Hatteberg v. Red Adair Co Inc, et al

United States Court of Appeals
Fifth Circuit
F I L E D
November 6, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 00-51109
_______________
ANDREA D. HATTEBERG,
Plaintiff-Appellant,
VERSUS
RED ADAIR COMPANY INCORPORATED EMPLOYEES’ PROFIT SHARING PLAN
AND ITS RELATED TRUST;
ADAIR ENTERPRISES, INC.;
FULBRIGHT & JAWORSKI, LIMITED LEGAL PARTNERSHIP;
STEWART W. GAGNON; JONATHAN GOLDHOR; DONALD M. JANSEN;
JOY M. SOLOWAY; LISA HARBOR; JERYL GOLUB;
JOETTA JANCZAK; JAMES RICHARD HATTEBERG,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Western District of Texas
m MO-97-CV-209
_________________________

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Before JOLLY, SMITH, and
EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Andrea Hatteberg (“plaintiff”) appeals a
summary judgment in this dispute over various
employee benefit plans. Finding no error, we
affirm.
I.
Plaintiff and James Hatteberg were parties
to a contentious divorce in 1992. Among the
community property divided between them
were the assets owed to James Hatteberg un-
der the Red Adair Profit Sharing Plan; Adair
Enterprises, Inc., was the plan administrator.
In 1992, a state court entered a qualified do-
mestic relations order (“QDRO”) regarding
James Hatteberg’s accrued benefits under the
plan. This first QDRO entitled plaintiff to a
small portion of the plan’s assets, so she ap-
pealed. The method of calculation of her en-
titlements remained a matter of dispute and
litigation until 1997, when all parties reached
a mediated settlement respecting the substance
and general form of a final QDRO, recognizing
a larger entitlement for plaintiff. In 1998,
under a second QDRO obtained pursuant to
the settlement, plaintiff was paid, from the
plan’s trust account, the amount owed her un-
der the settlement.
She was not completely satisfied, however.
She sued the instant defendants in federal
court, asserting claims arising from the prior
dispute. The defendants include Adair Enter-
prises, Inc. (hereinafter “Adair”), which was
the Plan administrator and a fiduciary to plain-
tiff, as well as Adair Enterprises employee Jo-
etta Janczak, the law firm of Fulbright & Ja-
worski (“Fulbright”), several Fulbright attor-
neys serving as James Hatteberg’s divorce
counsel, and several Fulbright attorneys who
advised the plan administrator. Plaintiff claims
the administrator refused to supply requested
information about the plan and that various
defendants breached their fiduciary duty,
interfered with protected rights, engaged in
prohibited transactions, and committed vio-
lations of the Employee Retirement Income
Security Act of 1974 (“ERISA”).
To “bring focus” to the case, the district
court appointed two special masters with ex-
pert ise in the intricacies of ERISA law. The
masters produced reports helpful to the court
in its final determinations. Later, at the court’s
request, plaintiff and defendants filed respec-
tive motions for summary judgment. The
court found the bulk of plaintiff’s claims to be
deficient.
The court observed that the first claim,
based on alleged violations of 29 U.S.C.
§ 1132’s requirement that plan administrators
supply certain information to beneficiaries, had
merit. The court, however, in the absence of
a federal limitations period for such a claim,
applied the limitations period of an analogous
Texas state law claim and found that plaintiff’s
claim fell outside the two-year period.
The court also put aside plaintiff’s claims of
breaches of fiduciary duty. She had argued
that the plan administrator breached its fidu-
ciary duty to her in five ways: first, by failing
to distribute the plan benefits to her on
November 14, 1994, the date of distribution to
other plan participants; second, by making a
passthrough amendment, which provided that
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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all future expenses of the plan’s administration
were to be paid out of plan assets; third, by
failing to replace the Fulbright attorneys advis-
ing the plan when it learned that other
Fulbright attorneys were representing James
Hatteberg as divorce lawyers; fourth, that the
administrator failed to operate the plan in ac-
cordance with plan documents by improperly
requiring any domestic relations order to be
final before it could be qualified; and fifth, by
engaging in prohibited transactions with Ful-
bright attorneys through unreasonable
compensation for legal services “unnecessary”
to the administration of the plan.
