NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 13a0333n.06

                                          No. 12-1859                                FILED
                                                                                   Apr 04, 2013
                                                                              DEBORAH S. HUNT, Clerk

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

TAMARA CIARAMITARO,

       Plaintiff-Appellant,

v.                                                  ON APPEAL FROM THE UNITED
                                                    STATES DISTRICT COURT FOR THE
UNUM LIFE INSURANCE COMPANY OF                      EASTERN DISTRICT OF MICHIGAN
AMERICA; GREEKTOWN CASINO, LLC,

       Defendants-Appellees.

                                              /




BEFORE:        MERRITT, MARTIN, and CLAY, Circuit Judges.

       CLAY, Circuit Judge. Plaintiff Tamara Ciaramitaro sued her employer, Defendant

Greektown Casino, and the benefits administrator of her long-term disability plan, Defendant Unum

Life Insurance, for benefits that she claimed that she was owed under the ERISA-covered long-term

disability plan. After initially remanding Plaintiff’s claim to Unum, the district court affirmed

Plaintiff’s benefits award, which had been offset for benefits that Plaintiff had received through

workers’ compensation and Social Security. The district court also awarded Plaintiff $5000 in

attorney’s fees. For the following reasons, we VACATE and REMAND the district court’s

attorney fee award but AFFIRM the judgment in all other respects.
                                            No. 12-1859

                                         BACKGROUND

       Plaintiff Tamara Ciaramitaro worked for Defendant Greektown Casino, LLC (“Greektown”)

as a floor person. In that capacity, she filled slot machines with coins and made minor repairs to slot

machines. On October 26, 2001, Plaintiff fainted while at work and sustained a closed-head injury.

Plaintiff was taken to the hospital for this injury and after being treated for several hours, was

returned to work. Upon returning to work after her hospital visit, however, Plaintiff was sent home

after working for another half-hour. For the next three weeks, Plaintiff was put on “light duty,” and

then on November 12, 2001, she returned to “full duty.” Plaintiff remained working on “full duty”

until January 5, 2003, when she developed lumbar problems, which manifested as back pain as well

as numbness/tingling in her left leg. Sometime after 2003, Plaintiff was diagnosed with brain

injuries stemming from her fainting episode in October 2001.

       Greektown provides its employees with a long-term disability plan (“the Plan”), which is

operated by Defendant Unum Life Insurance Company of America (“Unum”). Under the Plan,

which is covered by the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001

et seq., “disability” is defined as when a participant is “limited from performing the material and

substantial duties of [her] regular occupation due to [her] sickness or injury . . . .” (R. 29-2, at

PID# 137.) Though Greektown was the plan administrator, benefits determinations were made by

Unum, which is vested with the “discretionary authority to determine [a participant’s] eligibility for

benefits and to interpret the terms and provisions of [the Plan].” (Id. at 117.) Both the initial claim

and appeals processes run through Unum. The Plan specifies that any award from the Plan will be

decreased by “any deductible sources of income,” which include “income received under a ‘worker’s

compensation law’ and under the United States Social Security Act.” (Id. at 138, 140.) The Plan

                                                  2
                                            No. 12-1859

qualifies these outside-payment deductions and states that “Unum will only subtract deductible

sources of income which are payable as a result of the same disability.” (Id. at 141.)

       Based on her lumbar problems, Plaintiff, in 2003, applied for benefits under the Plan, which

Unum denied on September 26, 2003. Plaintiff took an intra-Plan appeal of that decision, and Unum

upheld its denial of benefits decision on August 25, 2004. Thereafter, Plaintiff brought suit in the

United States District Court for the Eastern District of Michigan (No. 05-cv-70813). That suit was

dismissed without prejudice. Following the dismissal, Plaintiff was awarded Michigan workers’

compensation benefits for her lumbar problems in March 2006, and Social Security Disability

Insurance (“SSDI”) benefits for her brain injuries in January 2007.

       Plaintiff filed the underlying action in the United States District Court for the Eastern District

of Michigan, claiming that the Plan wrongfully denied her benefits, on September 4, 2009. Unum

moved to dismiss Plaintiff’s state-law claims, and that motion was granted on November 6, 2009.

