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### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

Nos. 04-1146/1942; 05-1109
R ICHARD L. M OORE
, Plaintiff-Appellant,

v.

L AFAYETTE L IFE I NSURANCE C O ., an Indiana Corporation; M ICHIGAN T OOLING A SSOCIATION , a Michigan Corporation; M ICHIGAN T OOLING A SSOCIATION L ONG T ERM D ISABILITY P LAN ; M ICHIGAN T OOLING A SSOCIATION S HORT T ERM D ISABILITY P LAN , Jointly and Severally, Defendants-Appellees.

No. 04-1945
R ICHARD L. M OORE
, Plaintiff-Appellant/Cross-Appellee,

v

.

L AFAYETTE L IFE I NSURANCE C O ., an Indiana Corporation, Defendant-Appellee/Cross-Appellant,

M ICHIGAN T OOLING A SSOCIATION , a Michigan Corporation; M ICHIGAN T OOLING A SSOCIATION L ONG T ERM D ISABILITY P LAN ; M ICHIGAN T OOLING A SSOCIATION S HORT T ERM D ISABILITY P LAN
, Jointly and Severally, Defendants. 

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> 

### , - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - N Nos. 04-1146/1942/1945; 05-1109

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 01-73944—Robert H. Cleland, District Judge.

Argued: December 2, 2005

Decided and Filed: August 7, 2006

1Nos. 04-1146/1942/1945; 05-1109 Moore v. Lafayette Life Ins. Co., et al. Page 2

* The Honorable Solomon Oliver, Jr., United States District Judge for the Northern District of Ohio, sitting by designation. Before: CLAY and COOK, Circuit Judges; OLIVER, District Judge. *

_________________ COUNSEL

ARGUED: Mary C. O’Donnell, DURKIN, McDONNELL, CLIFTON & O’DONNELL, Detroit, Michigan, for Appellant. D. Andrew Po rtinga, MILLER, JOHNSON, SNELL & CUMMISKEY, Grand Rapids, Michigan, Elaine A. Parson, RAYMOND & PROKOP, Southfield, Michigan, for Appellees. ON BRIEF: Mary C. O’Donnell, Gregory A. Clifton, DURKIN, McDONNELL, CLIFTON & O’DONNELL, Detroit, Michigan, for Appellant. D. Andrew Portinga, MILLER, JOHNSON, SNELL & CUMMISKEY, Grand Rapids, Michigan, Elaine A. Parson, Jeffrey D. Wilson, RAYMOND & PROKOP, Southfield, Michigan, for Appellees.

CLAY, J., delivered the opinion of the court. OLIVER, D. J. (p. 26), delivered a separate concurring opinion, in which COOK, J., joined. C OOK, J. (pp. 27-29), deliver ed a separate opinion concurring in part and dissenting in part.

_________________ OPINION

_________________ CLAY, Circuit Judge. Plaintiff, Richard L. Moore, appeals the district court’s judgments in favor of Defendants Lafayette Life Insuran ce Co. (“Lafayette”) and the Michigan Tooling Association (“MTA”). The distri ct court granted judgment to Defe ndants on Plaintiff’s claims under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq

. Plaintiff also appeals the district court’s award of partial attorneys’ fees and costs to Defendants, along with sanctions against Plaintiff’s attorney. Defendant Lafayette cross-appeals the award of attorneys’ fees in its favor as too low. For the reasons which follow, we AFFIRM the decision of the district court in all respects.

I.

BACKGROUND

A. Substantive Facts

Defendant MTA is an association of approximately 700 member companies in the metalworking industry in Michigan. Plaintiff is a licensed insurance agent in the state of Michigan. MTA hired Plaintiff in 1971 to handle all group life, disability, and workers’ compensation insurance for MTA and its member companies. While Plaintiff was initially hired as a salaried employee, in 1972 MTA and Plaintiff agreed thatPlaintiff’s compensation would come only from commissions for premiums paid and signed a “M emorandum of Understanding” (“MOU”) to that effect. Plaintiff’s responsibilities included taki ng “complete responsibility for all Group Life and Disability insurance for the Detroit Tooling Asso ciation . . . . handl[ing] all questions, claim problems and generally servic[ing] all participants inthe plan . . . .” (J .A. at 1722.) The MOU also provided that Plaintiff would pay all his own e xpenses. MTA filed 1099s on Plaintiff for income tax purposes.Nos. 04-1146/1942/1945; 05-1109 Moore v. Lafayette Life Ins. Co., et al. Page 3

MTA and Plaintiff operated under the MOU until December 1998, when Plaintiff and MTA signed a “Consulting Service Agreement” (“CSA”), whereby MTA would pay Plaintiff a fixed sum of $75,000, in monthly installments, and Plaintiff was deemed an “i ndependent contractor.” (J.A. at 273.) Plaintiff was responsible for all federal and state payroll taxes, all expenses incurred in the state of Michigan, and was free to accept outside consulting agreements. MTA continued to file 1099s on Plaintiff for income tax purposes.

Prior to 1996, Royal Maccabees Insurance pr ovided MTA life and di sability insurance policies. In 1996, Plaintiff recommended to MTA that MTA switch its insurance provider to Lafayette. Lafayette became MTA’s provider of group life and disability insurance in March 1996; Plaintiff signed the Application for Group Insuran ce as a licensed agent. As the signing agent, Plaintiff attested:

I have fully explained to the Policyholder that any Employee not in Active Employment or in a class otherwise eligibleto apply for insurance coverage on the Contract Effective Date of any Contract to be issued by the Company will not be eligible to apply for any such insuran ce issued by the Company unless and until such time such Employee becomes a member of a class eligible to apply for insurance
coverage.

(J.A. at 236.)

In March 1996, at the time Lafayette began writing insurance polices to MTA, its employees, and MTA member companies, Plaintiff was listed as an “employee” on premium statements submitted by MTA. From 1996 through December 1998, Plaintiff paid the premiums on his own coverage for disability insurance directly to Lafayette.

Plaintiff and MTA operated under the CS A throughout 1999 and into 2000. During this period, MTA deducted the costs of short-term di sability (“STD”) and long-term disability (“LTD”) premiums from Plaintiff’s monthly remunerations and remitted the premiums to the insurer, Lafayette. MTA asserts that MTA was reliant on Pl aintiff’s representations to MTA of who would be a covered “employee” under the terms of the plan. Neither Plaintiff nor MTA informed Lafayette of the terms of the CSA.

In September 2000, Plaintiff filed for STD benefits, and then one month later requested LTD benefits. MTA filed the benefit request forms on be half of Plaintiff with Lafayette in those same months. Lafayette proceeded to adjudicate the claims for benefits; although there are indications in the record that Lafayette initially indicated that MTA should adjudicate the STD claim, MTA and Lafayette ultimately agreed that Lafayette would adjudicate both claims.

Lafayette ultimately determined that Plaintiff was not a covered “employee” under the ERISA plan. Lafayette does not dispute that “p rior to January 1, 1999 [the CSA effective date] [Plaintiff] was eligible for certain group insurance coverages issued by Lafayette . . . . However, facts show that effective January 1, 1999, [Plainti ff’s] status with MTA changed. We were not aware of this change in status until [Plaintiff’s] cl aims for benefits were submitted to us.” (J.A. at 1923.)

The STD policy states that “[a]ny employee whose employment commenced on or before the effective date of this policy and is actively atwork on full time [sic]” was eligible for coverage upon the plan’s effective date. (J.A. at 1434.) The STD policy further provides for coverage for employees starting after the eff ective date of the policy. The STD policy defines “employee” as “an employee in the service of the employer whose term s of employment require him to work at least 20 hours per week.” (J.A. at 1435.) The policy further defines “actively at work on full time” toNos. 04-1146/1942/1945; 05-1109 Moore v. Lafayette Life Ins. Co., et al. Page 4

mean “actually working at least six hours per working day at the employer’s place of business or other location where his business requires the employee to be.” (J.A. at 1435.)

The LTD policy defines “employee” to mean:

A regular, full-time employee duly recorded as such on the payroll records of the Policyholder, who is regularly working through the entire duration of the Policyholder’s work week, and in any even t not less than 30 hours per week, and is insured under the terms of this Policy.

(J.A. at 1893.) The clause “on the payroll records” is not further defined.

B. Procedural History

Plaintiff filed the instant action in district court on October 17, 2001. Plaintiff alleged that Defendants violated numerous responsibilities under the STD and LTD policies of MTA’s ERISA benefit plan and prayed for relief in the form of be nefits due, attorneys’ fees and costs, and statutory penalties. Specifically, Plaintiff alleged:

Count I: that he was wrongfully denied STD and LTD benefits as an MTA-covered “employee” under 29 U.S.C. § 1132(a)(1)(B);

Count II: that Defendants breached fiduciary du ties to Plaintiff with respect to the ERISA plan;

Count III: that if Plaintiff is not covered “em ployee,” Plaintiff qualifies for benefits as a “participating employer” under the plan;

Count IV: that Defendants should pay Plaintiff’s attorneys’ fees and costs with respect to the ERISA action;

Count V: that Defendants refused to furnish requested information as required by 29 U.S.C. 1132(c); and

Count VI: that Defendants are estopped from asserting that Plaintiff was not covered under the STD and LTD policies.

(J.A. at 17-28 (list formatting not in original).)

At an initial Rule 16 conference, Plaintiff objected to the application of the rules set forth in Wilkins v. Baptist Healthcare Sys., Inc. , 150 F.3d 609 (6th Cir. 1998), as controlling the form and extent of discovery in the case. Accordingly, the magistrate judge ordered the parties to brief the applicability of Wilkins . In conjunction with its brief and motion on Wilkins , Defendant Lafayette filed a motion to dismiss with respect to Counts II, V, and VI. Likewise, Defendant MTA moved to dismiss with respect to Counts I, II, III, and VI. The district court judge consolidated the Wilkins motions and the motions to dismiss and issued an opinion and judgment on the motions on August 19, 2002.

The district court denied MTA’s motions on C ount I, dismissed the first three (of five) subclaims under Count II as against both Defendants, denied the motion to dismiss on Count III, dismissed Count V as against Lafayette, and di smissed Count VI as against both defendants. Additionally, the court concluded that Wilkins controlled discovery in the case and therefore restricted discovery to Plaintiff’ s underlying allegations of denial of due process and the withholding of information count.Nos. 04-1146/1942/1945; 05-1109 Moore v. Lafayette Life Ins. Co., et al. Page 5

Plaintiff filed a motion to reconsider on Se ptember 6, 2002. The district court found the motion untimely as exceeding the 10-day limit for moti ons to reconsider as set by Federal Rule of Civil Procedure 6(a). The court further found the mo tion to be without merit, noting that Plaintiff did not point to additional authority or facts supposedly left out of the court’s consideration of the earlier motions.

After a period of limited discovery, the parties filed cross-motions for partial summary judgment. The district court ruled on these moti ons on September 19, 2003. In its order, the district court denied Plaintiff’s motion for summary judgment on Counts II and V, and further denied Plaintiff’s request for expanded discovery under Count I. The court granted Lafayette’s motion for summary judgment on Count II, and likewise granted MTA’s request for summary judgment on Counts II, III, and V. The surviving Counts wereCount I against both Defendants for denial of benefits and Count III to designate Plaintiff a “p articipating employer” as against Lafayette (the court having found that Count IV, for attorneys’ f ees and costs, was more properly considered an element of relief requested under the remaining subs tantive counts). The Court further noted that while Lafayette did not file a motion for summaryjudgment on Count III, the court had grave doubts as to the viability of such a claim. The court theref ore ordered Plaintiff either to stipulate as to the dismissal of Count III against Lafayette, or indicate to the court that Plaintiff intended to pursue Count III against Lafayette, in which case the district court would afford Lafayette an opportunity to file a second motion for summary judgment. Plaintiff voluntarily dismissed Count III against Lafayette on September 30, 2003.

