UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10034
Summary Calendar
REBECCA J. BROWN, on behalf of herself and all other persons
similarly situated,
Plaintiff-Appellant,
VERSUS
NATIONSBANK OF GEORGIA, NA; and JOHN LITZLER,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
(3:96-CV-2630-G)
October 6, 1998
Before DAVIS, DUHÉ, and PARKER, Circuit Judges.
PER CURIAM:*
Appellant Rebecca J. Brown (“Brown”) appeals from the district
court’s grant of summary judgment in favor of Defendants/Appellees,
Nationsbank of Georgia (“Nationsbank”) and John Litzler
(“Litzler”). Her claims stem from the termination of a retirement
plan of which the appellees were trustees. Finding no reversible
*
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this opinion should not be published and is not precedent except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.
error, we affirm.
I. Background and Procedural History
Brown was an employee of Wyatt Cafeterias, Inc. and had
accumulated benefits pursuant to Wyatt’s employee stock ownership
plan (“the ESOP”). Under the ESOP, employees were allocated Wyatt
stock based on company contributions to the ESOP and the employees’
salaries. During appellees term as trustees for the ESOP, Wyatt
stock dropped from around $84.00 per share to virtual
worthlessness. Once the stock became worthless, the ESOP was left
with no assets and was therefore terminated. Appellant brought
this action individually and on behalf of other beneficiaries of
the ESOP, alleging that the appellees had committed fraud and
breached their fiduciary duties as trustees of the ESOP.
Originally filed in state court as a state-law fraud cause of
action, the appellees removed the case to federal district court
based on ERISA preemption. At the district court, appellees then
filed motions to dismiss or, in the alternative, for summary
judgment. The court granted appellees motion to dismiss Brown’s
claims for compensatory and punitive damages for failure to state
a claim on which relief could be granted under ERISA. However,
because neither party had squarely addressed the availability of
equitable relief, the court withheld ruling on appellees’ motions
until the parties had briefed that issue. Appellees submitted
their brief as directed, but Brown instead filed a motion for leave
to amend her complaint. Before the court could rule on Brown’s
motion for leave, Brown filed her amended complaint and amended
motion for class certification. Brown maintained that leave of
court was not required if the appellees hadn’t yet filed a
responsive pleading. After the deadline to respond to appellees
brief had passed, the court granted appellees motion for summary
judgment.
II. Discussion
After reviewing the record before us and the applicable law,
we conclude that the district court’s granting of summary judgment
on behalf of the Defendants/Appellees should be affirmed.
Summary judgment is appropriate when the summary judgment
record demonstrates “that there is no genuine issue of material
fact and that the moving party is entitled to judgment as a matter
of law.” FED. R. CIV. P. 56(c). In reviewing the district court’s
grant of summary judgment, we apply a de novo standard of review.
See Rodriquez v. Pacificare of Texas, Inc., 980 F.2d 1014, 1019
(5th Cir. 1993).
Brown asserts that the district court erred in classifying the
claims in her amended complaint as legal rather than equitable
relief. “Equitable relief” under ERISA includes “those categories
of relief which were typically available in equity (such as
injunction, mandamus, and restitution, but not compensatory
damages).” Mertens v. Hewitt Associates, 508 U.S. 248, 256 (1993).
Regardless of the language used to characterize a claim, the claim
is one for damages if it seeks monetary relief for losses an ERISA
plan sustained as a result of an alleged breach of fiduciary
duties. See Id. at 255; see also, Weir v. Federal Asset
Disposition Assn., 123 F.3d 281, 290-91 (5th Cir. 1997).
Accordingly, we agree with the district court’s conclusion that
Brown has simply tried to re-characterize an obvious claim for
damages in the language of equity.
Next, Brown asserts that the district court erred in ruling
that her claims did not set forth permissive relief under ERISA.
Specifically, she argues that monetary damages relief is available
to an ERISA plan, based on Massachusetts Mutual Life Ins. Co. v.
Russell, 473 U.S. 134 (1985)(holding that extra-contractual or
punitive damages are not available to a beneficiary of an ERISA
plan, but declining to rule on whether they would be available on
behalf of the plan itself). This argument fails for two reasons.
First, there is no longer a plan for which Brown would be able to
recover “on behalf of,” under ERISA §409(a), as she is no longer a
participant in an existing plan. See Sanson v. General Motors, 966
F.2d 618, 621 (11th Cir. 1992)(noting that individuals that lose
their status as a participant or beneficiary of a plan can no
longer recover on behalf of the plan). Second, the Supreme Court
has held that monetary damages (i.e., legal relief) are not
available under ERISA §502(a)’s carefully crafted civil enforcement
provisions. See Mertens, 508 U.S. at 255 (holding that
compensatory damages--monetary relief for losses a plan sustained
as a result of an alleged breach of fiduciary duties--were the
classic form of legal relief). Because it is clear that Brown is
seeking precisely the same classic form of legal relief referred to
in Mertens, and not equitable relief such as restitution or
injunction, the district court correctly ruled that Brown’s claims
did not set forth permissive relief under ERISA.
In Brown’s final point of error, she asserts that the district
court erred in granting summary judgment without affording her the
opportunity to amend pursuant to FED. R. CIV. P. 15. Brown’s basis
for this argument is that neither of the appellees had filed a
responsive pleading prior to the filing of her amended complaint.
While Brown is correct that neither a motion to dismiss nor a
motion for summary judgment constitutes a responsive pleading such
to extinguish a plaintiff’s right to amend a complaint, see Zaidi
v. Ehrlich, 732 F.2d 1218, 1219-20 (5th Cir. 1984), this does not
afford her relief in this case.
It is clear from our review that the district court
specifically considered the claims in Brown’s amended complaint
when granting appellees’ motion for summary judgment. Having thus
been allowed to fully present her arguments to the court, it would
serve no valid purpose to allow Brown another attempt in vain to
further cloak her original damages claims into the language of
equity.
For the foregoing reasons, the judgment of the district court
is AFFIRMED.