See Ciaramitaro v. Unum Life Ins. Co. of Am., No. 09-cv-13492, 

(E.D. Mich.

Nov. 6, 2009). On July 27, 2010, Greektown moved to dismiss all claims against it. That motion

was granted on February 3, 2012. Ciaramitaro v. Unum Life Ins., No. 09-cv-13492, 

, at *1 n.1 (E.D. Mich. Feb. 3, 2012). Thereafter, all that remained were the federal ERISA

claims against Unum.

       On June 16, 2010, the district court entered an order requiring Unum to produce the

administrative record and allowing Plaintiff, if she so chose, to supplement that record. Plaintiff,

on July 9, 2010, supplemented the record with, among other things, decisions granting her Michigan

workers’ compensation benefits and SSDI. After this supplement, the parties agreed to remand the

matter to Unum for a reconsideration of benefits on September 9, 2010.

                                                   3
                                             No. 12-1859

        On March 31, 2011, Unum’s counsel notified Plaintiff’s counsel that Plaintiff was entitled

to benefits under the Plan. The award of $36,213.72 was communicated to Plaintiff in an April 13,

2011 letter. That letter noted that her award had been offset by her worker’s compensation and SSDI

awards. Plaintiff then filed a motion seeking to have Unum recalculate her benefits and explain the

amount that Unum deemed that Plaintiff was entitled to, in light of the offsets applied by Unum in

its award. The district court, on July 26, 2011, granted Plaintiff’s motion in part and ordered Unum

to provide Plaintiff with an explanation of the award as well as the basis for the offsets. In response,

on August 23, 2011, Unum explained that Plaintiff was “disabled, either separately or in

combination, from a lumbar disorder and a mental disorder.” (R. 47-2, at PID# 443.) This

conclusion was based on the additional evidence submitted by Plaintiff on remand to the Plan. As

to the offsets, Plaintiff was entitled to an award of $161,576.50, which was, in relevant part, offset

by $35,082.79 based on Plaintiff’s SSDI award and by $106,280.53 based on her worker’s

compensation award.

        Plaintiff continued to challenge the calculation after the explanation, and the district court

took up the challenge in its February 3, 2012 order. In that order, the district court denied Plaintiff’s

request for recalculation, civil penalties, prejudgment interest, and punitive damages.              See

Ciaramitaro, 

. Plaintiff next moved for attorney’s fees and for reconsideration.

The district court denied reconsideration, but granted Plaintiff’s attorney $5000 in fees (though

Plaintiff’s attorney requested $49,811.20 in fees). See Ciaramitaro v. Unum Life Ins. Co. of Am.,

No. 09-cv-13492, 

(E.D. Mich. June 6, 2012). This timely appeal followed.




                                                   4
                                            No. 12-1859

                                           DISCUSSION

I.     Calculation of Plaintiff’s Benefits under the Plan

       Plaintiff argues that Unum failed to give an adequately determinate basis for her award. She

contends that describing her disability as deriving “either separately or in combination, from a

lumbar disorder and a mental disorder” inappropriately allowed Unum to offset her Plan award both

for worker’s compensation (which was awarded for her lumbar problems) and for SSDI (which was

awarded for her brain injuries). Plaintiff argues that this violates the Plan’s statement that “Unum

will only subtract deductible sources of income which are payable as a result of the same disability,”

which Plaintiff reads as mandating that the other income be paid due to the same condition. Unum

counters that “same disability” in this context means same period for which you were unable to

work, not the same condition.

       Where a party (here, Unum) is given discretion in interpreting the Plan, we will “overturn

[such a party’s] interpretation only if it is arbitrary or capricious.” Fallin v. Commonwealth Indus.,

Inc., 

, 516 (6th Cir. 2012). Under arbitrary-and-capricious review, we must uphold an

interpretation of the Plan’s terms so long as it is reasonable. Price v. Bd. of Trs. of Ind. Laborer’s

Pension Fund, 632 F.32 288, 297 (6th Cir. 2011).

