the time of his bench trial, but the omission had no “affect[]

[on] the outcome of [his] case,” Hearn v. McKay, 603 F.3d 897, 904 n.11 (11th

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Cir. 2010) (internal quotation marks omitted). Lockhart introduced two of the

exhibits during the trial and the factual findings of the magistrate judge were

consistent with information in the other exhibits about why Lockhart was unable to

obtain conversion coverage from Blue Cross of Georgia and how that led him to

contact the Georgia Office of Insurance and the Safety Fire Commissioner.

Second, Lockhart argues that Blue Cross and Southern Health waived their

affirmative defenses of timeliness and lack of fiduciary obligations by failing to

file an answer to the original complaint, but the companies timely raised the

defenses in their answer to Lockhart’s amended complaint. See Pensacola Motor

Sales, Inc. v. E. Shore Toyota, LLC, 684 F.3d 1211, 1221–22 (11th Cir. 2012).

Third, Lockhart argues that employees of Blue Cross provided false testimony

about the respective responsibilities of Burkeen and the Blue Cross companies, but

the testimony had no effect on the determination that Lockhart’s claim for breach

of a fiduciary duty was untimely. See Hearn, 603 F.3d at 904 n.11. The allegedly

false testimony did not pertain to when Lockhart knew of wrongdoing by Blue

Cross or whether the company concealed that wrongdoing.

      Lockhart mentions in passing other errors in his statement of the issues and

his argument, but he fails to include in his brief any substantive argument about the

alleged errors. The Federal Rules of Appellate Procedure require an appellant to

include in the argument portion of his brief all of his “contentions and the reasons

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for them, with citations to the authorities and parts of the record on which [he]

relies.” Fed. R. App. P. 28(a)(9)(A). Lockhart waived his challenges to the

evaluation of his complaint and amended complaint, the denial of his motion for

default judgment, the order allowing Blue Cross to withdraw its motion to dismiss

part of the amended complaint and instead to file an answer, a discovery violation

by Blue Cross, the denial of his motion to produce documents, and the order that

he pay the costs of the action. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d

1570, 1573 n.6 (11th Cir.1989).

      We AFFIRM the judgment in favor of Blue Cross of Tennessee and

Southern Health.




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