IBEW-NECA SW Health, et al v. Douthitt

1 Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
April 29, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-10897
Summary Calendar
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS-NATIONAL
ELECTRICAL CONTRACTORS ASSOCIATION SOUTHWESTERN HEALTH &
BENEFIT FUND; BOARD OF TRUSTEES OF INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS-NATIONAL ELECTRICAL CONTRACTORS
ASSOCIATION SOUTHWESTERN HEALTH & BENEFIT FUND,
Plaintiffs-Appellees,
versus
JESSIE DOUTHITT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:01-CV-1730-K
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Before SMITH, DUHÉ, and WIENER, Circuit Judges.
PER CURIAM:1
Jessie Douthitt appeals the district court’s assumption of
subject matter jurisdiction and grant of summary judgment in favor
of IBEW-NECA Southwestern Health and Benefit Plan and its Board of
Trustees (collectively “the Plan”) in this action pursuant to 29
U.S.C. § 1132(a)(3) for reimbursement of benefits paid on behalf
of Douthitt, a plan participant.

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2
Whether the district court had subject matter jurisdiction is
determined based on the plaintiff’s complaint. Howery v. Allstate
Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). The Plan’s complaint
alleged (1) that the Plan sought reimbursement of money it had paid
out previously as benefits from $25,000 Douthitt had recovered from
a third party; (2) to which the Plan was entitled pursuant to the
reimbursement agreement; and (3) that Douthitt had recovered those
funds, which were in his attorney’s trust account. The district
court properly exercised subject matter jurisdiction over the
instant action because the Plan’s suit was authorized under 28
U.S.C. § 1132(a)(3), and the Plan’s complaint sought recovery
directly under that statute. See Bombardier Aerospace Employee
Welfare Benefits Plan v. Ferrer, Poirot and Wansbrough, 354 F.3d
348, 356 (5th Cir. 2003), pet. for cert. filed, 70 U.S.L.W. 3513
(U.S. Feb. 5, 2004)(No. 03-1135); Bell v. Hood, 327 U.S. 678, 681-
82 (1946). Whether Douthitt actually recovered the money, whether
his attorney actually held the funds, and whether the Plan now
possesses the funds or a check go to the merits of the Plan’s
claims, not to the question of the district court’s jurisdiction.
Douthitt asserts that the imposition of a constructive trust
was not appropriate in this case because there was no fraud
involved and because his wife and attorney would not be unjustly
enriched by receiving the funds, to which they were legally
entitled under the Texas Common Fund Doctrine. Douthitt did not
raise these issues in the district court, and we will not allow him

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3
to do so now. See Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th
Cir. 1992). Additionally, Douthitt’s arguments are foreclosed.
See Bombardier, 354 F.3d at 358-62.
AFFIRMED.

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