The district court rejected each of the five
theories and plaintiff’s other ERISA-based
theories of prohibited party-in-interest
transactions, deliberate deception, and
interferences with protected ri ghts.
Accordingly, the court denied plaintiff’s
motion, and granted defendant’s motion. It
taxed the cost of the special masters to Adair
and ordered the parties otherwise to bear their
own costs.
II.
We review a summary judgment de novo
and affirm if there is no genuine issue of ma-
terial fact and the movant is entitled to
judgment as a matter of law. Ramirez v. City
of San Antonio, 312 F.3d 178, 181 (5th Cir.
2002). An issue of fact is material only if its
outcome would affect the outcome of the case.
Id. We draw all reasonable inferences in favor
of the nonmoving party, who in this case is the
plaintiff. Id. We review the district court’s
procedural decisions for abuse of discretion.
Celestine v. Petroleos de Venezuela, S.A., 266
F.3d 343, 349 (5th Cir. 2001).
III.
Irrespective of whether plaintiff established
the elements of a claim under 29 U.S.C.
§ 1132(c)(1) for Adair’s failure to provide re-
quested information to her as a beneficiary of
the trust, the district court was correct in con-
cluding that her claim is barred by a two-year
statute of limitations. ERISA does not
explicitly provide a statute of limitations
period for actions under § 1132(c). Because
there was no Fifth Circuit authority on the
issue, the district court looked to analogous
Texas state law to determine the relevant
limitations period. See McClure v. Zoecon,
Inc., 936 F.2d 777, 778 (5th Cir. 1991).
Plaintiff argued that the court should have
applied either the Texas four-year statute of
limitations for fraud actions or the residual
four-year period for actions for which no other
limitations period applies. The district court
was correct in observing that a violation of
§ 1132 is not analogous to fraudSSwithout
more, the withholding of information from a
beneficiary is quite unlike defrauding a
beneficiary. Despite plaintiff’s assertions, the
evidence does not support the conclusion that
the plan administrators engaged in bad faith in
withholding the information plaintiff had re-
quested. The district court also declined to
apply the Texas residual statute of limitations,
adopting instead the state statute of limitations
for an action for breach of fiduciary dutySSan
action similar to that described in § 1132.1
Plaintiff also has argued that the four-year
1 In Texas, there are two different limitations
periods that might apply, but this court has adopted
the line of cases applying a two-year tort period for
claims of breach of fiduciary duty. Kansa
Reinsurance Co. v. Stewart Title Co., 20 F.3d
1373, 1374 (5th Cir. 1994).

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limitations period of TEX. CIV. PRAC. & REM.
CODE § 16.004(a)(5) should apply. That stat-
ute, regarding breach of fiduciary duty,
became effective on August 30, 1999, some
eighteen months after plaintiff filed the instant
suit. Accordingly, that statute’s limitations
period is inapplicable here.
There is no evidence that plaintiff made any
request for information after August 30, 1995;
she sued on December 12, 1997. Accordingly,
her claim is barred by the two-year statute of
limitations, and we need not address the
district court’s ruling limiting recovery to $1
per day of violation.
IV.
It is undisputed that Adair was plaintiff’s
fiduciary, but she argues that a number of
other persons should also be considered her
fiduciaries. Among these is Joetta Janczak, a
member of the administration committee that
managed the Plan. The district court declined
to consider her a fiduciary of plaintiff’s, based
on evidence that she exercised no controlling
authority over the plan and undertook only
ministerial functions with respect to it.
Plaintiff contends that Janczak is a “named
fiduciary” under 29 U.S.C § 1102(a)(2) and
that the district court erred in accepting Jan-
czak’s testimony that her duties were “merely
ministerial.” ERISA deems a person a plan
fiduciary to the extent that he or she “exercises
any discretionary authority or discretionary
control respecting management of [the] plan or
exercises any authority or control respecting
management or disposition of its assets,” or
“has any discretionary authority or
discretionary responsibility in the
administration of [the] plan.” 29 U.S.C.
