IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 99-50064

Consolidated with 99-50332

Summary Calendar

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LIFE PARTNERS, INC., JOHN MORONEY,

Plaintiffs-Appellees,

versus

LIFE INSURANCE CO. OF NORTH AMERICA,

Defendant-Appellant.

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Appeals from the United States District Court

for the Western District of Texas

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October 27, 1999

Before POLITZ, HIGGINBOTHAM, and WIENER, Circuit Judges.

PER CURIAM:

In this appeal from an adverse declaratory judgment and

injunctive relief in an ERISA dispute, Defendant-Appellant Life

Insurance Co. of North America (“LINA”) asks us to reverse the

district court’s grant of summary judgment in favor of PlaintiffsAppellees John Moroney and Life Partners, Inc. LINA complains that

the district court erred in concluding that New York law does not

govern Moroney’s assignment of his life insurance policy rights to

Life Partners. LINA further complains that the district court

erred in awarding Moroney and Life Partners attorneys’ fees.

Subsequent to the district court’s entry of judgment in favor

of Moroney and Life Partners, LINA complied with the district
court’s order by recognizing the assignment of Moroney’s rights to

Life Partners. It is not within our power to invalidate that

assignment. Consequently, there is no live case or controversy

with respect to the validity of the assignment on which we or the

district court can pass judgment: Federal courts do not render

advisory opinions. United States v. Texas Tech. University, 17

F.3d 279, 286 (5th Cir. 1999). LINA’s appeal with respect to the

validity of the assignment is thus moot.

We turn now to LINA’s complaint that the district court erred

in awarding Moroney and Life Partners attorneys’ fees. We review

the district court’s decision to award attorneys’ fees for an abuse

of discretion. Wegner v. Standard Ins. Co., 129 F.3d 814, 820-21

(5th Cir. 1997). The fees in question were awarded pursuant to

ERISA, 29 U.S.C. § 1132(g)(1). “Although the decision to award

attorneys’ fees is discretionary, the court should consider the

following five factors in its analysis: (1) the degree of the

opposing parties’ culpability or bad faith; (2) the ability of the

opposing parties to satisfy an award of attorneys’ fees; (3)

whether an award of attorneys’ fees against the opposing party

would deter other persons acting under similar circumstances; (4)

whether the parties requesting attorneys’ fees sought to benefit

all participants and beneficiaries of an ERISA plan or to resolve

a significant legal question regarding ERISA itself; and (5) the

relative merits of the parties’ positions.” Wegner, 129 F.3d at

821. 

Here, the district court considered each of the five Wegner

factors. The decision to award attorneys’ fees was predicated in
part on the court’s findings that LINA’s position “bordered on

being frivolous” and that the relative merits of the parties’

positions clearly favored Moroney and Life Partners. While we do

not question the district court’s findings with respect to these

issues, we conclude that the court abused its discretion in

applying the findings to the entire duration of the underlying

litigation. 

As the district court itself ruled, the initial complaint

filed by Moroney and Life Partners failed to state a claim on which

relief could be granted because it alleged only state causes of

action that were preempted by ERISA. Until Moroney and Life

Partners amended their complaint on June 8, 1998 to state a cause

of action under ERISA, LINA’s defense to the claims was valid and

meritorious. We therefore conclude that Moroney and Life Partners

should not have been awarded attorney’s fees incurred prior to the

amending of the complaint on June 8, 1998. Accordingly, we affirm

the district court’s order awarding attorneys’ fees but vacate the

amount of that award and remand for a redetermination of the proper

amount of such fees, consistent with this opinion.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.