FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 March 27, 2006 

 THOMAS K. KAHN 

 CLERK

 Honorable Richard W. Goldberg, Judge, United States Court of International Trade,

*

sitting by designation.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-10850

________________________

D. C. Docket No. 03-02635-CV-BBM-1

OTIS J. HOLLOMAN,

JONELLA HOLLOMAN,

Plaintiffs-Appellants, 

versus 

MAIL-WELL CORPORATION, 

as Successor in Interest to 

Curtis 1000, Inc., an American 

Business Products Inc. Company, 

Defendant-Appellee. 

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(March 27, 2006)

Before DUBINA and MARCUS, Circuit Judges, and GOLDBERG , Judge. *
2

MARCUS, Circuit Judge:

Appellants Otis J. Holloman and Jonella Holloman appeal from the district

court’s order of final summary judgment entered in favor of appellee Mail-Well

Corp. (“Mail-Well”) on their claims brought under the federal Employee

Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1101–1114. After

thorough review, we conclude that the district court correctly granted final

summary judgment on the Hollomans’ claims. Moreover, we are unpersuaded by

appellants’ claim that the district court abused its discretion when it denied their

motions to compel discovery. Finally, we lack jurisdiction to consider an appeal by

the Hollomans’ attorney, Christopher Vaughn, challenging a sanctions order to pay

attorneys’ fees and accordingly dismiss that issue from the appeal.

I

The essential and undisputed facts in this case are these: Otis Holloman

worked for Curtis 1000, Inc., an American Business Products, Inc., (“ABP”)

company, from 1948 until he retired in 1991. Holloman joined two retirement

plans that ABP offered to certain key executives as a retention incentive. He joined

the ABP Supplemental Retirement Income Plan on June 5, 1984, and joined the

ABP Deferred Compensation Investment Plan on June 30, 1985. 

On both plans, Holloman elected a “Last Survivor Option.” Under this
3

option, Holloman would receive lower monthly benefit payments, but those

payments, instead of ending at Holloman’s death, would continue to his spouse for

the rest of her life if she outlived him. Mail-Well claims this survivor benefit only

applied to Otis Holloman’s wife at the time, who was Katherine Holloman. The

Hollomans say that the survivor benefit also applies to Otis Holloman’s current

wife, Jonella Holloman.

Each plan granted authority to the ABP board to amend the plan terms but

restricted that authority by providing that no amendment could reduce the benefits

to be paid to a participant. In 1990, ABP amended the plans so that each provided

that in the event of a change in control, the plan trustee would have “sole authority

to construe and determine the effects of the provisions of the Plan.” On July 9,

1990, ABP entered an agreement naming the First National Bank of Atlanta -- now

Wachovia -- as the plan trustee for both plans.

In 1991, Holloman retired and began receiving monthly joint and survivor

annuity payments. In November 1994, his wife, Katherine Holloman, died. Otis

Holloman then married Jonella Holloman on November 5, 1995. The Hollomans

claim that shortly thereafter, at a company Christmas party in December 1995, and

again in a later telephone conversation, a Curtis 1000 human resources

representative assured the Hollomans that Jonella Holloman would receive the
4

same benefits that Katherine Holloman was to have received.

On July 7, 2000, the defendant, Mail-Well, acquired ABP. In 2001,

Mail-Well decided to accelerate payment of benefits under the plans. Mail-Well

consulted with its legal counsel, and obtained approval for the acceleration from

Wachovia, the plan trustee, and the Mail-Well board of directors. The plans

specified “actuarial assumptions” for the payment of benefits, including life

expectancy estimates and an assumed 8% discount rate for the payment of benefits,

but they did not include specific instructions or actuarial assumptions for making

accelerated lump-sum payments. Mail-Well had an outside consulting firm, Mercer

Human Resources Consulting, calculate the accelerated payments based on

actuarial tables that approximately matched the life expectancy estimates used to

calculate benefits.

Otis Holloman received notice of the acceleration on August 29, 2001.

Without Holloman’s consent, Mail-Well paid him a lump-sum payment of

$436,443.00, which came out to $315,421.17 after taxes were withheld.

Holloman’s payment did not include any amount reflecting survivor benefits to be

paid to Jonella Holloman if she survived Otis Holloman.

