423 F. App'x 53

2d Cir.

2011

Donna LEAK, Plaintiff-Appellant, v. CIGNA HEALTHCARE, AlliedBarton Security Services, Defendants-Appellees.

No. 10-3691-cv

United States Court of Appeals, Second Circuit

May 24, 2011

for Defendant-Appellee AlliedBarton Security Services.

Donna Leak, Bronx, NY, pro se.

Emily A. Hayes (Fred N. Knopf, on the brief), Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains, NY, for Defendant-Appellee CIGNA Healthcare.

Matthew D. Crawford, Martenson, Hasbrouck & Simon LLP, Atlanta, GA (Janet B. Linn, Eckert Seamans Cherin & Mellott, LLC, White Plains, NY, on the brief), for Defendant-Appellee AlliedBarton Security Services.

Present: REENA RAGGI, GERARD E. LYNCH and J. CLIFFORD WALLACE,^** Circuit Judges.

SUMMARY ORDER

UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment entered on August 10, 2010, is AFFIRMED.

Pro se plaintiff Donna Leak appeals from the dismissal of her complaint alleging defendants’ violations of the Employee Retirement Income Security Act of 1974 (“ERISA“). See 29 U.S.C. § 1001 et seq.; Fed.R.Civ.P. 12(b)(6). We review the challenged dismissal de novo, consistent with the pleading standards articulated in Ashcroft v. Iqbal, — U.S. —, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and mindful that we must accept all allegations in the complaint as true and draw all reasonable inferences in Leak‘s favor, see Matson v. Bd. of Educ. of the City Sch. Dist. of N.Y., 631 F.3d 57, 63 (2d Cir.2011). In applying these principles, we assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm.

ERISA plaintiffs are required to exhaust administrative remedies before filing an action in federal court, unless exhaustion would be futile. See Paese v. Hartford Life & Accident Ins. Co., 449 F.3d 435, 443 (2d Cir.2006); Kennedy v. Empire Blue Cross & Blue Shield, 989 F.2d 588, 594 (2d Cir.1993) (recognizing “firmly established federal policy favoring exhaus-tion of administrative remedies in ERISA cases” (internal quotation marks omitted)). Although exhaustion is an affirmative defense, see Paese v. Hartford Life & Accident Ins. Co., 449 F.3d at 443, Leak explicitly admitted a conscious decision not to exhaust by stating in her objections to the magistrate judge‘s report and recommendation that she “chose to go to federal court” rather than to pursue the available administrative remedies. Pl.‘s Objections at 1; cf. Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74 (2d Cir.1998) (“An affirmative defense may be raised by a pre-answer motion to dismiss under Rule 12(b)(6), without resort to summary judgment procedure, if the defense appears on the face of the complaint.“). Accordingly, we conclude that Leak‘s ERISA claims were properly dismissed for failure to exhaust.

Additionally, Leak submits that defendants violated state labor laws by failing to pay her prevailing wages or to provide her holiday, sick, and vacation pay for three years. Because Leak forfeited these claims by failing to raise them in the district court, we do not consider them. See, e.g., Kendall v. Emps. Ret. Plan of Avon Prods., 561 F.3d 112, 123 (2d Cir.2009); Greene v. United States, 13 F.3d 577, 586 (2d Cir.1994).

We have considered Leak‘s remaining arguments on appeal and conclude that they are without merit. Accordingly, we AFFIRM the district court‘s judgment.

* The Clerk of the Court is directed to amend the caption to read as shown above.

Notes

Circuit Judge J. Clifford Wallace of the United States Court of Appeals for the Ninth Circuit, sitting by designation.

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