LOUISE W. FLANAGAN, District Judge.
This matter is before the court on defendant's motion for attorney's fees and costs (DE 45). Plaintiffs have responded in opposition, and the issues raised are ripe for ruling. For the following reasons, the court denies the motion.
Plaintiffs commenced this action on July 18, 2014, seeking declaratory judgment regarding issues in controversy between plaintiffs and defendant, who is a former executive of Thermal Ceramics de Venezuela ("TCV"), a Venezuelan entity affiliated with plaintiff Thermal Ceramics Inc. ("TCI"). Plaintiffs sought a judicial declaration regarding certain rights and obligations of the parties, under the Employment Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001
Plaintiffs sought through their complaint a judicial declaration on three issues:
Defendant filed a motion to dismiss for lack of personal jurisdiction on September 2, 2014, asserting that he was a resident of Florida, and that plaintiffs could not take advantage of ERISA's nationwide service of process provision under the circumstances of this case. In support of his motion to dismiss, defendant filed a declaration by an attorney who asserted he was representing defendant with respect to claims under the Top Hat Plan and MUSE Plan. Monnoly asserted that counsel for defendant sent a letter to TCI, enclosing a draft of a complaint asserting claims under these plans, which indicated that if a civil action was filed it would be venued in the Southern District of Florida.
Plaintiffs responded in opposition to the motion to dismiss on September 26, 2014. In support of their response, plaintiffs filed two declarations by Fred Wollman ("Wollman"), president of Morganite Industries, Inc., and chairman of the committee constituting the plaintiff Top Hat Plan Administrator and plaintiff MUSE Plan Administrator, enclosing plan documents. Wollman also described in more detail the claims for relief that defendant asserted in the draft Florida complaint regarding the Top Hat Plan, as follows:
(DE 19, ¶20). Regarding the MUSE Plan, in the draft Florida complaint, defendant purportedly "contends that TCV and/or TCI have miscalculated the number of years of benefit service for which he should be credited under the MUSE Plan because certain service was not counted for TCV, a Venezuelan entity that did not participate in the MUSE Plan." (DE 20, ¶24).
The court referred the matter to magistrate judge, who heard oral argument and entered M&R on February 4, 2015, recommending dismissal on the basis that the claims asserted were legal in nature, and thus not falling within the subject matter jurisdiction of ERISA. On August 26, 2015, the court adopted the recommendation of the M&R, albeit on different grounds, and granted defendant's motion to dismiss.
In its August 26, 2015, order, the court determined that "plaintiffs' assertion of the nationwide service of process provision fails because plaintiffs have not brought an action to `enforce any provisions' of Title I of ERISA." (Order, DE 43, at 9 (quoting 29 U.S.C. § 1132(a)(3)(B)(ii))). The court reasoned that "a fiduciary's declaratory judgment action to determine the extent of its liability is not an action that enforces ERISA." (
Plaintiffs did not appeal the court's decision. Defendant filed the instant motion on September 9, 2015, seeking attorney's fees and costs. If granted, defendant proposes to allow his counsel a period of time to submit a fee petition specifying counsel's reasonable fees and costs, including, but not limited to, fully briefing the motion to dismiss, expenses related to defense counsel's travel to North Carolina to participate in oral argument, responding to objections to the M&R, and the instant motion for fees and costs. Plaintiffs filed a brief in opposition to the motion.
ERISA provides for an award of attorney's fees and costs under the terms set forth in 29 U.S.C. § 1132(g), which provides in pertinent part: "[i]n any action under this subchapter . . . by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney's fee and costs of action to either party." 29 U.S.C. § 1132(g)(1). The instant request for attorney's fees is not justified for two independent reasons.
First, the court's determination that it lacked subject matter jurisdiction precludes an award of attorney's fees under § 1132(g). "[D]ismissal of [plaintiffs'] claims for lack of subject matter jurisdiction is inconsistent with an award of fees and costs under a statute which requires `any action under this subchapter.'"
Second, "a fees claimant must show some degree of success on the merits before a court may award attorney's fees under § 1132(g)(1)."
Defendant suggests in his motion that his successful motion to dismiss for lack of personal jurisdiction qualifies as a "complete success on the merits" under
Based on the foregoing, the court DENIES plaintiff's motion for attorney's fees and costs. (DE 45).
SO ORDERED.