On May 9, 2003, the Hollomans commenced suit in the Superior Court of

Fulton County, Georgia, for breach of contract, alleging specifically that Mail-Well
The doctrine of complete preemption permits federal question removal of ERISA claims 1

pleaded as state law claims. Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 66–67 (1987); Kemp v.

Int’l Bus. Machs. Corp., 109 F.3d 708, 712 (11th Cir. 1997). ERISA § 502(a), 29 U.S.C. § 1132,

allows private civil enforcement actions by plan participants. The provision reads:

§ 1132. Civil enforcement

(a) Persons empowered to bring a civil action

A civil action may be brought--

(1) by a participant or beneficiary--

(A) for the relief provided for in subsection (c) of this section, or

(B) to recover benefits due to him under the terms of his plan, to

enforce is rights under the terms of the plan, or to clarify his rights

to future benefits under the terms of the plan;

(2) by the Secretary, or by a participant, beneficiary or fiduciary for

appropriate relief under section 1109 of this title;

(3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice

which violates any provision of this subchapter or the terms of the plan, or

(B) to obtain other appropriate equitable relief (i) to redress such

5

had breached its contractual obligations by accelerating payments without majority

approval from the ABP board of directors, discounting payments, and denying

benefits to Jonella Holloman. Mail-Well removed the case to the United States

District Court for the Northern District of Georgia pursuant to 28 U.S.C. § 1441,

contending that the plaintiff's contract claims were preempted by the federal

Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1101–1114,

whose civil enforcement provisions completely displace analogous state law

claims. The plaintiffs then moved to remand the cause to state court, but the 1
violations or (ii) to enforce any provisions of this subchapter or the terms

of the plan;

(4) by the Secretary, or by a participant, or beneficiary for appropriate relief

in the case of a violation of 1025(c) of this title;

. . .

29 U.S.C. § 1132.

ERISA § 409, 29 U.S.C. § 1109, provides:

§ 1109. Liability for breach of fiduciary duty

(a) Any person who is a fiduciary with respect to a plan who breaches any of the

responsibilities, obligations, or duties imposed upon fiduciaries by this subchapter

shall be personally liable to make good to such plan any losses to the plan

resulting from each such breach, and to restore to such plan any profits of such

fiduciary which have been made through use of assets of the plan by the

fiduciary, and shall be subject to such other equitable or remedial relief as the

court may deem appropriate, including removal of such fiduciary. A fiduciary

may also be removed for a violation of section 1111 of this title.

(b) No fiduciary shall be liable with respect to a breach of fiduciary duty under this

subchapter if such breach was committed before he became a fiduciary or after he

ceased to be a fiduciary.

29 U.S.C. § 1109.

6

district court denied that application on November 17, 2003.

Soon thereafter, and with leave of court, the plaintiffs amended their

complaint stating claims under ERISA. The amended complaint specifically

alleged that Mail-Well’s actions amounted to failure to pay benefits (Count I), and

interference with benefits (Count II), and that Mail-Well’s modification of the

benefit plans without a majority vote amounted to a breach of fiduciary duty

(Count III). The plaintiffs sought declaratory relief, injunctive relief, compensatory
7

and punitive damages, and attorney’s fees and costs.

The plaintiffs and defendant filed cross motions for summary judgment, and

on January 24, 2005, the district court granted final summary judgment in favor of

the defendants. The Hollomans timely brought this appeal.

II

The Hollomans argue first that the district court erred in granting final

summary judgment. They also say that the district court erred in denying their

motions to compel discovery.

We review a district court’s grant or denial of summary judgment de novo.

Bochese v. Town of Ponce Inlet, 405 F.3d 964, 975 (11th Cir. 2005). We consider

only the evidence that was available to the district court at the time it considered

the motion. Welch v. Celotex Corp., 951 F.2d 1235, 1237 n.3 (11th Cir. 1992).

Summary judgment is appropriate when the evidence, viewed in the light most

favorable to the nonmoving party, presents no genuine issue of material fact and

compels judgment as a matter of law in favor of the moving party. See Fed. R. Civ.

P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Bochese, 405

F.3d at 975.

