LaRocca v. Borden, Inc.

United States Court of Appeals
For the First Circuit

No. 00-2386
No. 00-2387

ANTONIETTA LAROCCA, et al.,
Plaintiffs, Appellants/Cross-Appellees,

v.

BORDEN, INC.,
Defendant, Appellee/Cross-Appellant, and

NORTHERN TRUST COMPANY,
Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. Circuit Judge]

Before

Torruella, Circuit Judge,
Gibson,* Senior Circuit Judge,
and Lipez, Circuit Judge.

Robert S. Wolfe, with whom Wolfe Associates was on
brief, for appellants.
Mark W. Batten, with whom Bingham Dana, LLP was on
brief, for appellees.

January 8, 2002

________________
*Hon. John R. Gibson, of the Eighth Circuit, sitting by
designation.
 LIPEZ, Circuit Judge. This case concerns the remedies

due for violations of the Employee Retirement Income Security

Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461. The parties have

stipulated that Borden, Inc. improperly terminated the

plaintiffs from Borden's Total Family Protection Plan (hereafter

"the Plan") of life, health, dental, and disability insurance.

They only dispute the remedy due under the law. Borden contends

that the plaintiffs are only due reinstatement in the Plan, and

reimbursement for expenses incurred that would have been covered

by the Plan. For the most part, the district court agreed with

this position. On appeal, plaintiffs assert that this remedy is

inadequate and that they are entitled to additional equitable

relief. On cross-appeal, Borden challenges the one element of

the district court's award which could not be characterized as

benefits due under the terms of the Plan--an equitable award of

medical costs to an estate, in trust for the hospital-creditor,

even though the estate was no longer legally obliged to pay

those costs. We deny the plaintiffs' appeal and rule for Borden

on the cross-appeal.

I.

Antonietta LaRocca is the named plaintiff in a group of

sixty retired workers (and some of their relatives) who alleged

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violations of ERISA by their former employer, Borden, Inc.1 The

plaintiffs alleged that Borden illegally terminated health,

life, disability, and dental insurance due to them under the

terms of the Plan.2 Borden and Plan beneficiaries fund the Plan

with contributions. Borden administers the Plan and acts as

fiduciary. Borden also determines eligibility for benefits.3

In addition to covering the plaintiffs when they were employed

at Borden, the Plan also provided for benefits to be paid to

them upon their retirement.

The plaintiffs are former Borden employees eligible for

retiree benefits who worked in Borden's Deran Confectionary

Division (and their covered relatives). Borden sold this

division to Great American Brands (GAB) on April 8, 1993. The

sales contract stipulated that GAB was to continue benefits

1Antonietta LaRocca is the executrix of the estate of
Guiseppe Paone, which is the successor-in-interest of Mr. Paone,
a former Borden employee.
2The plaintiffs also sued Northern Trust Co. and the
Metropolitan Life Insurance Co. In March 1996, all parties
stipulated to the dismissal of the claims against Metropolitan
Life. In September 1999, the District Court granted Northern
Trust's motion for summary judgment on all counts because
Northern acted as a directed trustee, merely holding Plan
assets. Northern had no responsibility for the eligibility
determinations of which plaintiffs complain.
3According to the Plan, Borden "shall, with the consent of
the Benefits Committee, designate the group or groups of
Employees who shall be eligible for inclusion in this Plan."
Plan, § 2.1.

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equivalent to those provided under the Plan. On June 27, 1994,

GAB declared bankruptcy under Chapter 11. Concerned that GAB

would be unable to honor its commitment, the plaintiffs sought

benefits from Borden unsuccessfully.

As a result of this denial, several of the plaintiffs did

not have insurance when they were ill. One of the plaintiffs,

Guiseppe Paone, received a liver transplant before dying on June

16, 1994. His medical bills at the New England Medical Center

(NEMC) totaled $258,571.42. NEMC sought payment from his

estate, but did not sue for the debt. A statute of repose

subsequently rendered the Paone estate immune from liability for

the debt.

