     Case: 10-11168     Document: 00511509505          Page: 1    Date Filed: 06/15/2011




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

                                                  FILED
                                                                            June 15, 2011

                                     No. 10-11168                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



1 LINCOLN FINANCIAL COMPANY,

                                                   Plaintiff-Appellant
v.

METROPOLITAN LIFE INSURANCE COMPANY,

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:09-CV-577


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
        Plaintiff–Appellant 1 Lincoln Financial (“Lincoln”) argues that the district
court erred by awarding attorney’s fees and costs to Defendant-Appellee
Metropolitan Life Insurance Company (“MetLife”) in this lawsuit governed by
the Employment Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C.
§§ 1001 et seq. We hold that the district court did not err and we AFFIRM that
court’s award of attorney’s fees and costs to MetLife.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                       No. 10-11168

       This dispute stems from Lincoln’s attempt to recover a portion of life-
insurance benefits under an employee welfare benefit plan governed by ERISA.
Lincoln filed its claim after an individual had assigned her interest in benefits
from a life insurance policy to a funeral home, which in turn, assigned the
interest to Lincoln. MetLife denied the claim, Lincoln sued MetLife in state
court, and MetLife removed the case to federal court.                       After Lincoln
unsuccessfully moved to remand the case, MetLife moved for summary
judgment. Lincoln failed to oppose the motion and the district court granted
summary judgment in favor of MetLife. When MetLife moved for reasonable
attorney’s fees, Lincoln opposed the motion. The district court disagreed with
Lincoln and awarded MetLife $17,842.21 in attorney’s fees and costs.
Dissatisfied, Lincoln appealed.
       In a case governed by ERISA, we review the district court’s award of
attorney’s fees and costs for an abuse of discretion. Wade v. Hewlett-Packard
Develop. Co. LP Short Term Disability Plan, 493 F.3d 533, 541 (5th Cir. 2007).
ERISA authorizes a court to award costs “in its discretion.” 29 U.S.C. § 1132(g).
In Hardt v. Reliance Standard Life Ins. Co., the Supreme Court held that this
award is not limited to a “prevailing party.” 130 S.Ct. 2149, 2157–58 (2010).1
Rather, under § 1132(g)(1), a district court may award attorney’s fees and costs
if a party has achieved “some degree of success on the merits.” Id. at 2158. Once
a district court determines that a party is eligible for a fee award under §
1132(g)(1), a district court may consider whether fees are appropriate under the
factors outlined in Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255, 1266
(5th Cir. 1980). Hardt, 130 S.Ct. at 2158 n.8.




       1
        Prior to Hardt, we permitted an award of fees on a “prevailing party basis” and we did
not require a district court to consider the five factors. Wade, 493 F.2d at 542–43. Hardt
abrogates our “prevailing party” requirement.

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                                        No. 10-11168

       Lincoln argues that the district court erred because ERISA only permits
fee awards when a lawsuit is brought by a “participant, beneficiary, or fiduciary”
of a benefits plan governed by ERISA.2                 Lincoln asserts that it is not a
participant, beneficiary, or fiduciary.            This argument is flawed.          Indeed, §
1132(a) only permits for a fee award in a lawsuit filed by a “participant,
beneficiary, or fiduciary.”        But Lincoln’s claim exists because the original
participant and beneficiary assigned her interest to a business, which in turn,
assigned that interest to Lincoln. As an assignee, Lincoln stands in the shoes
of the original beneficiary and plan participant. FDIC v. Bledsoe, 989 F.2d 805,
810 (5th Cir. 1993). Therefore, § 1132 permits for an award of fees.
       Lincoln also argues that the district court erroneously concluded that
MetLife had satisfied the five factors outlined in Bowen.3 But, this argument is
irrelevant to the question of whether MetLife was entitled to fees as a threshold
matter. As the Court stated in Hardt, the requirement for an award of fees is
that a party achieve some degree of success on the merits. 130 S.Ct. at 2158. A
district court may consider the five factors, but Hardt does not mandate
consideration. 130 S.Ct. at 2158 & n.8 (“Because these five factors bear no
obvious relation to § 1132(g)(1)’s text or to our fee-shifting jurisprudence, they
are not required for channeling a court’s discretion when awarding fees under
this section.”)    MetLife motion’s for summary judgment was unopposed by



       2
        Lincoln did not object to the reasonableness of MetLife’s fees before the district court.
Lincoln’s failure to object means it waived the right to appeal that issue. Zhang v. Gonzales,
432 F.3d 339, 346–47 (5th Cir. 2005).
       3
         These factors are: (1) the degree of the opposing party’s bad faith or culpability; (2)
the opposing party’s ability to satisfy an attorney’s fee award; (3) whether an award of
attorney’s fees against the opposing party would deter others from acting under similar
circumstances; (4) whether the party requesting attorney’s fees aimed to benefit all
participants and beneficiaries of an ERISA plan or to resolve a significant legal question
regarding ERISA; (5) the merits of the parties’ positions. Hardt, 130 S.Ct. at 2154 n.1; see also
Dial v. NFL Player Supplemental Disability Plan, 174 F.3d 606, 613–14 (5th Cir. 1999).

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                                   No. 10-11168

Lincoln and the district court granted summary judgment in favor of MetLife on
all of Lincoln’s claims. MetLife clearly succeeded on the merits. Hardt, 130
S.Ct. at 2158. It was in the district court’s discretion to consider the five factors
as it did and that court did not abuse its discretion by concluding that the factors
permitted an award in MetLife’s favor.
      We AFFIRM.




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