When reviewing a district court’s denial of a motion to compel discovery,

we apply an abuse of discretion standard. Sanderlin v. Seminole Tribe of Fla., 243
8

F.3d 1282, 1285 (11th Cir. 2001) (citing Burger King Corp. v. Weaver, 169 F.3d

1310, 1320 (11th Cir. 1999)). This means that a district court is allowed “a range

of choice” in such matters, and we will not second-guess the district court’s actions

unless they reflect a “clear error of judgment.” United States v. Kelly, 888 F.2d

732, 745 (11th Cir. 1989).

III

The Hollomans’ main argument is that the district court incorrectly granted

final summary judgment for the defendants based on its conclusion that the

Hollomans had failed to present sufficient evidence to take the case to trial. The

plaintiffs offer three reasons: first, that the plans did not allow Mail-Well to

distribute Otis Holloman’s benefits in a one-time lump-sum payment; second, that

the one-time lump-sum payment in essence amounted to a reduction in benefit

payments in violation of the express terms of the plans; and, finally, that the lumpsum payment failed to account for the joint and survivor annuity payments Jonella

Holloman was to receive if she outlived Otis Holloman.

All of the parties maintain, and we agree, that both of the retirement plans at

issue are “top hat” plans for purposes of ERISA. A top hat plan is “a plan which is

unfunded and is maintained by an employer primarily for the purpose of providing

deferred compensation for a select group of management or highly compensated
9

employees,” 29 U.S.C. §§ 1051(2), 1081(a)(3), 1101(a)(1). Top hat plans are

subject to ERISA, 29 U.S.C. § 1003(a), but notably, they are excluded from many

individual ERISA provisions on the basic assumption that high-level employees

are in a “strong bargaining position relative to their employers and thus do not

require the same substantive protections that are necessary for other employees.”

Goldstein v. Johnson & Johnson, 251 F.3d 433, 442 (3d Cir. 2001); see also 29

U.S.C. § 1051(2) (excluding top hat plans from participation and vesting

provisions); id. § 1081(a)(3) (excluding top hat plans from funding provisions); id.

§ 1101(a)(1) (excluding top hat plans from fiduciary liability provisions).

There is some uncertainty about what standard of review a district court

should apply when reviewing decisions made by the administrator of a top hat

plan. The district court observed that it was following a Third Circuit case,

Goldstein v. Johnson & Johnson, 251 F.3d at 433, and would review the plan

administrators’ decisions de novo rather than according some deference to the plan

administrators. In contrast, the defendants argue that the district court’s

determination conflicted with an earlier Supreme Court case, Firestone Tire and

Rubber Co. v. Bruch, 489 U.S. 101 (1989), and the district court should have

applied the more deferential arbitrary-and-capricious standard of review. We find it

unnecessary to decide whether the district court should have applied a deferential
In the Deferred Compensation Investment Plan, this provision reads:

2

XIV. AMENDMENT AND TERMINATION

A. Except as provided in B below, the Board, without consent of any

Participant or Beneficiary, may at any time or from time to time amend

the plan in any respect or terminate the Plan without restriction.

B. If the Participant is eligible to receive full benefits at age 62 or reduced

benefits at age 60 under the terms of the Plan, the benefit to which the

10

standard of review or de novo review. Because all of the questions in this case turn

on interpretation of what the plain terms of the plans permit and require, the results

would be precisely the same under either standard of review.

A.

The Hollomans first say that the plans did not authorize Mail-Well to

accelerate payments.

The Deferred Compensation Investment Plan contains a provision reading:

VIII. Acceleration of Payments

A. The Board (acting by majority vote) reserves the right in

its sole discretion to accelerate the payment of any

benefits payable under the Plan or the Joiner Agreement,

but the Board shall make no reductions in benefits other

than those provided in the Plan, based on the applicable

Actuarial Assumptions.

The Supplemental Retirement Income Plan contains an identical provision. Both

plans also contain separate provisions granting the Board the authority to amend

the terms of the plans. The term “Board” refers to the ABP board of directors. 2
Participant is entitled immediately after any amendment or termination

shall under no circumstances be less than the benefit to which he is

entitled before such amendment or termination became effective. In

addition, notwithstanding the right of the Board to amend or terminate the

Plan, the right (if any) of any Participant or Beneficiary to receive or to

continue to receive payments in accordance with the terms and conditions

of the Plan in effect on his retirement, death, disability or Termination of

Employment, shall under no circumstances be impaired or forfeited by

such amendment or termination.

