                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT

                                                                     FILED
                                                           U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                               No. 08-16062                      APRIL 15, 2009
                           Non-Argument Calendar              THOMAS K. KAHN
                                                                    CLERK


                    D. C. Docket No. 05-02322-CV-AR-M

DELORIS BURROUGHS,
by and through her next friend
Richard Burroughs with Power of Attorney,

                                                  Plaintiff-Appellant,

                                   versus

BROADSPIRE,
f.k.a. Kemper Insurance Company,

                                                  Defendant-Appellee.



                 Appeal from the United States District Court
                    for the Northern District of Alabama


                               (April 15, 2009)


Before DUBINA, BLACK and FAY, Circuit Judges.

PER CURIAM:
      This is not the first time we have considered an appeal of this case.

Appellant Deloris Burroughs (“Burroughs”), originally brought an action in 2001

against BellSouth Telecommunications, Inc. and the BellSouth Long Term

Disability Plan for Salaried Employees (“LTD Plan”), challenging the denial of

benefits under such employee welfare benefit plan. The district court granted

summary judgment in favor of Burroughs and the defendants appealed. A panel of

this court reversed the district court’s judgment and remanded the case for entry of

judgment for the defendants. See Burroughs v. Bellsouth Telecommunications,

248 Fed. App. 64 (11th Cir. 2007), (“Burroughs I”).

      Although challenging the same denial of benefits as in Burroughs I, and

alleging that the same errors occurred, Burroughs characterizes her claims in the

present case as breach of fiduciary duties. Broadspire moved to dismiss and the

district court granted the motion. Burroughs then perfected this appeal on the

basis of a dispositive issue of law. Neitzke v. Williams, 490 U.S. 319, 326 (1989).

“This procedure, operating on the assumption that the factual allegations in the

complaint are true, streamlines litigation by dispensing with needless discovery

and fact finding.” Id. at 326–327. In evaluating a motion to dismiss, the court

should disregard the legal conclusions drawn from the facts, as well as conclusory



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allegations and unwarranted deductions of fact, to determine whether the

complaint states a claim upon which relief may be granted. Aldana v. Del Monte

Fresh Produce, N.A., Inc., 416 F.3d 1242, 1246, 1253 (11th Cir. 2005).

      After reviewing the record and reading the parties briefs, we see no

reversible error. Burroughs’ claims in the instant case are virtually identical to her

criticisms of Broadspire in Burroughs I. Burroughs cannot state a claim for breach

of fiduciary duties where she was able to assert a claim for an appropriate remedy

for the denial of benefits under ERISA § 502(a)(1)(B). See Varity Corp. v. Howe,

516 U.S. 489 (1996). We have held multiple times, under these circumstances, a

breach of fiduciary duty claim cannot be asserted. See Ogden v. Blue Bell

Creameries, U.S.A., Inc., 348 F.3d 1284 (11th Cir. 2003); Katz v. Comprehensive

Plan of Group Ins., 197 F.3d 1084 (11th Cir. 1999).

      Alternatively, under both claim and issue preclusion, our earlier decision in

Burroughs I holding that Broadspire was neither arbitrary nor capricious precludes

Burroughs from continuing to assert claims against Broadspire based on the same

2004 benefit decision. Accordingly, for the aforementioned reasons, we affirm the

judgment of dismissal.

      AFFIRMED.




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