     Case: 19-50327   Document: 00515206390   Page: 1   Date Filed: 11/20/2019




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

                                                                    FILED
                                No. 19-50327                 November 20, 2019
                              Summary Calendar
                                                               Lyle W. Cayce
                                                                    Clerk
ALICIA CLUCK,

             Plaintiff - Appellant

v.

METROCARE SERVICES - AUSTIN, L.P., A subsidiary of MetroCare EMS,
Incorporated, a subsidiary of Acadian Ambulance Services, Incorporated, and
a subsidiary of Acadian Ambulance Services of Texas, L.L.C.; A Texas
corporation; METROCARE EMS, INCORPORATED; METROCARE EMS,
L.P.,

             Defendants - Appellees


************************************************************************

ALICIA CLUCK,

             Plaintiff - Appellant

v.

METROCARE SERVICES - AUSTIN, L.P.; METROCARE EMS,
INCORPORATED

             Defendants - Appellees
     Case: 19-50327      Document: 00515206390         Page: 2    Date Filed: 11/20/2019



                                      No. 19-50327



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:16-CV-1216
                              USDC No. 1:17-CV-33


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM:*
       Plaintiff Alicia Cluck contests the district court’s award of attorney’s fees
to defendant MetroCare Services – Austin, L.P. Because her arguments that
the award was improper are meritless, we AFFIRM.
                                             I.
       This case began in state court in 2007. In 2012, while the state-court case
was ongoing, MetroCare Services’ registration as a limited partnership was
terminated. In 2016, the case was removed to federal court under federal-
question jurisdiction, as some of Cluck’s claims implicated the Employment
Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001-1461. In 2018, the
district court granted partial summary judgment to MetroCare Services and
remanded the case to state court for resolution of the remaining state-law
claim.
       MetroCare Services then moved the district court for attorney’s fees
under ERISA’s fee-shifting provision. The magistrate judge recommended
assessing an award of attorney’s fees against Cluck and her attorneys, and the
district court adopted the recommendation in part, assessing the attorney’s




       * 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. 19-50327
fees solely against Cluck. Cluck then filed a motion, which the district court
construed as a motion for reconsideration and denied. Cluck timely appealed.
                                       II.
      Under ERISA, the district court “in its discretion may allow a reasonable
attorney’s fee and costs of action to either party.” 29 U.S.C. § 1132(g)(1). The
Supreme Court has interpreted this language to mean that a district court has
discretion to award attorney’s fees “as long as the fee claimant has achieved
‘some degree of success on the merits.’” Hardt v. Reliance Standard Life Ins.
Co., 560 U.S. 242, 245 (2010) (quoting Ruckelshaus v. Sierra Club, 463 U.S.
680, 694 (1983)).
      We review a district court’s award of attorney’s fees under this provision
for abuse of discretion. N. Cypress Med. Ctr. Operating Co. v. Aetna Life Ins.
Co., 898 F.3d 461, 485 (5th Cir. 2018). And we review a district court’s ruling
on a motion for reconsideration under that same standard. See Life Partners
Creditors’ Tr. v. Cowley (In re Life Partners Holdings, Inc.), 926 F.3d 103, 128
(5th Cir. 2019).
      On appeal, Cluck does not dispute that MetroCare Services achieved
some degree of success on the merits. Rather, she argues first that MetroCare
Services cannot seek attorney’s fees because it no longer exists and second that
the award of attorney’s fees violated her due-process rights. Neither argument
is persuasive.
      MetroCare Services was organized under Texas law, which states that a
terminated entity “continues in existence,” for certain enumerated purposes,
for three years from the date of its termination. Tex. Bus. Orgs. Code Ann.
§ 11.356(a). Cluck argues that because MetroCare Services was terminated in
2012, its 2018 request for attorney’s fees fell outside this three-year period and
thus was improper. But Cluck ignores that the same Texas statute also
provides that if an action is brought by or against a terminated entity before
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                                  No. 19-50327
the three-year period elapses, the entity “continues to survive for purposes of
. . . the action until all judgments, orders, and decrees have been fully
executed.” § 11.356(c). Because this action has been ongoing since before
MetroCare Services’ termination, Cluck’s first argument fails.
      Cluck’s second argument is that the district court violated due process
by ordering her to pay attorney’s fees without first determining her financial
wherewithal. But we have previously said that, in the ERISA context, a district
court “is not required” to consider “the ability of the opposing parties to satisfy
an award of attorneys’ fees.” N. Cypress, 898 F.3d at 485 (quoting Iron Workers
Local No. 272 v. Bowen, 624 F.2d 1255, 1266 (5th Cir. 1980)); accord Hardt,
560 U.S. at 254-55.
      In arguing to the contrary, Cluck relies on out-of-circuit caselaw
pertaining to the imposition of sanctions. See, e.g., Martin v. Automobili
Lamborghini Exclusive, Inc., 307 F.3d 1332, 1337 (11th Cir. 2002) (“[W]hen
exercising its discretion to sanction under its inherent power, a court must take
into consideration the financial circumstances of the party being sanctioned.”).
Yet an award of attorney’s fees under ERISA is not a sanction. Such an award
is possible whenever one party achieves “some degree of success on the merits,”
Hardt, 560 U.S. at 255, and the availability of fees does not depend on the other
side’s “culpability or bad faith,” id. at 249 n.1; see id. at 254-55. Cluck’s
authorities are inapposite.
                                       III.
      For the foregoing reasons, the orders of the district court are
AFFIRMED.




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