In the Supplemental Retirement Income Plan, this provision reads:

XIV. AMENDMENT AND TERMINATION

A. Except as provided in B. below, the Board, without the consent of any

Participant or Beneficiary, may at any time or from time to time amend

the Plan in any respect or terminate the Plan without restriction.

B. If any participant is vested in his benefit under the terms of the Plan (i.e.,

he has reached age 62 or is eligible for reduced benefits at age 60), or if

the sum of his age and Service equals or exceeds 75, the benefit to which

the Participant is entitled (or to which he may became entitled upon

reaching a certain age) immediately after any amendment or termination,

shall under no circumstances be less than the benefit to which he is or

would become entitled to before such amendment or termination became

effective . In addition, notwithstanding the right of the Board to amend or

terminate the Plan, the right (if any) of any Participant or Beneficiary to

receive or to continue to receive payments in accordance with the terms

and conditions of the Plan in effect on his retirement, death, disability or

Termination of Employment, shall under no circumstances be impaired or

forfeited by such amendment or termination.

11

On January 1, 1990, the ABP board amended both plans to provide that in

the event of a change in control, the plan trustee would assume “sole authority to

construe and to determine the effects of the provisions of the Plan and the Trust on

the Participants and, if applicable, the Company.”

Later, in 2000, Mail-Well acquired ABP. On July 2, 2001, with the advice of
12

its counsel and with the approval of the plan trustee, Wachovia, Mail-Well’s board

of directors determined that when it succeeded the ABP board, it had assumed both

the authority to amend the plans’ terms and the authority to accelerate payments.

The Mail-Well board amended the plans to provide for one-time lump-sum

payments to plan participants.

Based on these facts, the district court found that the terms of the disputed

plans provided unambiguous authority for the acceleration of payments, thereby

making it unnecessary for the court to review any extrinsic evidence. We agree.

Mail-Well’s acquisition of ABP in 2000 triggered the change-in-control provisions

and, accordingly, made Wachovia, the plan trustee, responsible for determining

how the change in control affected the terms of the plans. Wachovia concluded that

the Mail-Well board had stepped into the shoes of the ABP board and had assumed

the authority that the ABP board had previously held, including the power to

amend the terms of the plans and accelerate payments of plan benefits. Quite

simply, Mail-Well’s decision to distribute Holloman’s future payments in a lump

sum plainly complied with the terms of the retirement plans. And the terms of the

plans take precedence over any assurances the Hollomans may have received from

Curtis 1000 employees. See, e.g., Meadows ex rel. Meadows v. Cagle’s, Inc., 954

F.2d 686, 691 (11th Cir. 1992) (“When plan documents unambiguously address the
The provision governing acceleration of payments contains identical wording in both 3

retirement plans:

VIII. Acceleration of Payments

A. The Board (acting by majority vote) reserves the right in its sole

discretion to accelerate the payment of any benefits payable under

the Plan or the Joiner Agreement, but the Board shall make no

reductions in benefits other than those provided in the Plan, based

on the applicable Actuarial Assumptions.

The provisions governing amendment and termination of the plans are reproduced above.

Supra note 2.

13

substantive rights of the parties at issue, the plan language controls . . . .”).

B.

The plaintiffs also argue that even if the plans allowed Mail-Well to

authorize lump-sum payments, the methods Mail-Well used to calculate the lumpsum payment to Holloman effected a reduction in benefits in violation of the terms

of the plans. The provisions in the plans that govern acceleration of payments and

amendment and termination of the plans clearly specify that no acceleration,

amendment, or termination may reduce the benefits payable to a plan participant.3

The plans did not specify life expectancy estimates or discount rates to be

used in calculating accelerated lump-sum payments. Accordingly, Mail-Well

calculated the lump-sum payments to Holloman and other beneficiaries using a

1983 Group Annuity Mortality (GAM 83) table and a discount rate of 7%. Mercer

Human Resources Consulting determined that this table was similar to the table the
14

plans employed for the calculation of monthly payments.

The district court found that Mail-Well was entitled to summary judgment

because it had acted reasonably and diligently in calculating the lump-sum

payments. However, because the plan terms clearly prohibit any reduction in

benefits, the issue was not whether Mail-Well acted reasonably and carefully in

calculating the payments; it was whether the lump-sum payments were actually

equivalent in value to the stream of future payments Holloman was to have

received originally.

