House-Forshee v. Benefits Committee of Western & Southern Financial Group Company Flexible Benefits Plan

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ROBERTA HOUSE-FORSHEE, Case No. 1:24-cv-110

Plaintiff, McFarland, J.

V. Bowman, M.J.

BENEFITS COMMITTEE OF WESTERN & SOUTHERN

FINANCIAL GROUP CO. FLEXIBLE BENEFITS PLAN, et al.,

Defendants.

REPORT AND RECOMMENDATION

On March 4, 2024, Plaintiff Roberta House-Forshee filed this civil action against

the Benefits Committee of Western & Southern Financial Group Co. Flexible Benefits

Plan and Western & Southern Financial Group, Inc. (collectively “W&S”) under the

Employee Retirement Income Security Act of 1974 (“ERISA”). In her complaint, Plaintiff

alleges that W&S wrongfully denied her short-term disability benefits under an Employee

Welfare Benefit Plan that provided group disability benefits to W&S employees. (Doc. 1).

This case has been referred to the undersigned magistrate judge for initial review

of all pretrial motions other than motions for summary judgment. (Doc. 2). On January 30,

2025, Defendants filed a motion to dismiss. For the reasons stated, the motion to dismiss

should be GRANTED, but without prejudice to Plaintiffs ability to move for a post-

judgment award of attorney’s fees if appropriate.

I. Background

Plaintiff was previously employed as a customer service representative at the

Gerber Life Insurance Company, a subsidiary of Western & Southern Financial Group.

On June 12, 2023, Plaintiff submitted a claim for short-term disability benefits to the

Western & Southern Financial Group Flexible Benefits Plan (“Plan”). After initially

approving Plaintiffs claim for benefits starting June 12, W&S terminated Plaintiffs short-

term benefits on July 7, 2023. Plaintiff appealed, but W&S denied Plaintiffs appeal of the

adverse short-term disability claim on September 8, 2023. (/d., Jf] 25-27, Doc. 17-1,

PagelD 71).’ In its denial, W&S cited alleged inadequacies in the documentation

submitted by Plaintiff in support of her claim.

Following exhaustion of her administrative appeal on the short-term benefits claim,

on March 5, 2024, Plaintiff filed this lawsuit. in her federal complaint, Plaintiff asserts that

the W&S denial was arbitrary and capricious and in violation of ERISA and Defendants’

fiduciary obligations. (Doc. 1). Specifically, Plaintiff alleges that W&S “failed to exercise

the statutorily required duty of care and prudence, failing to administer the Plan solely in

the interests of the participants and beneficiaries as required under 28 U.S.C.

§1104(a)(1)”; “by denying benefits to the Plaintiff contrary to the law and terms of the

Plan” and because W&S “arbitrarily ignored and selectively reviewed documents Plaintiff

has submitted and has failed to provide a full and fair review.” (Doc. 1, J 32). In support

of her claims, Plaintiff alleges in part that W&S sent an incomplete claim file to the Appeals

Committee for review of the denial of her claim for short-term benefits, and took no action

after they became aware of omissions. (Doc. 1, [J 25-27; Doc. 17-1, PagelD 83-116).

On or about January 10, 2024, Plaintiff filed an additional claim seeking long term

disability (“LTD”) benefits under the Plan. (Doc. 17, 3). W&S denied that claim by letter

iPlaintiffs counsel has submitted a Declaration under penalty of perjury in support of her opposition to

Defendants’ motion to dismiss, as well as excerpts from the Administrative Record and an invoice reflecting

her attorney’s fees through October 31, 2024. (Docs. 17, 17-1, 17-2). As discussed below, the undersigned

considers both parties’ evidentiary submissions in the context of Defendants’ factual attack on this Court's

subject matter jurisdiction.

dated April 8, 2024, shortly after this lawsuit was filed. (Doc. 17, 94). On the same date,

issued a letter allegedly approving short-term disability benefits for March 25-May

7, 2024, dates for which Plaintiff maintains that she should have been eligible for LTD

benefits. (/d.) In order to administratively exhaust her separate LTD claim, Plaintiff filed a

separate administrative appeal of the decision denying her LTD benefits on October 2,

2024. (Doc. 17, J 6).