       Plaintiff reads Unum’s explanation of her disability as determining that she was disabled

because of her lumbar injury and/or her head injury—i.e., not necessarily acknowledging that either

one is a qualifying disability. From there, Plaintiff contends that Unum was really awarding Plaintiff

benefits for her brain injury because Unum had previously denied Plaintiff benefits on her lumbar




                                                  5
                                            No. 12-1859

claim and no new evidence was entered as to her lumbar problems on remand.1 The more natural

reading of Unum’s explanation, however, is that Unum determined that both her lumbar problems

and brain injury are sufficiently debilitating so as to warrant an award under the Plan as they

“separately” would each make her disabled, but may be even more debilitating “in combination.”

         Such a determination is akin to the one that the Fifth Circuit dealt with in Sanders v. Unum

Life Insurance Co. of America, 

(5th Cir. 2008). The beneficiary in Sanders claimed

that “Unum should not have deducted his SSDI benefits because . . . Unum’s benefits were only

payable as a result of his physical disability, while the SSDI payments were payable as a result of

his mental disability.” 

Fifth Circuit found the SSDI offset to be proper because

“[e]ven if the SSDI payments only applied to Sanders’ mental disability, Unum had always based

its payments to Sanders on both mental and physical impairments.” 

added); see also Bacquie v. Liberty Mut. Ins. Co., 

, 323–34 (S.D.N.Y. 2006)

(concluding an SSDI award for schizophrenia was proper where ERISA benefits were awarded based

on “co-morbid (physical and psychiatric) medical conditions”), aff’d, 247 F. App’x 296 (2d Cir.

2007).


         1
            This claim is belied by the record. There was additional evidence submitted to Unum
about Plaintiff’s lumbar problems that it could have considered on remand—specifically, Dr.
Christopher Sweet’s diagnosis of a herniated disc from November 3, 2004. Plaintiff argues that
because Sweet’s report confirmed an earlier diagnosis by Dr. Laren Lerner, which Unum had when
it first rejected Plaintiff’s claim, Unum could not rely on Sweet’s report when it reconsidered her
benefits. Aside from providing no authority for this proposition, where additional evidence is
submitted to the plan, especially evidence as compelling as a confirmation of a diagnosis, ERISA
ought to encourage plans to reevaluate their previous decisions, not bind themselves to them. Cf.
Shelby Cnty. Health Care Corp. v. Majestic Star Casino, 

, 373 (6th Cir. 2009)
(“Remand [to the plan] therefore is appropriate in a variety of circumstances, particularly
where . . . the administrative record is factually incomplete.”).

                                                  6
                                            No. 12-1859

        As in Sanders, Unum awarded benefits to Plaintiff based on both her lumbar problems and

brain injuries. Therefore, the awards from workers’ compensation (for her lumbar problems) and

SSDI (for her brain injuries) were reasonable offsets under the terms of the Plan.

II.     Prejudgment Interest & Civil Penalties

        Plaintiff next contends that the district court erred in refusing to grant her prejudgment

interest on her benefits award. We review the district court’s decision regarding an award of

prejudgment interest for an abuse of discretion. Shelby Cnty. Health 

. “An

award of prejudgment interest in the ERISA context is compensatory, not punitive, and a finding of

wrongdoing by the defendant is not a prerequisite to such an award.” 

omitted). A court need only find that benefits were “incorrectly withheld.” Garber v. Provident Life

& Accident Ins. Co., 

, 

, at *6 (6th Cir. 1999) (table decision) (citing

Wells v. U.S. Steel, 

, 737 (6th Cir. 1996)) (emphasis omitted).

        Because there is no right to prejudgment interest under ERISA, it is the Plaintiff’s burden to

show that the funds were incorrectly withheld by Unum. In denying prejudgment interest to Plaintiff,

the district court discussed the evolving nature of Plaintiff’s claims from her initial lumbar-only

claim in 2003 through the multiple federal filings and supplements to the administrative record and

found no basis to conclude that Unum wrongfully withheld Plaintiff’s benefits. See Ciaramitaro,

, at *3. Although the district court initially commented that “there was no evidence

that Unum acted in bad faith,” 

incorrect statement of what Plaintiff was required to

prove, see Garber, 

, at *6, the district court clarified that it determined that prejudgment

interest was not due because Plaintiff had not shown any wrongful withholding by Unum.