Nevertheless, we affirm the district court’s grant of summary judgment in

favor of Mail-Well, because the Hollomans did not present any affirmative

evidence to show that the lump-sum payment was not fully equivalent in value to

the future benefits payable. Because the Hollomans were the plaintiffs in the case,

it was their burden to prove the ultimate issue of liability. Once Mail-Well filed a

properly supported motion for summary judgment (which they did), the burden fell

to the Hollomans to produce some evidence that could support a verdict in their

favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (“[T]he

plaintiff must present affirmative evidence in order to defeat a properly supported

motion for summary judgment.”); see also Lujan v. Defenders of Wildlife, 504

U.S. 555, 561 (1992) (“In response to a summary judgment motion, . . . the
15

plaintiff can no longer rest on . . . ‘mere allegations,’ but must ‘set forth’ by

affidavit or other evidence ‘specific facts’ which for purposes of the summary

judgment motion will be taken to be true.” (quoting Fed. R. Civ. P. 56(e))).

The Hollomans did not present evidence that could support their claim that

the lump-sum payment Mail-Well paid to Otis Holloman was not equivalent in

value to the stream of payments that Otis Holloman was to receive in the future.

We cannot accept the contention that the act of discounting Holloman’s benefit

payments to present value necessarily amounted to a reduction in benefits.

Discounting to present value is a standard way to account for the fact that a dollar

amount to be received in the future is generally worth less than the same dollar

amount received in the present. By contending that Mail-Well could not discount

future payments to present value, the Hollomans are essentially saying that the

value of any lump-sum payment had to exceed the value of the stream of future

payments that it was meant to replace. The plan terms only required Mail-Well to

pay the equivalent of Holloman’s future payments. It surely did not require them to

pay more than the value of Holloman’s future payments.

The Hollomans presented no affirmative evidence -- such as market annuity

prices, or evidence of life expectancy estimates and discount rates used in the

private market -- to establish the true present value of the future payments or
16

otherwise show that value of the lump-sum payment fell short of the value of

Holloman’s future benefit payments. All that the Hollomans offered were

conclusory assertions that Mail-Well had shortchanged them; these broad

conclusions standing alone could not have supported a verdict in the Hollomans’

favor. Thus, the district court properly concluded that the Hollomans failed to

present enough evidence to proceed to trial on their claim that the lump-sum

payment was inadequate.

C.

The plaintiffs further argue that the lump-sum payment fell short because it

failed completely to account for payments Jonella Holloman would receive under

the plans’ Last Survivor Option in the event that she outlived Otis Holloman.

The provision at issue is worded the same way in both plans:

4. The Participant may request, at least one (1) year prior to his

actual retirement, that he receive a reduced monthly benefit

with the provision that his spouse receive a survivor benefit for

life; provided, the Committee may decide in its sole discretion

whether to honor such request. Such reduced amounts will be

calculated individually based on the applicable Actuarial

Assumptions.

The parties agree that Otis Holloman properly elected this option. Mail-Well

contends, however, that only Katherine Holloman, Otis Holloman’s wife at the

time he elected the option, could have received survivor benefits. The Hollomans
17

say that Jonella Holloman, Otis Holloman’s current wife, is also entitled to

survivor benefits under the plans. The district court concluded that because the

participant had to request the Last Survivor Option in advance and because the

amount of the reduced payments would be calculated based on the joint life

expectancy of the participant and his spouse, the terms of the plans plainly

indicated that only the participants’ spouse at the time of the election would be

eligible to receive survivor benefits.

The Hollomans contend, however, that the district court’s conclusion was

incorrect for two reasons: first, the Supreme Court’s decision in Boggs v. Boggs,

520 U.S. 833 (1997), supports their view; and, second, the terms of the plans made

Jonella Holloman Otis Holloman’s beneficiary. We remain unpersuaded.

In Boggs, the Supreme Court held that the joint and survivor annuity

provision of ERISA, 29 U.S.C. § 1055, preempted Louisiana state law permitting

testamentary transfers of community property interests in undistributed pension

benefits. Boggs, 520 U.S. at 844. The appellants argue that Boggs identified the

protection of surviving spouses as one of the core purposes behind § 1055. But

Boggs does not support the appellants’ claim. First of all, the provision the

Supreme Court was interpreting in Boggs, § 1055, does not apply to “top hat”

plans like the plans at issue in this case. 29 U.S.C. § 1051(2) (excluding top hat
18

plans from ERISA’s participation and vesting requirements).