Plaintiffs counsel attests that also on October 2, in the course of settlement

discussions for the above-captioned case, she notified defense counsel that a resolution

of this case involving short-term benefits would require W&S to administratively reverse

the prior denial in order to avoid prejudicing the resolution of her then still-pending LTD

claim. While a separate claim, counsel represents that the outcome of the LTD claim

depended in part on the existence of a short-term benefits award. (Doc. 17, J 8; Doc. 18,

PagelD 121-122). Plaintiffs counsel's email to defense counsel stated: “I’m open to

discussing the contours of this but to me the easiest thing seems to be an administrative

decision by W&S that would essentially render the lawsuit moot as to her [short-term]

benefit claim, and settlement as to (my limited) attorney fees and costs.” (Doc. 17, J 8).

Approximately two weeks later on October 18, 2024, the Western & Southern

Benefits Appeals Committee issued a letter to Plaintiffs counsel stating that, in

connection of Plaintiffs October 2 appeal of the denial of LTD benefits under the Plan, it

had “further considered” its prior administrative denial of her appeal for short-term

benefits. (Doc. 15-1, PagelD 47). The letter concludes: “Based on additional information

received by the Benefits Appeals Committee, the Benefits Appeals Committee has

determined that Ms. House-Forshee was unable to perform the normal duties of her

regular occupation for any employer from July 8, 2023 through October 30, 2023.” (/d.)

The October 18 letter does not identify what “additional information” was received

by W&S, when it was received, or from whom. Plaintiff asserts that Defendants “had all

potentially relevant information to ...change its mind for at feast 10 months,” dating to

Plaintiffs submission of records with her LTD application on or about January 10, 2024.

(Doc. 18, PagelD 131) (emphasis original). In other words, Plaintiff disputes that any

“additional information” was received by W&S beyond the initiation of this lawsuit and

counsel’s settlement demand.

Following notice of the reversal of the adverse benefits decision, Plaintiff's counsel

represents that she continued settlement discussions concerning her attorney’s fees,

which totaled $4,108.50 as of October 31, 2024.2 At Defendants’ request, Plaintiff

withdrew her outstanding discovery requests, and the parties jointly sought to extend the

Court’s Calendar deadlines. (Doc. 16, J] 5, 7).

The parties never consummated a written settlement. Instead, on January 30,

2025, Defendants moved to dismiss based on their post-litigation reversal of the decision

denying Plaintiffs claim for short-term benefits. According to W&S, this federal case is

now moot because Plaintiff has been paid all short-term benefits to which she is entitled.

Il. Analysis

A. Standard of Review and Burden of Proof under Rule 12(b)(1)

Defendants assert that this Court no longer has subject matter jurisdiction under

Rule 12(b)(1), Fed. R. Civ. P. The standard of review for a motion to dismiss filed under

2Doc. 17-2 (Attorney Fee Invoice). Curiously, counsel's time records suggest that she was notified of the

reversal of the benefits decision not on October 18, 2024, the date of the letter, but on October 2, 2024.

(Doc. 17-2, PagelD 117).

Rule 12(b)(1) depends on the type of motion that has been filed.

Rule 12(b)(1) motions to dismiss for lack of subject-matter jurisdiction

generally come in two varieties: a facial attack or a factual attack. Ohio Nat'l

Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). A facial

attack on the subject-matter jurisdiction alleged in the complaint questions

merely the sufficiency of the pleading. /d. When reviewing a facial attack, a

district court takes the allegations in the complaint as true, which is a similar

safeguard employed under 12(b)(6) motions to dismiss. /d. If those

allegations establish federal claims, jurisdiction exists.

Where, on the other hand, there is a factual attack on the subject-matter

jurisdiction alleged in the complaint, no presumptive truthfulness applies to

the allegations. /d. When a factual attack...raises a factual controversy, the

district court must weigh the conflicting evidence to arrive at the factual

predicate that subject-matter does or does not exist. /d. In its review, the

district court has wide discretion to allow affidavits, documents, and even a

limited evidentiary hearing to resolve jurisdictional facts. /d.

Gentek Bidg. Products, Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir, 2007)

(additional citations omitted).