The New England Confectionery Company (NECCO) purchased the

relevant GAB assets on September 1, 1994, and offered health

insurance to the thirty-one plaintiffs who accepted employment

with the firm. Twenty-one of them decided to participate.

On October 11, 1994, many of the plaintiffs filed with

Borden an appeal of the denial of benefits. After unsuccessful

settlement efforts, the plaintiffs filed a complaint on November

17, 1995 in the federal court for the District of Massachusetts.

During discovery, the parties stipulated that Borden improperly

terminated the plaintiffs from the Plan. Unable to agree on a

settlement, however, they requested the district court's

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assistance in determining the remedies available under ERISA by

filing cross-motions for partial summary judgment. The central

question was whether the plaintiffs were eligible for equitable

relief beyond the relief offered by Borden in settlement

negotiations. After holding a hearing on the motions, the

district court issued a Memorandum and Order on March 20, 1998

essentially siding with Borden's position on the proper

remedies. The district court ordered one remedy not offered by

Borden: that the company "reimburse the bills incurred by

plaintiff Guiseppe Paone, such sums to be paid to his estate in

trust for the benefit of New England Medical Center."

Over a year after this ruling, the plaintiffs moved to amend

their complaint to allege violations of state law and the

Racketeer Influenced and Corrupt Organizations Act (RICO), 18

U.S.C. § 1961 et seq. The district court denied the motion. On

September 25, 2000, it entered an Order and Final Judgment

incorporating its earlier ruling.

On appeal, the plaintiffs demand further equitable relief

pursuant to ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), including

the cash value of the premium payments that Borden avoided by

failing to pay them. They also appeal the denial of their third

motion to amend their complaint. On cross-appeal, Borden claims

that the court cannot award full medical expenses to Guiseppe

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Paone's estate because the estate no longer has a legal

obligation to pay these bills. We address the demand for

further equitable relief in Part II, Borden's cross-appeal in

Part III, and the denial of the motion to amend in Part IV.

II.

The parties have stipulated to a joint statement of material

facts. The issue that we review here--the proper scope of

remedies due to the plaintiffs--is a legal issue that we review

de novo. We first compare the remedies demanded by the

plaintiffs with the relief ultimately awarded by the district

court. We then turn to the statutory language in order to

assess the legal basis for this relief. Applying this language

and judicial interpretations of it, we conclude that the

plaintiffs are only entitled to the relief ordered by the

district court.

A. Plaintiffs' Demands for Relief

On February 4, 1997, Borden filed an Offer of Judgment

offering the plaintiffs several forms of relief. Prospectively,

Borden offered reinstatement of each plaintiff to the Plan.

Retrospectively, Borden offered to pay medical bills paid or

still due and to pay the excess of any copayments or premiums

for replacement insurance over the amounts the plaintiffs would

have paid under the Plan.

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 The plaintiffs demanded significantly more. They proposed

retrospective relief designed not only to compensate those

terminated from the Plan for replacement insurance coverage and

to reimburse them for out-of-pocket medical expenses, but also

to force Borden to disgorge the amount by which the company was

"unjustly enriched" by failing to pay for insurance coverage

after the improper terminations. 4 The plaintiffs' expert

assessed the gross value of the coverage wrongfully withheld at

$5,565,723 as of October 19, 1998. Given that the plaintiffs

would have paid $2,762,352 in employee contributions due the

Plan, the plaintiffs' expert estimated that the net value of the

employer's contribution left unpaid by Borden was $2,803,371.

Plaintiffs further argued that Borden's proposed prospective

relief was inadequate because many of them distrust Borden,

Inc., and the Plan it sponsors. These plaintiffs have developed

close relationships with other insurance plans and the health

4 The plaintiffs do not ask for the sum of these remedies,
but rather for medical expenses for those plaintiffs whose
expenses are greater than their share of the disgorgement
remedy, and the disgorgement remedy less amounts paid for
medical expenses for those for whom the opposite is the case.
As they put it on appeal, they request that Borden "be ordered
to pay to each of the named Plaintiffs [their medical
expenses]...[and] [t]hat Borden be ordered to pay to each of the
named Plaintiffs [their share of the disgorgement remedy.] To
the extent that monies are due any plaintiff [for medical
expenses], Borden shall receive that amount as a credit toward
the amount that Plaintiff is entitled to receive [as his portion
of the disgorgement remedy]."