The district court took final action on the s ubstantive counts in this case on January 6, 2004. The court dismissed the remaining Count I agains t MTA, reasoning that because Lafayette, and not MTA, was responsible for claims administrati on under the plan, MTA was not a proper defendant in a claim for benefits. Finall y, the court concluded that Plain tiff was not a covered employee for purposes of the STD and LTD policies and granted judgment for Defendant Lafayette on Plaintiff’s sole remaining claim for benefits in the suit. Plaintiff timely appealed all orders in the case on January 26, 2004.

Defendant MTA thereafter filed motions for atto rneys’ fees and costs and Rule 11 sanctions against Plaintiff’s counsel. Defendant Lafayettefiled a motion for attorneys’ fees and costs. Plaintiff cross-filed for review of the clerk’s taxe d bill of costs as submitted by Defendants. On June 21, 2004, the court denied Plaintiff’s motion and granted MTA’s and Lafayette’s motions for attorneys’ fees and costs, ordering Plaintiff to pay 50 percent of Defendants’ attorneys’ fees in addition to Defendants’ taxed bill of costs (J.A . at 2552). In addition, the court found, under both Rule 11 and its authority under 28 U.S.C. § 1927, that Plaintiff’s counsel should be jointly and severally liable with Plaintiff for the 50 percent assessment.

Plaintiff and Plaintiff’s counsel timely appeal ed the award of attorneys’ fees and the imposition of sanctions on July 20, 2004. Defendant Lafayette timely cross-appealed its award of attorneys’ fees as too low on July 29, 2004.

II.

ANALYSIS

A. The District Court’s Initial Determinations Under ERISA

In arguments to this Court, Plaintiff avers that in its August 19, 2002 order the district court improperly dismissed subclaims (a), (b), and (c) of Plaintiff’s Count II (breach of fiduciary duty) and improperly dismissed Count VI in its entirety (promissory estoppel).Nos. 04-1146/1942/1945; 05-1109 Moore v. Lafayette Life Ins. Co., et al. Page 6

1. Standard of Review

This Court reviews a district c ourt’s judgment in an ERISA case de novo , applying the same standard of review to the administrator’s action as required by the district court. See Wilkins , 150 F.3d at 615-16. Claims for breaches of fiduciary duty and promissory estoppel are not claims for denial of benefits and are theref ore addressed in the first instance in the district court, requiring no deference to any administrator’s action or decision.

2. The District Court Correctly Dismissed Subclaims (a), (b), and (c) of Count II

Plaintiff’s Count II alleged that Defendants breached their fiduciary duties and obligations as follows:

(a) Defendants failed to make and authorize short term disability and long term disability benefit payments to plaintiff at a time when Lafayette and/or MTA knew or should have known that he was entitled to such benefits;

(b) Defendants unreasonably and/or arbitrarily withheld payments in bad faith knowing the plaintiff’s claims to be valid;

(c) Defendants unreasonably, arbitrarily and in bad faith failed to pay plaintiff’s benefits at a time when defendant[s] had insufficient information to justify such actions;

(d) Defendant MTA failed to provide a written plan document and a claims procedure for the STD and LTD polic ies as required by ERISA §§ 402 and 503 respectively;

(e) Other breaches of fiduciary duties yet unknown, but which will become known to plaintiff through discovery.

(J.A. at 22.) Plaintiff’s claims under Count II were brought under 29 U.S.C. § 1132(a)(3), ERISA’s “catch all” remedial section.

The district court reasoned that subclaims (a) through (c) were merely restatements of Plaintiff’s claim for benefits. Th e district court reasone d that Plaintiff’s ability to bring suit for payment of benefits under 29 U. S.C. § 1132(a)(1) precluded Plai ntiff’s suit under the “catch-all” remedial section for those subclaims sounding as failure to pay due benefits. See Varity Corp. v. Howe , 516 U.S. 489, 512 (1996); see also Wilkins , 150 F.3d at 615-16 (“Because § 1132(a)(1)(B) provides a remedy for [the plaintiff’s] alleged injury . . . he does not have a ri ght to a cause of action for breach of fiduciary duty pursuant to § 1132(a)(3) . . . . To rule in [the plaintiff’s] favor would allow him and other ERISA claimants to simply characterize a denial of benefits as a breach of fiduciary duty, a result which the Supreme Court expressly rejected.”) (citing Varity Corp. , 516 U.S. at 512 (1996)).

The district court was correct. The allegedl y wrongful actions referred to in subclaims (a) through (c) all relate to Plainti ff’s denial of benefits and point to the same remedy as Plaintiff’s claim under Count I. As such, Plaintiff is precluded from usi ng § 1132(a)(3) for allegedly wrongful actions addressable under § 1132(a)(1).

3. The District Court Correctly Dismissed Count VI in its Entirety

Under Count VI, Plaintiff claims that MTA and Lafayette are estopped from asserting that Plaintiff is not a covered employee under the STD and LTD policies. Plaintiff claims that PlaintiffNos. 04-1146/1942/1945; 05-1109 Moore v. Lafayette Life Ins. Co., et al. Page 7

1 Judge Cook’s partial dissent insists that this Court’s determination that Plaintiff is not, in fact, an “employee” under ERISA, see infra , deprives this Court of jurisdiction over this cas e. We therefore fail to see how Judge Cook could join Judge Oliver’s conclusion on the merits of Plaintiff’s promissory estoppel claim, inasmuch as promissory estoppel is merely an alternative theory of rec overy under Plaintiff’s ERISA benefits claim. relied on representations by MTA and Lafayette thathis disability coverage would continue under the CSA, and in particular that MTA’s remittance of premium payments to Lafayette on Plaintiff’s behalf is conduct inconsistent with any subsequent position that Plaintiff is not eligible for benefits.

This Court has recognized that promissory es toppel is a viable theory in ERISA welfare benefit actions. See Sprague v. Gen. Motors, Inc. , 133 F.3d 388, 403 (6th Cir. 1998). The elements of an estoppel claim are as follows:

(1) there must be conduct or language amounting to a representation of material fact;

(2) the party to be estopped must be aware of the true facts;

(3) the party to be estopped must intend that the representation be acted on, or the party asserting the estoppel must r easonably believe that the party to be estopped so intends;

(4) the party asserting the estoppel must be unaware of the true facts; and

(5) the party asserting the estoppel must reasonably or justifiably rely on the representation to his detriment.

Sprague, 133 F.3d at 403 (list formatting not in original).

Typically, estoppel actions occur when a plan fiduciary misrepresents the actual meaning of plan terms in a situation where the plan itself is ambiguous. See id. at 404. Plaintiffs cannot recover under an estoppel theory for misrepresent ations which contradict unambiguous, written plan terms because their reliance on the subseque nt representation would be unreasonable. See id. The district court found that Plainti ff had failed to base his promisso ry estoppel claim on a premise that the plan terms were ambiguous. Because, in the district court’s determination, Plaintiff did not allege that the plan documents were ambiguous, the district court granted judgment for Defendants on Plaintiff’s promissory estoppel theory. 1

This Court can affirm a district c ourt on any basis supported by the record. See City Mgt. Corp. v. U.S. Chem. Corp. , 43 F.3d 244, 251 (6th Cir. 1994). Plain tiff did properly allege that the plan documents were ambiguous, insofar as Plai ntiff was arguing over the meaning of “employee” under the plan. Nonetheless, Plaintiff cannot prove at least one element of promissory estoppel with respect to each Defendant and therefore cannot prevail.

Plaintiff cannot show that his reliance on any alleged misrepresentations by MTA management was reasonable , as required by the Supreme Court and this Circuit. See Sprague, 133 F.3d at 403; Gregg v . Transp. Workers of Am. Int’l , 343 F.3d 833, 841 (6th Cir. 2003). Plaintiff admits to being more knowledgeable about insurance coverage issues than anyone in management at MTA. Plaintiff was the se lf-acknowledged expert in welfare benefits coverage for MTA. Plaintiff admitted that he sold the policy at i ssue to MTA and likewise explained the policy terms to MTA officers, including the term on covered empl oyees. Plaintiff admitted that he was the “go to” guy for insurance questions held by MTA and its member companies. (J.A. at 1031-32.) Plaintiff had worked in insurance for over 30 y ears. Under the1972 MOU between Plaintiff andNos. 04-1146/1942/1945; 05-1109 Moore v. Lafayette Life Ins. Co., et al. Page 8

MTA, Plaintiff handled all questions and claim problems for MTA’s group life and disability insurance plans. Any reliance by Plaintiff on representations by MTA management going to insurance coverage, therefore, would have beenunreasonable under the circumstances of this case and in light of Plaintiff’s acknowledged superior e xpertise on the specific insurance policies at issue.

This is not to say that an insurance “expert ” can never prevail in an ERISA action under a promissory estoppel theory, only that reasonable re liance by Plaintiff would require a representation from someone with better or more specific knowledge than Plaintiff, or at least from someone who Plaintiff reasonably believed to have better or more specific knowledge. Under the circumstances of this case, for example, had Lafayette known the terms of Plaintiff’s relationship with MTA under the CSA and then represented to Plaintiff that Plaintiff was covered under the plan, Plaintiff’s promissory estoppel theory might be viable. Unde r the facts of this case, however, Lafayette did not know the terms of the CSA and therefore did not know whether Plaintiff was an “employee” under the plan. See infra , Part II.C. Consequently, any allege d representations by Lafayette were not made while Lafayette was “aware of the true facts” (criteria two for a promissory estoppel claim), and Plaintiff therefore cannot assert promissory estoppel against Lafayette.

B. The District Court Properly Limited the Sc ope of Discovery for the Remaining Claims Under Wilkins

Plaintiff argues that the district court improperly limited the scope of discovery for his remaining benefits and breach of fiduciary duty claims. We disagree.

1. Standard of Review

This Court reviews the district court’s conclusions as to the applicability of Wilkins de novo. Cf. Putney v. Medical Mut ., 111 Fed. App’x 803, 806 (6th Cir. 2004) (unpublished opinion).

2. Wilkins Applies to All ERISA Benefit Cases

In Wilkins , this Court clarified the permissible scope of discovery in an ERISA action in federal district court. 150 F.3d at 618-19. This Court instructed district courts to follow a two-step process in adjudicating an ERISA benefit action:

1. As to the merits of the action, the district court should conduct a de novo review based solely upon the administrative record, and render findings of fact and conclusions of law accordingly. The district court may consider the parties’ arguments concerning the proper analysis of the evidentiary materials contained in the administrative record, but may not admit or consider any evidence not presented to the administrator.

2. The district court may consider evid ence outside of the administrative record only if that evidence is offered in s upport of a procedural challenge to the administrator’s decision, such as an alleged lack of due process afforded by the administrator or alleged bias on its part. This also means that any prehearing discovery at the district court level should be limited to such procedural challenges.

Id.

Plaintiff argues that because he alleged that Defendants denied him due process in adjudicating his claim for benefits, Plaintiff was entitled to discovery into his denial of benefits claim. Plaintiff argues that his case is distinct from the action in Wilkins because, among other things: 1) the claimant in that case did not alle ge violations of due process, 2) there was noNos. 04-1146/1942/1945; 05-1109 Moore v. Lafayette Life Ins. Co., et al. Page 9

2 That the district court was permitting discovery into due process issues with respect to Defendants’ denial of benefits is even clearer when the Court considers the lo wer court’s opinion on Plaintiff’s motion for reconsideration: “[U]ntil Plaintiff has proven the denial of due process, th e court will not expand the review on the denial of benefits claim.” (J.A. at 60.) confusion in the Wilkins case about which documents actually constituted the applicable ERISA plan, and 3) there was no confusion in Wilkins about who was the plan administrator.

