     Case: 11-31006     Document: 00511913997         Page: 1     Date Filed: 07/09/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                            July 9, 2012

                                       No. 11-31006                        Lyle W. Cayce
                                                                                Clerk

SONYA TURNER; VENA CORMIER; WESLEY J. NIXON; JULIE
CONSTANCE; CHARLOTTE JOURDAN; ANGIE MALONE; JOHN
SHIPMAN,

                                                  Plaintiffs–Appellants
v.

PAN AMERICAN LIFE INSURANCE COMPANY,

                                                  Defendant–Appellee



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:04-CV-450


Before KING, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
        Plaintiffs–Appellants Sonya Turner, Vena Cormier, Wesley J. Nixon, Julie
Constance, Charlotte Jourdan, Angie Malone, and John Shipman (“Plaintiffs”)
participated in a 401(k) defined contribution retirement plan (the “Plan”)
established by Larry Talbert (“Talbert”), the founder of Progix, Inc. (“Progix”).
Pursuant to an agreement with Progix, Defendant–Appellee Pan American Life


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-31006        Document: 00511913997           Page: 2      Date Filed: 07/09/2012



                                         No. 11-31006

Insurance Company (“Pan American”) received and invested participants’
contributions.
       Plaintiffs filed suit against Pan American for breach of fiduciary duty
under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §
1001 et seq., alleging that Pan American improperly froze participants’ Plan
accounts after an investigation revealed that Talbert had failed to forward
employees’ contributions to Pan American. Plaintiffs contend that the freeze
prevented participants from withdrawing their contributions or making
interfund transfers, and that participants’ accounts lost value as a result.
Plaintiffs sought to represent a class composed of all participants who suffered
losses as a result of the alleged freeze.
       The district court denied Plaintiffs’ motion for class certification and
thereafter denied their motion to amend the complaint. After a bench trial on the
merits, the district court concluded that Pan American was not an ERISA
fiduciary, and that even if it were, its actions during the alleged freeze did not
cause the participants to incur any damages. The district court dismissed the
lawsuit with prejudice. For the following reasons, we AFFIRM:
       1. The district court properly concluded that Pan American was not a
fiduciary under ERISA, as it did not exercise the requisite discretionary
authority with respect to the Plan. See 29 U.S.C. § 1002(21)(A); Reich v.
Lancaster, 55 F.3d 1034, 1046 (5th Cir. 1995). Pan American was not permitted
to exercise discretion under the Plan documents themselves, which limited Pan
American’s role to the performance of “nondiscretionary, ministerial services,”
none of which “shall . . . cause the Company to be characterized as a fiduciary.”
Nor did Pan American in fact exercise any discretion. It continued to permit
interfund transfers during the alleged freeze,1 and its refusal to permit

       1
         In light of the evidence presented at trial, we find no basis to conclude that the district
court clearly erred in this factual determination. See Anderson v. City of Bessemer City, N.C.,

                                                 2
   Case: 11-31006        Document: 00511913997           Page: 3     Date Filed: 07/09/2012



                                         No. 11-31006

participants to make unilateral withdrawals was a ministerial function. Under
the Plan documents, the Plan Administrator (Progix) was required to approve
all such withdrawals, but it never did so. Because Pan American was not an
ERISA fiduciary, the district court properly dismissed Plaintiffs’ breach of
fiduciary duty claim. See 29 U.S.C. § 1109(a).
       2. As we affirm the district court’s dismissal of Plaintiffs’ claim on the
merits, we need not consider their arguments with respect to class certification
and amendment of the complaint. See, e.g., Conditt v. Owens, 457 F. App’x 420,
422 (5th Cir. 2012) (“[D]ismissal of Conditt’s complaint on its merits mooted any
request for class certification.”); Cesary v. Second Nat’l Bank of N. Miami, 598
F.2d 348, 349 (5th Cir. 1979); see also Avatar Exploration, Inc. v. Chevron,
U.S.A., Inc., 933 F.2d 314, 321 (5th Cir. 1991) (“We . . . affirm denials of motions
to amend when amendment would be futile.”).
       3. The district court properly declined to award attorneys’ fees to
Plaintiffs. See 29 U.S.C. § 1132(g)(1). Although we have recognized that “a party
need not prevail in order to be eligible for an award of attorneys’ fees under
§ 1132(g)(1) of ERISA,” Gibbs v. Gibbs, 210 F.3d 491, 503 (5th Cir. 2000), no such
award is warranted here. Plaintiffs have not demonstrated that their position
has merit, that Pan American acted in bad faith, or that any other factors favor
an award of attorneys’ fees in this case. See id. at 504.
       AFFIRMED.




470 U.S. 564, 573-74 (1985) (“If the district court’s account of the evidence is plausible in light
of the record viewed in its entirety, the court of appeals may not reverse it even though
convinced that had it been sitting as the trier of fact, it would have weighed the evidence
differently.”).

                                                3
