                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS          April 29, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 03-10897
                         Summary Calendar


INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS-NATIONAL
ELECTRICAL CONTRACTORS ASSOCIATION SOUTHWESTERN HEALTH &
BENEFIT FUND; BOARD OF TRUSTEES OF INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS-NATIONAL ELECTRICAL CONTRACTORS
ASSOCIATION SOUTHWESTERN HEALTH & BENEFIT FUND,

                                            Plaintiffs-Appellees,

                              versus

                         JESSIE DOUTHITT,

                                              Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 3:01-CV-1730-K
                       --------------------

Before SMITH, DUHÉ, and WIENER, Circuit Judges.

PER CURIAM:1

     Jessie Douthitt appeals the district court’s assumption of

subject matter jurisdiction and grant of summary judgment in favor

of IBEW-NECA Southwestern Health and Benefit Plan and its Board of

Trustees (collectively “the Plan”) in this action pursuant to 29

U.S.C. § 1132(a)(3) for reimbursement of benefits   paid on behalf

of Douthitt, a plan participant.

     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that this opinion should not be published and is not precedent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.
     Whether the district court had subject matter jurisdiction is

determined based on the plaintiff’s complaint.           Howery v. Allstate

Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).           The Plan’s complaint

alleged (1) that the Plan sought reimbursement of money it had paid

out previously as benefits from $25,000 Douthitt had recovered from

a third party; (2) to which the Plan was entitled pursuant to the

reimbursement agreement; and (3) that Douthitt had recovered those

funds, which were in his attorney’s trust account.             The district

court properly exercised subject matter jurisdiction over the

instant action because the Plan’s suit was authorized under 28

U.S.C. § 1132(a)(3), and the Plan’s complaint sought recovery

directly under that statute.       See Bombardier Aerospace Employee

Welfare Benefits Plan v. Ferrer, Poirot and Wansbrough, 354 F.3d

348, 356 (5th Cir. 2003), pet. for cert. filed, 70 U.S.L.W. 3513

(U.S. Feb. 5, 2004)(No. 03-1135); Bell v. Hood, 327 U.S. 678, 681-

82 (1946).    Whether Douthitt actually recovered the money, whether

his attorney actually held the funds, and whether the Plan now

possesses the funds or a check go to the merits of the Plan’s

claims, not to the question of the district court’s jurisdiction.

     Douthitt asserts that the imposition of a constructive trust

was not appropriate in this case because there was no fraud

involved and because his wife and attorney would not be unjustly

enriched by    receiving   the   funds,   to   which    they   were   legally

entitled under the Texas Common Fund Doctrine.            Douthitt did not

raise these issues in the district court, and we will not allow him

                                    2
to do so now.     See Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th

Cir. 1992).     Additionally, Douthitt’s arguments are foreclosed.

See Bombardier, 354 F.3d at 358-62.

     AFFIRMED.




                                 3