But even if the statutory purpose of § 1055 were somehow relevant, the

plaintiffs’ argument still would not succeed. When Otis Holloman retired and when

he began receiving his plan payments, his spouse was Katherine Holloman. Jonella

Holloman married Otis Holloman only after Katherine Holloman’s death. ERISA’s

interest in protecting surviving spouses does not extend so far as to require that

retirement plans ensure continued benefit payments to anyone whom a plan

participant might marry after his retirement and after the death of his spouse. To

begin with, even under joint and survivor annuity plans that are directly governed

by § 1055, survivor annuity benefits are only available to a spouse who was

married to the participant when the annuity payments began. See Dorn v. Int’l Bhd.

of Elec. Workers, 211 F.3d 938, 942 (5th Cir. 2000) (per curiam) (noting that

under an ERISA qualified joint and survivor annuity, “(1) the . . . annuity

payments cease at the death of the participant spouse, regardless of whether his

death occurs before or after the death of the non-participant spouse; and (2) if, but

only if, the non-participant spouse survives the participant spouse does the

survivor’s annuity kick in.” (emphasis added)). In addition, the statute expressly

permits employers to restrict joint and survivor annuity benefits by requiring that

the participant and spouse be married for at least one year before the earlier of the
The relevant provision appears in section V.A.3 of each plan: 4

3. The benefit will be payable during the Participant’s life after retirement, and not

less than 180 monthly payments will be made to the Participant or to his

Beneficiary in the event of the Participant’s death prior to receiving 180 monthly

payments.

19

starting date of the participant’s annuity or the date of the participant’s death. 29

U.S.C. § 1055(b)(4), (f)(1). It is clear, then, that § 1055 only contemplates

payments to a surviving spouse who is married to the participant when annuity

payments begin and outlives the participant. Section 1055 does not even indirectly

support the Hollomans’ position.

The appellants’ second argument is that the terms of the plans made Jonella

Holloman Otis Holloman’s beneficiary. They point to a provision defining the term

“Beneficiary” in the Plan and providing that the participant’s surviving spouse

becomes the beneficiary if the participant dies without having designated a

beneficiary. This definition bears no relation to the Last Survivor Option under

dispute. In each of the retirement plans at issue, payments to plan beneficiaries and

payments to a surviving spouse under the Last Survivor Option are separate,

distinct features. Payments to beneficiaries are governed by section V.A.3, which

provides that if the participant dies before receiving 180 monthly payments,

payments will continue to the participant’s beneficiaries until the participant and

his beneficiaries have received a total of 180 monthly payments. The Last 4
20

Survivor Option is governed by a different section, section V.A.4, which provides

for lifetime payments to a surviving spouse if the participant has elected the option

and the election has been approved. Only a surviving spouse is eligible for benefits

under the Last Survivor Option. Nothing in the terms of the plans suggests that the

benefits of the Last Survivor Option pass to the plan beneficiary if the participant’s

spouse dies before the participant does.

In short, we can discern no reason to reject the district court’s interpretation

of the Last Survivor Option.

D.

Finally, the Hollomans say that the district court erred in rejecting their

claims that Mail-Well breached fiduciary obligations. The district court noted that

the plaintiffs had failed to explain what precise acts had breached fiduciary

obligations. It further observed, correctly, that the fiduciary responsibility

provisions of ERISA, 29 U.S.C. §§ 1101–1114, do not apply to top hat plans. 29

U.S.C. § 1101(a)(1); see also Goldstein, 251 F.3d at 443 (“[W]e reject

[defendant’s] contention that, because ERISA’s definitional section lists a

‘fiduciary’ as one who exercises discretion in interpreting the terms of a plan,

administrators of top hat plans are also fiduciaries. To begin with, ERISA

explicitly states that top hat plans are not subject to the ERISA’s fiduciary
21

requirements. Further, it is well established in the caselaw that there is no cause of

action for breach of fiduciary duty involving a top hat plan.” (citations omitted));

Reliable Home Health Care, Inc., v. Union Cent. Ins. Co., 295 F.3d 505, 512, 516

(5th Cir. 2002) (finding that the plaintiff could not recover from a plan provider for

breach of fiduciary duty because the plan was a top hat plan); Garratt v. Knowles,

245 F.3d 941, 949 (7th Cir. 2001) (“Garratt had suggested that despite preemption

of his state law claims, ERISA would permit his suit against the defendants for

breach of fiduciary duty. However, since a top hat plan is exempt from ERISA’s

fiduciary rules, Garratt would have no basis to bring such a claim.”); Demery v.