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care providers covered by them. For them, plaintiffs argued,

"monetary relief" should be made "available to the retirees and

their spouses as an alternative remedy" because many of the

plaintiffs "do not wish to leave their current insurer"

(emphasis in the original). Therefore, the plaintiffs requested

that the court order, "at the option of each plaintiff," either

reinstatement to the Plan or payment of the future value of Plan

coverage.

With one exception, the district court agreed with Borden's

position on the scope of the available remedies. To redress

past harms, the district court ordered Borden 1) to reimburse

the plaintiffs for medical expenses that they incurred which

would have been covered by the Plan; 2) to pay the difference

between plaintiffs' payments for substitute insurance and the

amount they would have paid had they continued membership in the

Plan, and 3) to pay the medical expenses of Guiseppe Paone (the

one exception). The district court ordered Borden to treat

"[e]ach of the plaintiffs...as if he or she had retired on April

8, 1993, with an effective retirement date of May 1, 1993." The

district court chose the April 8, 1993 date because Borden sold

the Deran division to GAB on this date and ostensibly arranged

for GAB to continue benefits equivalent to those provided under

the Plan.

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 To provide prospective relief, the district court ordered

Borden to give the plaintiffs the opportunity for reinstatement

to the Plan. It did not give the plaintiffs the option of

choosing the cash value of insurance coverage instead of

reinstatement.

Any plaintiff who did not waive retiree coverage under
the Borden, Inc. Total Family Protection Plan ("The
Plan"), who was not terminated from the Plan for
nonpayment of premiums or other failure to comply with
Plan requirements (such failure not to include working
for a successor employer), and who has requested
reinstatement to the Plan in accordance with the
Court's orders, will be deemed eligible for retiree
medical insurance and retiree life insurance under the
terms of the Plan as if he or she had retired
effective May 1, 1993. Plaintiffs who have elected
reinstatement will be responsible for health insurance
premiums and other contributions at levels they would
be paying today if they had retired on April 8, 1993,
and those plaintiffs will receive medical and life
insurance benefits in accordance with the terms of the
Plan.

This prospective reinstatement is real. That is, it permits

plaintiffs to renew insurance coverage under the Borden Plan for

future protection. The retrospective reinstatement is

constructive.5 That is, it is a remedial device which permits

the court to award benefits due under the terms of the Plan for

the period of wrongful termination.

B. Remedies Available Under ERISA

5As noted, the period of constructive reinstatement starts
on April 8, 1993. The record does not clearly indicate the end
date. It appears to be October, 1998.

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 Two civil enforcement provisions of ERISA are relevant to

this appeal. 29 U.S.C. § 1132(a). The first permits a

beneficiary "to recover benefits due to him under the terms of

his Plan . . . ." Id. § 1132(a)(1)(B) ("a(1)"). The second

provides that "a participant, beneficiary, or fiduciary" may sue

"(A) to enjoin any act or practice which violates any provision

of this subchapter or the terms of the plan, or (B) to obtain

other appropriate equitable relief (i) to redress such

violations or (ii) to enforce any provisions of this subchapter

or the terms of the Plan." Id. § 1132(a)(3) ("a(3)").

The plaintiffs argue that their requests for disgorgement

and for the opportunity to receive the cash value of

reinstatement are "appropriate equitable relief" under Section

a(3). The statutory language invites a two-step inquiry to

evaluate this claim: 1) is the proposed relief equitable, and 2)

if so, is it appropriate? We address each question in turn.

The Supreme Court has held that, in the context of ERISA,

"equitable relief" includes "those categories of relief that

were typically available in equity (such as injunction,

mandamus, and restitution, but not compensatory damages)."

