09-4009-cv
West v. Nexpress Solutions, Inc.

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 20th day of April, two thousand ten.

Present: PIERRE N. LEVAL,
         ROBERT A. KATZMANN,
         BARRINGTON D. PARKER,
                           Circuit Judges.
____________________________________________________________

JENNIFER WEST,

                           Plaintiff-Appellant,

                           -v-                           No. 09-4009-cv

NEXPRESS SOLUTIONS, INC., EASTMAN KODAK COMPANY,
NEXPRESS SOLUTIONS, INC. SEVERANCE BENEFIT PLAN,

                     Defendants-Appellees.
____________________________________________________________

For Plaintiff-Appellant:                          J. NELSON THOMAS (Cristina A. Douglass, on
                                                  the brief), Thomas & Solomon LLP, Rochester,
                                                  N.Y.

For Defendants-Appellees:                         MEGHAN M. DIPASQUALE , Ward Norris Heller
                                                  & Reidy LLP, Rochester, N.Y.
       Appeal from the United States District Court for the Western District of New York
(Telesca, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-appellant Jennifer West appeals from a judgment of the United States District

Court for the Western District of New York (Telesca, J.) entered September 11, 2009, granting

defendants’ motion for summary judgment, denying plaintiff’s cross-motion for summary

judgment, and dismissing plaintiff’s complaint. We assume the parties’ familiarity with the

underlying facts and procedural history of this case.

       We review the district court’s grant of summary judgment de novo, viewing the evidence

in the light most favorable to the non-moving party and drawing all reasonable inferences in her

favor. Burke v. Kodak Ret. Income Plan, 336 F.3d 103, 109 (2d Cir. 2003). Summary judgment

is appropriate if “there is no genuine issue as to any material fact and . . . the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). In an ERISA action where, as here,

“written plan documents confer upon a plan administrator the discretionary authority to

determine eligibility, we will not disturb the administrator’s ultimate conclusion unless it is

‘arbitrary and capricious.’” Hobson v. Metro. Life Ins. Co., 574 F.3d 75, 82 (2d Cir. 2009)

(quoting Pagan v. NYNEX Pension Plan, 52 F.3d 438, 441 (2d Cir. 1995)).

       Upon consideration, and in light of these principles, we conclude that the district court

properly granted defendants’ summary judgment motion because the plan administrator did not

act arbitrarily or capriciously in denying plaintiff’s request for severance benefits. Accordingly,

we affirm the judgment of the district court for substantially the same reasons as those

articulated by that court.

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       Plaintiff nevertheless argues that the district court’s judgment should be vacated because

that court erred in refusing to allow discovery regarding an “abundance of disputed factual

issues.” Pl. Brief at 24. We review such a refusal for abuse of discretion. See Gualandi v.

Adams, 385 F.3d 236, 244-45 (2d Cir. 2004). Having carefully considered the record below and

the parties’ submissions to this Court, we conclude that the district court did not abuse its

discretion when it limited discovery to those matters relating to defendants’ treatment of

similarly situated employees.

       Finally, plaintiff argues that the plan administrator’s denial of benefits was improperly

influenced by the administrator’s “conflict of interest as evaluator and payor of benefits.”

Hobson, 574 F.3d at 83. Plaintiff raised this argument for the first time in her reply brief on

appeal, however, and we thus decline to consider it here. See Diaz v. Paterson, 547 F.3d 88,

94-95 (2d Cir. 2008). Accordingly, defendants’ motion to strike that portion of plaintiff’s reply

brief is hereby DENIED as moot.

       We have considered the remainder of plaintiff’s arguments and find them to be without

merit. Accordingly, for the reasons set forth above, the judgment of the district court is

AFFIRMED.

                                                  FOR THE COURT:
                                                  CATHERINE O'HAGAN WOLFE, CLERK




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