Forsyth v. Humana, Inc.
Is it still good law? What later courts have actually done to this case.
Status
More on how this was screened
The other reviewed opinions applied Forsyth's surviving antitrust, ERISA, RICO, amended-complaint, and statutory-cause-of-action rules or copied history parentheticals reporting Lacey's act; duplicate reports do not create additional treatments.
681 later cases cite Forsyth v. Humana, Inc.; 278 of those citations sat close to treatment language and were flagged for reading, and all of them have been read. Citations that did not sit near treatment language were not flagged and were not read one by one, so a court that weakened this case without using any of that language would not appear here.
Relying on Forsyth v. Humana, Inc.?
This page shows what later courts did to it. Ask about your specific facts and see whether it still carries your argument, with citations you can check.
Treatments
Overruled in part
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The en banc Ninth Circuit overruled Forsyth's rule requiring plaintiffs to replead claims dismissed with prejudice and without leave to amend to preserve them for appeal, while retaining waiver for voluntarily dismissed claims.
Lacey v. Maricopa County · Ninth Circuit (en banc) · filed
We have long proclaimed that “[i]t is the law of this circuit that a plaintiff waives all claims alleged in a dismissed complaint which are not realleged in an amended complaint.” Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir.1997); see N.Y. City Emps.’ Ret. Sys. v. Jobs, 593 F.3d 1018, 1025 (9th Cir.2010); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1987); ... We therefore join our sister circuits and overrule in part the rule found in Forsyth and other cases “that a plaintiff waives all claims alleged in a dismissed complaint which are not realleged in an amended complaint.” Forsyth, 114 F.3d at 1474. For claims dismissed with prejudice and without leave to amend, we will not require that they be repled in a subsequent amended complaint to preserve them for appeal. But for any claims voluntarily dismissed, we will consider those claims to be waived if not repled.
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Declined to follow
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The court declined Forsyth's rule barring simultaneous ERISA § 502(a)(1) and § 502(a)(3) pleading and allowed alternative fiduciary-duty claims to proceed until the availability of relief under § 502(a)(1) became clear.
McWilliams v. Geisinger Health Plan · M.D. Pa. · filed
The majority of courts hold that Varity prohibits beneficiaries from asserting claims under § 502(a)(3) where those claims could be properly brought under § 502(a)(1). ... Forsyth v. Humana, Inc., 114 F.3d 1467, 1474-75 (9th Cir. 1997), abrogated on other grounds by Lacey ... Standing in lone opposition is the United States Court of Appeals for the Second Circuit. In Devlin v. Empire Blue Cross & Blue Shield, the Second Circuit declined to follow the majority’s strict approach. Instead, Devlin ruled that a plaintiff’s § 502(a)(3) claim should not be dismissed until it becomes clear that relief is actually available under § 502(a)(1). ... After careful consideration, the Court finds it most appropriate to adopt the Second Circuit’s reasoning. Though Varity noted that § 502(a)(3) is a catchall provision (and thus a provision of last resort), Varity also premised its conclusion on the principle that Congress did not intend to leave beneficiaries without a remedy.
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