           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2    QualChoice, Inc. v. Rowland                No. 02-3614
        ELECTRONIC CITATION: 2004 FED App. 0134P (6th Cir.)
                    File Name: 04a0134p.06                                                  _________________
                                                                                                 COUNSEL
UNITED STATES COURT OF APPEALS
                                                                         ARGUED: Daran P. Kiefer, KREINER & PETERS CO.,
                  FOR THE SIXTH CIRCUIT                                  Cleveland, Ohio, for Appellant. Donald Cybulski, LOWE,
                    _________________                                    EKLUND, WAKEFIELD & MULVIHILL, Cleveland, Ohio,
                                                                         for Appellee. ON BRIEF: Daran P. Kiefer, Ted M. Traut,
 QUALCHOICE, INC.,                 X                                     KREINER & PETERS CO., Cleveland, Ohio, for Appellant.
         Plaintiff-Appellant,       -                                    Donald Cybulski, LOWE, EKLUND, WAKEFIELD &
                                    -                                    MULVIHILL, Cleveland, Ohio, for Appellee.
                                    -  No. 02-3614
            v.                      -                                                       _________________
                                     >
                                    ,                                                           OPINION
 ROBIN ROWLAND,                     -                                                       _________________
           Defendant-Appellee. -
                                   N                                        KAREN NELSON MOORE, Circuit Judge. Plaintiff-
       Appeal from the United States District Court                      Appellant QualChoice, Inc. (“QualChoice”), a fiduciary and
      for the Northern District of Ohio at Cleveland.                    administrator of an employee benefits plan governed by the
  No. 01-02605—Kathleen McDonald O’Malley, District                      Employee Retirement Income Security Act of 1974
                          Judge.                                         (“ERISA”), appeals from the district court’s dismissal, for
                                                                         lack of subject matter jurisdiction, of its action to obtain
                   Argued: December 3, 2003                              reimbursement under the terms of that plan from Defendant-
                                                                         Appellee Robin Rowland (“Rowland”), a plan participant.
               Decided and Filed: May 11, 2004                           QualChoice raises three claims of error on appeal. First,
                                                                         QualChoice argues that the district court had jurisdiction
        Before: MARTIN and MOORE, Circuit Judges;                        pursuant to 28 U.S.C. § 1331, as federal common law
                McKEAGUE, District Judge.*                               provides federal question jurisdiction for ERISA
                                                                         reimbursement actions. Second, QualChoice argues that the
                                                                         district court had jurisdiction pursuant to 29 U.S.C.
                                                                         § 1132(e)(1), as QualChoice prayed for equitable relief within
                                                                         the meaning of 29 U.S.C. § 1132(a)(3). Third, QualChoice
                                                                         argues that the district court erred in granting Rowland’s
                                                                         motion to dismiss for lack of subject matter jurisdiction
                                                                         before allowing QualChoice sufficient time to gather
                                                                         evidence.
    *
      The Ho norable D avid W . McKeague, United States District Judge
for the Western District of Michigan, sitting by designation.

                                  1
No. 02-3614                QualChoice, Inc. v. Rowland        3    4      QualChoice, Inc. v. Rowland               No. 02-3614

  For the following reasons, we AFFIRM the district court’s        reimbursement . . .[and] any other equitable relief.” Joint
dismissal for lack of subject matter jurisdiction.                 Appendix (“J.A.”) at 11-12 (First Am. Compl. ¶¶ 10, 13, 14).
                                                                   The amended complaint claimed that federal jurisdiction was
                    I. BACKGROUND                                  proper under 29 U.S.C. § 1132(e) and 28 U.S.C. § 1331. On
                                                                   April 29, 2002, the district court entered an order explaining
  On November 16, 2001, QualChoice filed a complaint               its obligation to ascertain whether federal question subject
against Rowland alleging that QualChoice was a plan                matter jurisdiction existed and its power to conduct an
administrator and fiduciary for an employee benefit plan           evidentiary investigation in furtherance of that goal, and
governed by ERISA, and that Rowland was a participant in           requesting that the parties supply the following “information
that plan. QualChoice further alleged that it had advanced         to the Court as soon as possible.” J.A. at 65-67 (District Ct.
$80,763.58 to Rowland under the plan to cover medical              Order, 4/29/02) (emphasis added).
expenses arising from an accident, that Rowland had settled
a claim with the third-party tortfeasor, and that under the            • The time and nature of defendant Rowland’s accident,
terms of the plan Rowland was obligated to reimburse                     as referred to in ¶ 8 of the amended complaint.
QualChoice from the money she received in that settlement.             • The details of how Rowland received a “fund in
QualChoice prayed for specific performance of the                        settlement of her claims from the above accident,” id.
reimbursement provision of the plan and restitution of the               at ¶ 11 (e.g., whom she sued, what the settlement
money it had advanced under the plan. On January 11, 2002,               amount was, and when and to whom settlement
Rowland filed a Rule 12(b)(1) motion to dismiss                          amounts were or will be paid).