While Plaintiff is correct about the factual dissimilarities between Wilkins and his case, these dissimilarities do not make the Court’s instructions in Wilkins any less applicable to the case at bar. Plaintiff’s arguments about the inapplicability of Wilkins all come back to whether Plaintiff had sufficient opportunity to present evidence and arguments to Defendants and to respond to Defendants contentions – in essen ce, all due process issues. The Wilkins panel foresaw occasions in which the procedural process of gathering all pertinent information may have broken down at the administrative level and directed the courts to permit discovery in those cases. Wilkens , 150 F.3d at 619. (“The district court may consider evidence outsi de of the administrative record only if that evidence is offered in support of a procedural challenge to the administrator’s decision.”) If discovery into the alleged procedural defects supports a plaintiff’s allegations of due process denial, then a district court is obligated to permit discovery into more substantive areas of a plaintiff’s claim. See id. If a court finds that due process was notdenied, however, then it is appropriate for the district court to deny further discovery into s ubstantive areas, or else a plaintiff could circumvent the directive of Wilkins merely by pleading a due process problem. Cf. id.

3. The District Court Properly Applied Wilkins

The district court permitted discovery into whether Plaintiff was actually denied due process. The district court noted that “the court will not expand discovery until it is proven that such a denial of due process occurred.” (J.A. at44.) This order was entirely consistent with the intent and letter of Wilkins

. 2 Plaintiff argues that th e district court’s ruling on Wilkins somehow held Plaintiff to a higher standard than this Court requires under Wilkins . ( See Pl. Br. 23-24 (“In neither Vanderlock

nor Wilkins did this Court require that plaintiff prove the alleged denial of due process before it permitted both expanded discovery and consideration of additional evidence outside of the administrative record.”).) We find Plai ntiff’s argument without merit. The Vanderlock panel found, as a matter of law, that the evidence before the court established that the plaintiff in that action had been substantially denied the procedur al protections afforded by ERISA. Vanderklok v. Provident Life & Accident Ins. Co. , 956 F.2d 610, 617 (6th Cir. 1992). After reaching such a conclusion, this Court remanded to the district court for discovery. Id. In the instant acti on, the district court deferred discovery into Plaintiff’s substantiv e claims until it had enough evidence to determine whether Plaintiff had been substantially denied ERISA’s procedural protections. There is no inconsistency between the district court’s actions and this Court’s holding in Vanderlock . Moreover, the only logical reading of th is Court’s instructions in Wilkins is that until a due process violation is at least colorably established, additional discovery beyond the administrative record into a plaintiff’s denial of benefits claim is impermissible. Wilkins was properly followed.

C. The District Court Properly Granted Summary Judgment for Defendants on Plaintiff’s Claims for Breach of Fiduciary Duty and § 1132(c) Monetary Penalties

Plaintiff argues that the district court im properly granted Defendants summary judgment on his breach of fiduciary duty and § 1132(c) claims. We conclude that the district court properly found that Plaintiff had failed to present evidence of either a due process violation or a breach of fiduciary duties. In addition, the district court did not abuse its discretion in refusing to grant penalties under 29 U.S.C. § 1132(c).Nos. 04-1146/1942/1945; 05-1109 Moore v. Lafayette Life Ins. Co., et al. Page 10

1. Standard of Review

This Court reviews summary judgment de novo

. Eastman Kodak Co. v. Image Technical Servs., Inc. , 504 U.S. 451, 466 n.10 (1992). Summary judgment is appropriate when there is no genuine issue of material fact, thereby entitling the movant to a judgment as a matter of law. Kocsis v. Multi-Care Mgt., Inc. , 97 F.3d 876, 882 (6th Cir. 1996). Th is Court’s “inquiry, therefore, unavoidably asks whether reasonable [fact-finders ] could find by a preponderance of evidence that the plaintiff is entitled to a [judgment].” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 322 (1986).

“This Court reviews de novo ‘the question of whether the procedure employed by the fiduciary in denying the claim meets th e requirements of Section [503].’” Marks v. Newcourt Credit Group, Inc. , 342 F.3d 444, 459 (6th Cir. 2003) (quoting Kent v. United of Omaha Life Ins. Co.

, 96 F.3d 803, 806 (6th Cir. 1996)).

Because a district court has discretion in the award of monetary penalties under 29 U.S.C. § 1132(c), this Court reviews a district court’s deci sion under that section for an abuse of discretion. Bartling v. Fruehauf Corp. , 29 F.3d 1062, 1068 (6th Cir. 1994). An abuse of discretion exists when the reviewing court is firmly convinced that a mistake has been made. In re Bendectin Litig. , 857 F.2d 290, 307 (6th Cir. 1988).

2. The District Court Properly Dismissed Plaintiff’s Breach of Fiduciary Duties Claim

The district court allowed Plaintiff’s breachof fiduciary duties claim to proceed, with discovery, to the extent that the claim alleged 1) that Defendants had made material misrepresentations to Plaintiff about Plaintiff’s eligibility for benefits, and 2) that Defendants had failed to provide Plaintiff with requested plan doc umentation. (J.A. at 40-45.) Inherent in these allegations was Plaintiff’s assertion that Defe ndants had denied Plaintiff due process in the adjudication of his denial of benefits claim, and the district court reached Plaintiff’s due process allegations in ruling on Plaintiff’s claim for breach of fiduciary duty.

a. Breach of fiduciary duty claims under ERISA

This Court has recognized an equitable claim by a participant against an ERISA plan fiduciary arising out of 29 U.S.C. § 1132(a)(3 ) when a fiduciary misleads a participant or beneficiary. See Krohn v. Huron Mem. Hosp’l , 173 F.3d 542, 546 (6th Cir. 1999).

Pursuant to § 1002(21)(A) of ERISA:

[A] person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets . . . or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan.

29 U.S.C. § 1002(21)(A). ERISA also provides th at “a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries.” 29 U.S.C. § 1104(a)(1).

A fiduciary breaches his duty by providing plan participants with materially misleading information, “regardless of whether the fiduciary’s statements or omissions were made negligently or intentionally.” Krohn , 173 F.3d at 547 (internal quotation and citation omitted). “Misleading communications to plan participants regarding pl an administration (for example, eligibility under a plan, the extent of benefits under a plan) w ill support a claim for a breach of fiduciary duty.” Drennan v. Gen. Motors Corp. , 977 F.2d 246, 251 (6th Cir. 1992) (i nternal quotation and citation omitted). A lower court in this Circuit has app lied the fiduciary duty/misrepresentation case law ofNos. 04-1146/1942/1945; 05-1109 Moore v. Lafayette Life Ins. Co., et al. Page 11

this Court to a plaintiff’s claim that a misrep resentation precluded her from seeking alternative sources of disability coverage. See Parks v. Fin. F.S.B. , 345 F. Supp. 2d 889, 897 (W.D. Tenn. 2004).

To establish a claim for breach of fiduciary duty based on alleged misrepresentations concerning coverage under an employee benefit plan, a plaintiff must show:

(1) that the defendant was acting in a fiduciary capacity when it made the challenged representations;

(2) that these [representations] constituted material misrepresentations; and

(3) that the plaintiff relied on those misrepresentations to [his] detriment.

James v. Pirelli Armstrong Tire Corp. , 305 F.3d 439, 449 (6th Cir. 2002). “Whether an affirmative misrepresentation was ‘material’ is a mixed ques tion of law and fact. [] [A] misrepresentation is material if there is a substantial likelihood that it would mislead a reasonable employee in making an adequately informed decision about if and when to retire.” Id. (internal quotations and citations omitted). Finally, a plaintiff’s reliance on th e misrepresentation must be “reasonable.” Parks , 345 F. Supp. 2d at 897; cf. Gregg , 343 F.3d at 843 (requiring defendant plan administrator show that its reliance on financial experts was reasonable).

b. The district court correctly concluded that no genuine issues of material fact existed as to Defendants’ liability for alleged misrepresentations

i. No misrepresentations were made by either Defendant prior to Plaintiff’s signing of the CSA

The district court found that Plaintiff had failed to put forth any evidence that MTA or Lafayette made misrepresentations to Plaintiff aboutthe effect of the CSA on his status as a covered “employee” prior to Plaintiff’s signing of the CSA. The district court referred to Plaintiff’s deposition testimony, in which Plaintiff’s testimony as to statements by Defendants contain no exact time reference. Plaintiff’s only time reference cites statements made at a “December 1998” meeting. ( See J.A. at 273, 1060.) Defendant MTA’s witness tes tified in a later deposition that this meeting took place on December 3, 1998, one day after Plainti ff signed the CSA. In addition, elsewhere in his deposition testimony, Plaintiff asserts that he signed the CSA within moments of its presentation to him, without discussing its terms or its effect on Plaintiff’s disability coverage with Defendants. The district court refused to consider a subseque nt affidavit submitted by Pl aintiff in support of his motion for summary judgment as an unreliable affidavit pursuant to Penny v. United Parcel Serv.

, 128 F.3d 408, 417 (6th Cir. 1997) (noting that a “party cannot create a genuine issue of material fact by filing an affidavit, after a motion for summary judgment has been made, that essentially contradicts his earlier deposition testimony”). Plain tiff’s late-filed affidavit states that Plaintiff sought and received assurance from Defendants, prior to signing the CSA, that the CSA would not affect Plaintiff’s disability coverage.

Plaintiff alleges that the district court’s reference to Plaintiff’s deposition testimony was somehow incomplete and unjustified, and asserts th at counsel for Defendants, taking the deposition, somehow had the obligation to establish when th e alleged misrepresentations were made. ( See Pl. Br. 40.) Plaintiff further argues that the districtcourt improperly discounted Plaintiff’s affidavit.

Plaintiff’s assertions that somehow Defendants’ counsel had the burden of pulling out of Plaintiff when the alleged misrepresentations were made are without merit. At the summary judgment stage, Defendants had the burden of putting evidence or argument before the district court which showed that Plaintiff had failed to es tablish a genuine issue of material fact. See Fed. R. Civ.Nos. 04-1146/1942/1945; 05-1109 Moore v. Lafayette Life Ins. Co., et al. Page 12

3 Plaintiff additionally argues that general assertions by MTA management in the year leading up to the CSA, that upon Plaintiff’s retirement or change in status, his coverage under the benefit plan would remain the same, materially misrepresented Plaintiff’s disability benefits to Plaintiff. This argument fails due to the very generality of the statements upon which Plaintiff purportedly relied. These statements do nothing more than speak to management’s desire at the time the statement were made to maintain Plaintiff’s cove rage. The statements do not represent that the CSA, which Plaintiff subsequently signed, actually maintained Plaintiff’s eligibility for benefits. In fact, the general assurances do not refer to any specific agreement or arrangement. Proc. 56. Defendants did this, with respect to any misrepresentations allegedly made before Plaintiff signed the CSA, by pointing to Pl aintiff’s deposition testimony and th e lack of dates therein. ( See J.A. at 470-71.) The burden then shifted to Plain tiff to show evidence in the record from which a reasonable trier of fact could find that Defendants did make misrepresentations prior to Plaintiff’s signing of the CSA. Plaintiff does not do this.

Instead, Plaintiff points to his late filed affidavit and defense counsel’s “failure” to establish the dates of the alleged statements. We find that the district court correctly excluded the affidavit from consideration because it cannot be reconciled with Plaintiff’s deposition testimony that Plaintiff signed the CSA within moments of r eceiving it and without asking any questions beyond “who . . . wants this?” (J.A. at 1059.) Further, th e district court correctly found that Plaintiff had failed to put forth sufficient evidence to survive su mmary judgment. Plaintiff cannot establish a date for the alleged misrepresentations, and Defendants’ evidence indicates that any discussions as to Plaintiff’s continued disability coverage, if such discussions did occur, took place after Plaintiff signed the CSA. 3 Plaintiff therefore could not have relied on these alleged misrepresentations in signing the CSA.

ii. Plaintiff cannot show reasonable reliance on any alleged misrepresentations by MTA after Plaintiff signed the CSA

Plaintiff alleges that MTA misrepresented Plai ntiff’s eligibility for disability benefits after Plaintiff signed the CSA by deducting premium paym ents from Plaintiff’s monthly remunerations and remitting these premiums to Lafayette.

