UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 98-30548 Summary Calendar _____________________

HENRY HAMILTON, Plaintiff-Appellant,

versus

RHODIA, INC., Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Louisiana USDC No. 97-CV-423-B-M1

January 21, 1999

Before KING, Chief Judge, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:1

Henry Hamilton appeals the summary judgment in favor of

Rhodia, Inc.2 We AFFIRM.

I.

Hamilton began work at Rhodia in 1979; his last day was 9

September 1991. He reported the next day that, six days earlier, he had been injured on the job. He received, inter alia, 26 weeks

1 Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. 2 Hamilton filed his complaint against “Rhone-Poulenc Basic Chemicals”, although the company’s name was actually “Rhone- Poulenc, Inc.” Subsequently, Rhone-Poulenc, Inc. was succeeded by “Rhodia, Inc.”, and it was substituted as the proper defendant/appellee.

- 1 - of Accident and Sickness benefits. However, Hamilton never

returned to work at Rhodia; his employment was terminated in

September 1993.

While employed at Rhodia, Hamilton was enrolled in its

“Retirement Plan for Hourly Employees at the Basic Chemicals

Division of Rhone-Poulenc Inc. effective January 1, 1988" (the

Plan). The Plan provided for disability retirement benefits for

disabled employees over the age of 40 who had completed 10 years of

service.

In September 1995, Hamilton wrote to Rhodia’s Benefit Service

Department to request disability retirement. Approximately one

month later, a Senior Benefits Advisor wrote to Hamilton that his

request had been denied because such benefits were available only

to employees in active service at Rhodia at the time of the

request, and Hamilton’s employment had been terminated two years

prior to his request. This letter also informed Hamilton that he

could appeal the decision by submitting within 60 days a written

request, including supporting documents and/or records, to the

Benefits Committee (which administered the Plan). Hamilton wrote

a second letter to the Senior Benefits Advisor in January 1996

indicating his desire to file an appeal, but no documents or

medical records were received by Rhodia.

Hamilton’s first attorney wrote another letter to the Senior

Benefits Advisor in March 1996, requesting a copy of the Plan and

referring to Hamilton’s January 1996 letter as an appeal. Two

copies of the Plan were sent to that attorney, and Rhodia extended

- 2 - the 60-day appeal limit to allow Hamilton 60 days from 1 July 1996

to file an administrative appeal. That August, both Hamilton and

his attorney submitted letters to the Senior Benefits Advisor

indicating Hamilton’s desire to obtain benefits and to appeal;

however, no supporting documentation was provided.

In April 1997, Hamilton filed suit against Rhodia in Louisiana

state court, claiming breach of contract. Rhodia removed the

action to federal court, pursuant to

and 1332,

based on diversity and on federal question jurisdiction, because

the Plan is governed by the Employee Retirement Income Security

Act,

et seq. (ERISA). By consent of the parties,

the case was transferred to a magistrate judge.

At an August 1997 scheduling conference, a discovery deadline

of 30 January 1998 was set; and, Rhodia also agreed to allow

Hamilton to file an untimely administrative appeal of the benefits

denial. But, subsequently, no appeal was ever submitted to Rhodia.

On 26 January 1998, Hamilton’s first attorney moved for leave

to withdraw. His motion was granted the next day. On 30 January

1998, the above-referenced deadline for discovery, Hamilton moved

for an extension of the deadline. The court denied the request;

and, in April 1998, it granted Rhodia’s unopposed motion for

summary judgment.

II.

Hamilton presents the following claims: (1) that the court

erred in allowing Hamilton’s attorney to withdraw three days before

the discovery deadline; (2) that the court abused its discretion in

- 3 - denying Hamilton’s request for a discovery extension; and (3) that

the court erred in granting summary judgment for Rhodia.

A.

We review for abuse of discretion a ruling on a motion by an

attorney to withdraw from a case. Matter of Wynn,

(5th Cir. 1989). Counsel’s motion and the information attached

to it indicate that he notified Hamilton of his intent to withdraw,

but Hamilton did not oppose the motion. Having reviewed the

record, we find no abuse of discretion in granting the motion.

B.

Further, we find no abuse of discretion in denying Hamilton’s

pro se request to extend discovery. (Post-entry of summary

judgment, Hamilton obtained counsel for this appeal.) Scheduling

orders are modified only “upon a showing of good cause”. FED. R.

CIV. P. 16(b). The record indicates that Hamilton did not

demonstrate what discovery he hoped to obtain through the

extension, nor does Hamilton do so now.

C.

Finally, Hamilton challenges the summary judgment. Of course,

we review a summary judgment de novo, applying the same standard as

the district court. Freeman v. County of Bexar,

(5th Cir. 1998).

When a retirement plan subject to ERISA gives “the

administrator or fiduciary discretionary authority to determine

eligibility for benefits or to construe the terms of the plan”, we

review the administrator’s decision for abuse of discretion.

- 4 - Firestone Tire & Rubber Co. v. Bruch,

(1989);

Kennedy v. Electricians Pension Plan,IBEW No. 995,

(5th Cir. 1992). Here, the Benefits Committee was entrusted

with administration and interpretation of the Plan.

After reviewing the record, we find no genuine issue of

material fact regarding the legality of the Benefits Committee’s

decision to deny Hamilton benefits because he was not in service at

the time of his request; and we likewise find no evidence that the

Benefits Committee abused its discretion in making this

determination.

III.

For the foregoing reasons, the judgment is

AFFIRMED.

- 5 -