§ 1002(21)(A)(i), (ii). Though plaintiff claims
that Janczak’s “fiduciary status and liability are
not dependent on her actual functions with
respect to the plan,” the district court correctly
noted that this court has held that the “actual
authority which a person exercises over a
plan” is a more important factor than their
organization title with respect to a plan. See
Donovan v. Mercer, 747 F.2d 304, 308-09
(5th Cir. 1984).
The key, then, is the factual matter of
whether Janczak was more than a “merely
ministerial” member of the plan committee.
Plaintiff notes that Janczak was extremely
knowledgeable about the plan, sent letters di-
recting distributions from the plan, and often
communicated with the Fulbright attorneys
about the plan. These facts, however, do not
suggest that Janczak exercised a level of dis-
cretion that should be characterized as control
or authority. To the contrary, these facts are
quite consistent with the duties and knowledge
that should be expected of a “ministerial”
member of the plan committee. Janczak’s tes-
timony and other evidence support the
conclusion that her duties did not relate to the
substance of the management of the plan. The
district court reasonably concluded that she
was not plaintiff’s fiduciary.
Plaintiff also argues that Adair’s Fulbright
attorneys should be considered her fiduciaries.
She alleges something approaching a conspira-
torial relationship among them, to hijack the
plan and loot its assets through their control
over the plan administrators. The key issue in
determining whether the Fulbright attorneys
were fiduciaries is the level of control the law-
yers exercised over the decisionmaking. Id.;
29 C.F.R. § 2509.75-5. The district court held
that “there is no evidence that any Fulbright &
Jaworski attorney exercised control or
authority over the plan at any time.”

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Plaintiff contends the district court ignored
evidence in her favor. Particularly, she says
the plan committee relied only on the advice of
Fulbright lawyer Goldhor regarding the re-
quirement of finality before payment. Ful-
bright lawyer Jansen, she says, had authority to
determine whether the Hatteberg QDRO’s
were qualified under ERISA.
Certainly, Goldhor, Jansen, and other Ful-
bright lawyers gave advice to the plan
committee, and doubtless their advice at time
caused the committee to act in ways it
otherwise would not have. But these activities
are consistent with a normal relationship
between lawyer and clientSSthe committee
would not have solicited the aid of attorneys if
it did not intend to act on their advice. It is
unwarranted to infer from the fact that the
Fulbright lawyers shaped the committee’s view
of their legal obligations that they became the
de facto controllers of the plan assets, and we
see no indication that the attorneys formulated
any sort of scheme to loot the plan of its
assets.
Plaintiff also maintained that Fulbright di-
vorce attorneys who represented James Hatte-
berg should be considered fiduciaries, on the
theory that they were part of the larger
conspiracy among Fulbright attorneys to
control the plan and loot its assets for their
own use. Again, there is no evidence to
support this conclusion. Accordingly, the
district court acted properly in denying that the
Fulbright divorce attorneys were plaintiff’s
fiduciaries.
Finally, plaintiff insists that James Hatteberg
was one of her fiduciaries, again by virtue of
exercising “de facto discretionary control and
authority over the Plan’s management . . .”
while working in concert with the Fulbright
attorneys. As the district court observed,
however, James Hatteberg should not be
considered a fiduciary. Although he
improperly requested that the plan
administrator not disclose certain information
to the plaintiff, his request was not tantamount
to control, even if the plan administrators
eventually failed to disclose the requested
information because of their mistaken
understanding of ERISA’s requirements.
As to the fiduciary status of Janczak, the
various other Fulbright lawyers, and James
Hatteberg, there remains no genuine issue of
material fact to be resolved. The district
court’s conclusions are well reasoned.
V.
A.
The district court found no basis to believe
that the plan fiduciaries managed assets so as
to use them as a litigation weapon in the state
court proceedings, in violation of ERISA’s
“exclusive purpose” and “anti-inurement” pro-
visions. The record shows that the
administrators did not illicitly “profit” from the
funds, or were unreasonable administrative
expenses were deducted from plan assets.
Retaining the Fulbright attorneys to give
advice on complex and obscure ERISA issues
was reasonable. To support her arguments,
plaintiff provides little more than allegations of
such conspiratorial behavior. There remains
no genuine issue of material fact.
B.
Plaintiff claims the plan administrators
breached their fiduciary duty of prudence by
failing to establish and follow reasonable
QDRO procedures as required by 29 U.S.C.