Extebank Deferred Comp. Plan (B), 216 F.3d 283, 290 (2d Cir. 2000) (“[A]s the

fiduciary responsibility provisions of ERISA do not apply to top hat plans, to the

extent that plaintiffs’ claim for breach of fiduciary duty was based upon ERISA,

the district court correctly dismissed it.” (citation omitted)).

Because the two plans at issue are both top hat plans, Mail-Well owed no

fiduciary duties to the Hollomans under ERISA. It necessarily follows that the

Hollomans have no claim against Mail-Well for breach of fiduciary duties under

ERISA. Having found that the district court correctly interpreted the provisions of

the two retirement plans at issue and the governing law, we have little difficulty

concluding that the district court properly granted final summary judgment to
22

Mail-Well on all of appellants’ claims.

IV

The Hollomans also argue that we should reverse and remand for trial

because the district court improperly denied several motions they filed requesting

that the court compel the defendants to cooperate in discovery. We are

unpersuaded that the district court abused its discretion.

By court order, discovery in the case was originally scheduled to end on

February 7, 2004. After that date passed, on March 3, 2004, the Hollomans filed a

motion to extend time for discovery; Mail-Well did not oppose the motion. The

district court agreed to extend discovery until May 7, 2004, but the district judge

expressly warned the parties that she would not grant any further extensions.

Indeed, the court observed, “The parties are instructed to conduct discovery in such

a way as to conclude all necessary discovery within this time period, as no further

extensions will be granted.” (emphasis added).

On May 7, 2004, the last day of the extended discovery period, the plaintiffs

filed a number of motions to compel discovery. The first of these motions sought

to compel depositions of three individuals whom the defendants had identified in

their responses to interrogatories as persons who might have knowledge pertinent

to the plaintiffs’ claims; sought to compel the defendants to supplement their
23

responses to interrogatories to identify persons who possessed the relevant

information; sought to compel production of documents, including the document in

which Otis Holloman made his spousal election; and moved for sanctions against

the defense attorneys under 28 U.S.C. § 1927. A second motion sought an order

compelling an individual to comply with a subpoena. The plaintiffs’ third

discovery motion sought to compel compliance with an April 27, 2004, subpoena

ordering Marsh & McLennan, the parent company of Mercer Human Resources

Consulting, to produce certain documents and to produce one of its employees for

deposition. Finally, a fourth application sought to compel Wachovia to comply

with an April 15, 2004, subpoena for documents believed to be related to the

plaintiffs’ claims.

The Hollomans withdrew the second motion before the district court ruled

on it. The court denied the remaining three motions.

The Hollomans make two principal arguments: first, they say that the district

court abused its discretion when it found that the plaintiffs had failed to make good

faith efforts to resolve the discovery disputes as required by Rule 37 of the Federal

Rules of Civil Procedure; second, they claim that the fact that they filed their

notices of deposition and motions to compel within the discovery period entitled

them to orders compelling discovery.
24

The district court denied some of the motions for reasons unrelated to

whether the Hollomans had made good faith efforts to confer with the defendants:

The court denied the motion to compel production of documents because the

Hollomans failed to accurately cite their original discovery requests as required by

local court rules. The court denied the motion to compel compliance with

subpoenas to Marsh & McLennan and Wachovia because it lacked jurisdiction

over subpoenas issued by other courts. And the court denied the motion to compel

Marsh & McLennan to produce its employee for deposition because the plaintiffs

failed to prove the subpoena ever issued. The plaintiffs’ arguments therefore have

little bearing on these rulings, and the plaintiffs have provided no reason for us to

reverse the district court’s decisions on these motions.

The remaining motions sought to compel supplementation and the

depositions of three individuals named in the defendants’ responses to

interrogatories. The district court denied them based on what it termed a failure to

work with the defendants in good faith to schedule the depositions and ensure that

the defendants could comply in a timely way with their requests.