The district court found that any reliance by Plaintiff on statements made by MTA personnel would be unreasonable, when Plaintiff was the self-acknowledged expert in welfare benefits coverage for MTA. Plaintiff admitted that hesold the policy at i ssue to MTA and likewise explained the policy terms to MTA officers, incl uding the term on covered employees. Plaintiff admitted that he was the “go to” guy for insu rance questions held by MTA and its member companies. Plaintiff had worked in insurance for over 30 years. Plaintiff began his insurance career as an underwriter for AETNA Casualty. Plaintiff was originally hired by MTA in 1971 to manage MTA’s insurance programs. When Plai ntiff and MTA signed an MOU in 1972, Plaintiff continued to handle all questions and claim probl ems for MTA’s group life and disability insurance.

We find that the district court correctly concluded that any reliance by Plaintiff on representations by MTA management personnel as to the CSA’s effect on Plaintiff’ s disability coverage would be unreasonable in light of Plaintiff’s undisputed position vis-a-vis MTA management on insurance issues. Plaintiff argue s that he was not an undi sputed expert on ERISA. Plaintiff need not be an undisputed expert on ERISA, however, to be the undisputed most knowledgeable person operating in or with MTA on welf are benefit issues. Plaintiff admits in his brief to this Court that when Plaintiff was unabl e to answer an MTA employee or member’s question on welfare benefits, Plaintiff would refer such ques tions to Lafayette. Plaintiff does not assert that Plaintiff would refer such unanswerable questi ons to a member of MTA management. Were Lafayette, not MTA, to have represented to Plai ntiff that Plaintiff was a covered “employee” under the terms of the CSA, Plaintiff’s reliance might bereasonable. In light of Plaintiff’s superiorNos. 04-1146/1942/1945; 05-1109 Moore v. Lafayette Life Ins. Co., et al. Page 13

insurance knowledge, however, Plaintiff’s reliance on any representations by MTA management would be unreasonable.

iii. Plaintiff has failed to show that Lafayette made misrepresentations to Plaintiff after Plaintiff signed the CSA

Plaintiff does not put forth any evidence that Lafayette knew the terms of the CSA prior to Plaintiff’s application for disability benefits. Plaintiff argues that Lafayette knew that Plaintiff was going to operate under a consulting arrangementwith MTA beginning in 1999, but knowing that Plaintiff’s relationship with MTA was going to change is not the same as knowing the terms of that new relationship. Plaintiff testified that he coul d not recall providing Lafayette with a copy of the CSA. (J.A. at 1068.) Without any evidence that Lafayette knew the terms of Plaintiff’s status under the CSA, any alleged misrepresentations by Lafayette could not even have been negligently made. The district court therefore correctly granted su mmary judgment for Lafayette on Plaintiff’s breach of fiduciary duty/misrepresentation claim.

3. The District Court Correctly Concluded That Plaintiff Had Failed to Create a Genuine Issue of Material Fact as to Whether Plaintiff Was Denied Due Process in the Adjudication of His Claim

The district court found that despite someinitial confusion as to the proper ERISA documentation, the lack of a summary plan description, and some initial disagreement between MTA and Lafayette as to who was responsible for adjudicating Plaintiff’s STD claim, the claim was ultimately adjudicated without any substantive impairment to Plaintiff’s procedural rights. The district court concluded that Plaintiff had been afforded a full opportunity to present any and all evidence to Lafayette in support of Plaintiff’s claims for disability and that Plaintiff could have taken advantage of an appeals process should Plaintiff have chosen to do so.

Plaintiff argues that numerous procedural def ects “deprived [Plaintiff] of any assurance that the process would be something other than arbitrary.” (Pl. Br. 47.) Plain tiff fails, however, to show how these procedural defects prejudiced Plaintiff’s ability to put desired evidence in front of the claims adjudicator, Lafayette. Ge nerally, the courts haverecognized in ERISA cases that procedural violations entail substantive remedies only when some useful purpose would be served. Kent , 96 F.3d at 807. Neither does Plaintiff point to any evidence in briefs to this Court or to the district court which Plaintiff argues he would have placed be fore Lafayette had Plaintiff been given an opportunity.

Plaintiff argues that he was prejudiced by Lafayette’s adjudication of Plaintiff’s STD claim. Under a 1999 Agreement between Lafayette and MTA, MTA agreed to administer claims for STD benefits. MTA, however, asked Lafayette to admi nister Plaintiff’s claim for STD benefits because of a feared conflict of interest due to Plaintiff’ s close association with MTA. Lafayette ultimately agreed to do so. Plaintiff alleges that were MTA, instead of Lafayette, to have adjudicated his STD claim, Plaintiff would have prevailed in his pursuit of benefits because MTA “admitted” that Plaintiff was a covered “employee” under the ERISA pl an in its Answer to Plaintiff’s Complaint. (Pl. Br. 46.) Plaintiff’s argument, however, mi sconstrues Defendants’ obligations to Plaintiff. Lafayette was ultimately responsible under the term s of the STD policy itself for the adjudication of STD claims. The subsequent contract be tween Lafayette and MTA did not confer legal entitlements on Plaintiff. Plai ntiff was entitled to substantial compliance by Defendants with ERISA’s procedural requirements in claims admini stration. Contractual arrangements as to who was to engage in this process do not affect wh ether Plaintiff actually enjoyed these procedural protections.

ERISA requires claim administrators to put a cl aimant on notice of the reasons for its denial and to afford claimants an opportunity to appeal anadjudicator’s initial decision. Pursuant to § 503,Nos. 04-1146/1942/1945; 05-1109 Moore v. Lafayette Life Ins. Co., et al. Page 14

Every employee benefit plan shall –

(1) provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied, setting forth the specific reasons for such denial, written in a manner calculated to be understood by the participant, and

(2) afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair re view by the appropriate named fiduciary of the decision for denying the claim.

29 U.S.C. § 1133.

Generally, an administrator’s failure to comply with ERISA procedural requirements can result in a remand by the reviewing court to the administrator. See VanderKlok , 956 F.2d at 619. This Court, however, has adopted the rule that administrators need only substantially comply with these ERISA notice requirements in order to avoid remand. Kent , 96 F.3d at 807. To decide whether there is substantial compliance, this Court considers all communications between an administrator and plan participant to determine whether the information provided was sufficient under the circumstances. See Marks , 342 F.3d at 461; see also White v. Aetna Life Ins. Co. , 210 F.3d 412, 414 (D.C. Cir. 2000); Brehmer v. Inland Steel Indus. Pension Plan , 114 F.3d 656, 662 (7th Cir. 1997) (“The question is whether [plaintiff] was supplied with a statement of reasons that under the circumstances of the case permitted a sufficiently clear understanding of the administrator’s decision to permit effective review.”). “When claim comm unications as a whole are sufficient to fulfill the purposes of Section 1133 the claim decision will be upheld even if a particular communication does not meet those requirements.” Kent , 96 F.3d at 807. In this analysis , this Court asks whether the plan administrators fulfilled the essential purpose of § 503 – notifying Plainti ff of their reasons for denying his claims and affording him a fair opportunity for review. Id.

Plaintiff argues that Lafayette’s denial letter was inadequate and that Plaintiff was denied an appeals process. Plain tiff’s arguments, however, are unsupported by the record. Lafayette’s denial letter explained its reason for denying Plaintiff’s claim in depth – Lafayette’s determination that Plaintiff was not an “employee” under the terms of the plan. (J.A. at 1655.) The denial letter was more than four pages in length and further explained the factual basis for Lafayette’s determination that Plaintiff was not an “employee.” We find that the letter very clearly placed Plaintiff on notice as to why Lafayette was denying benefits.

Similarly, Plaintiff was very cl early afforded an appeals procedure. Before any decision on Plaintiff’s claim had been reached, the adjudicat or forwarded to Plaintiff’s counsel a copy of Lafayette’s “Grievance Procedure” used in connection with Lafayette’s LTD policy. The Grievance Procedure established a contact person and procedur e for any claimant wishi ng to contest a coverage determination. Moreover, Lafayette’s letter of July 20, 2000, denying benefits, concluded by stating:

Should you and your client disagree with our conclusions that neither long-term disability nor short-term disability benef its can be paid, you may certainly, prior to the institution of any formal grievance withus, provide us with the written basis for your opinion and any information supporting yourbelief to us in writing and we will consider it.

(J.A. at 1658.) Plaintiff does not contend that he attempted to submit any additional evidence to Lafayette or that he attempted to institute formal grievance procedures as outlined in Lafayette’s policy documents held by Plaintiff’s counsel.Nos. 04-1146/1942/1945; 05-1109 Moore v. Lafayette Life Ins. Co., et al. Page 15

We find that Plaintiff was afforded a full and fair opportunity to present his claims for benefits to Lafayette. Without any evidence that Plaintiff was precluded from submitting such evidence, or that Plaintiff was prevented from undertaking an administrative appeal, Plaintiff’s claims for due process violations must fail.

4. The District Court Did Not Abuse its Discretion in Refusing to Grant Monetary Penalties Under 29 U.S.C. § 1132(c)

Under Count V, Plaintiff asse rted a claim under 29 U.S.C. § 1132(c) against MTA for failure to furnish requested information. MTA does not dispute that it did not produce a summary plan description as required by ERISA. The district c ourt, however, exercised its discretion in refusing to assess monetary penalties as authorized under 29 U.S.C. § 1132(c). In reaching its decision, the district court noted that Plaintiff had received a copy of the relevant policies, if not the summary plan descriptions, that Plaintiff’s expertise inthe benefit field counseled against any finding of prejudice as a result of a lack of summary plan de scriptions, and that Plaintiff had not, in fact, demonstrated any prejudice from lacking the summary plan descriptions.

This Court has said that courts may consider any prejudice or lack thereof in deciding whether § 1132(c) penalties are warranted. See Bartling , 29 F.3d at 1068. We find that the evidence does not firmly establish that a “mistake has been made.” Id. We therefore affirm the district court’s refusal to grant monetary penalties under § 1132(c).

D. THE DISTRICT COURT CORRECTLY GRANTED JUDGMENT IN FAVOR OF DEFENDANTS ON PLAINTIFF’S CLAIM FOR BENEFITS

Plaintiff argues that the district court imprope rly concluded that Plaintiff was not a covered “employee” under ERISA and therefore was not entitled to benefits under the applicable ERISA plan.

1. Standard of Review

Courts review a denial of benefits challenged under 29 U.S.C. § 1132(a)(1)(B) de novo

, unless the plan gives the plan administrator or fiduciary discretionary authority to determine benefit eligibility or construe the terms of the plan. Firestone Tire & Rubber Co. v. Bruch , 489 U.S. 101, 115 (1989). The parties do not appeal the lower court’s determination that the plan administrator here does not have discretionary benefit eligibility authority. This Court reviews the district court’s decisions on matters of law in an ERISA benefits action de novo and its factual findings for clear

error. See Stoll v. W. & S. Life Ins Co. , No. 01-3401, 64 Fed. App’x 986, 990 (6th Cir. May 22, 2003) (unpublished opinion).

2. The District Court Properly Dismissed MTA as a Defendant

The district court concluded that MTA was nota proper defendant for a claim for benefits because MTA did not participate in the decision to deny Plaintiff benefits under either the STD or the LTD policies. Rather, Lafayette, as the claims administrator, was the proper party defendant for Plaintiff’s denial of benefit claim.