§ 1056(d)(3). Particularly, she complains that
Adair improperly delayed recognition of the
disputed family court DRO as a QDRO,

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preventing her timely receipt of benefits.
There is no requirement under ERISA, or
under the plan, that an order be final before it
is qualified. Though plaintiff became a
fiduciary upon entry of the First QDRO, it was
not established how much of the plan assets
she was entitled to receive until the entry of
the final QDRO in 1997. As the district court
concluded, Adair’s unnecessary delay in qual-
ifying the domestic relations order was in good
faith and, accordingly, did not constitute a
breach of fiduciary duty. The record does not
show otherwise, and there is no genuine issue
of material fact.
C.
Plaintiff alleges that the plan administrators
engaged in a prohibited transaction when they
hired Fulbright lawyers to advise the plan on
various legal matters. Title 29 U.S.C. § 1106-
(a)(1)(c) prohibits a plan fiduciary from
causing a plan to engage in transactions that
allow the furnishing of services between the
plan and a party in interest. Reasonable
arrangements for legal and other services
necessary to operate the plan are excepted,
however, if the compensation paid is
reasonable. 29 U.S.C. § 1108(b)(2).
The district court properly found that the
$6,389.35 paid to the Fulbright attorneys by
the plan was a reasonable fee for legal research
services necessary to the operation of the plan.
Certainly, it does not seem an excessive fee,
considering ERISA’s complexities.
As part of her claim of “prohibited
transactions” between the administrators and
the Fulbright lawyers, plaintiff alleges that the
Fulbright lawyers operated primarily to control
the assets of the plan for their own interests.
There is no substantial evidence for this ac-
cusation, so there is no genuine issue of mate-
rial fact.
D.
Plaintiff argues that because the plan
documents provided to her did not address
whether plan expenses were to be deducted
from plan assets, the administrators were
prohibited from making expense deductions.
Administrators are required under ERISA to
operate a plan in accordance with its written
terms. In this case, however, the plan was
amended, as allowed under its original terms,
so as to permit expense deductions.
Accordingly, it was within the terms of the
Plan to deduct expenses from assets at the
time when the administrators did so.
The district court also noted, convincingly,
that the passthrough amendment did not re-
duce plaintiff’s vested benefit account, so it
did not thereby violate the anti-cutback
provisions of ERISA; the expenses were paid
before earnings and losses were allocated to
individual accounts. Accordingly, there is no
genuine issue of material fact.
VI.
A.
As we have said, plaintiff asserts defendants
engaged in transactions for parties-in-interest
in violation of 29 U.S.C. § 1106(b). She also
argues that even if James Hatteberg and the
Fulbright attorneys advising the plan are not
fiduciaries, she has a claim against them for
engaging in party-in-interest transactions under
§ 1132(a)(3).
Again, plaintiff argues that the Fulbright di-
vorce attorneys’ representation of James Hat-
teberg, while other Fulbright attorneys advised
the plan, constitutes a transaction prohibited
by 29 U.S.C. § 1106. As noted, under 29

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U.S.C. § 1108(b)(2), there is a safe harbor
from § 1106 for provision of legal services,
such as those provided by the Fulbright
lawyers to the administrators, so long as no
more than reasonable compensation is paid.
The district court observed that there was no
evidence of a legal or ethical conflict of
interest in the administrators’ retention of the
Fulbright attorneys, nor that unreasonable
compensation was paid to them. Even if,
under Wildbur v. ARCO Chem. Co., 974 F.2d
631, 645 (5th Cir. 1992), plaintiff was one of
Fulbright’s clients for purposes of providing
ERISA advice to the plan, the record does not
support a finding of a conflict of interest. As
the district court noted, there services were
very “limited” and the lawyers were not
unreasonably compensated. There is no
genuine issue of material fact.
B.
Plaintiff alleges “deliberate deception” by a
fiduciary under Varity v. Howe, 516 U.S. 489
(1996), in which the Court held that an
employer acted as a fiduciary and breached its
fiduciary duties when it made false
representations to participants in its ERISA
plan about the security of transferring their
accounts. Plaintiff claims Varity is applicable
to the facts of this case. Varity, id. at 502-03.