Mertens v. Hewitt Assocs., 508 U.S. 248, 256 (1993) (emphasis in

original). Although both damages and restitution may remedy the

same injury, "[d]amages differs from restitution in that damages

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is measured by the plaintiff's loss; restitution is measured by

the defendant's unjust gain." Dan B. Dobbs, Law of Remedies §

3.1, at 208 (2d ed. 1993). Restitution is an equitable remedy

"providing a tool for courts to use when one party 'has been

unjustly enriched at the expense of another.'" Kwatcher v. Mass.

Serv. Employees' Pension Fund, 879 F.2d 957, 967 (1st Cir.

1989), quoting Restatement of the Law of Restitution § 1 (1937).

The plaintiffs have characterized the bulk of the relief they

seek on appeal--approximately $2.8 million in premiums which

Borden would have had to pay had it covered the plaintiffs over

the time period in question--as unjust enrichment, the

disgorgement of which is restitution. They also justify their

proposed prospective remedy (giving plaintiffs the choice

between reinstatement to the Plan or its cash value) as a way of

avoiding unjust enrichment by Borden. By measuring relief with

reference to the amount Borden has gained (and would gain) by

terminating coverage, the plaintiffs propose equitable relief in

the form of restitution to prevent unjust enrichment.6

6
In arguing for restitution to avoid Borden's unjust
enrichment, the plaintiffs allege that the wrongful termination
of their insurance coverage exacerbated some of the plaintiffs'
health problems and led others to avoid getting medical care
because of their uncertain insurance status. The plaintiffs use
these allegations of harm to justify their demand for
restitution. They do not seek compensation for these harms in
the form of damages that are measured by the losses inflicted by
the harm. Plaintiffs understand that Massachusetts Mut. Life

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 Nevertheless, such relief is not "appropriate equitable

relief" within the meaning of ERISA. 29 U.S.C. § 1132(a)(3)

(emphasis added). Clarifying the holding in Mertens, the

Supreme Court has ruled that Section a(3)'s "'catchall'

provisions act as a safety net, offering appropriate equitable

relief for injuries caused by violations that § [1132] does not

elsewhere adequately remedy." Varity Corp. v. Howe, 516 U.S.

489, 512 (1996). Varity circumscribes the applicability of

Section a(3); "[W]here Congress elsewhere provided adequate

relief for a beneficiary's injury, there will likely be no need

for further equitable relief . . . ." Id. at 515.

Following this guidance, federal courts have uniformly

concluded that, if a plaintiff can pursue benefits under the

plan pursuant to Section a(1), there is an adequate remedy under

the plan which bars a further remedy under Section a(3). See,

e.g., Turner v. Fallon Community Health Plan, Inc., 127 F.3d

196, 200 (1st Cir. 1997) (holding that beneficiary denied

benefits could not sue under Section a(3) since the claim was

Ins. Co. v. Russell precludes such claims for extracontractual
damages under ERISA. Massachusetts Mut. Life Ins. Co. v.
Russell, 473 U.S. 134, 148 (1985) ("In contrast to the
repeatedly emphasized purpose to protect contractually defined
benefits, there is a stark absence--in the statute [ERISA]
itself and in its legislative history--of any reference to an
intention to authorize the recovery of extracontractual
damages.")

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"specifically addressed by [Section a(1)]"); Forsyth v. Humana,

Inc., 114 F.3d 1467, 1475 (9th Cir. 1997) (holding that

"[e]quitable relief under section 1132(a)(3) is not

'appropriate' because section 1132(a)(1) provides an adequate

remedy in this case."); Wald v. Southwestern Bell Corp.

