IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-31006

SONYA TURNER; VENA CORMIER; WESLEY J. NIXON; JULIE

CONSTANCE; CHARLOTTE JOURDAN; ANGIE MALONE; JOHN

SHIPMAN,

Plaintiffs–Appellants

v.

PAN AMERICAN LIFE INSURANCE COMPANY, 

Defendant–Appellee

Appeal from the United States District Court 

for the Middle District of Louisiana

USDC No. 3:04-CV-450

Before KING, PRADO, and HAYNES, Circuit Judges.

PER CURIAM:*

Plaintiffs–AppellantsSonyaTurner, Vena Cormier, Wesley J. Nixon, Julie

Constance, Charlotte Jourdan, Angie Malone, and John Shipman (“Plaintiffs”)

participated in a 401(k) defined contribution retirement plan (the “Plan”)

established by Larry Talbert (“Talbert”), the founder of Progix, Inc. (“Progix”).

Pursuant to an agreement with Progix, Defendant–Appellee Pan American Life

United States Court of Appeals

Fifth Circuit

F I L E D

July 9, 2012

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 11-31006

Insurance Company (“Pan American”) received and invested participants’

contributions.

Plaintiffs filed suit against Pan American for breach of fiduciary duty

under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §

1001 et seq., alleging that Pan American improperly froze participants’ Plan

accounts after an investigation revealed that Talbert had failed to forward

employees’ contributions to Pan American. Plaintiffs contend that the freeze

prevented participants from withdrawing their contributions or making

interfund transfers, and that participants’ accounts lost value as a result.

Plaintiffs sought to represent a class composed of all participants who suffered

losses as a result of the alleged freeze. 

The district court denied Plaintiffs’ motion for class certification and

thereafter denied their motion to amend the complaint. After a bench trial on the

merits, the district court concluded that Pan American was not an ERISA

fiduciary, and that even if it were, its actions during the alleged freeze did not

cause the participants to incur any damages. The district court dismissed the

lawsuit with prejudice. For the following reasons, we AFFIRM:

1. The district court properly concluded that Pan American was not a

fiduciary under ERISA, as it did not exercise the requisite discretionary

authority with respect to the Plan. See 29 U.S.C. § 1002(21)(A); Reich v.

Lancaster, 55 F.3d 1034, 1046 (5th Cir. 1995). Pan American was not permitted

to exercise discretion under the Plan documents themselves, which limited Pan

American’s role to the performance of “nondiscretionary, ministerial services,”

none of which “shall . . . cause the Company to be characterized as a fiduciary.”

Nor did Pan American in fact exercise any discretion. It continued to permit

interfund transfers during the alleged freeze, and its refusal to permit 1

In light of the evidence presented at trial, we find no basis to conclude thatthe district 1

court clearly erred in this factual determination. See Anderson v. City of Bessemer City, N.C.,

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No. 11-31006

participants to make unilateral withdrawals was a ministerial function. Under

the Plan documents, the Plan Administrator (Progix) was required to approve

all such withdrawals, but it never did so. Because Pan American was not an

ERISA fiduciary, the district court properly dismissed Plaintiffs’ breach of

fiduciary duty claim. See 29 U.S.C. § 1109(a). 

2. As we affirm the district court’s dismissal of Plaintiffs’ claim on the

merits, we need not consider their arguments with respect to class certification

and amendment of the complaint. See, e.g., Conditt v. Owens, 457 F. App’x 420,

422 (5th Cir. 2012) (“[D]ismissal of Conditt’s complaint on its merits mooted any

request for class certification.”); Cesary v. Second Nat’l Bank of N. Miami, 598

F.2d 348, 349 (5th Cir. 1979); see also Avatar Exploration, Inc. v. Chevron,

U.S.A., Inc., 933 F.2d 314, 321 (5th Cir. 1991) (“We . . . affirm denials of motions

to amend when amendment would be futile.”). 

3. The district court properly declined to award attorneys’ fees to

Plaintiffs. See 29 U.S.C. § 1132(g)(1). Although we have recognized that “a party

need not prevail in order to be eligible for an award of attorneys’ fees under

§ 1132(g)(1) of ERISA,” Gibbs v. Gibbs, 210 F.3d 491, 503 (5th Cir. 2000), no such

award is warranted here. Plaintiffs have not demonstrated that their position

has merit, that Pan American acted in bad faith, or that any other factors favor

an award of attorneys’ fees in this case. See id. at 504. 

AFFIRMED.

470 U.S. 564, 573-74 (1985) (“If the district court’s account of the evidence is plausible in light

of the record viewed in its entirety, the court of appeals may not reverse it even though

convinced that had it been sitting as the trier of fact, it would have weighed the evidence

differently.”).

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