The district court held that plaintiff had not
established that the plan administrators made
misrepresentations to plaintiff to induce
material reliance. Plaintiff complains,
however, that a joint account was not created
and that plan administrators lacked knowledge
about certain intricacies of the plan.
If these facts are true and constitute
failings, they are not deliberate deceptions
under Varity, in which the court required
“lying” and “deceiving” in order to premise
liability. Id. at 506. Plaintiff’s inference that
the plan’s fiduciaries and parties-in-interest
intentionally engaged in a plan of deception to
enrich themselves is not supported by
evidence. Moreover, the Varity theory is
inapplicable to any of the Fulbright attorneys
or Janczak, because they were not plaintiff’s
fiduciaries. See id. at 492. Accordingly, there
is no material issue of fact.
C.
Plaintiff presses a claim for “interference
with protected rights” under 29 U.S.C. §
1140. In a § 510 action, usually brought by an
employee against an employer, a plaintiff must
show intent to discriminate. This court has ap-
plied § 510 outside the employer-employee
context since deciding Lynn v. Lynn, 25 F.3d
280, 284 (5th Cir. 1994). A plaintiff must of-
fer evidence from which it can be inferred that
defendant intended to discriminate against him
in realizing benefits under a plan. Id.
Plaintiff contended that Adair’s opposition
to her interests during the contested state pro-
ceedings surrounding the first QDRO
constituted “discrimination against a
participant or beneficiary for exercising any
right to which [she] is entitled under the
provisions of an employee benefit plan.” The
district court observed, however, that
throughout the litigation, plaintiff was not in
fact forced to relinquish any rights, but was
fully entitled to, and did avail herself of, the
state appellate system to challenge the trial
court’s calculation of her entitlements in the
first QDRO. Adair’s trial strategy in actively
opposing plaintiff’s motion and appeals in state
court litigation does not constitute a violation
of § 1140. As the district court noted, the
state court litigation process and settlement
negotiations are not topics properly reviewed
under ERISA. See Matassarin v. Lynch, 174

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F.3d 549, 569 (5th Cir. 1999).
VII.
A.
Plaintiff complains that her non-ERISA
claims were severed from the other
proceedings, including her claims asserted
under the Racketeer Influenced and
Corruption Organization Act and her claims
based on t heo ries of negligent
misrepresentation, legal malpractice, and abuse
of process. The court found that “these
claims, while each relying on the same general
facts, are separate and distinct from the
remaining claims asserted under” ERISA.
Indeed, they are.
The non-ERISA claims are quite different
in purpose and content from the ERISA
claims. In a case already complicated by di-
verse and difficult issues of ERISA law, it was
no abuse of discretion for the district court to
deal with plaintiff’s non-ERISA claims
separately.
B.
As the district court noted, this case
“involves a myriad of issues with each being
briefed in exhaustive detail by the parties.” To
bring focus to the case, the court appointed
two special masters with expertise in ERISA
law, pursuant to FED. R. CIV. P. 53.
Plaintiff contends the appointment of spe-
cial masters was unnecessary, because the
“facts and law on her ERISA claims were
clear,” and the appointment would lead to
“unwarranted delay and expense.” But even a
short reading of the issues in the case reveals
that it revolves around difficult and unfamiliar
areas of law.
Plaintiff also avers that the special masters
were in some way suborned and insinuates that
the extensive redrafting of the masters’ report
was undertaken at the improper urging of the
district court, which, she states, intended to
undermine the neutrality of the report. More
likely, the need to redraft was caused by the
difficulty of the ERISA issues in the case. It
was no abuse of discretion to appoint and rely
on special masters here.
C.
The district court made its inquiry
concerning retention of counsel after the
masters’ report raised the possibility that
plaintiff might prevail on some issues. Plaintiff
indicated a willingness to secure counsel at an
appropriate time, and the court directed her to
do so. She asserted no opposition to the order
at the time and did indeed retain counsel. She
eventually terminated counsel and resumed
representing herself pro se after complaining
that she was short of funds to support a
separate attorney.