QualChoice’s complaint for lack of subject matter jurisdiction         • Where the monies making up the “fund in settlement”
because QualChoice sought only legal remedies for which                  are now.
ERISA does not provide federal question subject matter
jurisdiction. On January 21, 2001, QualChoice filed a motion       J.A. at 66-67. (District Ct. Order). One day later, on
for leave to file an amended complaint that requested              April 30, 2002, Rowland filed an affidavit sworn by Attorney
equitable relief in order to avoid dismissal for lack of federal   Claudia R. Eklund (“Attorney Eklund”) in response to the
question subject matter jurisdiction.                              district court’s order.
   On February 27, 2002, the district court held a case              Attorney Eklund’s affidavit provided the following
management conference during which it granted                      information. On the evening of November 23, 1994, when a
QualChoice’s motion for leave to file an amended complaint,        Wheeling & Lake Erie Railroad (“W & LE”) “train was
but specified that Rowland’s motion to dismiss for lack of         crossing an unguarded, unlit track,” Rowland drove her car
subject matter jurisdiction would apply to the amended             into one of the railcars. J.A. at 68 (Eklund Aff. ¶¶ 2, 3).
complaint. On February 28, 2002, QualChoice filed an               Rowland was severely injured in the accident and required
amended complaint that made many of the same factual               several hospitalizations, surgical procedures, and eventually
allegations as its original complaint but newly alleged that it    a below-the-knee amputation. Rowland incurred medical
had advanced $101,440.54 to Rowland and prayed for                 bills totaling $203,000 as a result of the accident.
equitable restitution, imposition of a constructive trust or
equitable lien, an order declaring that QualChoice “has a right      Attorney Eklund represented Robin and Robert Rowland in
to the equitable remedy of subrogation to obtain                   their lawsuit against W & LE for personal injuries and
No. 02-3614               QualChoice, Inc. v. Rowland        5    6    QualChoice, Inc. v. Rowland                  No. 02-3614

damages arising out of the collision. W & LE “was an              affidavit, the district court entered an order granting
uninsured entity and verified by counsel to be an entity          Rowland’s motion to dismiss for lack of subject matter
functioning on the verge of bankruptcy.” J.A. at 69 (Aff. ¶ 5).   jurisdiction. QualChoice timely appealed the district court’s
“[A] settlement was proposed under which [W & LE] agreed          order dismissing this action for lack of subject matter
to pay a total of $147,668.00 over the course of forty-four       jurisdiction.
(44) months.” J.A. at 69 (Aff. ¶ 6). W & LE agreed to pay an
additional $37,500 over the same forty-four months,                                      II. ANALYSIS
contingent upon W & LE “obtaining certain concessions from
the Surface Transportation Board at a hearing to be held in       A. Standard of Review
June, 1998.” J.A. at 69 (Aff. ¶ 7). According to Attorney
Eklund, QualChoice agreed to waive any subrogated interest          We review de novo “a district court’s decision to grant a
it may have had in the proposed settlement agreement. On          motion to dismiss for lack of subject matter jurisdiction.”
December 3, 1997, W & LE and Rowland consummated the              Nichols v. Muskingum College, 318 F.3d 674, 677 (6th Cir.
settlement agreement. The Surface Transportation Board,           2003). Although Rowland makes both facial and factual
however, did not grant the concessions upon which the             challenges to QualChoice’s assertion of federal question
contingent payment of $37,500 was based; therefore, that          subject matter jurisdiction, we only reach the facial challenge,
amount did not become payable.                                    and thus we must view the facts in the light most favorable to
                                                                  QualChoice, the non-moving party. See Ohio Nat’l Life Ins.
   On December 3, 1997, upon signing the agreement,               Co. v. United States, 922 F.2d 320, 325-26 (6th Cir. 1990).
W & LE paid a lump sum of $25,000 to Rowland. On May 1,
1998, W & LE paid an additional lump sum of $8,000 to             B. 28 U.S.C. § 1331
Rowland. “[C]ommencing with June 1, 1998, monthly
payments of $2,322.00 for the next 44 months were paid by            QualChoice argues that the district court had federal
[W & LE], the last of which was received on January 1,            question subject matter jurisdiction pursuant to 28 U.S.C.
2002.” J.A. at 69-70 (Aff. ¶ 12). “From the initial payments,     § 1331 because QualChoice sought reimbursement under the
the sum of $13,168 was” used to pay litigation expenses. J.A.     terms of an ERISA plan, which we have held may be obtained
at 69 (Aff. ¶ 11). From each monthly check, an amount was         under federal common law. To support this argument,
deducted to pay the $27,308 attorney fee balance. “Robin and      QualChoice relies upon Walbro Corp. v. Amerisure Cos., 133
Robert Rowland received a net recovery of $107,192.” J.A.         F.3d 961, 965-66 (6th Cir. 1998), in which we held that a plan
at 69 (Aff. ¶ 11).                                                fiduciary’s action for reimbursement is cognizable under
                                                                  federal common law doctrines building on the enforcement
   According to Attorney Eklund, “at this time [April 30,         provisions of ERISA, and thus falls within the district court’s
2002], no ‘settlement fund’ exists, as the money has been         federal question jurisdiction.
