United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 16, 2005
Charles R. Fulbruge III
Clerk
No. 04-50473
Summary Calendar
METROPOLITAN LIFE INSURANCE COMPANY,
Plaintiff-Appellant,
versus
MAURA BISCHOFF, ET AL.,
Defendants,
SEAN PETRIE as Guardian Ad Litem,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:03-CV-102-SS
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Metropolitan Life Insurance Company (“MetLife”) appeals the
district court’s award of attorney’s fees and prospective
appellate attorney’s fees to an appointed guardian ad litem, Sean
Petrie, pursuant to 29 U.S.C. § 1132(g)(1). We review the award
of attorney’s fees for an abuse of discretion. Wegner v.
Standard Ins. Co., 129 F.3d 814, 820-21 (5th Cir. 1997).
*
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this opinion should not be published and is not precedent except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.
No. 04-50473
-2-
In considering Petrie’s request for attorney’s fees, the
district court considered and properly applied the five factor
test in Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255 (5th
Cir. 1980). The district court did not abuse its discretion in
awarding attorney’s fees based on MetLife’s culpability for the
complexity of the litigation, its ability to pay fees, and the
deterrent effect of such an award on future conduct. Therefore,
the award of attorney’s fees for Petrie’s efforts in the district
court is AFFIRMED.
The district court did not explain its decision to award
prospective appellate attorney’s fees to Petrie. We conclude
that the district court abused its discretion by awarding
prospective appellate attorney’s fees. The award of prospective
appellate attorney’s fees is VACATED. Petrie may file a separate
motion in this court seeking appellate attorney’s fees. See 5TH
CIR. R. 47.8
AFFIRMED IN PART; VACATED IN PART.