Plaintiff avers that when she failed to object
to the order to retain legal counsel, she had
been led to believe by the district court that
she might succeed on some issues and that the
court intended to order mediation. That these
hopes were disappointed apparently forms the
basis of her objection to the order to retain
counsel. The order, a reasonable response to
reports from the special masters, was no abuse
of discretion.
D.
ERISA provides that in “any action . . . 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). Plaintiff ar-
gues that the refusal to allow her to recover
her attorneys’ fees was an abuse of discretion.

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She notes that she did prevail on her initial
claim for clarification and enforcement of her
right to a qualified domestic relations order
and a distribution. Indeed, this issue was the
core of the disagreement between her and the
defendants, though it was far less an issue in
federal district court than at the state level and
throughout the mediation process.
Defendants note that plaintiff’s few
successes in the course of the litigation
occurred while she was working pro se, so
they urge that, as in Matassarin v. Lynch, 174
F.3d 549, 570 (5th Cir.1999), no attorneys
fees should be due a pro se litigant. There was
no abuse of discretion in denying fees.
Plaintiff urges, however, that the district
court improperly failed to consider the five
“Bowen factors” to be applied in awarding fees
in ERISA disputes. See Iron Workers Local
No. 272 v. Bowen, 624 F.2d 1255, 1265-66
(5th Cir. 1980). Plaintiff claims that
consideration of the Bowen factors is
mandatory in the Fifth Circuit. In Riley v.
AMR Corp. Subsidiaries Supersaver 401(k)
Capital Accumulation Plan, 209 F.3d 780,
781-82 (5th Cir. 2000), we wrote that a court
“should consider and explicate the five Bowen
factors, and should do so without giving
predominance or preclusive effect to any one
of them . . . .” Nothing in Bowen requires,
however, that a court must, in every case,
elaborately and explicitly run its fact pattern
through the five factors in its written opinion,
especially where a litigant has achieved as little
success as has this plaintiff. Furthermore,
plaintiff contributed substantially to the
prolongation of the litigation process by
aggressively pursuing appeals.
E.
The district court denied plaintiff’s recusal
motion. It looked unfavorably on her
arguments that the court was biased, noting
that she had “quoted isolated words and
phrases from various orders entered in this
action to date, arguing the forceful language
used by the Court shows bias or prejudice
against the subject matter of her claims,
extreme favorable predisposition to the
Fulbright Defendants, and undeserved and
excessive bias against the Plaintiff.” Plaintiff
again quotes isolated words of the court,
where it characterized several of her factual
and legal arguments as “unnecessarily abusive
and insulting,” “unsupported personal venom,”
“disrespectful and unprofessional,” and
“outrageous, fri volous, and completely
unsupported.” Plaintiff seems especially
exercised that the court characterized her
divorce proceedings as “bitter and ac-
rimonious” and urged her and James Hatteberg
to “put to rest the parties’ divorce” and avoid
turning the proceedings into a “post-mortem”
of the divorce.
There is, however, no good evidence that
the court was biased against plaintiff or the
subject matter of her claims. Although the
court apparently showed irritation with a num-
ber of plaintiff’s arguments and accusations,
the court’s characterizations of her conduct
had some foundation. The court lacked the
“deep-seated favoritism and unequivocal an-
tagonism that would render fair judgment im-
possible” and make recusal appropriate. Lite-
ky v. United States, 510 U.S. 540, 555 (1994);
see also Matassarin, 174 F.3d at 571.
F.
After lengthy discovery, the district court
concluded that there had been “more than ade-
quate time for discovery.” It overruled
plaintiff’s requests for unlimited discovery.
She, however, still wanted documents relating

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to the Fulbright attorneys’ legal advice to
James Hatteberg with respect to the divorce
proceedings. Plaintiff also sought assorted
other documents she insists were relevant to
appropriate statutory penalties under § 1132
and to her allegations of self-dealing, breaches
of fiduciary duty, and interferences with Hatte-
berg’s rights under ERISA. In short, she
argued that further discovery was necessary
with regard to the bulk of her case.
The district court was in a good position to
decide whether further discovery was needed.
The record is voluminous and detailed and is
additionally enriched by the analysis of the spe-
cial masters. The court was within its dis-
cretion to bring an end to discovery.
AFFIRMED.

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