### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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: * Plaintif f s

– Ap p ell ant s S o nya Turn er, Vena Cormier, Wesley J. Nixon, Julie Constance, Charlotte Jourdan, Angie Malone, and John Shipman (“Plaintiffs”) participated in a 401(k) define d contribution retirement plan (the “Plan”) established by Larry Talbert (“T albert”), the founder of Progix, Inc. (“Progix”). Pursuant to an agreement with Progix, Defendant–Appellee Pan American Life U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D July 9, 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-31006 Document: 00511913997 Page: 1 Date Filed: 07/09/2012No. 11-31006

Insurance Company (“Pan American”) received and invested participa n ts’ contributions. Plaintiff s f iled suit against Pan American for breach of fiduciary duty under the Employee Retirement Inco m e S e curity Act (“ERISA”), 29 U.S.C. § 1001 et seq. , alleging that Pan American improperly froze participants’ Plan accounts after an investigation revealed that T alb e rt had failed to forward employees’ contributions to Pan American. Plaintiffs con t e n d that the freeze prevented participants from withdrawing their contributions or making interfund transfers, and that participants’ accounts lost value a s a result. Plaintiffs sought to represent a class composed of all participants who suffered losses as a result of the alleged freeze. Th e di s trict court denied Plaintiffs’ motion for class certification and thereafter denied their motion to amend the complaint. After a bench trial on the merits, th e 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 dismisse d the lawsuit with prejudice. For the following reasons, we AFFIRM: 1. The district court properly concluded that Pan American wa s n o t a fiduciary under ERISA, as it did not exercise the requisite discr e t i onary 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 alleg e d freeze, and its refusal to permit 1

In light of the evide nce pr es ente d at tri al, we find no bas is to conc lude that the dis tri ct 1
court clea rly err ed in this fac tual det erm inati on. See Ande rso n v. City of Bess em er City, N. C. , 2 Case: 11-31006 Document: 00511913997 Page: 2 Date Filed: 07/09/2012No. 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 wi th drawals, but it never did so. Because Pan American was not an ERISA f i du c iary, 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

. 2 d 3 4 8 , 349 (5th Cir. 1979); see also Avatar Exploration, Inc. v. Chevro n, 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 i s 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 (198 5) (“ If the dis tri ct court’s acc ount of the evide nce is plau sib le in light of the rec ord view ed in its enti rety, the court of app eals may not rever s e it even thou gh convin ced that had it been sit ting as the t r i e r o f fac t, it wo uld have we ighed the evide nce dif fer ently.” ). 3 Case: 11-31006 Document: 00511913997 Page: 3 Date Filed: 07/09/2012