CourtListener opinion 10179295

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UNITED STATES DISTRICT COURT 
 EASTERN DISTRICT OF KENTUCKY 
 CENTRAL DIVISION at LEXINGTON 

DAWN ROSS, ) 
 ) 
Plaintiff, ) Case No. 
 ) 5:19-cv-261-JMH 
v. ) 
 ) MEMORANDUM 
GRACE ROSS, ) OPINION & ORDER 
 ) 
Defendant. ) 
 ) 

 *** 
This matter is before the Court on Defendant's motion for an 
award of attorney's fees pursuant to Federal Rule of Civil 
Procedure 54(d)(2) and Local Rule 54.4. [DE 13]. Defendant Grace 
Ross seeks attorney's fees under the Employee Retirement Income 
Security Act ("ERISA") after the Court entered an Order dismissing 
Plaintiff Dawn Ross's claims against her. [DEs 11, 12]. Plaintiff 
has responded in opposition to the request for attorney's fees [DE 
15] and Defendant has replied [DE 17], making this matter ripe for 
review. For the reasons stated below, Defendant's motion for 
attorney's fees is DENIED. 
 I. FACTUAL AND PROCEDURAL BACKGROUND 
Plaintiff filed the above action in Scott County Circuit 
Court, seeking a declaration that she was the proper beneficiary 
of her former husband Clarence Boyd Ross III's life insurance 
policy, with whom she entered into a divorce settlement agreement 
in December 2012. [DE 1]. The agreement stated that Plaintiff would 
receive the proceeds of Mr. Ross's life insurance policy through 
his previous employer, Michelin. Mr. Ross married Defendant in 
April 2013. [DE 11]. At the time of his death, Mr. Ross held a 
life insurance policy with a company called Camso. [See DE 11 at 

2]. When he died, Defendant received the proceeds of Mr. Ross's 
life insurance policy pursuant to its terms. 
ERISA mandates that beneficiaries of life insurance plans are 
determined "in accordance with the documents and instruments 
governing the plan." 29 U.S.C. § 1103(a)(1)(D). An exception exists 
where the parties have a "qualified domestic relations order" that 
clearly specifies a number of details about the plan and 
beneficiaries. 29 U.S.C. § 1056(d)(3)(C). 
To determine if the settlement agreement met the level of 
specificity required by ERISA's exemption, the Court examined the 
agreement and applied relevant case law interpreting the statute. 
Plaintiff claimed that "substantial compliance" with 29 U.S.C. § 

1056(d)(3)(C) was all that was necessary for the exemption to 
apply. [DE 5 at 2]. But, as the Court explained, the "substantial 
compliance" standard is only applicable to orders drafted before 
1985. [DE 11 at 7 (citing Sun Life Assurance Co. of Canada v. 
Jackson, 877 F.3d 698, 701 (6th Cir. 2017))]. It is here that the 
Court pointed out two errors in Plaintiff's argument. In one 
instance she cited to a federal district court decision instead of 
the Sixth Circuit decision overturning the case. [Id. at 7, n. 4]. 
In another, she omitted a portion of an opinion relevant to the 
facts and necessary legal analysis. 
Though the settlement agreement specifically identified the 
life insurance plan as one held by Michelin, Plaintiff argued it 

still met most of the other requirements of the statute fully and 
espoused a factual argument that the policies were essentially the 
same. But the Court held that Plaintiff failed to provide the 
necessary facts to make that connection, thus finding that the 
policy was not clearly specified as required by ERISA to be a 
qualified domestic relations order. 
 II. DISCUSSION 
Local Rule 54(d)(2) provides that a motion for attorney's 
fees pursuant to Federal Rule of Civil Procedure 54(d)(2) must be 
filed no later than thirty days after the entry of judgment.1 In 
addition to time constraints, the motion must (1) "specify the 
judgment and the statute, rule, or other grounds entitling the 

movant to the award," (2) "state the amount sought, or provide a 
fair estimate of it," and (3) must "disclose, if the court so 
orders, the terms of any agreement about fees for the services for 
which the claim is made." Fed. R. Civ. P. 54(d)(2)(ii)-(iv). 