disbursed over the last 44 months on a monthly basis.” J.A.
at 70 (Aff. ¶ 13).                                                  Subsequent to our decision in Walbro, however, the
                                                                  Supreme Court decided Great-West Life & Annuity Insurance
  On April 30, 2002, which was the day after the district         Co. v. Knudson, 534 U.S. 204, 209 (2002), in which the Court
court requested that the parties supply additional information    reemphasized its view “that ERISA is a ‘comprehensive and
and the same day that Rowland filed Attorney Eklund’s             reticulated statute,’ the product of a decade of congressional
No. 02-3614               QualChoice, Inc. v. Rowland        7    8       QualChoice, Inc. v. Rowland                   No. 02-3614

study of the Nation’s private employee benefit system.”           reimbursement,” or any other equitable relief that the district
(citations omitted). The Court further stated that, because of    court deemed proper. J.A. at 12. QualChoice argues that the
the comprehensive nature of the statute, it has “been             settlement money that Rowland recovered from W & LE
especially ‘reluctant to tamper with [the] enforcement            rightfully belongs to QualChoice; therefore, equity requires
scheme’ embodied in the statute by extending remedies not         imposition of a constructive trust or an equitable lien to
specifically authorized by its text.”            Id. (quoting     prevent unjust enrichment. QualChoice acknowledges that in
Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134,        Knudson, the Supreme Court held that if a plan fiduciary
147 (1985)). Obeying the Court’s direction in Knudson, we         seeks restitution from a plan beneficiary, who recovered from
explicitly held in Community Health Plan of Ohio v. Mosser,       another, and the plan beneficiary does not possess the
347 F.3d 619, 624 (6th Cir. 2003), that federal question          recovered funds, then the action is merely a legal action under
jurisdiction does not exist under 28 U.S.C. § 1331 in an          the terms of the contract. QualChoice argues, however, that
action by a plan fiduciary seeking civil enforcement of the       the instant action is distinguishable from Knudson because the
terms of an ERISA plan that does not implicate any ERISA          evidence demonstrates that Rowland possesses the recovered
provision. In Mosser, we held that 29 U.S.C. § 1132(e)(1) did     funds.1 QualChoice further argues that the Supreme Court
not provide federal question subject matter jurisdiction over     expressly limited its holding in Knudson to situations where
the plan fiduciary’s action because the relief sought was not     the plan participant or beneficiary did not possess the
equitable within the meaning of 29 U.S.C. § 1132(a)(3). Id.       recovered funds, thereby indicating that the result would have
at 623-24. We further held that no other ERISA provision          been different if the plan participant or beneficiary did
permitted the action; therefore, “federal question jurisdiction   possess the recovered funds. The district court rejected this
does not exist under 28 U.S.C. § 1331 [because] ERISA does        argument, noting that regardless of Rowland’s possession of
not authorize the suit.” Id. at 624. Thus in Mosser, we           an identifiable fund, QualChoice is still seeking damages for
abandoned our position in Walbro and held explicitly that         breach of contract, and concluding in any case that the
there is no federal question subject matter jurisdiction in an    beneficiary in Knudson did actually possess the fund, as the
action by a plan fiduciary seeking civil enforcement of the       beneficiary’s settlement recovery there was placed in a
terms of an ERISA plan, unless ERISA specifically                 Special Needs Trust and a client trust account.
authorizes the suit. Therefore, QualChoice’s action to enforce
the reimbursement provision is not cognizable under federal          ERISA contains a section specifying the proper procedures
common law, and QualChoice cannot rely upon federal               for civil enforcement of the statute. Section 1132(e)(1)
common law to supply jurisdiction over its claim pursuant to      provides, “Except for actions under subsection (a)(1)(B) of
28 U.S.C. § 1331.                                                 this section, the district courts of the United States shall have
                                                                  exclusive jurisdiction of civil actions under this subchapter
C. 29 U.S.C. § 1132                                               brought by the Secretary or by a participant, beneficiary,
                                                                  fiduciary, or any person referred to in section 1021(f)(1) of
  QualChoice alternatively argues that the district court had     this title.” Thus, except for actions by a participant or
subject matter jurisdiction pursuant to 29 U.S.C. § 1132(e)(1)
because QualChoice sought equitable remedies within the
meaning of 29 U.S.C. § 1132(a)(3). In its amended                     1
complaint, QualChoice prayed for restitution, imposition of            QualChoice argues that Attorney Eklund’s affidavit confirms that
                                                                  Rowland “took possession of [a] settlement ‘fund’ in the amount of
a constructive trust or equitable lien, “subrogation to obtain    $107,192.00.” Appellant’s Br. at 24.