Customcare Med. Plan, 83 F.3d 1002, 1006 (8th Cir. 1996); Katz

v. Comprehensive Plan of Group Ins., 197 F.3d 1084, 1088-89

(11th Cir. 1999) (holding that even the unrealized prospect of

relief under Section a(1) renders relief under Section a(3)

unavailable); Tolson v. Avondale Indus. Inc., 141 F.3d 604, 610

(5th Cir. 1998) ("Because [plaintiff] has adequate relief

available for the alleged improper denial of benefits through

his right to sue the Plans directly under section 1132(a)(1),

relief through the application of [s]ection 1132(a)(3) would be

inappropriate."). As the Eighth Circuit has stated, when the

plaintiff can "bring a claim for benefits under [Section a(1)],

. . . equitable relief would not be appropriate . . . [and] she

does not have a cause of action under [Section a(3)]." Wald, 83

F.3d at 1006.

Challenging the import of these cases, the plaintiffs argue

that equitable relief has been awarded pursuant to Section a(3)

in a number of other cases. They point to Jackson v. Truck

Drivers Union Local 42 Health and Welfare Fund, 933 F. Supp.

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1124 (D.Mass. 1996), United Steelworkers of America v. Newman-

Crosby Steel, Inc., 822 F. Supp 862 (D.R.I. 1993), and Ream v.

Frey, 107 F.3d 147 (3d Cir. 1997). The plaintiffs here, like

those in Jackson, United Steelworkers, and Ream, were not

members of a plan (and therefore were not eligible for relief

under Section a(1)) when they filed suit. However, the

plaintiffs in Jackson, United Steel Workers, and Ream were

permanently ineligible for a remedy pursuant to Section a(1)

because none of these cases involved a functioning plan. The

plaintiffs here were only ineligible for a remedy pursuant to

Section a(1) because they were not members of the Plan when they

filed suit. Although some of the plaintiffs may not want

prospective reinstatement in the Plan because they distrust

Borden, Inc., none have disclaimed their interest in the

opportunity for reinstatement. Moreover, they have presented no

evidence to demonstrate that the Borden Plan is not a viable

plan that can pay them the benefits they are due under its

terms.

Here, the district court faced a situation similar to that

presented in Varity and adopted a comparable remedy. In Varity,

the Supreme Court affirmed a lower court's reinstatement of

plaintiffs who had been improperly terminated from their Plan.

516 U.S. at 515. The Supreme Court observed that "[t]he

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plaintiffs in this case could not proceed under [Section a(1)]

because they were no longer members of [their] plan and,

therefore, had no benefits due [them] under the terms of [the]

plan [pursuant to Section a(1)]," and that "[t]hey must rely on

[Section a(3)] or they have no remedy at all." Id. (internal

citations and quotation marks omitted).7 Here, once the district

court mandated the plaintiffs' constructive reinstatement (and

opportunity for actual reinstatement) to the Plan pursuant to

Section a(3), the plaintiffs' claims were governed by the terms

of the Plan, as Section a(1) provides.8

C. Inapplicability of the Collateral Source Rule

Recognizing the primacy of the Plan in awarding benefits to

plaintiffs after their reinstatement, the district court refused

to order Borden to pay for medical expenses already covered by

7Although the district court said that Section a(1)
authorized the reinstatement order, that section only governs
remedies for those who are members of a plan. Reinstatement is
an equitable remedy based on Section a(3).
8Recognizing that they might only be eligible for relief
pursuant to Section a(1), the plaintiffs have tried to
recharacterize the disgorgement remedy they seek as a benefit
due under the Plan. They argue that they still deserve to
recover the employer's contributions which Borden failed to make
because "the Plan coverage itself is the 'benefit due' to the
retirees and spouses." This argument reflects a fundamental
misunderstanding: the benefit due from an insurance plan is the
benefit paid in case a covered event occurs, not the coverage
itself. Plaintiffs' expansive theory of the benefits due under
the Plan is untenable.

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alternative insurance coverage because of Plan provisions

coordinating coverage with other insurance to avoid double

payments. Plaintiffs invoke the collateral source rule to

challenge this ruling.