According to ERISA, a plan “fiduciary” is one who “exercises any discretionary authority or discretionary control respecting the management of [an ERISA] plan or exercises any authority or control respecting the management or disposition of its assets” or who “has any discretionary authority or discretionary responsibility in the administration of such plan.” 29 U.S.C. § 1002(21)(A). This Court has found that “the defi nition of a fiduciary unde r ERISA is a functional one, [and] is intended to be broader than the common-law definition” such that the issue of whether one is considered a fiduciary doe s not turn upon formal designations. Smith v. Provident Bank , 170Nos. 04-1146/1942/1945; 05-1109 Moore v. Lafayette Life Ins. Co., et al. Page 16

F.3d 609, 613 (6th Cir. 1999). Therefore, for purpos es of ERISA, a “fiduciary” not only includes persons specifically named as fiduciaries by the benefit plan, but also anyone else who exercises discretionary control or authority over a pl an’s management, administration, or assets. See Mich. Affiliated Healthcare Sys., Inc. v. CC Sys. Corp. of Mich. , 139 F.3d 546, 549 (6th Cir. 1998).

Under ERISA a person is a fiduciary only with respect to those aspects of the plan over which he or she exercises authority or control. See Grindstaff v. Green , 133 F.3d 416, 426 (6th Cir. 1998). When an insurance company administers clai ms for employee welfare benefit plans and has authority to grant or deny claims, the insuran ce company is a “fiduciary” for ERISA purposes. See Libbey-Owens-Ford Co. v. Blue Cross & Blue Shield Mut. of Ohio , 982 F.2d 1031, 1035 (6th Cir. 1993). An employer who does not control or influe nce the decision to deny benefits is not the fiduciary with respect to de nial of benefit claims. Chiera v. John Hancock Mut. Life Ins. Co. , 3 Fed. App’x 384, 389 (6th Cir. 2001) (unpublished decision) (“Defendant [insurance company] is a fiduciary for purposes of ERISA inasmuch as it had a role in administering the plan because it had authority to accept or reject claims for losses under the group insurance policy as evidenced by the rejection letter that it sent to Plaintiff in response to her attorney’s letter.”)

Here, despite some initial confusion over pr oper ERISA titles, Lafayette and MTA agreed early on in the litigation that while MTA is the plan administrator, Lafayette is the claims administrator and exercised full authority in adj udicating Plaintiff’s claim for benefits. It was Lafayette who made a decision with respect to Pl aintiff’s benefits, not MTA. Lafayette, and not MTA, is therefore the proper party defendant fo r a denial of benefits claim by Plaintiff. See Kennard v. Unum Life Ins. Co. , No. 01-217-B-K, 2002 U.S. Dist. LEXIS 4467, at *4-6 (D. Me. Mar. 14, 2002) (unpublished opinion) (dismissing employer from benefits suit when insurance company, and not employer, made benefit decisions). The district court did not err in dismissing MTA from Plaintiff’s suit for benefits.

3. The District Court Properly Found That Plaintiff Was Not a Covered Employee

a. As a threshold matter, Plaintiff must meet the definition of “employee” under ERISA

Plaintiff’s action for benefits arises under 29 U.S.C. § 1132(a), which enables a benefit plan “participant” to enforce the substantive provisions of ERISA. The Act elsewhere defines “participant” as “any employee or former employ ee of an employer . . . who is or may become eligible to receive a benefit of any type from an employee benefit plan . . . .” § 1002(7).

Plaintiff does not allege that he has vested welfare benefits due to his status as a “former employee” of MTA in reference to his work with MTA prior to 1999. Instead, Plaintiff alleges that he is a “participant” because he was an “employee” of MTA while under the CSA. Thus, Plaintiff’s claim for benefits under ERISA “can succeed only if he was [MTA’s] ‘employee,”’ while under the CSA. The Supreme Court has heldthat to qualify as an “employee” for ERISA purposes, a plaintiff must meet the common law test for employee. Nationwide Mut. Ins. Co. v. Darden , 503 U.S. 318, 320-321 (1992). Only once Plainti ff has demonstrated that he meets the common law meaning of “employee” should this Court turn to whether Plai ntiff was an “employee” as defined in the STD and LTD policies, as distinct from an “employee” under ERISA.

b. Plaintiff is not a common law employee

The Supreme Court has adopted a common law definition of employee under ERISA:

In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party’s right to control the manner and means by which the product isNos. 04-1146/1942/1945; 05-1109 Moore v. Lafayette Life Ins. Co., et al. Page 17

accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying a ssistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

490 U.S. at 751-752 (footnotes omitted).

Cf. Restatement (Second) of Agency § 220( 2) (1958) (listing nonexhaustive criteria for identifying master-servant relationship); Rev. Rul. 87-41, 1987-1 Cum. Bull. 296, 298-299 (setting forth 20 factors as guides in determining whether an individual qualifies as a common-law “employee” in various tax law contexts). Since the common-law test contains no shorthand formula or magic phrase that can be applied to find the answer, . . . all of the incident s of the relationship must be assessed and weighed with no one factor being decisive.

Nationwide , 503 U.S. at 324 (internal quotations and citations omitted).

The district court considered all the factors outlined in Nationwide . The district court concluded that:

a. MTA exercised no significant control over how Plaintiff performed his duties, and the CSA described Plaintiff as an “independent contractor;”

b. Plaintiff required significant skill to perform his duties, counseling against finding Plaintiff an employee;

c. While Plaintiff had an office at MTA, he covered much of his own expenses;

d. MTA did not appear to require Plaintiff to work on site at MTA;

e. While MTA and Plaintiff worked together fo r many years, they did so under a contractual relationship, which changed in December 1998 when the CSA was signed;

f. Under the terms of the CSA, MTA did not have the right to assign additional duties to Plaintiff;

g. Plaintiff had significant discretion over when and how long to work;

h. Plaintiff was paid pursuant to the CSA as an independent contractor and had to remit his own taxes and social security payments;

i. Plaintiff appeared free to hire assistants if he so chose;

j. Plaintiff’s services were essential to the regular business of MTA;

k. Plaintiff was not eligible for “employee benef its” in the normal course of MTA business and pursuant to the language of the CSA, which pr ovided for remittance of the balance due under the CSA in the event of Plaintiff’s extended illness or medical incapacity; andNos. 04-1146/1942/1945; 05-1109 Moore v. Lafayette Life Ins. Co., et al. Page 18

4 “Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorney s’ fees reasonably incurred because of such conduct.” 28 U.S.C. § 1927. l. Plaintiff’s tax treatment indicated Plainti ff was not an employee, because MTA reported Plaintiff’s remuneration on 1099s and not W-2s.

(J.A. at 103-10.) In addition to the Nationwide factors, the district court also considered Plaintiff’s representation of his employment status on a social security disability benefit application. In those forms, Plaintiff asserted that hewas “self-employed” and “presidentof [a] one man company.” (J.A. at 110.) Plaintiff further represented that he ha d “incorporated himself” and that he was receiving payment “until the end of contracts that expire 12-31-00.” (J.A. at 110.)

We find that the district court’s factual findings are not clearly erroneous. We further agree with the district court that the balance of the evidence supports the conclusion that Plaintiff does not meet the definition of an “employee” under the common law. Plaintiff’s self-representation to the Social Security Administration is compelling. When viewed in conjunction with the issuance of 1099s, Plaintiff’s responsibility for his own payro ll taxes, and reference to Plaintiff as an “independent contrator” by the CSA itself, Plaintiff is not a common law employee and therefore ineligible under an ERISA benefit plan.

E. The District Court Did Not Abuse its Discretion in Awarding Partial Attorneys’ Fees Under 29 U.S.C. § 1132(g)(1) Against Plainti ff and in Sanctioning Plaintiff’s Counsel

Plaintiff argues that the Court’s conclusion thatPlaintiff is not a co mmon law employee, and therefore not a “participant” under ERISA, results in a determination that Plaintiff lacks statutory standing and that this Court therefore lacks jurisdiction under 29 U.S.C. § 1132(g)(1) to award fees against Plaintiff. In the alternative, Plaintiff ar gues that the district court abused its discretion in awarding attorneys fees against Plaintiff pursuant to 29 U.S.C. § 1132(g)(1). In addition, Plaintiff’s attorney argues that the district court abused its discretion in sanctioning Plaintiff’s attorney by holding the attorney jointly and severally liable with Plaintiff for the award of fees. Plaintiff, Plaintiff’s attorney, and Lafayette also take issue with the district court’s calculation of awarded fees. We reject these arguments in turn.

1. Standard of Review

This Court construes the terms of the ERISA statute de novo. Jordan v. Mich. Conf. of Teamsters Welfare Fund , 207 F.3d 854, 858 (6th Cir. 2000).

This Court reviews a district court’s award of attorneys’ fees and costs under 29 U.S.C. § 1132(g)(1) for an abuse of discretion. See 29 U.S.C. § 1132(g)(1) (“[T]he court in its discretion may allow a reasonable attorney’s fees and costs . . . .”). Similarly, this Court reviews a district court’s decision to impose sanctions agains t an attorney for abuse of discretion. See 28 U.S.C. § 1927. 4“[A]n abuse of discretion ex ists only when the court has the definite and firm conviction that the district court made a clear error of judgment in its conclusion upon weighing relevant factors.” Sec’y of Dep’t of Labor v. King , 775 F.2d 666, 669 (6th Cir. 1985).

2. The District Court Had Authority to Impose Attorneys’ Fees Against Plaintiff

Plaintiff first argues that the di strict court lacked authority to impose attorneys’ fees against Plaintiff because the court had found that Plai ntiff was not an “employee” under ERISA and was therefore ineligible to recover benefits under anERISA cause of action. Plaintiff argues that theNos. 04-1146/1942/1945; 05-1109 Moore v. Lafayette Life Ins. Co., et al. Page 19

5 The United States Court of Appeals for the Ninth Circu it has explicitly rejected such a self-serving argument as Plaintiff presents here. See Credit Mgrs. Assoc. of So. Calif. v. Kennesaw Life & Accident Ins. Co. , 25 F.3d 743 (9th Cir. 1994) (“[I]t would be unjust to permit [plaintiff] to insu late itself from liability for attorney’s fees simply because [he] failed to produce sufficient evidence to prevail on [his] claims.”). district court’s factual conclusion as to Plaintiff’s status as an “employee” means that Plaintiff can not be a “participant” under § 1132(g)(1), which aut horizes the award of atto rneys’ fees against a participant, beneficiary, or fiduciary of an ER ISA plan involved in a suit under the statute. See 29 U.S.C. § 1132(g)(1).

We find Plaintiff’s argument both self-serving and incorrect. 5 Were the Court’s factual determination on the merits as to Plaintiff’s status as an “employee” determinative of whether Plaintiff was a “participant” under the ERISA st atute, our merits determination would render Plaintiff without statutory standing and this Court without jurisdic tion to hear the case at all, a result inapposite to Supreme Court precedent, despite Judge Cook’s conclusion to the contrary in her partial dissent in this case.

a. ERISA “participants” and Firestone

Plaintiff’s action for benefits arises under 29 U.S.C. § 1132(a), which enables a benefit plan “participant” to enforce the substantive provisions of ERISA. The Act elsewhere defines “participant” as “any employee or former employee of an em ployer . . . who is or may become eligible to receive a benefit of any type from an employee benefit plan which covers employees of such employer . . . .” 29 U.S.C. § 1002(7). Plaintiff alleges that he was an employee of MTA when his disability began, making him an “employee . . . w ho is eligible to receive a benefit . . . .” and therefore a “participant” under ERISA with standing to sue. MTA argues that Plaintiff was an “independent contractor” and not an “employee.”