No. 02-3614                QualChoice, Inc. v. Rowland         9    10   QualChoice, Inc. v. Rowland                  No. 02-3614

beneficiary to recover benefits under the terms of a plan, and      tortfeasor. Id. The plan fiduciary brought an action against
another exception not relevant here, § 1132(e)(1) supplies          the plan beneficiary seeking reimbursement under the terms
exclusive federal subject matter jurisdiction for the civil         of the plan and prayed for various equitable remedies. Id. at
enforcement procedures authorized by § 1132.                        208. The Supreme Court held that the plan fiduciary was not
                                                                    entitled to an injunction against “respondents’ failure to
  Title 29 U.S.C. § 1132(a)(3) is the civil enforcement             reimburse the Plan” or specific performance of the “past due
mechanism available to plan fiduciaries. Section 1132(a)            monetary obligation” because such remedies are not typically
provides:                                                           available in equity. Id. at 210-11. In rejecting the plan
                                                                    fiduciary’s claim for restitution, the Supreme Court
  A civil action may be brought —                                   distinguished between legal and equitable restitution. Id. at
                                                                    212-13. The Supreme Court stated:
  ...
                                                                      In cases in which the plaintiff “could not assert title or
  (3) by a participant, beneficiary, or fiduciary (A) to              right to possession of particular property but in which
  enjoin any act or practice which violates any provision of          nevertheless he might be able to show just grounds for
  this subchapter or the terms of the plan, or (B) to obtain          recovering money to pay for some benefit the defendant
  other appropriate equitable relief (i) to redress such              had received from him,” the plaintiff had a right to
  violations or (ii) to enforce any provisions of this                restitution at law through an action derived from the
  subchapter or the terms of the plan.                                common-law writ of assumpsit. In such cases, the
                                                                      plaintiff’s claim was considered legal because he sought
The Supreme Court has emphasized that § 1132(a)(3) does               “to obtain a judgment imposing a merely personal
not authorize all relief that a court of equity might award;          liability upon the defendant to pay a sum of money.”
rather it only authorizes those remedies traditionally awarded        Such claims were viewed essentially as actions at law for
by courts of equity. The Court has also made clear that               breach of contract (whether the contract was actual or
regardless of how plaintiffs label their claims to relief, courts     implied).
must determine whether the relief sought is truly equitable.
See Knudson, 534 U.S. at 209-10; Mertens v. Hewitt Assocs.,           In contrast, a plaintiff could seek restitution in equity,
508 U.S. 248, 256-57 (1993).                                          ordinarily in the form of a constructive trust or an
                                                                      equitable lien, where money or property identified as
  The district court predicated its dismissal for lack of subject     belonging in good conscience to the plaintiff could
matter jurisdiction upon its conclusion that the instant case is      clearly be traced to particular funds or property in the
indistinguishable from Knudson. In Knudson, the Supreme               defendant’s possession. A court of equity could then
Court held that a plan fiduciary’s action for specific                order a defendant to transfer title (in the case of the
performance and restitution under the plan’s reimbursement            constructive trust) or to give a security interest (in the
provision was not authorized by § 1132(a)(3). Knudson, 534            case of the equitable lien) to a plaintiff who was, in the
U.S. at 210-11. After the plan beneficiary in Knudson was             eyes of equity, the true owner. But where “the property
injured in a car accident, the plan fiduciary advanced money          [sought to be recovered] or its proceeds have been
to cover the cost of medical expenses. Id. at 207. The plan           dissipated so that no product remains, [the plaintiff’s]
beneficiary then received money from a settlement with the            claim is only that of a general creditor,” and the plaintiff
No. 02-3614                QualChoice, Inc. v. Rowland         11    12    QualChoice, Inc. v. Rowland                  No. 02-3614

  “cannot enforce a constructive trust of or an equitable            participant or beneficiary recovered money from another
  lien upon the property of the [defendant].”                        entity, and possesses that recovery in an identifiable fund.
Id. at 213-14 (citations omitted) (alterations in original). In         Of the circuits that have been faced with this same issue,
holding that the plan fiduciary in Knudson was not entitled to       two have concluded that a reimbursement action by an ERISA
equitable restitution, the majority wrote that “petitioners seek,    fiduciary is equitable if the participant or beneficiary has
in essence, to impose personal liability on respondents for a        recovered from another entity and possesses that recovery in
contractual obligation to pay money — relief that was not            an identifiable fund, but legal if the participant or beneficiary
typically available in equity. ‘A claim for money due and            does not possess that recovery in an identifiable fund. See,
owing under a contract is quintessentially an action at law.’”       e.g., Bombardier Aerospace Employee Welfare Benefits Plan
Id. at 210 (quotation omitted). Yet, the majority opinion also       v. Ferrer, Poirot and Wansbrough, 354 F.3d 348 (5th Cir.
emphasized that the plan fiduciary in Knudson was not                2003); Admin. Comm. of the Wal-Mart Stores, Inc. Assocs.’
entitled to equitable restitution because                            Health and Welfare Plan v. Varco, 338 F.3d 680 (7th Cir.
