[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-10056

Non-Argument Calendar

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D.C. Docket No. 8:13-cv-02847-MSS-MAP

ALLENA BURGE SMILEY,

D.M.D.,

 Plaintiff-Appellant,

 versus

HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY,

d.b.a. The Hartford,

SMILE BRANDS, INC.,

d.b.a. Valley Forge Dental of Florida, P.A.,

d.b.a. Bright Now! Dental,

 Defendants-Appellees.

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Appeal from the United States District Court

for the Middle District of Florida

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(July 17, 2015)

Before MARCUS, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM: 

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Plaintiff Allena Smiley appeals the district court’s order granting summary 

judgment in favor of Defendants Hartford Life and Accident Insurance Company 

(“Hartford”) and Smile Brands, Inc. (“Smile Brands”) on Smiley’s claims for 

statutory penalties and attorney’s fees pursuant to the Employee Retirement 

Income Security Act of 1974, 29 U.S.C. § 1001, et seq. (“ERISA”). Generally, we 

review questions of law, including orders on summary judgment, de novo. Byars 

v. Coca-Cola Co., 517 F.3d 1256, 1263 (11th Cir. 2008). However, we review a 

district court’s decision whether to impose statutory penalties and attorney’s fees

under ERISA for an abuse of discretion. Id. at 1263, 1269. Finding no error, we 

affirm.

ERISA authorizes district courts to impose a daily penalty upon any plan 

administrator that “fails or refuses to comply with a request for information which 

such administrator is required . . . to supply to a participant or a beneficiary.” 29 

U.S.C. § 1332(c)(1). Specifically, ERISA requires a plan administrator to furnish 

the following upon request: “the latest updated summary, plan description, and the 

latest annual report, any terminal report, the bargaining agreement, trust 

agreement, contract, or other instruments under which the plan is established and 

operated.” 29 U.S.C. § 1024(b)(4). A plan administrator is either “the person 

specifically so designated by the terms of the instrument under which the plan is 

operated,” 29 U.S.C. § 1002(16)(A)(i), or a company acting as a plan 

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administrator, see Hunt v. Hawthorne Assocs., Inc., 119 F.3d 888, 915 (11th Cir. 

1997). 

First, the district court correctly concluded that Hartford, a third-party claims 

administrator, was not the plan administrator and therefore not subject to statutory 

penalties under § 1132(c)(1). Smile Brands’ Long Term Disability Plan (“the 

Plan”) expressly identified Smile Brands as the plan administrator. Further, 

Hartford was not the de facto administrator. We have consistently rejected the use 

of the de facto plan administrator doctrine “where a plaintiff has sought to hold a 

third-party administrative services provider liable, rather than the employer . . . .” 

Oliver v. Coca Cola Co., 497 F.3d 1181, 1194 (11th Cir. 2007), reh’g granted, 

opinion vacated in part on other grounds, 506 F.3d 1316 (11th Cir. 2007) and 

adhered to in part on reh’g sub nom., 546 F.3d 1353 (11th Cir. 2008). As in 

Oliver, the record demonstrates that Smile Brands retained the authority to make 

final decisions on appeal from the claims administrator, Hartford. See id. at 1195. 

Thus, Hartford was not the plan administrator, either in name or in fact, and was 

not liable for failing to furnish Smiley with certain Plan documents.

Second, the district court did not abuse its discretion in refusing to impose 

statutory penalties on Smile Brands. The disclosure penalty provision of § 1132(c)

“is meant to be in the nature of punitive damages, designed more for the purpose of 

punishing the violator than compensating the participant or beneficiary.” Scott v. 

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Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1232 (11th Cir. 2002). As the 

district court concluded, the facts of this case do not warrant punishing Smile 

Brands because it did not refuse or fail to provide Smiley with the Plan documents. 

Smiley contacted Smile Brands and received the relevant Plan documents no 

later than February 29, 2012. When Smiley’s benefits were subsequently 

terminated, she again requested the documents, but this time she directed her 

request to Hartford, which in turn provided an outdated address for Smile Brands. 

The same outdated address is listed in the Plan documents. Notwithstanding the 

fact that counsel for Dr. Smiley had several times successfully contacted Smile 

Brands at its correct, Irvine, California address, Smiley sought to obtain Plan 

documents this second time from Smile Brands by letter addressed to the outdated 

Santa Ana, California address listed in the summary plan description. The letter 

was returned as undeliverable. Accordingly, Smile Brands had no knowledge that 

Smiley was attempting to obtain the same Plan documents until it was served with 

Smiley’s amended complaint on February 11, 2014. 

In sum, there is no evidence that Smile Brands refused or failed to provide 

Smiley with the relevant documents, which were already in her possession. Given 

these facts, we cannot say that the district court abused its discretion in denying 

disclosure penalties, and Smiley has not proffered any case law that suggests 

otherwise. In addition, the district court did not err in considering, in part, the 

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absence of prejudice, bad faith, and harm to Smiley in determining whether to 

exercise its discretion. Although a plaintiff need not demonstrate any of the 

forgoing to obtain § 1132(c) penalties, a court may consider those factors, among 

others, in making its determination. See Byars, 517 F.3d at 1271; Daughtrey v. 

Honeywell, Inc., 3 F.3d 1488, 1494 (11th Cir. 1993).

Finally, because Smiley failed to obtain any success on the merits of her 

claims against Hartford or Smile Brands, she is not entitled to attorney’s fees under 

29 U.S.C. § 1132(g). Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 255, 

130 S.Ct. 2149, 2158 (2010) (requiring a claimant to show “some degree of 

success on the merits before a court may award attorney’s fees under § 1132(g)(1)”

(internal quotation omitted)).

AFFIRMED.

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