Judge Cook cites to Ward v. Alternative Health Delivery Systems , 261 F.3d 624 (6th Cir. 2001), for the proposition that this Court lacks subject matter jurisdiction over an ERISA suit brought by a plaintiff who lacks statutory standi ng. While we agree that lack of standing is determinative of the jurisdiction of this Court in an ERISA acti on, we do not agree that Plaintiff lacks standing in the case at bar or that this case is analogous to that cited in Ward . The Ward plaintiff argued for an extension of existing law under the corollary “beneficiary” standing prong of ERISA. Id. at 627. This Court refused to extend the de finition of “beneficiary” to include health care providers. Id. This was a ruling of law, not a factual determination that the Ward plaintiff did not qualify as a beneficiary under traditional definitions.

Plaintiff in the case at bar is not arguing for an extension of existing ERISA standing law. Rather, Plaintiff argues that, as a matter of fact , Plaintiff was an “employee” when his disability began. This goes to the merits. Questions of statutory standing and cause of action often merge. This is the circumstance of the case at bar. Pl aintiff alleges that he was an employee of the Defendant MTA when he became disabled. In f act, whether or not Plaintiff was an employee is determinative in the suit. It is circular to argue that because the Court has determined that Plaintiff was not an employee, Plaintiff lacked standing to su e and that this Court therefore lacks jurisdiction. Rather, Plaintiff had a colorable claim that he wa s an employee and that he was therefore covered by the statute. Logic dictates that the federal courts be able to reach this question.

The Supreme Court addressed this issue in Firestone Tire and Rubber Co. v. Bruch , 489 U.S. at 101. The Firestone Court addressed the question of statutory standing under the term “participant.” Id. at 115-18. The plaintiffs in Firestone were former employees of the tire manufacturer who claimed that they were entitled to benefits under a termination pay plan that Firestone had in place at the time Firestone sold the business in which plaintiffs worked. TheNos. 04-1146/1942/1945; 05-1109 Moore v. Lafayette Life Ins. Co., et al. Page 20

plaintiffs argued, in part, that they were entitled to receive plan information from Firestone after Firestone sold the business unit inwhich the plaintiffs worked. The district court agreed with Firestone, however, that at the time plaintiffs requested the information (after the sale of the business unit in which they worked), plaintiffs were no longer participants of Firestone’s ERISA plans, obviating Firestone’s obligations to provide information. Id. at 107. The Third Circuit reversed the district court, reasoning that the right to request and receive information about an employee benefit plan “most sensibly extend[s] both to people who are in fact entitle d to a benefit under the plan and those who claim to be but in fact are not.” Id. at 108 (quoting from the Third Circuit opinion).

On appeal, the Supreme Court rejected the Third Circuit’s contention that a litigant’s bald assertion of participant status ended the inquiry. Id. at 117. The Supreme Court noted that “Congress did not say that all ‘claimants’ could recei ve information about benefit plans. To say that a ‘participant’ is any person who claims to be one begs the question of who is a ‘participant’ and renders the definition set forth in § 1002(7) superfluous.” Id. ; see also 29 U.S.C. § 1002(7) (defining participant as “any employee or former employee of an employer . . . who is or may become eligible to receive a benefit of any type fr om an employee benefit plan. . . .”). The Supreme Court was therefore requiring the court of appeals to address the more particularized definition of participant available in the statute.

In remanding the case, the Supreme Court fu rther noted that “[i]n our view, the term ‘participant’ is naturally read to mean either empl oyees in, or reasonably expected to be in, currently covered employment . . . or former employees who have . . . a reasonable expectation of returning to covered employment or who have a co lorable claim to vested benefits.” Firestone Tire & Rubber

, 489 U.S. at 117 (interna l quotations and citations omitted). The Supreme Court expanded on its definition even further by noting that:

“[i]n order to establish that he or she ‘m ay become eligible’ for benefits, a claimant must have a colorable claim that (1) he or she will prevail in a suit for benefits, or that (2) eligibility requirement s will be fulfilled in the futu re. This view attributes conventional meanings to the statutory language since all employees in covered employment and former employees with a colorable claim to vested benefits ‘may become eligible.’ A former employee w ho has neither a reasonable expectation of returning to covered employment nor a colorable claim to vested benefits, however, simply does not fit within the phrase ‘may become eligible.’”

Id. at 118-19 (internal quotations and citations omitted). The Supreme Court did not reach the question of whether the claimants qualified as participants in Firestone , preferring to leave that determination to the court of appeals upon remand. Id. at 118.

The logical reading of the Supreme Court’s opinion in Firestone is that by failing to look to the statutory definition of participant, the court of appeals abrogated the st atutory restriction on who was entitled to plan information. At minimum, the Supreme Court seemed to be saying that a litigant must claim to be an “employee or former em ployee” as a participant is defined in the ERISA statute, and in determining “participant” status a court must do more than take the claimant’s bald assertion. It does not follow, however, that a cl aim for benefits which revolves around the question of whether a litigant is or was an “employee” under ERISA devolves into a standing issue alone.

Since Firestone , the Supreme Court has ruled on a case revolving around the claimant’s status as an employee. See Nationwide , 503 U.S. at 318. The posture of the parties in Nationwide was very similar to the posture in the case at bar. The plaintiff was a former insurance agent for defendant Nationwide. After Nationwide terminated the plaintiff’s agency, the plaintiff brought suit under ERISA to enforce the terms of a retirement plan under which the plaintiff claimed eligibility. Id. at 320. The proceedings in the lower court turned on whether the plaintiff qualified as anNos. 04-1146/1942/1945; 05-1109 Moore v. Lafayette Life Ins. Co., et al. Page 21

“employee or former employee” of Nationwide and thereby a “participant” eligible to claim benefits under ERISA. Id. at 321-22. The Supreme Court held that common law agency principles applied to determine whether the plaintiff was an “em ployee” under ERISA. The Supreme Court remanded the case for the application of the correct legal standard. Id. at 328. The Court did not imply, in any way, that a finding that the plaintiff was not an employee would function to strip the federal courts of their authority over the case.

b. When the merits and jurisdictional issues merge

While Firestone is directly on point and favors standing, we have also been instructed by the Supreme Court more generally to assume jurisdic tion when statutory standing and merits questions
converge. See Bell v. Hood , 327 U.S. 678, 681-82 (1945). The Fifth Circuit has summarized the meaning of that case very well as it relates to cases such as the one at bar:

When the basis of federal jurisdiction is in tertwined with the plaintiff’s federal cause of action, the court should assume jurisd iction over the case and decide the case on the merits. Bell v. Hood , 327 U.S. 678, 681-82 . . . . (1945) . . . . “The question of subject matter jurisdiction and the merits will normally be considered intertwined where the [same] statute provides both th e basis of federal court subject matter jurisdiction and the cause of action.” Clark v. Tarrant County, Texas, 798 F.2d 736, 742 (5th Cir. 1986) (citation omitted). In Williamson [ v. Tucker], we explained that

no purpose is served by indirectly arguing the merits in the context of federal jurisdiction. Judicial economy is best promoted when the existence of a federal right is di rectly reached and, where no claim is found to exist, the case is dismissed on the merits. . . . Therefore as a general rule a claim cannot be dismissed for lack of subject matter jurisdiction because of the absence of a federal cause of action.

645 F.2d [404,] 415-16 [5th Cir. 1981]. The basic reason fo r this rule is obvious. If federal jurisdiction turned on the success of a plaintiff’s federal cause of action, no such case could ever be dismissed on the merits.

The exceptions to the rule of Bell v. Hood are that jurisdictional dismissal is proper if the federal claim “clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a cl aim is wholly insubstantial and frivolous.” Bell v. Hood , 327 U.S. at 682-83 . . . . This “standard is met only where the plaintiff's claim ‘has no plausible foundation’ or ‘is clearly foreclosed by a prior Supreme Court decision.’” Williamson , 645 F.2d at 416 (quoting Bell v. Health-Mor, Inc. , 549 F.2d 342, 344 (5th Cir. 1977)).

Eubanks v. McCotter , 802 F.2d 790, 793 (5th Cir. 1986).

The Supreme Court has recently expanded on the premise of Bell v. Hood and emphasized that the courts must not extend the concept of subject matter jurisdiction, which deals with the “classes of cases . . . falling within a court’s adjudicatory authority,” to capture other instances in which a court should dismiss or refuse to take a case. See Kontrick v. Ryan, 540 U.S. 443, 455-56 (2004) (distinguishing between issues of subject matter jurisdiction and claims processing rules). This Court recently reflected the Kontrick distinction inPrimax Recoveries, Inc. v. Gunter , in which a panel held that a plaintiff’s claim under ERISA § 1132(a)(3) was properly dismissed for failure to state a claim, and not for lack of subject matter jurisdiction, when the plaintiff sought legal relief and the statute authorized only equitable ac tions. 433 F.3d 515, 519-20 (6th Cir. 2006). The Primax Recoveries panel further held that because the district court possessed subject matter jurisdiction over the case, even though the plaintiff failed to st ate a claim, the court possessed full authority toNos. 04-1146/1942/1945; 05-1109 Moore v. Lafayette Life Ins. Co., et al. Page 22

award attorneys’ fees to the prevailing party under the ERISA statute. Id. at 520. The Primax panel cited to Steel Co. v. Citizens for a Better Env’t, 533 U.S. 83, 89 (1998), noting that dismissal for lack of subject matter jurisdiction becau se of the inadequacy of a federal claim is proper only when a claim is “so insubstantial, implausible, foreclosedby prior decisions of this Court, or otherwise completely devoid of merit so as not to involve a federal controversy.” Primax Recoveries , 433 F.3d at 519 (citing Steel Co. , 533 U.S. at 89).

In the instant case, Plaintiff makes at least a colorable claim that he was an “employee,” and therefore an ERISA “participant,” at the time of his disability. His claim is not so insubstantial that it fails to present a federal controversy. Steel Co. , 533 U.S. at 89. Moreover, a factual determination on the merits that Plaintiff’s status was not actually that of an employee does not strip the federal courts of jurisdiction over the case. Rather, under the rules of Bell v. Hood and Steel Co. , we may properly reach the merits of Plain tiff’s case and retain jurisdiction to make an appropriate award of attorneys fees’ as envisioned by Congress when crafting the ERISA scheme.

3. The District Court Did Not Abuse its Discretion in Awarding Attorneys’ Fees and Costs

Plaintiff argues that the district court abusedits discretion in awarding Defendants a portion of their attorneys’ fees and costs.

Courts in this Circuit consider five factors in deciding ERISA attorneys’ fees questions:

(1) the degree of the opposing party’s culpability or bad faith;

(2) the opposing party’s ability to satisfy an award of attorneys’ fees;

(3) the deterrent effect of an award on other persons under similar circumstances;

(4) whether the party reque sting fees sought to confer a common benefit on all participants and beneficiaries of an ERIS A plan or resolve significant legal questions regarding ERISA; and

(5) the relative merits of the parties’ positions.

King , 775 F.2d at 669. The district court addressed each of these factors in turn. The district court found, first and foremost, that Plaintiff did not litigate in good faith. While Plaintiff presented a colorable claim for benefits, Plaintiff asserted a number of “near frivolous” claims against both Defendants, Plaintiff refused to dismiss claims against one Defendant or another once it became clear which was the proper Defendant for that cl aim, and Plaintiff unnecessarily prolonged litigation by filing unreliable briefs and pursuing arguments even after their rejection by the court. In addition, the district court found th at Plaintiff “improperly took quot ations out of context and made strained arguments based upon such misinterpreted citations.” (J.A. at 2548.)

We find that the district court’s conclusions are supported by the record. For example, after the parties agreed that MTA was the plan administrator while La fayette was the claims administrator, Plaintiff refused to dismiss his clai m for benefits against MTA and refused to dismiss his claim for failure to turn over plan documents against Lafayette. The case law is very clear about who is a proper party defendant for each of these cl aims. The district court need not determine that the entire matter was pursued in bad faith to find some level of culpability on the part of Plaintiff for the unnecessary scope of litigation.