                                                   7
                                            No. 12-1859

Ciaramitaro, 

, at *5 (citing Drennan v. Gen. Motors Corp., 

, 253

(6th Cir. 1992)). We can find no abuse of discretion where, as in this case, the district court

articulates a clear, substantiated reason for denying benefits and Plaintiff has introduced no further

evidence or argument as to how the benefits were incorrectly withheld.

       Plaintiff further contends that the district court erred in refusing to award her civil penalties

under 29 U.S.C. § 1132(c). As with prejudgment interest, there is no right of civil penalties under

ERISA, and we review a district court’s denial of them for an abuse of discretion. Zirnhelt v. Mich.

Consol. Gas Co., 

, 290 (6th Cir. 2008). Section 1132(c) provides courts the ability to

award penalties of between $100–$1000 per day for various cross-referenced violations of ERISA.

Most of these violations deal with a plan’s failure to provide participants with notice of various

events. See, e.g., 29 U.S.C. §§ 1021(e)(1), 1166 (cross-referenced in 29 U.S.C. § 1132(c)(1)), 29

U.S.C. § 1021(j)–(l) (cross-referenced in 29 U.S.C. § 1132(c)(4)).

       Plaintiff claims no less than eight “egregious acts” by Unum that she feels amount to

violations but fails to tie any of them to the cross-referenced sections in § 1132(c) that would give

rise to a civil penalty under ERISA. For example, Plaintiff argues that it was arbitrary and capricious

of Unum not to perform an independent medical examination. But such an argument is illogical as

it makes no sense to penalize an ERISA plan for failing to conduct such an examination when it

awards benefits if it is not required for a plan to deny benefits without such an examination. See

Calvert v. Firstar Fin. Inc., 

, 295 (6th Cir. 2005). Overall, Plaintiff has made a number

of allegations, which are either disingenuous or do not give rise to penalties under ERISA. She has

done so in a fairly perfunctory fashion, see United States v. Stewart, 

, 256 (6th Cir.


                                                  8
                                             No. 12-1859

2010) (“Issues adverted to in a perfunctory manner . . . are deemed waived.” (internal quotation

marks omitted)), and has provided nothing to show that the district court abused its discretion in

declining to impose civil penalties on Unum, see 

.

III.    Attorney’s Fees

        Plaintiff’s attorney requested $49,811.20 in fees and costs for the 256.5 hours he worked on

the litigation; the district court awarded him $5000. Ciaramitaro, 

, at *3. We

review a district court’s award of attorney’s fees and costs in an ERISA action for an abuse of

discretion. Shelby Cnty. Health 

. “An abuse of discretion exists 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.” 

quotation marks

omitted); see also Maker’s Mark Distillery, Inc. v. Diageo N. Am., Inc., 

, 424 (6th Cir.

2012) (“Generally, finding an abuse of discretion would require the lower court ignoring the criteria

set by the Sixth Circuit or otherwise a certainty on this Court’s part that a clear error in judgment was

committed.” (alterations and internal quotation marks omitted)).

        As a threshold matter, Plaintiff claims that the Supreme Court’s 2010 decision in Hardt v.

Reliance Standard Life Insurance Co., __ U.S. __, 

(2010), displaced this Court’s

five-factor test from Secretary of Labor v. King, 

(6th Cir. 1985), for determining

whether fees are appropriate in an ERISA case.2 In Hardt, the Supreme Court clarified who may be


        2
            The five factors are:

        (1) the degree of the opposing party’s culpability or bad faith;
        (2) the opposing party’s ability to satisfy an award of attorney’s fees;
        (3) the deterrent effect of an award on other persons under similar circumstances;

                                                   9
                                            No. 12-1859

entitled to attorney’s fees in ERISA actions. It held that a party need not be a typical “prevailing

party” to be eligible for fees but must only achieve “some degree of success on the merits.” 