W&S does not identify whether it is mounting a facial attack or a factual attack

under Rule 12(b)(1), but Plaintiff suggests that Defendants’ motion should be considered

a “facial” attack. (Doc. 18, PagelD 127-128). The substance of W&S’s motion is based on

the doctrine of mootness.

Article Ill, § 2 of the United States Constitution vests federal courts with

jurisdiction to address “actual cases and controversies.” Coal. for Gov't

Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 458 (6th Cir. 2004)

(citing U.S. CONST. art Ill, § 2). Federal courts are prohibited from

rendering decisions that “do not affect the rights of the litigants.” /d. (citing

Southwest Williamson Cty. Cmty. Assoc. v. Slater, 243 F.3d 270, 276 (6th

Cir. 2001)). A case becomes moot “when the issues presented are no

longer live or parties lack a legally cognizable interest in the outcome.”

Thomas v. City of Memphis, Tennessee, 996 F.3d 318, 323-24 (6th Cir. 2021) (citations

omitted). In support of their motion, Defendants expressly cite to a “post-litigation

decision” to award benefits, and Plaintiff herself cites to evidentiary exhibits. The fact that

both parties rely on evidence outside the complaint confirms that the pending motion

constitutes a factual attack. Accord AF, Inc. v. U.S. Citizenship and Immigration Services,

No. 23-cv-13009, 2025 WL 308118, at *2 (E.D. Mich. Jan. 27, 2025) (where mootness

argument relies on evidence outside the pleadings, it presents a factual challenge);

Property Management Connection, LLC v. Consumer Financial Protection Bureau, No.

3:21-cv-00359, 2021 WL 5282075, at *4 (M.D. Tenn. Nov. 10, 2021) (same).

The presiding district judge has referred all motions other than motions for

summary judgment to the undersigned for initial consideration. Consistent with the

general principle that jurisdictional issues may be raised at any time, the issue of

mootness may be raised either in the context of a Rule 12(b)(1) motion or on summary

judgment. Notably, the undersigned’s consideration of evidence relating to a factual

attack on subject matter jurisdiction (such as mootness) under Rule 12(b)(1) “does not

convert the motion into one for summary judgment.” Alpine Industries v. F.T.C., 40

F.Supp.2d 938, 940 (E.D. Tenn. 1998). The undersigned therefore considers all relevant

evidentiary exhibits within the context of the pending Rule 12(b)(1) motion to dismiss.

Having resolved the issue of whether the undersigned may review and weigh

relevant evidence based on the factual nature of the motion presented, the undersigned

briefly considers the burden of proof. Defendant cites to a general rule that Plaintiff has

the burden of proving jurisdiction in order to survive the motion to dismiss. See Moir v.

Greater Cleveland Reg’! Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990). But mootness

is different. Under controlling Supreme Court and Sixth Circuit case law, “[t]he heavy

burden of demonstrating mootness rests on the party claiming mootness.” Cleveland

Branch, N.A.A.C.P. v. City of Parma, 263 F.3d 513, 531 (6th Cir. 2001) (citing Los Angeles

v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379 (1979)); see also, generally, West Virginia v.

EPA, 597 U.S. 697, 719, 142 S.Ct. 2587 (2022) (reaffirming longstanding distinctions

between standing and mootness and holding that the party asserting mootness bears the

burden of proving it). Therefore, W&S carries the burden of demonstrating mootness.

B. Plaintiff's Substantive Claim for Benefits is Moot

When Plaintiff filed her complaint in March 2024, W&S had denied Plaintiffs

application for short-term disability benefits, and the Appeals Committee had confirmed

that denial. Defendants do not dispute that in March 2024, Plaintiff had established

standing by fully exhausting her administrative appeal of the adverse short-term disability

decision. At that time, the parties had a “live” case or controversy over which the Court

could exercise jurisdiction.

On October 18, 2024, however, W&S voluntarily reopened its consideration of the

closed administrative record, and reversed its prior adverse decision. (Doc. 15-1). In so

doing, W&S notified Plaintiffs counsel that it was awarding Plaintiff all short-term disability

benefits that she sought to obtain in this litigation. W&S persuasively argues that because

it has now paid Plaintiff all short-term benefits that she was due, this case has been

rendered moot.

Sometimes, events in the world overtake those in the courtroom, and a

complaining party manages to secure outside of litigation all the relief he

might have won in it. When that happens, a federal court must dismiss the

case as moot.