                                                                     2003), petition for cert. filed, 72 U.S.L.W. 3452 (Dec. 23,
  the proceeds from the settlement of respondents’ tort              2003) (No. 03-959).
  action — are not in respondents’ possession [; rather] . . .
  the disbursements from the settlement were paid by two                Several of these circuit cases focus largely upon the
  checks, one made payable to the Special Needs Trust and            language throughout Knudson emphasizing that the plan
  the other to respondents’ attorney. . . . The basis for            beneficiary did not possess the settlement money, and the
  petitioners’ claim is not that respondents hold particular         admonishment near the end of Knudson stating that the
  funds that, in good conscience, belong to petitioners, but         majority was not foreclosing the possibility that a plan
  that petitioners are contractually entitled to some funds          fiduciary might be able to bring an equitable action against
  for benefits that they conferred.                                  the Special Needs Trust or the client trust account. See, e.g.,
                                                                     Varco, 338 F.3d at 687-88 (concluding that the action sought
Id. at 214.                                                          equitable relief because the plan participant possessed an
                                                                     identifiable fund); Primax Recoveries, Inc. v. Sevilla, 324
   Subsequent to Knudson, we held that a claim seeking               F.3d 544, 547-48 (7th Cir. 2003) (concluding that the action
restitution, or imposition of a constructive trust or equitable      sought legal relief because the plan participant possessed only
lien, is a legal claim if the plan participant or beneficiary does   an uncashed check from an insurer and the money remained
not possess an identifiable fund, regardless of whether the          with the insurer; therefore, the participant did not possess an
plan participant or beneficiary possesses money recovered            identifiable fund); Bauhaus USA, Inc. v. Copeland, 292 F.3d
from another entity. Mosser, 347 F.3d at 624. QualChoice             439, 445 (5th Cir. 2002) (concluding that the action sought
attempts to distinguish this case from both Knudson and              legal relief because the settlement money had been paid into
Mosser by claiming that it has alleged that Rowland possesses        the registry of the Mississippi Chancery Court; therefore, the
an identifiable fund, and further that Attorney Eklund’s             beneficiary did not possess an identifiable fund).
affidavit proves that Rowland possesses the settlement               Additionally, in a malpractice suit by ERISA trustees against
money. Therefore, we must decide whether district courts             an actuary hired to evaluate a plan, the Second Circuit took a
have jurisdiction over claims seeking restitution, or                similar position regarding the distinction between equitable
imposition of a constructive trust or an equitable lien, if the      and legal relief. Gerosa v. Savasta & Co., 329 F.3d 317, 321-
No. 02-3614                    QualChoice, Inc. v. Rowland            13     14       QualChoice, Inc. v. Rowland                         No. 02-3614

22 (2d Cir. 2003), cert. denied, 124 S. Ct. 435 (Oct. 20,                    Fifth Circuit, the plan beneficiary in Knudson did not have
2003), and cert. denied, 124 S. Ct. 929 (Dec. 8, 2003).2 The                 actual or constructive possession over the funds because the
Gerosa court concluded that the trustees sought legal relief                 settlement money “had been placed in a Special Needs Trust,
because they sued for damages for the actuary’s misconduct,                  as mandated by California law,” but the plan participant in
rather than to recover a specific fund from the actuary. Id.                 Bombardier did have possession because the funds were
We find the analysis in these opinions to be unavailing on this              “held in a bank account in the name of the participant’s
issue because the majority in Knudson left open the question                 attorneys,” which gave him constructive control, as the
of whether the plan participant’s or beneficiary’s possession                attorneys were his agents. Id. Finding that the plan fiduciary
of an identifiable fund would have allowed the fiduciary to                  in Bombardier met all of the requirements of the three-part
seek equitable relief, and because this analysis ignores the                 test, the Fifth Circuit concluded that the fiduciary sought to
Knudson majority’s repeated emphasis that a breach of                        recoup the amount it had paid to the participant in benefits,
contract claim seeking money damages is a legal action.                      rather than to impose personal liability on the participant, and
                                                                             therefore, that the fiduciary sought equitable relief. Id. at 358.
   Recently, however, the Fifth Circuit issued an opinion
providing a more thorough analysis supporting its view of the                   The Ninth Circuit has taken the opposite view and held that
distinction between legal and equitable relief. Bombardier,                  an action by an ERISA fiduciary to enforce a plan
354 F.3d 348. Extrapolating from Knudson, Bombardier                         reimbursement provision is legal, regardless of whether the
creates the following three-part test for determining whether                plan participant possesses an identifiable fund. Westaff (USA)
an action by a plan fiduciary seeks equitable relief: “Does the              Inc. v. Arce, 298 F.3d 1164, 1167 (9th Cir. 2002), cert.