. Plaintiff claims that in addition to that threshold clarification, the Supreme

Court disclaimed the Fourth Circuit’s five-factor test. This Court recently addressed this argument

in O’Callaghan v. SPX Corp., 442 F. App’x 180 (6th Cir. 2011). In O’Callaghan, we wrote:

        Hardt does not change the district court’s five-factor analysis. Hardt merely relaxes
        the threshold for eligibility for attorney’s fees—from “prevailing party” to “some
        degree of success on the merits.” Even under this more relaxed threshold for
        eligibility, O’Callaghan must still demonstrate his entitlement to attorney’s fees
        under 29 U.S.C. § 1132(g)(2).

omitted).

        This is squarely in accord with Hardt, where the Court noted, “We do not foreclose the

possibility that once a claimant has [met the ‘some degree of success on the merits’ threshold], and

thus becomes eligible for a fees award under § 1132(g)(1), a court may consider the five factors

adopted by the Court of Appeals, in deciding whether to award attorney’s 

n.8. Therefore, while the five-factor King test is not required, it still has vitality in helping courts

determine whether or not to award fees to a party that achieves some degree of success on the merits.

O’Callaghan, 442 F. App’x at 186; see also First Trust Corp. v. Bryant, 

, 851 (6th Cir.

2005) (The King factors “are not statutory and therefore not dispositive. Rather, they are simply




        (4) whether the party requesting fees sought to confer a common benefit on all
        participants and beneficiaries of an ERISA plan or resolve significant legal questions
        regarding ERISA; and
        (5) the relative merits of the parties’ positions.

.

                                                  10
                                             No. 12-1859

considerations representing a flexible approach.”); cf. Pemberton v. Reliance Standard Life Ins. Co.,

No. 08-cv-86, 

, at *3 (E.D. Ky. Mar. 10, 2011) (declining to apply the King factors

“because they would have no effect on the analysis” in that case).

        It is clear that Plaintiff meets Hardt’s threshold that to be eligible for fees, a party needs to

have obtained some degree of success on the merits, see 

, and the district

court determined that Plaintiff was entitled to fees based on its application of the King factors,

Ciaramitaro, 

, at *2–3. Neither King nor Hardt, however, bears on the question

before us, which is whether the district court’s award of $5000 was reasonable. Specifically,

Plaintiff faults the district court for failing to discuss its rationale and methodology in coming to the

conclusion that $5000 was an appropriate award.

        All we have from the district court on this point is that “the first, second and third King

factors favor a limited award of attorney’s fees” and the award of $5000. See Ciaramitaro, 

, at *3. Such a lack of analysis is reminiscent of the situation faced by this Court in

McMurtry v. Paul Revere Life Ins. Co., 

, 

(6th Cir. 2000) (table

decision). In that ERISA case, we remanded because “a discussion of the methodology used, if any,

to calculate the award is entirely absent from the district court’s opinion.” Id at *7. “Reasonable

attorney’s fee awards are determined by the fee applicant’s ‘lodestar,’ calculated by multiplying the

proven number of hours worked by a court-ascertained reasonable hourly rate.” Ellison v. Balinski,

, 960 (6th Cir. 2010) (citing Hensley v. Eckerhart, 

, 433 (1983)); see also

Iron Workers’ Local No. 25 Pension Fund v. MCS Gen. Contractors, Inc., 

, 

, at *8 (6th Cir. 2000) (table decision) (discussing, in an ERISA case, the propriety of a

lodestar calculation once a fee award is deemed appropriate). Unum makes a number of arguments

                                                   11
                                             No. 12-1859

about why various hours should not have been awarded, but from the district court’s opinion, it is

impossible to tell if it credited any of them.

        There is no lodestar calculation or any explanation at all for how the district court, once it

determined that Plaintiff was entitled to fees, came up with the $5000 amount. Therefore, in order

to allow for meaningful appellate review, we vacate the district court’s attorney’s fee award and

remand for the district court to reconsider or further explain its conclusion. McMurtry, 

, at *7; cf. 

(“Since the court failed to indicate why it applied a

multiplier of two to the lodestar amount and why it set aside the private fee contracts between the

Class and the attorneys, the fee award is reversed and remanded for a statement of detailed factual

findings.”).