The collateral source rule has traditionally provided "'that

benefits received by the plaintiff from a source collateral to

the defendant may not be used to reduce that defendant's

liability for damages.'" Lussier v. Runyon, 50 F.3d 1103, 1107

(1st Cir. 1995) (quoting 1 Dan B. Dobbs, Law of Remedies §

3.8(1), at 372-73 (2d ed. 1993)). The plaintiffs argue that the

collateral source rule makes Borden liable for all of their

medical bills, even if alternative sources of insurance have

already paid for them. However, ERISA preempts state

legislation designed to limit plans' subrogation and

coordination of benefits provisions. See FMC Corp. v. Holliday,

498 U.S. 52 (1990); Travitz v. Northeast Dept. ILGWU Health and

Welfare Fund, 13 F.3d 704 (3d Cir. 1994). Such preemption

applies a fortiori to state common law doctrines (like the

collateral source rule) which purportedly alter the benefit

limitation provisions of a plan. See Pilot Life Ins. Co. v.

Dedeaux, 481 U.S. 41, 52-57 (1987) (precluding both state claims

to recover benefits under an ERISA plan and state claims to

recover compensation for harms suffered because of improper

-16-
denial of such benefits).

We recognize that the insurance benefits which are the

collateral source subject to the Borden Plan were available only

because some of the plaintiffs obtained new insurance coverage

in light of the improper termination of their insurance coverage

by Borden. The fact remains, however, that this insurance falls

under the purview of the coordination of benefits provisions of

the Borden Plan. The plaintiffs who obtained alternative

sources of insurance were, in effect, mitigating their damages.

The law often obliges the victim of a breach of contract to

mitigate damages. See, e.g., Restatement (Second) of Contracts

§ 350 cmt. b (1981). The Borden Plan expressly precludes

reimbursement under its coordination of benefits provisions when

a claimant's bills are paid by a collateral source. Therefore,

the district court ruled properly that a claimant whose medical

bills have been paid collaterally cannot demand that the Plan

reimburse the claimant for these bills.

D. The Congressional Balance

Despite its rulings against the plaintiffs, the district

court recognized that the relief it ordered did not address

fully plaintiffs' grievances: "Were it not for the limits on

remedies imposed by ERISA and by its judicial interpretation,

[plaintiffs'] arguments would likely merit the remedy [they]

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seek." This apt observation reflects the balance struck by

Congress in its passage of ERISA. Congress wanted to protect

contractually defined benefits. See Russell, 473 U.S. 134, 148

and n.16 (1985) (citing 120 Cong. Rec. 29196 (1974), reprinted

in 3 Subcommittee on Labor and Public Welfare of the Senate

Committee on Labor and Public Welfare, 94th Cong., 2d Sess.,

Legislative History of the Employee Retirement Income Security

Act of 1974, p. 4665 (Comm. Print 1976) ("Leg. Hist."); 119

Cong.Rec. 30041 (1973), 2 Leg. Hist. 1633). But "Congress was

[also] concerned lest the cost of federal standards discourage

the growth of private pension plans." Id. at 148 and n.17

(citing H.R.Rep. No. 93-533, at 1, 9 (1973), 2 Leg. Hist. 2348,

2356; 120 Cong. Rec. 29949 (1974), 3 Leg. Hist. 4791; 120 Cong.

Rec. 29210-29211 (1974), 3 Leg. Hist. 4706-4707). Given

Congress's careful attention to this balance, the Supreme Court

has limited the remedies available pursuant to the "appropriate

equitable relief" provisions of ERISA. Here, ERISA's civil

enforcement provisions and their subsequent judicial

interpretation required the district court to craft a remedy

limited to the benefits due to the plaintiffs under the Plan.

No matter how the plaintiffs choose to label their demands on

appeal, they are not "appropriate equitable relief" authorized

by ERISA.

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 III.

The district court ordered Borden to pay past benefits due

under the terms of the Plan for all of the plaintiffs but one,

the estate of Guiseppe Paone. Mr. Paone died in 1994 after

incurring approximately $258,000 of medical expenses at the New

England Medical Center (NEMC). The Plan administrator denied

coverage, and NEMC unsuccessfully attempted to obtain payment

from both Great American Brands and the Paone estate. Although

NEMC could have sued Paone's estate to try to recover the money,

it did not, and any potential claim for these funds from Mr.