Plan seek to recover funds (1) that are specifically                         denied, 537 U.S. 1111 (2003).3 In Westaff, the plan fiduciary
identifiable, (2) that belong in good conscience to the Plan,                brought an action “seeking a declaratory judgment that the
and (3) that are within the possession and control of the                    funds in escrow belonged to it and seeking specific
defendant beneficiary?” Id. at 356. The first prong of this                  performance of [the participant’s] obligation to reimburse
test asks whether the plan fiduciary “sought to recover funds                [it].” Id. at 1166. Noting that the Supreme Court has
[that they had paid out previously as benefits] from a                       instructed courts to look at “the ‘substance of the remedy
specifically identifiable corpus of money.” Id. The second                   sought . . . rather than the label placed on that remedy,’” the
prong of the test asks whether “the plan’s terms contained an                Ninth Circuit concluded that the plan fiduciary in Westaff
express, unambiguous reimbursement provision which made
the disputed funds ‘belong in good conscience to the plan.’”
                                                                                  3
Id. The third prong of the test asks whether the plan                               Recently in Ho nolu lu Joint Apprenticeship and Training Committee
participant or beneficiary had actual or constructive                        of United Ass’n Local Union No. 675 v. Foster, 332 F.3d 123 4, 12 37 (9th
possession or control over the funds. Id. According to the                   Cir. 2003), the Ninth Circu it characterized Knudson as holding that the
                                                                             distinction betwe en legal and equitab le restitution turns upon the existence
                                                                             of an identifiable fund. Foster, however, involved a very different
                                                                             scenario than that involved in Westaff (USA) Inc. v. Arce, 298 F.3d 1164
    2
                                                                             (9th Cir. 2002 ), cert. denied, 537 U.S. 111 1 (2003 ), and in this case, in
      No tably, in both Prima x Reco veries and Bauhaus, the plan            that the ER ISA adm inistrator sough t to recoup money that it had spent
participant or beneficiary never possessed the settlement money, much        training the defendant apprentice after the appre ntice broke the parties’
less maintained it in an identifiable fund. See Primax Recoveries, Inc. v.   contract by working for a non-union employer without repaying the cost
Sevilla, 324 F .3d 5 44, 5 48 (7th Cir. 200 3); Bauhaus US A, Inc. v.        of training. Id. at 123 6. W e do not view Foster as an indication that the
Copeland, 292 F.3d 43 9, 445 (5th Cir. 2002).                                Ninth Circuit has retreated from its holding in Westaff.
No. 02-3614               QualChoice, Inc. v. Rowland      15    16   QualChoice, Inc. v. Rowland                 No. 02-3614

sought “to enforce a contractual obligation for the payment of   made by the plan. Id. at 622. When dismissing the plan
money, a classic action at law and not an equitable claim.”      fiduciary’s action, we noted that the plan fiduciary
Id. In Westaff, the Ninth Circuit expressly took the position
that the participant’s possession of an identifiable fund did      did not, in its complaint, allege that it had given certain
not alter the nature of the action. Id.                            funds to [the participant], trace those funds to the
                                                                   settlement funds from [the tortfeasor], allege that [the
  The Third and Fourth Circuits have also applied Knudson          participant] was unjustly enriched by retaining the
to determine whether the relief the plaintiff sought was legal     settlement funds, and seek the return of the settlement
or equitable, but have done so only in unpublished opinions        funds in [the participant’s possession]. Rather, [the
involving obscure factual scenarios. See Sackman v. Teaneck        fiduciary] sought “restitution from [the participant] for
Nursing Ctr., No. 02-1083, 2003 WL 23173649 (3d Cir.               all covered services.”
Dec. 4, 2003); Local 109 Ret. Fund v. First Union Nat’l Bank,
No. 02-1216, 2003 WL 152851 (4th Cir. Jan 23, 2003).             Id. at 624. Although we did not emphasize it our opinion,
While these cases do not answer the exact question we face,      there was a significant factual difference between Mosser and
they do reflect an adherence to Knudson’s admonition to look     Knudson. In Knudson, the plan beneficiary never possessed
beyond the label the plaintiff puts on the relief sought.        the money she recovered in her settlement with the tortfeasor,
                                                                 as it had been paid directly into a Special Needs Trust and a
   Since Knudson was decided, we have dismissed for lack of      client trust account. Knudson, 534 U.S. at 234. In Mosser,
subject matter jurisdiction several actions brought by plan      however, the plan participant apparently possessed the money
fiduciaries seeking reimbursement. See, e.g., Mosser, 347        she recovered from the city. Mosser, 347 F.3d at 622-23.
F.3d 619; Caffey v. Unum Life Ins. Co., 302 F.3d 576 (6th
Cir. 2002); Cmty. Ins. Co. v. Morgan, Nos. 99-6669, 00-5002,        In Saiter, a case very similar to Mosser, the plan paid
2002 WL 31870325 (6th Cir. Dec. 20, 2002); Unicare Life &        $164,000 in medical expenses after the participant was
Health Ins. Co. v. Saiter, No. 00-3856, 2002 WL 1301574          injured in a car accident by a negligent driver. Saiter, 2002
(June 10, 2002); Sheet Metal Local # 24 v. Newman, No. 01-       WL 1301574, at *1. The participant then recovered $100,000
3085, 2002 WL 1033739 (May 21, 2002). In each of these           from the tortfeasor. The plan fiduciary sued the participant,
cases, we simply held that the plan fiduciary sought legal       the tortfeasor, and the tortfeasor’s insurance carrier, seeking
relief for breach of contract. None of them, however,            reimbursement from the participant and asserting subrogation
forecloses jurisdiction over the ostensibly equitable relief     rights against the tortfeasor and the tortfeasor’s insurance
QualChoice seeks.                                                carrier. When dismissing the fiduciary’s action, we stated
                                                                 that such actions “are not authorized claims under ERISA
  In Mosser, the plan had paid for the participant’s medical     because they seek to enforce plan provisions through legal
expenses arising out of an accident with a negligent police      remedies.” Id. at *2.