IV.     Dismissal of Claims against Greektown

        Lastly, Plaintiff claims that it was error for the district court to have dismissed all of its

claims against Greektown. We review a ruling on a Federal Rule of Civil Procedure 12(b)(6) motion

to dismiss, such as this one, de novo. Casias v. Wal-Mart Stores, Inc., 

, 435 (6th Cir.

2012). “Following Twombly and Iqbal, it is well settled that ‘a complaint must contain sufficient

factual matter, accepted as true, to “state a claim to relief that is plausible on its face.”’” Ctr. for

Bio-Ethical Reform v. Napolitano, 

, 369 (6th Cir. 2011) (quoting Ashcroft v. Iqbal, 

, 678 (2009) (in turn quoting Bell Atl. Corp. v. Twombly, 

, 570 (2007))). “A

claim is plausible on its face if the ‘plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.’” 

U.S. at 678).



                                                   12
                                            No. 12-1859

       The district court dismissed Greektown, citing Daniel v. Eaton Corp., 

, 266 (6th

Cir. 1988), because Greektown’s “sole involvement in this matter is that it sponsored the Plan which

insured plaintiff . . . [and did not] ha[ve] any involvement in the decision to deny her claim for

benefits.” Ciaramitaro, 

, at *1 n.1. In Daniel, this Court held that “[u]nless an

employer is shown to control administration of a plan, it is not a proper party defendant in an action

concerning 

. In Moore v. Lafayette Life Insurance Co., 

(6th

Cir.2006), we elaborated on the Daniel rule:

       When an insurance company administers claims for employee welfare benefit plans
       and has authority to grant or deny claims, the insurance company is a “fiduciary” for
       ERISA purposes. . . . [Conversely, a]n employer who does not control or influence
       the decision to deny benefits is not the fiduciary with respect to denial of benefit
       claims.

omitted). The Moore court therefore concluded that although the employer was

called the “plan administrator,” the termination decision was made by the insurer as the “claims

administrator” and therefore affirmed the district court’s dismissal of the employer. Id.; accord Gore

v. El Paso Energy Corp. Long Term Disability Plan, 

, 848 (6th Cir. 2007).

       Plaintiff contends that because Greektown had the ability to “amend” or “modify” the Plan

“at anytime,” Greektown was in control of the Plan and thus a proper party. (See R. 29, at

PID# 152–53.) This language does not, however, change the analysis as to whether Greektown was

a proper party. The question is whether Greektown played any role in controlling or influencing

Plaintiff’s benefits decision. In this case, there was no way under the Plan for Greektown to have

done that as Unum (not Greektown) was vested with “discretionary authority to determine [a

participant’s] eligibility for benefits.” (Id. at 117.) Plaintiff’s conclusory assertions without any

factual support that Greektown “instructed” or “influenced” Unum to deny Plaintiff her benefits are

                                                 13
                                           No. 12-1859

insufficient to survive a motion to dismiss.3 Ctr. for Bio-Ethical 

.

Therefore, we find that the district court did not err in dismissing Plaintiff’s claims against

Greektown.

                                         CONCLUSION

       For the foregoing reasons, we VACATE and REMAND the district court’s attorney fee

award but AFFIRM the judgment in all other respects.




       3
          Plaintiff also argues that the district court inappropriately denied her an opportunity to
respond to Greektown’s motion to dismiss. That motion was filed on July 27, 2010. Pursuant to the
Eastern District of Michigan’s rules, Plaintiff had twenty-one days to respond to that motion (August
17, 2010), which she did not avail herself of. See E.D. Mich. Local R. 7.1(e)(1)(B). The district
court then entered a stay on September 9, 2010. After the stay was lifted at Plaintiff’s request on
June 23, 2011, Greektown’s unresponded-to motion was once again pending, and on February 3,
2012, the district court granted Greektown’s motion. Plaintiff claims that after the stay, Greektown
should have had to “reinstate” its motion to dismiss. Because Plaintiff initially missed the deadline
to respond and then was given another six months after the stay was lifted in which to do so, we see
no basis for Plaintiff’s claim that the district court’s dismissal of Greektown was procedurally
improper.


                                                 14