Federal Bureau of Investigation v. Fikre, 144 S.Ct. 771, 777, 601 U.S. 234, 240 (2024).

Relying on the fact that the express language of the October 18 letter contains no

more than Defendants’ promise that “short-term disability benefits in the amount of

$8,720.58, less all applicable taxes and deductions, wil/ be made payable to Ms. House-

Forshee,” (Doc. 15-1, PagelD 47, emphasis added), Plaintiff first argues that the letter is

insufficient evidence that Defendants actually have completed payment. (See Doc. 18,

PagelD 128, arguing that the letter is not “evidence that it fulfilled its obligations to pay”

the short-term benefits). Apart from challenging the evidentiary sufficiency of the letter to

prove that the payment was made, however, Plaintiff does not dispute Defendants’

representation that she has been paid the full sum referenced in the letter. To the extent

that any lingering doubt existed about whether Defendants completed the promised

payment, W&S has submitted sufficiently probative additional evidence with its reply

memorandum: a December 2024 written acknowledgement from Plaintiffs counsel that

all short-term benefits have been paid. (Doc. 20-1). Therefore, the undersigned concludes

that Plaintiffs substantive claim is moot.

C. The Court May Exercise Equitable Jurisdiction over Attorney Fees

Defendants urge the Court to grant their motion and dismiss this case in its entirety.

Plaintiff protests. She argues that this Court should continue to exercise jurisdiction over

her still-pending claims for relief for attorney’s fees and costs, prejudgment interest, and

any other “equitable relief’ to which she may be entitled, consistent with her request for

relief in her complaint. In a reply memorandum, Defendants argue that Plaintiffs ancillary

claim for fees and costs cannot save a case from dismissal where subject matter

jurisdiction is Jacking.

On the record presented, both parties are correct — to a point. W&S is correct that

a plaintiffs claim for attorney’s fees cannot “create” subject matter jurisdiction that is

otherwise lacking. But Plaintiff is also correct that the dismissal of an underlying

substantive ERISA claim that has become moot does not defeat the Court’s ability to

exercise equitable jurisdiction over an ancillary claim such as Plaintiffs claim for

attorney's fees and costs.

In their response and reply briefs, the parties treat these separate jurisdictional

issues as if they are one and the same. The fact that they are not is partially illustrated by

Lewis v. Continental Bank Corp., 494 U.S. 472, 110 S. Ct. 1249 (1990), the case on which

Defendants chiefly rely. Importantly, Lewis is not an ERISA case but involved an Illinois

bank holding company’s challenge to Florida’s prohibition on the operation of an

“industrial savings bank” by an out-of-state holding company under the Commerce

Clause. The bank won in the district court and the Eleventh Circuit affirmed, awarding

attorney's fees for bank counsel’s appellate work. The Supreme Court reversed because

1987 amendments to the Bank Holding Company Act had mooted the entire controversy

prior to the Eleventh Circuit’s decision, thereby depriving the appellate court of its subject

matter jurisdiction. The Lewis Court held that the bank’s remaining interest, to recover its

appellate attorney fees as a “prevailing party” was “insufficient to create an Article Ill case

or controversy where none exists on the merits of the underlying claim” given that the

Eleventh Circuit lacked subject matter jurisdiction over the underlying substantive claim

at the time it issued its decision. /d., 494 U.S. at 480, 110 S.Ct. at 1255.

The Lewis Court's rejection of the premise that a fee issue can "create” (or

continue) subject matter jurisdiction after the underlying claim is rendered moot was

derived from the express language of the fee statute at issue, 42 U.S.C. § 1988, which

requires proof of “prevailing party” status. The Lewis Court reasoned that because it

vacated the Court of Appeals judgment “on the basis of an event that mooted the

controversy before the Court of Appeals’ judgment issued, [the bank] was not, at that

stage, a ‘prevailing party’ as it must be to recover fees under § °1988.” /d. at 483, 110 S.