officer. Mosser, 347 F.3d at 621. After the participant
recovered from the city through a settlement, he did not           In Morgan, a factually complex case, the plan paid
reimburse the plan for the money it had paid out pursuant to     $116,000 in medical expenses after the participant was
the terms of the plan. The plan fiduciary then sued the          injured in a car accident by a negligent driver. Morgan, 2002
participant, bringing a breach of contract claim “requesting     WL 31870325, at *1. The participant had a $50,000
specific performance and restitution” for medical payments       underinsured motorist policy with Liberty Mutual and the
No. 02-3614               QualChoice, Inc. v. Rowland       17    18    QualChoice, Inc. v. Rowland                   No. 02-3614

tortfeasor had a $100,000 liability policy with State Farm.       provide compensation for that loss.” Id. at 555. Under this
Because the participant incurred more than $100,000 in            analysis, QualChoice’s action could be characterized
medical expenses, Liberty Mutual paid the participant             appropriately as one seeking damages for Rowland’s breach
$50,000 on his underinsured motorist claim and in order to        of contract, in that QualChoice seeks to recoup the money it
protect its subrogation rights, advanced him $100,000 on the      lost because Rowland breached the plan’s reimbursement
State Farm policy. Id. at *2. The participant then entered        provision. QualChoice’s action could also be characterized
into a settlement agreement with State Farm, Liberty, and the     appropriately as one seeking restitution for Rowland’s breach
tortfeasor in which the participant was to recover $7,500 in      of contract, in that QualChoice seeks to disgorge the unjust
cash and a $30,000 note with 6% secured interest. Before the      enrichment that Rowland received via her double recovery.
participant received any settlement money, the plan fiduciary
sued the participant, seeking to enforce the plan’s                  As Knudson points out, however, determining that
reimbursement provision. When dismissing the fiduciary’s          QualChoice can bring an action for restitution is only half of
action, we broadly stated, “The claim of [the plan fiduciary]     the analysis. To fall within the district court’s original federal
against . . . the plan participant, for reimbursement under the   question jurisdiction under § 1132(e)(1), QualChoice’s action
terms of the plan is squarely precluded by Knudson.” Id. We       must seek equitable rather than legal restitution. Knudson,
did not specify whether our holding was limited to situations     534 U.S. at 214. According to Professor Dobbs, “Restitution
such as that present in Morgan, where the settlement had not      claims for money are usually claims ‘at law.’ . . . On the other
yet been paid to the participant. Id.                             hand, restitution claims that may require coercive intervention
                                                                  or some judicial action that is historically ‘equitable[]’ may
   After thorough review, we believe that no clear or binding     be regarded as equitable claims.” Dobbs at 556 (emphasis
answer emerges to the question before us: whether a claim         added). “The most notable equitable procedures to enforce
maintained by a fiduciary against a participant or beneficiary,   restitution are the constructive trust, the equitable lien, and
who has recovered money from another and possesses that           subrogation. These procedures give the plaintiff restitution
recovery in an identifiable fund, is an equitable claim under     by giving the plaintiff title to, or a security interest in
29 U.S.C. § 1132(a)(3). We therefore must determine               particular property.” Id. at 565. Therefore, the procedural
ourselves how to answer that question, left open by Knudson.      posture of this case gives rise to a conundrum — QualChoice
To do so, we look to Dobbs on Remedies, relied upon by the        seeks restitution of money, which is typically a claim at law;
Court in Knudson. Professor Dobbs defines restitution as “a       however, QualChoice also seeks to obtain restitution by
return or restoration of what the defendant has gained in a       asking the court to impose a constructive trust or an equitable
transaction.” 1 Dan B. Dobbs, Law of Remedies 551 (2d             lien upon the identifiable fund of settlement recovery that
ed.1993) [hereinafter Dobbs]. The purpose of restitution “is      Rowland allegedly possesses, which is typically an equitable
to prevent the defendant’s unjust enrichment by recapturing       claim. The Fifth and Seventh Circuits hold that Knudson
the gains the defendant secured in a transaction.” Id. at 552.    indicates that district courts have federal question jurisdiction
Both restitution and damages may be appropriate remedies for      to impose a constructive trust or an equitable lien in cases
breach of contract; however, they each measure the remedy         such as this — where the plan participant or beneficiary has
differently. Id. “Restitution measures the remedy by the          recovered from another entity and possesses that recovery in
defendant’s gain and seeks to force disgorgement of that gain.    an identifiable fund. Bombardier, 354 F.3d 348; Varco, 338
It differs in its goal or principle from damages, which           F.3d 680.