1 While the Federal Rule provides that the motion must be made 
within fourteen days, it allows for adjustment of that timing 
pursuant to a statute or court order. 
Defendant cites to 29 U.S.C. § 1132(g)(1) as the statute 
entitling her to an award of attorney's fees. [DE 13 at 1]. That 
section provides that in an action under ERISA's statutory scheme, 
a court may allow, in its discretion, a reasonable attorney's fee 
and costs of the action to either party. 29 U.S.C. § 1132(g)(1). 

To decide if the award of fees is proper, Courts in the Sixth 
Circuit look to "(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; (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. Sec. of Dept. of Labor v. King, 
775 F.2d 666, 669 (6th Cir. 1985). These factors, often called the 
King test, are not statutory and are typically not dispositive. 
Moon v. Unum Provident Corp., 461 F.3d 639, 642-43 (6th Cir. 

2006)(internal citations omitted). "Rather, they are 
considerations representing a flexible approach." Id. at 643. In 
the Sixth Circuit, there is no presumption that attorney's fees 
will be awarded. Id. (citing Maurer v. Joy Technologies, Inc., 212 
F.3d 907, 919 (6th Cir. 2000)). 
Defendant also asks the Court to provide attorney's fees 
pursuant to 28 U.S.C. § 1927, which provides: 
Any attorney or other person admitted to conduct cases 
in any court of the United States or any Territory 
thereof who so multiplies the proceedings in any case 
unreasonably and vexatiously may be required by the 
court to satisfy personally the excess costs, expenses, 
and attorneys' fees reasonably incurred because of such 
conduct. 

As Defendant points out, this statutory section is applied when an 
attorney knows or reasonably should know that the claim is 
frivolous. Jones v. Continental Corp., 789 F.2d 1225, 1230 (6th 
Cir. 1986). An award of fees under this provision requires a 
showing of something less than subjective bad faith, but something 
more than negligence or incompetence. Rentz v. Dynasty Apparel 
Industries, Inc., 556 F.3d 389, 396 (6th Cir. 2009). Defendant 
also states that the Court has "inherent power to sanction conduct 
that amounts to bad faith." [DE 12 at 2]. 
Under both provisions, Defendant argues that the fact that 
the settlement agreement and order from the state court was not a 
qualified domestic relations order for the purposes of the ERISA 
exemption "should have been obvious to Plaintiff." [Id. at 3]. 
Plaintiff states that she brought the case in good faith to 
"determine the categorization of a poorly drafted document." [DE 
15 at 1]. Further, Plaintiff argues she firmly believed that the 
mediation agreement met the required standard set by ERISA at the 
time of filing. [Id. at 4]. 
First, the Court does not find that Plaintiff's claim was 
frivolous or vexatious. Plaintiff simply sought a declaration from 
the Court clarifying the status of the qualified domestic relations 
order. As described above, this is a specific and factual inquiry 
that must take place after considering the terms of the agreement, 
the terms of the policy at issue, and comparing those facts to 
similar cases where plaintiffs claimed the same ERISA exemption. 

Next, while the Court noted in the opinion that it was 
dissatisfied with some of the legal arguments Plaintiff espoused 
and how those arguments were presented, this behavior does not 
rise to the level of bad faith. Defendant argues that Plaintiff 
tried to essentially confuse the Court by arguing that the motion 
to dismiss should be reviewed under a motion for summary judgment 
standard. The Court rejected Plaintiff's argument that Defendant's 
motion to dismiss introduced case law outside of the pleadings. 
[DE 11 at 4]. It was noted that "legal arguments consisting of 
case and statutory law are expected in a motion to dismiss, where 
the Court asks only if there is a legal basis of relief." [Id. at 
n. 3]. Further, as noted above, the Court chided Plaintiff for the 

