                           NOT FOR PUBLICATION                           FILED
                                                                          JUN 24 2015
                    UNITED STATES COURT OF APPEALS
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT


ANGEL JET SERVICES, LLC,                        No. 13-15956
individually and as assignee of Jane Doe,
                                                D.C. No. 2:09-cv-01489-SRB
             Plaintiff-Appellant,

     v.                                         MEMORANDUM*

GIANT EAGLE, INC., individually and as
Plan Administrator of Giant Eagle Group
Health Insurance; GIANT EAGLE GROUP
HEALTH INSURANCE,

             Defendants-Appellees.


                             Appeal from the United States District Court
                                        for the District of Arizona
                              Susan R. Bolton, District Judge, Presiding

                                      Submitted June 12, 2015**
                                      San Francisco, California


 *
      This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
       The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
       The Honorable Barbara Jacobs Rothstein, Senior District Judge for the U.S.
District Court for the Western District of Washington, sitting by designation.



                                         1
Before: CHRISTEN and WATFORD, Circuit Judges, and ROTHSTEIN, Senior
District Judge.***



      Appellant Angel Jet Services, Inc., an “air ambulance” company, challenges

two rulings from the U.S. District Court for the District of Arizona: (1) the award

of attorneys’ fees and costs to Appellee Giant Eagle, Inc. (“the Company”) and

Giant Eagle Group Health Insurance (“the Plan”); and (2) the denial of Appellant’s

motion for attorneys’ fees and costs. We have jurisdiction over this matter under

28 U.S.C. § 1291. We review questions of fact under the “deferential, clearly

erroneous standard, and questions of law under the non-deferential, de novo

standard.” Lads Trucking Co. v. Bd. of Trs. of W. Conference of Teamsters

Pension Trust Fund, 777 F.2d 1371, 1373 (9th Cir. 1985).

      At all times relevant, Deborah Siebel was a beneficiary of the Plan. In late

2008, Ms. Siebel—who was dying of lung cancer—traveled to Monaco to receive

treatment. When it became clear that she could not recover from her illness, Ms.

Siebel’s family began looking for a way to take her back home to Pittsburgh,

Pennsylvania. Her family approached Appellant.

      Appellant provided the Siebels with a quote of $92,460 for “bedside to bed”

transportation from Monaco to Pittsburgh.1 An agreement was reached to have the


1
 Appellant initially denied making any such quote; however, it later recanted this
assertion and admitted that it provided the $92,460 quote to the Siebel family.
                                          2
Plan pay for Ms. Siebel’s flight; however, the Plan did not enter into any

agreement with Appellant regarding the specific price. Appellant subcontracted

with a third party—Sky Service—to provide the actual transportation service;

Appellant paid SkyService $56,500.

      Immediately after the flight, Appellant billed the Plan in the amount of

$957,930 for services rendered. Upon receiving this astonishing bill, the Plan

requested additional information regarding the cost of the flight. Appellant did not

provide the requested information; instead, it brought the present suit against

Appellees, seeking $957,930. Appellant’s Complaint included four state law

claims based on a breach of contract theory and two claims under ERISA—a

benefits claim and a procedural claim.

      Appellees made a Rule 68 settlement offer of $150,000, plus attorney fees

and costs; Appellant rejected the offer. Appellees then moved the district court to

remand the ERISA benefits and procedural claims so that the Plan Administrator

could determine the amount reasonably owed to Appellant. The district court

granted the motion to remand both claims but later reconsidered its decision

regarding the procedural claim. Appellees also moved to dismiss the state law

claims against the Company. The district court initially dismissed these state law

claims but reconsidered its ruling when Appellant represented to the district court

that the Company itself, in addition to the Plan, had made a separate promise to

                                          3
pay Appellant for the flight.2

        On remand, it was determined that the reasonable amount owed for the flight

under the ERISA benefits claim is $92,460—the price quoted to the family.3 The

district court then granted summary judgment with respect to the state law claims

and dismissed the ERISA procedural claim.4 Both parties moved for fees and

costs. In a 24-page opinion, the District Court awarded the Appellees $398,464.80

in fees and $47,857 in costs under both Arizona Revised Statute § 12-341.01(A)

(the “Arizona State Fee Statute”) and ERISA’s fee provision, 29 U.S.C. §

1132(g)(1). The Court denied Appellant’s motion for attorney fees.