After thorough review of the record, we remain unpersuaded. At best, the

plaintiffs’ arguments merely urge a different interpretation of the facts. The

plaintiffs have not shown, however, that the district court’s interpretation of the
25

facts was untenable, or that denying the motions somehow fell outside the broad

“range of choice” open to the district court under these circumstances, United

States v. Kelly, 888 F.2d 732, 745 (11th Cir. 1989). Accordingly, we affirm the

district court’s discovery rulings in all respects.

V

In the Hollomans’ appellate brief, the Hollomans’ attorney, Christopher

Vaughn, also raised an appeal to a sanctions order the district court imposed on

him under 28 U.S.C. § 1927 for filing motions to compel discovery that the district

court found to have been without merit and in bad faith. As for this issue, we lack

jurisdiction because Vaughn did not file a timely notice of appeal.

The federal courts of appeals are courts of limited jurisdiction. We must

consider questions concerning our appellate jurisdiction on our own motion even if

neither party has raised the issue. Bochese v. Town of Ponce Inlet, 405 F.3d 964,

974–75 (11th Cir. 2005).

It is by now abundantly clear that a timely and properly filed notice of

appeal is a mandatory prerequisite to appellate jurisdiction. Torres v. Oakland

Scavenger Co., 487 U.S. 312, 315 (1988) (citing United States v. Robinson, 361

U.S. 220, 224 (1960)). This rule is absolute and inflexible. However, courts are

forgiving in determining what constitutes effective notice of appeal. Thus, a court
26

filing may serve as an effective notice of appeal as long as it clearly indicates the

party’s intention to appeal and communicates the basic information required by

Rule 3(c)(1) of the Federal Rules of Appellate Procedure: the names of the parties

taking the appeal; the judgment or order being appealed; and the court to which the

parties are taking the appeal. See Rinaldo v. Corbett, 256 F.3d 1276, 1278–79

(11th Cir. 2001); Smith v. Barry, 502 U.S. 244, 247–48 (1992); Fed. R. App. P.

3(c)(1). The notice need not always be explicit; in some circumstances notice may

be adequate when the party’s intent to appeal is “objectively clear” from all of the

circumstances. Fed. R. App. P. 3(c) advisory committee’s note.

Vaughn, however, failed to meet even the barest of these lenient

requirements. He did not file any document or series of documents that indicated

he sought to appeal the district court’s order imposing attorneys’ fees. Notably,

Vaughn did not file a separate notice of appeal in his own name, and he did not list

himself as a party on the Hollomans’ notice of appeal. “The failure to name a party

in a notice of appeal . . . constitutes a failure of that party to appeal.” Torres, 487

U.S. at 314. The Hollomans’ appellants’ brief also did not serve as effective notice

of Vaughn’s intent to appeal, because it was not filed until after the deadline for

filing notice of appeal.

In Corporation of the Presiding Bishop of the Church of Jesus Christ of
27

Latter-Day Saints v. Associated Contractors, Inc., 877 F.2d 938 (11th Cir. 1989),

we agreed to hear an appeal from Rule 11 sanctions awarded against the plaintiff

and its attorney even though the notice of appeal only named the plaintiff as an

appellant. Id. at 939 n.1. In that case, however, the district court had imposed

sanctions on the plaintiff and the attorney jointly and severally, and the notice of

appeal specifically stated that the sanctions were the subject of the appeal. Id. In

this case, by contrast, the sanctions were imposed only on the attorney, and the

notice of appeal stated only that the parties (not the lawyer) were appealing the

judgment of the court. This case is therefore more like Bogle v. Orange County

Board of County Commissioners, 162 F.3d 653 (11th Cir. 1998), where we refused

to hear an attorney’s appeal from Rule 11 sanctions imposed only against the

attorney because the notice of appeal only listed the client as an appellant. Id. at

661.

Vaughn did not list himself as an appellant on the Hollomans’ notice of

appeal, and he did not file a notice of appeal in his own name. Nor was it

“objectively clear from the notice,” Fed. R. App. P. 3(c) advisory committee’s

note, that Vaughn would be appealing the sanctions order. Vaughn therefore failed

to file a proper notice of appeal, and we lack jurisdiction to hear his appeal from

the sanctions order. Accordingly, we are constrained to dismiss Vaughn’s appeal
28

for lack of jurisdiction.

AFFIRMED IN PART; DISMISSED IN PART.