Ct. at 1256 (emphasis added). Lewis does not bar the exercise of continued equitable

jurisdiction over an ongoing claim for attorney fees that is supported by statutory

language. Underscoring that point, the Supreme Court remanded for consideration of

whether the bank could still recover its fees as “prevailing party” under § 1988 for work at

the trial court level - before the case became moot - “even though the [district court]

judgment was mooted after being rendered but before the losing party could challenge its

validity on appeal...” /d. In other words, the remand in Lewis itself proves the continued

exercise of equitable jurisdiction over a claim for attorney’s fees after the underlying

substantive claim has been rendered moot, so long as that exercise of jurisdiction is

supported by the statutory language at issue.*

In support of their position that Lewis should be read more broadly, Defendants

cite to Thole v. U.S. Bank N.A., 590 U.S. 538, 541-42 (2020), which was an ERISA case.

But Thole holds only that a different aspect of subject matter jurisdiction — standing —

cannot be created by an ancillary claim for attorney fees in the absence of any substantive

claim at the outset of litigation. Thole is easily distinguished precisely because it rests on

standing rather than the very different doctrine of mootness.* In contrast to Thole, Plaintiff

3None of the case law cited by Defendants’ cases holds to the contrary. See, e.g. Dellarussiani v. Ed

Donnelly Enters., No. 2:07-cv-00253, 2007 WL 3025340 (S.D. Ohio Oct. 15, 2007) (granting defendants’

motion to dismiss entire FLSA case as moot while entering judgment in favor of plaintiffs when the Rule 68

offer of judgment included payment of reasonable attorney’s fees under the relevant fee statute).

4The twin doctrines of mootness and standing are commonly conflated by litigants. See e.g., Fox v. Saginaw

Cnty., Michigan, 67 F.4th 284, 297 (6th Cir. 2023). In the simplest terms, “[t]he doctrine of standing generally

assesses whether that interest exists at the outset, while the doctrine of mootness considers whether it

exists throughout the proceedings.” Uzuegbunam v. Preczewski, 141 S.Ct. 792, 796 (2021); but see Friends

of the Earth, Inc. v. Laidlaw Environmental Servs. (TOC), Inc., 528 U.S. 167, 190-92, 120 S.Ct. 693, 145

L.Ed.2d 610 (2000) (critiquing definition of mootness as “standing set in a time frame” as overly simplistic

and incomplete). As this case illustrates, distinctions between the two doctrines are paramount when

considering the court’s equitable jurisdiction over ancillary claims that remain when a primary substantive

claim has been rendered moot by post-litigation events.

10

here established standing at the outset of litigation when she sued for wrongful denial of

her short-term benefits claim. One does not lose standing merely because a claim is

subsequently rendered moot by Defendants’ post-litigation conduct. Contrast, generally,

Schaffer v. Prudential Ins. Co. of Am., 301 F. Supp.2d 383, 386 (E.D. Pa. 2003) (denying

attorney fees in a case where ERISA lawsuit had been stayed as prematurely filed prior

to exhaustion, and court later dismissed case and denied fees because benefits were

awarded during that process).®

In support of this Court’s continued jurisdiction over the fee issue, Plaintiff cites to

Averbeck v. Lincoln Nat'l Life Ins. Co., No. 20-cv-420-jdp, 2021 U.S. Dist. LEXIS 188069,

at *3 (W.D. Wis. Sept. 30, 2021), a case in which a district court denied defendant’s Rule

12(b)(1) motion to dismiss an ERISA action where — like here - the underlying claim had

been rendered moot by the defendant's post-litigation award of benefits. The discussion

in the unpublished Averbeck is somewhat cursory, but the published Seventh Circuit case

on which that court relied is more illuminating.

In the [Freedom of Information Act] context, courts exercise equitable

jurisdiction to adjudicate fee claims in similar circumstances. Specifically,

when a plaintiff seeks information under FOIA and associated attorney fees,

courts retain equitable jurisdiction to adjudicate the fee claim after the

defendant produces the requested information and thus renders the FOIA

claim moot. See, e.g., Cornucopia Inst., 560 F.3d at 676-78; Anderson v.

U.S. Dep't of Health & Human Servs., 3 F.3d 1383, 1385 (10th Cir.1993)

(“Dismissing the [FOIA] action as moot ... did not affect plaintiff's right to

seek attorney's fees; the fee request ‘survive[d] independently under the

court's equitable jurisdiction.’ ”) (quoting Carter v. Veterans Admin., 780

F.2d 1479, 1481 (9th Cir.1986)).