measures the remedy by the plaintiff’s loss and seeks to
No. 02-3614                 QualChoice, Inc. v. Rowland          19    20       QualChoice, Inc. v. Rowland                      No. 02-3614

   We conclude, however, that the source of the claim asserted         QualChoice paid for Rowland’s medical expenses, but it did
by QualChoice is a contract to pay money, and that the                 not give QualChoice a property right in any particular fund.4
procedural mechanisms of constructive trust and equitable
lien are not proper mechanisms for enforcing this right, as               This court has explicitly held that subrogation is not
such relief would not have traditionally been awarded by a             available in a situation such as this, when the plan participant
court of equity in a breach of contract action. Historically,          or beneficiary has already recovered, because subrogation
legal restitution was limited by the concept of formal title.          allows a plan fiduciary only to step into the shoes of a plan
Dobbs at 586. Equitable restitution developed to fill the void         participant or beneficiary and assert the rights of the
left by that limitation and allowed plaintiffs, who lacked             participant or beneficiary against another; subrogation does
formal title, to bring actions for restitution. The problem of         not allow a plan fiduciary to obtain a judgment of personal
formal title was irrelevant in cases where the plaintiff sought        liability against a plan beneficiary or particpant. Mosser, 347
intangibles, such as money; therefore, all plaintiffs could            F.3d at 623-24; see also Dobbs at 588, 604. Therefore,
bring such actions in the courts of law. Historically, when a          QualChoice may have been able to use subrogation to step
plaintiff sought restitution of money for breach of contract, he       into the shoes of Rowland during the settlement negotiations
brought an action for assumpsit, which is a legal remedy. Id.          with W & LE, but QualChoice may not now use the doctrine
at 571, 578-79 (“Assumpsit was the common law form of                  of subrogation to impose personal liability on Rowland.
action by which contract claims were redressed.”).
                                                                         We are aware of significant scholarly criticism of Knudson
   Contrary to Rowland’s assertions, a plaintiff is not                for defining the scope of relief available under ERISA by
necessarily required to prove wrongdoing by the defendant in           looking to historical practice of the courts of England. See,
order to obtain relief through imposition of a constructive            e.g., John H. Langbein, What ERISA Means by “Equitable”:
trust or an equitable lien. Id. at 597-98. “The constructive           The Supreme Court’s Trail of Error in Russell, Mertens, and
trust is based on property, not wrongs.” Id. at 597 (emphasis          Great-West, 103 Colum. L. Rev. 1317, 1318-20 (2003)
added). “In the constructive trust case the defendant has legal        (arguing that in drafting ERISA, Congress intended to
rights in something that in good conscience belongs to the             incorporate substantive trust law, including “make-whole
plaintiff. . . . The defendant is thus made to transfer title to the   relief,” such as money damages). The Supreme Court,
plaintiff who is, in the eyes of equity, the true ‘owner.’” Id.        however, has twice defined the scope of relief available under
at 587. “The equitable lien uses similar ideas to give the             § 1132(a)(3) of ERISA in terms of the relief “typically
plaintiff a security interest in the property or to give the           available in equity.” Mertens, 508 U.S. at 256-57 (listing
plaintiff only part of the property rather than all of it.” Id. at     “injunction, mandamus, and restitution” as examples of
588. It is true that an equitable lien or a constructive trust         equitable relief); see Knudson, 534 U.S. at 213-16 (limiting
may be imposed on a particular bank account. See id. at 591.           restitution available under § 1132(a)(3) to equitable
The fact that a plan participant or beneficiary places the             restitution). Applying the Supreme Court’s cases, we hold
money he recovered from another in a bank account does not,
however, change the nature of the action. The plan may have
obligated Rowland to reimburse QualChoice in the event that                 4
                                                                             The plan states, “If you re ceive paym ent, however designated, from
                                                                       a third party, you are obligated to reimburse QualChoice Health Plan,
                                                                       less a pro rata share of the reasonable attorneys’ fees and costs you
                                                                       sustained in obtaining such recovery.” J.A. at 28 (emphasis added).
No. 02-3614               QualChoice, Inc. v. Rowland      21

that a plan fiduciary’s action to enforce a plan-reimbursement
provision is a legal action, regardless of whether the plan
participant or beneficiary recovered from another entity and
possesses that recovery in an identifiable fund.
D. Additional Discovery
  Because we hold that QualChoice’s action is a legal one
seeking to recover money for Rowland’s breach of the plan’s
reimbursement provision, regardless of whether Rowland
possess an identifiable fund, we need not reach QualChoice’s
argument that the district court abused its discretion by
dismissing this action without allowing sufficient discovery
and within twenty-four hours of requesting that the parties
submit additional information.
                   III. CONCLUSION
  Based on the foregoing, we AFFIRM the district court’s
order dismissing this action for lack of subject matter
jurisdiction.