Plaintiff further argues that the district court had insufficient basis to reach a conclusion that Plaintiff could afford to pay the imposed attorneys’ fees. The district court based its conclusion onNos. 04-1146/1942/1945; 05-1109 Moore v. Lafayette Life Ins. Co., et al. Page 23

the fact that Plaintiff had reported approximatelyhalf a million dollars in income in 1998 and 1999. Plaintiff presented no evidence to the district court, and indeed presents no evidence to this Court, in support of his contention that he cannot pay the fees.

Plaintiff next argues that the district court is improperly deterring colorable claims for benefits by awarding partial attorney s’ fees against Plaintiff. Plaintiff’s argument is without merit. While there is no presumption of award of attorn eys’ fees to the prevailing party in an ERISA action, see Schwartz v. Gregori , 160 F.3d 1116, 1119-20 (6th Cir. 1998), the district court’s objective was not to deter plaintiffs from bringing colorable claims for benefits, but from unnecessarily expanding the scope and complexity of litigation. Finally, the district court considered that the fourth King factor was inapplicable, and that the fifth factor favored Defendants because many of Plaintiff’s subclaims were either duplicative or lacked merit.

This Court is not left with a “definite and firm conviction that the district court made a clear error of judgment.” We have reviewed Plaintiff’s briefs to the district court and agree with the district court that the briefs were relatively unreliable, an unreliability that continued in Plaintiff’s briefs to this Court. In addition, Plaintiff c ontinued to pursue claims against both Lafayette and MTA when the record had become clear that one or the other was not a proper defendant for some of Plaintiff’s subclaims, despite the communicati on of relevant and clear legal authority for the dismissal of one defendant or the other to Plain tiff’s counsel. The district court did not abuse its discretion in awarding attorney fees’ against Plaintiff.

4. The District Court Did Not Abuse its Discretion in Sanctioning Plaintiff’s Attorney

Plaintiff argues that the district court abusedits discretion in holdi ng Plaintiff’s attorney jointly and severally liable with Plaintiff to pay 50 percent of Defendant’s attorneys’ fees. The district court rendered its decision for MTA’ s fees under both Rule 11 and 28 U.S.C. § 1927 authority. The district court rendered its decision for Lafayette’s fees under its 28 U.S.C.§ 1927 authority. While Rule 11 and § 1927 are alternative sanctioning schemes, each possesses its own requirements. See Chambers v. NASCO, Inc. , 501 U.S. 32, 43-44 (1991) (finding that § 1927, Rule 11, and a court’s inherent power to impose sanctions exist in concert). This Court may affirm the district court’s imposition of sanctions, however , if we find counsel’s conduct sanctionable under either Rule 11 or § 1927, because we may affirm the district court on any grounds supported by the record. City Mgmt. Corp. , 43 F.3d at 251; see also Ridder v. City of Springfield , 109 F.3d 288, 299 (6th Cir. 1997) (affirming award of attorneys’ fees pursuant to § 1927 when award under Rule 11 was improper).

a. Sanctions were untimely under Rule 11

Under the revised Rule 11, sanctions under Rule 11 are only appropriate when a party is made aware of the offending document as filed w ith the court and has an opportunity to withdraw the filing. Fed. R. Civ. Proc. 11 advisory comm. notes (1993 amendments) (“[A] party cannot delay serving its Rule 11 motion until conclusion of the case . . . .”) This Court held as much in Ridder

, 109 F.3d at 295 (“A party must now serve a Rule 11 motion on the allegedly offending party at least twenty-one days prior to the conclusion of th e case or judicial rejection of the offending contention.”). The parties do not dispute that the Rule 11 motions were made after the disposition of the case on summary judgment. Therefore any sanction under Rule 11 constitutes an abuse of discretion. We find, however, that the district court’s sanctions were proper under its alternative § 1927 holding. See infra

.Nos. 04-1146/1942/1945; 05-1109 Moore v. Lafayette Life Ins. Co., et al. Page 24

b. The district court did not abuse its discretion in imposing sanctions under § 1927

Section 1927 provides:

Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.

28 U.S.C. § 1927. This Court has held that:

the question under 28 U.S.C. § 1927 is whether Plaintiff’s attorney “multiplie[d] the proceedings . . . unreasonably and vexatiously.” An affirmative answer to that question does not require a finding of reckle ssness, subjective bad faith, or conscious impropriety; an attorney does not have carteblanche to burden the federal courts by pursuing claims that he should know are frivolous (see Jones v. Continental Corp.

, 789 F.2d 1225 (6th Cir. 1986)) . . . .

Haynie v. Ross Gear Div. of TRW , 799 F.2d 237, 243 (6th Cir. 1986).

Our inquiry, therefore, is whether there is s upport in the record that Plaintiff’s attorney “multiplie[d] the proceedings . . . unreasonably and vexatiously.” The district court’s sanction against Plaintiff’s counsel is supported by the c ourt’s finding of bad faith supporting the award of attorneys’ fees against Plaintiff. See supra . The district court specifically found that “Plaintiff’s counsel’s litigation tactics, mischaracterizations , and relentless pursuit of untenable claims and positions satisfies § 1927.” (J.A. at2557.) A court may hold a party’s attorney jointly and severally liable for the opposition’s attorneys’ fees as a 28 U.S.C. § 1927 sanction. See N. Trust Co. v. Muller, 616 F. Supp. 788, 789 (N.D. Ill. 1985). This Court is not left with a “defin ite and firm conviction that the district court made a clear error of judgment.”

5. The Size of the Attorneys’ Fee Award Was Reasonable

Plaintiff argues in the alternative that the si ze of the district court’s award of fees was unreasonable. MTA submitted monthly invoices with hourly accountings accompanied by attorney hourly rate charges. MTA’s total amount requested was approximately $166,000. The district court found these charges reasonable. Lafayette, however, submitted only a total amount and an accompanying affidavit attesting to the amount’s reasonableness. Lafayette requested a total amount of about $75,000. The district court likewise f ound this amount reasonable. Concluding that Plaintiff and Plaintiff’s counselunnecessarily expanded the scope and complexity of the ERISA action by approximately 50 percent, the district c ourt ordered Plaintiff and Plaintiff’s counsel held jointly and severally liable for 50 percent of both MTA’s and Lafayette’s submitted fees.

Plaintiff points to no portion of the bill submitted by MTA which Plaintiff avers represents an unreasonable charge. Rather, Plaintiff argues only that the district court failed to give the matter “careful analysis” and make “discrete findings” as required for a § 1927 sanction. We disagree. The district court held counsel jointly responsible for the same conduct which underpinned the court’s award of attorneys’ fees against Plaintiff, c onduct which the district court referenced in theNos. 04-1146/1942/1945; 05-1109 Moore v. Lafayette Life Ins. Co., et al. Page 25

6 The district court found, first and foremost, that Plaintiff did not litigate in good faith. While Plaintiff presented a colorable claim for benefits, Plaintiff asserteda number of “near frivolous” claims against both Defendants, Plaintiff refused to dismiss claims against one Defendant or another once it became clear which was the proper Defendant for that claim (e.g., the claim for failure toprovide plan documentation upon request), and Plaintiff unnecessarily prolonged litigation by filing unreliable briefs and pursuing arguments even after their rejection by the court. In addition, the district court found that Plainti ff “improperly took quotations out of context and made strained arguments based upon such misinterpreted citations.” (J.A. at 2548.)

7 While normally a party seeking attorneys’ fees under ERISA should submit detailed hourly billing statements, see Adcock-Ladd v. Sec’y of Treasury , 227 F.3d 343, 349 (6th Cir. 2000), Plaintiff’s failure to present proper argument to this Court makes it unnecessary for us to reach this issue here. memorandum of opinion accompanying the order awarding fees. 6 We therefore find the district court’s award of 50 percent of Lafayette and MT A’s attorneys’ fees a reasonable award, pursuant to the district court’s factual findings that Plaintiff and Plain tiff’s counsel unreasonably multiplied the litigation by the same amount. We believe the di strict court’s findings satisfied this Court’s instructions that trial courts provide “clear and concise explanation[s] of [their] reasons” for awarding attorneys’ fees. Gettings v. Bldg. Laborers Local 310 , 349 F.3d 300, 310 (6th Cir. 2003).

Plaintiff further argues, in a perfunctory way, that the district court erred in awarding fees to Lafayette when Lafayette had yet to submit detailed hourly charges constituting a breakdown of its fees. 7Plaintiff argues only that such documen tation would be a “logical prerequisite to establishing ‘reasonableness’” under § 1927. (Pl. Br. 67.) Plaintiff fails to support this statement with any case law, and further fails to cite to any relevant legal authority which requires this Court to overturn a district court’s award of attorneys’ fees in the absence of an hourly bill. Plaintiff’s one sentence argument to this effect is therefore insufficient to preserve this argument on appeal. “[The courts of appeals] are not self-directed boards of legal inquiry and research, but essentially arbiters of legal questions presented and argued by the parties.” See Cruz v. Am. Airlines, Inc. , 356 F.3d 320, 333-34 (D.C. Cir. 2004); Indeck Energy Servs., Inc. v. Consumers Energy Co. , 250 F.3d 972, 979 (6th Cir. 2000) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waive d.” (internal quotation and citation omitted)); see also Re/Max North Central, Inc. v. Cook , 64 Fed. App’x 562, 565 (7th Cir. 2003) (finding party’s arguments as to attorneys’ fees waived for lack of development on appeal); cf. Taubenfeld v. Aon Corp. , 415 F.3d 597, 600 (7th Cir. 2005) (applying waiver analysis to party’s allegations of lower court error in the award of attorneys’ fees); Griggs v. E. I. DuPont de Nemours & Co. , 385 F.3d 440, 454 (4th Cir. 2004) (same). Plaintiff’s perfunctory argument and failure to elucidate relevant case law therefore amounts to a waiver of this argument on appeal.

6. The District Court Did Not Abuse its Di scretion in the Amount of Fees Awarded to Lafayette

Lafayette cross-appeals the district court’s award of its attorneys’ fees as too low. Inasmuch as the amount awarded by the district court was premised on the amount submitted by Lafayette, and the fact the Plaintiff’s claim for benefits was at l east colorable as against Lafayette, we find that this cross-appeal is without merit.

III.

CONCLUSION

For the foregoing reasons, we AFFIRM the decision of the district court in all respects.Nos. 04-1146/1942/1945; 05-1109 Moore v. Lafayette Life Ins. Co., et al. Page 26

______________________
CONCURRENCE

______________________ OLIVER, District Judge, concurring. I join Judge Clay’s opinion affirming the decision of the district court, except in regard to Section II. A.3, which discusses Plaintiff’s promissory estoppel claim. I write separately because, unlike Judge Clay, I would affirm the trial court’s dismissal of the promissory estoppel claim on the same ground the trial court relied upon: failure to state a claim upon which relief could be granted. Before the trial court, Plaintiff based his promissory estoppel claim on his reliance upon Defendants’ representations and on the fact that the insurance policies in issue were not plan documents . Even though Plaintiff had copies of, and was intimately familiar with, the insurance policies, he did not argue, as he argues before this court, that the term “employee” as used in the plan s, was ambiguous. The trial c ourt found that the LTD and STD policies were plan documents. See Musto v. Am. Gen. Corp ., 861 F.2d 897, 901 (6th Cir. 1988). The trial court further found that under Sprague v. Gen. Motors Corp ., 133 F.3d 388, 404 (6th Cir. 1998) ( en banc ), where written plan documents exist, a promissory estoppel claim cannot succeed unless the plan documents are ambiguous. Id . Because Plaintiff did not ar gue there was ambiguity in the plan documents, the court dismissed his estoppel claim.