We extend our FOIA jurisprudence into the ERISA context, and hold that

where a plan participant or beneficiary sues to recover benefits under

SArguably, the Schaffer court could have dismissed for lack of standing based on the plaintiffs failure to

prove actual injury prior to filing suit, because the administrative exhaustion process was ongoing. Clearly,

counsel earned no right to fees under ERISA for a premature lawsuit over which the court never obtained

jurisdiction.

11

ERISA § 502(a) on a deemed denial theory and attorney fees under ERISA

§ 502(g), and the plan pays the benefit claim in full shortly after the plaintiff

files suit, courts retain equitable jurisdiction to adjudicate the fee claim.

Were courts to lack jurisdiction, opportunistic plans could routinely delay

deciding whether to pay benefit claims until participants and beneficiaries

file suit, effectively requiring them to incur legal costs unrecoverable under

ERISA § 502(g) in order to receive benefits to which they are legally entitled.

In this case, if plans routinely pay benefit claims in full shortly after

participants and beneficiaries file suit, seeking, perhaps, to avoid having to

pay the plaintiffs costs for bringing the ERISA suit, plans could significantly

blunt ERISA § 502(g). That provision permits certain ERISA plaintiffs who

achieve “some degree of success on the merits” of their ERISA suits to

recover the legal costs they incurred in achieving that success. Hardt v.

Reliance Standard Life Ins. Co., 560 U.S. 242, 130 S.Ct. 2149, 2152, 2158,

176 L.Ed.2d 998 (2010) (quoting Rucke/shaus v. Sierra Club, 463 U.S. 680,

694, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983)); see also 29 U.S.C. § 1132(g).

Thus, if courts lacked jurisdiction over claims for attorney fees in cases like

Pakovich's, a financial barrier to seeking ERISA benefits would exist such

that plaintiffs should sue for benefits only if their expected recovery of

benefits exceeded their legal fees. Such a barrier would contradict one of

ERISA's primary policies, to protect “the interests of participants in

employee benefit plans and their beneficiaries ... by providing for

appropriate remedies, sanctions, and ready access to the Federal courts.”

29 U.S.C. § 1001(b). Permitting courts to exercise equitable jurisdiction thus

effectuates Congress's intent. After concluding that the district court

retained jurisdiction over Pakovich's claim for attorney fees, we now turn to

the substance of its decision.

Pakovich v. Verizon LTD Plan, 653 F.3d 488, 493 (7th Cir. 2011); see also, generally,

Zucker v. Occidental Petroleum Corp., 192 F.3d 1323, 1329 (9th Cir.1999) (“No Article III

case or controversy is needed with regard to attorneys’ fees as such, because they are

but an ancillary matter over which the district court retains equitable jurisdiction even

when the underlying case is moot.”).

The Sixth Circuit's jurisdictional analysis under FOIA has been in lock-step with

that of the Seventh Circuit. See GMRI, Inc. v. E.E.0.C., 149 F.3d 449, 451-452 (6th Cir.

1998) (holding that even though FOIA request was moot in light of the agency's

production of information, the plaintiffs motion for fees and costs, based on the assertion

12

that “the existence of the lawsuit had a causative effect upon the release of ...information”

was an “ancillary” claim that “survive[s] independently under the court’s equitable

jurisdiction.” (quoting Carter v. Veterans Admin., 780 F.2d 1479, 1481 (9th Cir. 1986)

(additional citations omitted)). Although no Sixth Circuit decision applies the same

analysis to the exercise of equitable jurisdiction over a motion for fees under ERISA, the

undersigned is persuaded by Pakovich that this Court could exercise equitable jurisdiction

over a fee claim under § 1132(g)(1) even if the substantive claim is rendered moot.® See

also Salgado-Rios v. Department of Homeland Security, No. 1:20-cv-60-PLM, 2021 WL

5628810, at *1 (W.D. Mich. Jan. 22, 2021) (discussing case law holding that a court may

exercise equitable jurisdiction over an attorney fee claim in a FOIA case that has become

moot due to the disclosure of the requested documents).