        Appellant contends that the district court erred in awarding fees and costs to

Appellees under ERISA, 29 U.S.C. § 1132(g)(1). According to Appellant, the

district court’s award is premised on an improper finding that Appellees achieved

success on all claims and consistently took meritorious positions and that

Appellant presented meritless arguments and achieved no success. We find no

reversible error. The district court clearly did not err in finding that Appellees


2
  This representation turned out to be false. Appellant never substantiated that such
a promise had been made.
3
    Appellant does not appeal this determination.
4
 The matter was initially remanded to the Plan Administrator. The Plan
Administrator determined that $83,433 is the reasonable amount owed. Angel Jet
appealed this decision to a neutral third-party mediator, who determined that
$92,460 is reasonable.
                                           4
achieved success on the merits. Appellees prevailed on both the motion for remand

and the motion for summary judgment. Similarly, the district court’s finding that

Appellant did not achieve success on the merits is not clearly erroneous: Appellant

received only $92,460 as a result of this action—over $60,000 less than Appellees

originally offered in settlement and over $900,000 less than Appellant demanded.

Moreover, Appellant received this amount only after Appellees prevailed on the

motion for remand.

      We also find no error in the district court’s calculation of the ERISA fee and

cost award. The district court’s 24-page order carefully considered the relevant fee

and cost affidavits and weighed each statutory factor.

      Appellant also contends that the district court erred in awarding fees and

costs to Appellees pursuant to the Arizona State Fee Statute. According to

Appellant, each state law claim is preempted by ERISA and, therefore, fees for all

claims must be awarded pursuant to ERISA, not the Arizona State Fee Statute.

However, even if we assume that the district court erred in finding that Appellees

were entitled to costs and fees under the Arizona State Fee Statute, such an error is

harmless. The district court’s well-reasoned order held that both the Arizona State

Fee Statute and ERISA supported the award of attorneys’ fees in this case. And, as

set forth above, the award of fees and costs under ERISA was proper.

      Moreover, it is clear that the district court’s fees and costs calculation would

                                          5
have been the same regardless of which statute it considered. See S.F. Culinary,

Bartenders & Serv. Emps. Welfare Fund v. Lucin, 76 F.3d 295, 297 (9th Cir. 1996)

(“ERISA preempts an award of attorneys’ fees for work done in an ERISA action

when those fees are determined according to the standards of a state statute and the

state standards differ from the standards that are applicable under ERISA.”). Here,

the relevant factors considered under both statutes are remarkably similar, i.e. the

relative merits of the parties’ positions; the losing party’s ability to pay any award;

the effect of fees on future litigants; and the complexity of the legal matter.

Compare Ariz. Rev. Stat. § 12-341.01(A) with 29 U.S.C. § 1132 (g)(1). The only

significant difference between the statutes is that the Arizona State Fee Statute

focuses on whether the successful party prevailed with respect to all claims for

relief, while ERISA requires only “some success” on the merits. However, this

distinction is of no moment here. Appellant did not achieve success on the merits,

nor was Appellant the prevailing party.

      Appellant also appeals the district court’s order denying its motion for fees

and costs. For the reasons set forth above, we find that the district court did not

abuse its discretion in denying Appellant’s motion on the grounds that it did not

achieve success on the merits.

      We therefore AFFIRM the district court’s ruling granting Appellees’ motion

for fees and costs and its ruling denying Appellant’s motion for fees and costs.

                                           6
JUDGMENT AFFIRMED.




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