At the trial court, Plaintiff wholly failed to raise any alternative argument that the plan documents were ambiguous, even in the face of briefing on Sprague by Defendants and strong suggestions from the court at the oral hearing on the motion that the insurance policies were plan documents. Plaintiff even filed a supplemental brie f after oral argument, and before the court issued its order addressing whether legally sufficient plandocuments existed, but th at brief also failed to raise an alternative argument on ambiguity. More over, after the court ruled that the insurance policies constituted plan documents and dismissed the promissory estoppel claim, Plaintiff filed a motion for reconsideration regarding other issues wh ich were addressed in the court’s order, but did not challenge the court’s finding that the policies were plan documents or raise an alternative argument on ambiguity. Thus, Plaintiff had ampl e reason and opportunity to raise this argument throughout the district court proceedings, but did not. Since Moore never raised an argument about ambiguity below, he may not do so now . See United States v. Ninety-Three Firearms , 330 F.3d 414, 424 (6th Cir. 2003) (holding that “[t]his court has re peatedly held that it will not consider arguments raised for the first time on appeal unless our failure to consider the issue will result in a plain miscarriage of justice.”).

I would not reach the merits of the claim, as Judge Clay doe s in his opinion. The issues he addresses were not squarely before the district c ourt, and thus, there was no incentive for the lawyers to focus their arguments on the evidence or law bearing on those issues.Nos. 04-1146/1942/1945; 05-1109 Moore v. Lafayette Life Ins. Co., et al. Page 27

____________________________________________________ CONCURRING IN PART, DISSENTING IN PART

____________________________________________________ COOK, Circuit Judge, concurring in part and dissenting in part. Though I agree with much of the lead opinion, I respectfully differ on two point s. First, I join Judge Oliver’s concurrence dismissing Moore’s promissory estoppel claim on the grounds employed by the district court. Second, the determination that Moore is not a co mmon-law employee (and thus not a “participant”) leads me to conclude that Moore lacked statutor y standing, and accordingly that the district court lacked jurisdiction over the merits of certain of his ERISA claims, including fees and costs.

I. Effect of Concluding that Moore Was not a Common-Law Employee

I agree with the majority’s application of the multi-factor test of employment in Nationwide Mut. Ins. Co. v. Darden , 503 U.S. 318 (1992), to conclude that Moore was not a common-law employee. But given this conclusion, I cannot agree that the district court retained jurisdiction over Moore’s ERISA claims.

ERISA empowers a “participant or beneficiary” to bring a civil action “to recover benefits due to him” or “for relief [from an administrato r’s refusal to supply requested information],” 29 U.S.C. § 1132(a)(1)(B), and empowers a “participant, beneficiary or fiduciary” to bring a civil action “to obtain other appropriate equitable relief.” 29 U.S.C. § 1132(a)(3). ERISA also provides that “[i]n any action . . . by a participant, beneficiary or fiduciary, the court in its discretion may allow a reasonable attorney’s fees and costs of action to either party.” 29 U.S.C. § 1132(g)(1). No party argues that Moore is a “beneficiary” or “fiduciary” so we examine “participant” status.

ERISA defines “participant” to include “any employee or former employee of an employer . . . who is or may become eligib le to receive a benefit of any type from an employee benefit plan,” 29 U.S.C. § 1002(7), and defines “employee” as “any individual employed by an employer.” 29 U.S.C. § 1002(6). To help clarify thes e definitions, the Supreme Court, in Nationwide , 503 U.S. at 323-24, adopted the common-law test of employment for determining who qualifies as an “employee” under ERISA. Because Moore is not a common-law employee, he also is not an “employee” for purposes of ERISA and, by definition, not a “participant.”

Statutory standing—the issue of whether a statute “authorizes [a] plaintiff to sue”—is a jurisdictional matter deserving of threshold judicial inquiry. Steel Co. v. Citizens for a Better Env’t

, 523 U.S. 83, 92 (1998). This court confirmed in Ward v. Alternative Health Delivery Sys., Inc. , 261 F.3d 624 (6th Cir. 2001), that whether a person is a “participant” or “beneficiary” under ERISA is a matter of statutory standing. The plaintiff in Ward was a member of a network of health care providers who, on the basis of her clients’ partic ipation in an employee plan, brought ERISA claims against the network’s corresponding HMO and speci alty care management company. This court agreed with the district court that “[the] plaintiff was not an ERIS A plan participant or beneficiary and, therefore, that she did not have standing to bring her ERISA claims.” Id. at 627. In the context of Ward’s pendent state law claims, the court left no doubt as to the consequence of that determination: “[P]lantiff’s ERISA standing is a jurisdictional matter. Once the district court dismissed the only claims within its original jurisd iction for lack of subject matter jurisdiction, it did not have jurisdiction to retain plaintiff’s state law claims.” Id. And likewise, upon this court’s finding that Moore is not a “participant,” this court should hold that the district court lacked jurisdiction to adjudicate his substantive claims.

The majority distinguishes Ward on the ground that the plaintiff there “argued for an extension of existing law,” rather than appeali ng to “traditional definitions”—a distinction withNos. 04-1146/1942/1945; 05-1109 Moore v. Lafayette Life Ins. Co., et al. Page 28

which I am respectfully unfamiliar—and that ther efore the court’s holding constituted “a ruling of law,” rather than a “factual determination.” (M aj. Op. at 19.) Ward’s argument may have been weaker than Moore’s, but the cases differ (if at all) by degree, not by kind, and I cannot see how the statutory language—particularly when combined with the twelve-factor common law test of employment

— could resolve a legal question in one contex t and a “factual” question in a closer case. Both cases required the court to apply parallel st atutory language to undisputed facts; and in each case those facts have been found to fall outside of the statutory concept. The consequences of the inquiries should not differ.

The majority worries that holding that the district court lacked jurisdiction because Moore is not a “participant” will produce a “circular” re sult—presumably because it believes that such a conclusion forecloses jurisdiction over the question whether Moore was a “participant” in the first place. (Maj. Op. at 20.) But this conflates jurisdiction over the merits with “jurisdiction” over questions of jurisdiction. Courts are always free (and in fact are required) to determine their own jurisdiction. And that determination has res judicata effect. See Ins. Corp. of Ir. v. Compagnie Des Bauxites De Guinee , 456 U.S. 694, 702 n.9 (1982) (“A party thathas had an opportunity to litigate the question of subject-matter jurisdiction may not, however, reopen that question in a collateral attack upon an adverse judgment. It has long been the rule that principles of res judicata apply to jurisdictional determinations -- both subject matter and personal.”) (citing Chicot County Drainage Dist. v. Baxter State Bank , 308 U.S. 371 (1940); Stoll v. Gottlieb , 305 U.S. 165 (1938)). No circularity results because the determination that a court lacks jurisdiction over the merits of a claim does not undermine its authority to make that determination.

I am puzzled by the majority’s later discussion of Firestone Tire & Rubber Co. v. Bruch , 489 U.S. 101 (1989). In the cited secti on of that case, the Court rejecteda gloss that the Third Circuit applied to the term “participant.” The Supreme Court held that “participant[s]” consisted only of actual “employee[s] or former employee[s] . . . who [are] or may become eligible [for benefits],” 29 U.S.C. § 1002(7), and that a plai ntiff who merely claims to be a “participant” does not fall within the statute. Id. at 115-18. The Court did suggest that the phrase “may become eligible” extends the term “participant” to employees or former employees who have a “colorable claim” to benefits . But it did not extend the statutory definition of “particip ant” to persons who have only a colorable claim to being “employees or former employees.”

The discussion is puzzling because Firestone ’s parsing of the term “participant” adds nothing to the majority’s analysis, given its previous holding (with which I fully concur) that Moore was not a “participant.” Whether a plaintiff is a “partic ipant” differs from what consequences flow from the determination that he or she is not, and Firestone only implicates the first question. We are still left to determine whether “participant” status implicates statutory standing.

Nationwide , in which “[t]he Supreme Court held th at common law agency principles applied to determine whether the plaintiff was an ‘empl oyee’” (Maj. Op. at 21), does not suggest otherwise. The majority observes that “[t]he Court did not im ply” that whether a plaintiff was a “participant” was a question of statutory standing. Id. But nor did it “imply” the c ontrary. And the fact that Nationwide was published several years before Ward suggests that Nationwide poses no barrier to the conclusion that being a “participant” implicates statutory standing.

That leaves only Bell v. Hood , 327 U.S. 678 (1946), which the majority reads as instructing federal courts “to assume jurisdiction when statutory standing and merits questions converge.” (Maj. Op. at 21.) But Bell stands for the narrower proposition that “the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction.” 327 U.S. at 682; see Steel Co. , 523 U.S. at 89-90 (“[T]he absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e. , the courts’ statutory or constitutional power to adjudicate the case.” (emphasis in origin al)). This is significant because theNos. 04-1146/1942/1945; 05-1109 Moore v. Lafayette Life Ins. Co., et al. Page 29

question implicated by whether Moore is a “particip ant” is not whether Moore has stated a proper cause of action, but whether he is a proper plaintiff for those claims. Cf. Steel Co. , 523 U.S. at 92 (distinguishing questions of who may seek relief under a statute from questions regarding the scope of a statutory cause of action); Primax Recoveries, Inc. v. Gunter , 433 F.3d 515 (6th Cir. 2006) (characterizing the dismissal of a claim under 29 U.S.C. § 1132(a)(3) that improperly sought legal relief, rather than equitable relief, as failing to st ate a claim, rather than failing to support the court’s jurisdiction—and where there was no dispute over whether the plaintiff was a “participant”). To see that this is so, consider that the district court dismissed Moore’s fiduciary duty claim (Count II) and failure to furnish information claim (Count V) on the merits without relying on its later conclusion that he was not a “participant.” Ev en under the majority’s reading of Bell , the question of whether Moore was a “participant” could still be jurisdictional because the merits of such claims did not converge with statutory standing.

The same is true of Moore’s claim for benef its, which the district court did resolve on the basis that Moore was not a “participant.” For if the district court had found that Moore was a “participant,” that would not have ended the court’s inquiry. It still would have had to assess whether Moore was an employee and eligible for relief under the plan’s definitions, and while that may have been straightforward in this case, it is not always so. Eligibility for relief is a distinct concept from whether a plaintiff is a “participant,” thus the merits of Moore’s claim for benefits do not converge with the issue of statutory standing. Bell does not require us to view whether Moore was a “participant” as a question on the merits.

Finally, viewing whether Moore was a “particip ant” as a question of statutory standing promotes the goal of judicial economy. The district court should have addressed the issue first and, upon determining that Moore was not a “participan t,” dismissed all of Moore’s ERISA claims—for benefits, breach of fiduciary duty, attorneys’ fees , and failure to supply information—that stemmed from conduct occurring after he signed the CSA.

II. Fees

Just as the district court lacked jurisdiction to consider the merits of Moore’s ERISA claims, so too it lacked jurisdiction to award attorneys’ fees under ERISA. Section 1132(g)(1) only allows a court to award fees and costs in actions “by a participant, beneficiary, or fiduciary.” Because Moore was none of the above, the district court did not have jurisdiction over Moore’s Count IV (seeking such fees), or over the defendants’ motion for fees under ERISA. I would thus vacate the district court’s award of fees against Moore.

Because the district court held Moore’s counseljointly and severally liable with Moore for the § 1132(g) penalty, a holding that the court was without jurisdiction to award fees under ERISA would seem to remove the only basis for that sanction. However, because the district court suggested an independent basis for Moore’s counsel’s liability, I would remand the question of whether sanctions were appropriate under 28 U.S.C. § 1927 (given the majority’s conclusion that defendants’ Rule 11 motion was untimely). I w ould also remand the question of whether Moore himself was similarly liable on a non-ERISA basis.