### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 19

- 50327 Summary Calendar

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 Tex as corporation; METROCARE EMS, INCORPORATED; METROCARE EMS, L.P.,
Defendants

- Appellees

************************************************************************ ALICIA CLUCK,
Plaintiff

- Appellant

v.
METR OCARE SERVICES

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

- Appellees United States Court of Appeals Fifth Circuit 

### FILED November 20, 2019 Lyle W. Cayce Clerk Case: 19-50327 Document: 00515206390 Page: 1 Date Filed: 11/20/2019No. 19

- 50327

2 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 tha t 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), 2 9 U.S.C. §§ 1001

- 1 4 61

. In 2018, t he district court gran t ed partial summary judg ment to MetroCare Services and remand ed 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

as sessing 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 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. Case: 19-50327 Document: 00515206390 Page: 2 Date Filed: 11/20/2019No. 19

- 50327

3 fees solely against Cluck. Cluck then filed a motion , which the district court constru ed as a motion fo r 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 deg ree 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 S ervices 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 th is three

- year period and thus was improper

. But Cluck ignores that t he same Texas statute also provides that if an action is brought by or against a terminated entity before Case: 19-50327 Document: 00515206390 Page: 3 Date Filed: 11/20/2019No. 19

- 50327

4 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 t his 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 Lo cal 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 i s not a sanction

. S uch 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

. I II
. For the foregoing reasons, the orders of the district court are AFFIRMED. Case: 19-50327 Document: 00515206390 Page: 4 Date Filed: 11/20/2019