Paone's estate is now time-barred. See Mass. Gen. Laws ch. 197,

§ 9 (establishing one-year statute of repose for claims against

estates).

The district court awarded Paone's medical expenses to his

estate, to be held in trust for NEMC, stating that "[t]his is a

case where 'equity will treat that as done which ought to have

been done'" (citation omitted). The court noted that "the

executrix of Paone's estate, Antonietta LaRocca, attests that

his unpaid debt desecrates her father's memory and that she

wishes to receive reimbursement from Borden in trust for NEMC,

as her father would never have considered not paying a debt that

he owed." Although the district court did not specifically cite

Section a(3) as the basis for its award to the estate, the

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court's reference to equity suggests that this provision was the

basis.

In its order and final judgment, the district court ruled

that "Each of the plaintiffs will be treated as if he or she had

retired on April 8, 1993, with an effective retirement date of

May 1, 1993." As a complement to this order of constructive

reinstatement, the court ordered that "Borden, Inc. will pay or

cause to be paid by the Plan to designated plaintiffs the amount

specified in Exhibit A hereto." One of the designated

plaintiffs is Guiseppe Paone. Once a plaintiff like Mr. Paone

was constructively reinstated pursuant to Section a(3), the

terms of the Plan governed the relief he (or his estate) was due

pursuant to Section a(1). The Plan expressly prohibits benefit

payments for "services for which there is no charge or legal

obligation to pay." Plan §§ 6.14(s) and 15.11(e). Since the

Plan does not cover the bills of someone who does not have to

pay them, it bars the relief ordered by the district court for

the Paone estate in trust for NEMC. Therefore, we must vacate

the district court's award.

IV.

Plaintiffs also argue that the district court abused its

discretion by denying them the opportunity to add RICO and state

law claims to their complaint. The district court concluded

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that such an amendment would be futile. Plaintiffs argue that

a recently decided Supreme Court case, Humana Inc. v. Forsyth,

525 U.S. 299 (1999), made their RICO and state law claims

viable. We do not address this issue, choosing to affirm the

district court's ruling on the basis of timeliness.9

Like the plaintiff in Acosta-Mestre v. Hilton Int'l of

Puerto Rico, Inc., 156 F.3d 49 (1st Cir. 1998), the plaintiffs

here assert that "mere delay is not reason enough to deny a

motion for leave to amend." Id. at 52. Such an argument is

"contrary to Supreme Court and circuit precedent [holding

that]...'undue delay' in seeking the amendment may be a

sufficient basis for denying leave to amend." Id. (quoting

Foman v. Davis, 371 U.S. 178 (1962)). The plaintiffs filed the

motion to amend after discovery had been completed and after the

court had issued an all-but-dispositive ruling on cross-motions

for summary judgment. They were given leave twice earlier to

amend their complaint. The decision whether to grant leave to

amend lies within the District Court's discretion. See Judge v.

9
"We review a denial of leave to amend under Fed.R.Civ.P. 15
for an abuse of discretion and defer to the district court if
any adequate reason for the denial is apparent on the record."
Grant v. News Group Boston, Inc., 55 F.3d 1, 5 (1st Cir. 1995),
citing Resolution Trust Corp. v. Gold, 30 F.3d 251, 253 (1st
Cir. 1994).

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City of Lowell, 160 F.3d 67, 79 (1st Cir. 1998). Given the

plaintiffs' delay, the district court did not abuse its

discretion in refusing to amend the complaint.

V.

ERISA has generated a complex body of law governing the

scope of remedies available to those wrongly terminated from

plans covered by ERISA. For the most part, the district court

applied the law to this case correctly by limiting relief to the

benefits due under the Plan. However, the district court could

not, as a matter of law, grant further equitable relief to the

Paone estate because it is not eligible for benefits under the

terms of the Plan. We therefore deny the relief sought by the

plaintiffs in their appeal and grant the relief sought by Borden

in its cross-appeal, vacating the award to Guiseppe Paone's

estate.

So Ordered. Each party shall bear its own costs.

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