way she cited to and described two cases. 
These problems, noted throughout the opinion, may be 
troublesome, but the undersigned is not convinced that the case 
was filed in bad faith or that the arguments were frivolous or 
intentionally misleading, so much as to justify the award of 
attorney's fees. As the Court's opinion indicates, the question 
Plaintiff sought to answer is not one that has been clearly 
answered by the Courts in this Circuit. Additionally, though the 
Plaintiff cited to a legal rule inapplicable in this case—the 
"substantial compliance" standard—the question of exactly how 
clear the terms of the agreement must be is not as literal as it 
may seem. As noted in the opinion, the "clearly specified" standard 

requires more than substantial compliance but does not require 
"rigidity" or "magic words." [DE 11 at 7-8]. Thus, the question 
becomes largely factual and dependent on a close reading of an 
admittedly poorly drafted settlement agreement. 
And in fact, the Court held against the Plaintiff not entirely 
because of the interpretation of the life insurance provision of 
the mediation agreement, but because Plaintiff failed to show that 
the Michelin policy in the agreement was in fact the same policy 
Mr. Ross held at the time of his death, though she may have alluded 
to it, the Court could not find that the agreement clearly 
specified the plan. Thus, the outcome of this case turned on not 
only the facts and statutory interpretation, but the sufficiency 

of the party's pleading. 
A review of Sixth Circuit cases addressing attorney's fees 
under 29 U.S.C. § 1132(g)(1) demonstrates that, typically, a 
plaintiff sues the employer or entity who was found to have denied 
the plaintiff benefits under ERISA. See, e.g., Foltice v. Guardsman 
Products, Inc., 98 F.3d 933 (6th Cir. 1996)(employee brought action 
against employer, district court granted summary judgment in favor 
of employee, employee requested and was denied attorney's fees); 
Moon v. Unum Provident Corp., 461 F.3d 639 (6th Cir. 
2006)(participant in employee welfare benefit plan filed petition 
for attorney's fees). Though clearly a defendant who wins may 
request attorney's fees under ERISA, the King factors espoused by 

the Sixth Circuit will typically be more applicable where a 
plaintiff who sought benefits was awarded them pursuant to ERISA, 
and had to engage in litigation to vindicate her rights as a 
beneficiary. That is because a losing defendant in such a case 
will have violated ERISA, depriving a plaintiff of rights pursuant 
to a federal statute. That simply is not the case here: sanctioning 
Plaintiff with attorney's fees is not a punishment for violating 
ERISA, as contemplated in the attorney's fees provision. Finally, 
although the assessment of attorney's fees against a losing 
plaintiff is certainly a strong deterrent against bringing 
frivolous actions, it is usually sufficient that the plaintiff 
must bear her own attorney's fees, costs, or simply time spent 

pursuing litigation for bringing the case. 
The question before the Court regarding ERISA's qualified 
domestic relations order exemption is one Courts have addressed 
many times. Courts have examined less and more specific provisions 
than the one at issue here. Thus, Defendant has not shown that 
Plaintiff filed the action with bad faith or otherwise acted so 
egregiously as to require Plaintiff to pay attorney's fees after 
the Court found in Defendant's favor. 
 IV. CONCLUSION 
 As Plaintiff stated in her response, her only recourse to 
attempt to enforce the mediation agreement, which named her as the 
beneficiary, was to seek an answer from the Court. That action, in 
and of itself, does not amount to bad faith and the Court does not 
consider it to be a vexatious or frivolous request. The Court finds 
no grounds to require Plaintiff to pay Defendant's attorney's fees 
in this case. Accordingly, IT IS ORDERED that Defendant's motion 
for attorney's fees [DE 13] is DENIED. 
 This the 20th day of July, 2020. 

 Kees. Signed By: 
 PD) oseon.u. Hood on 
 ‘"Ss\"— Senior U.S. District Judge"