At the same time, the undersigned finds no basis for exercising equitable

jurisdiction over any claim for “prejudgment interest” or for “other equitable relief.” The

claim for prejudgment interest is moot because there will never be a monetary judgment

from which prejudgment interest could be calculated. And unlike Plaintiff's statutory claim

for attorney fees and costs, there is no basis for continued jurisdiction over her vague and

cursory reference to “other equitable relief’ in the complaint.

D. The ERISA Fee Provision and the Catalyst Theory

The conclusion that this Court may exercise equitable jurisdiction over Plaintiff's

continuing claim for attorney’s fees and costs under ERISA does not fully answer the

6W&S cites to language in a footnote in Word Seed Church v. Village of Hazel Crest, 111 F.4th 814, 819

n.1 (7th Cir. 2024) that dismisses an inferred argument by plaintiff that its claim for attorney fees might

“stave off mootness” as “mistaken.” Considering that Word Seed Church does not even mention Palovich,

the undersigned is not persuaded that the Seventh Circuit intended to overrule that precedent in a footnote

that consists entirely of dictum.

13

question of whether Plaintiff has a valid legal basis for such a claim. With respect to that

issue, W&S reasons that because it awarded benefits at the administrative level prior to

and independent of any substantive rulings from this Court, Plaintiff may not recover

statutory fees for her work. In response, Plaintiff insists that W&S would not have

voluntarily reopened the closed appeal and awarded her benefits in the absence of this

lawsuit. In other words, Plaintiff asserts that she is entitled to fees because this litigation

was the “catalyst,” or at least a contributing factor, to the Defendants’ decision to award

her short-term benefits.

In reply, Defendants urge the Court to reject the catalyst theory of recovery, citing

to Supreme Court and Sixth Circuit case law that limits fee awards to a “prevailing party.”

See, generally, Buckhannon Bd. & Care Home v. W. Va. Dep’t of Health & Human Res.,

532 U.S. 598, 603, 121 S. Ct. 1825, 1839 (2001) (rejecting the “catalyst theory” under the

FHAA” because Congress wrote statutory fee provision to include “prevailing party” as a

“legal term of art,” limiting awards to “one who has been awarded some relief by the

court.”); Doe v. Univ. of Mich., 78 F.4th 929, 951-52 (6th Cir. 2023) (citing Buckhannon

when interpreting “prevailing party” fee provision under 42 U.S.C. § 1988). But the case

law on which Defendants rely is inapposite because ERISA does not limit fee awards to

a “prevailing party.”

In Hardt v. Reliance Standard Life Ins. Co., 130 S.Ct. 2149, 2157, 560 U.S. 242,

253-54 (2010), the Supreme Court explicitly rejected application of “prevailing party”

precedents to the very different fee provision under ERISA.

Our “prevailing party” precedents... do not govern the availability of fees

awards under § 1132(g)(1), because this provision does not limit the

availability of attorney's fees to the “prevailing party.”...

14

Instead, we interpret § 1132(g)(1) in light of our precedents addressing

statutory deviations from the American Rule that do not limit attorney's fees

awards to the “prevailing party.” In that line of precedents, Rucke/shaus is

the principal case.

Id. The Supreme Court held that to recover fees under ERISA, the claimant need only

show “some degree of success on the merits” that is not merely “trivial” or a “purely

procedural victory.” /d., 130 S.Ct. 2149, 2158, 560 U.S. 242, 255 (2010) (brackets

omitted, quoting Ruckelshaus v. Sierra Club, 463 U.S. 680, 694, 103 S. Ct. 3274 (1983)).

Ruckelshaus also provides support for application of the “catalyst theory,” insofar as the

Court held there that legislative history showed that Congress intended to permit fee

awards under the analogous Clean Air Act to be made in “suits that force[] defendants to

abandon illegal conduct, although without a formal court order.” /d., 463 U.S. at 687 n. 8.

Defendants fail to cite to any controlling or persuasive opinion that rejects the

continued application of the catalyst theory to § 1132(g)(1). Nor does W&S cite to case

law that rejects the theory as applied to any analogous fee statutes that lack language

limiting an award to a “prevailing party.” At least two pre-Buckhannon cases that W&S

cites applied the catalyst theory to award fees under ERISA after the substantive claim

was rendered moot by a defendant's post-litigation conduct. See Cage v. General Motors

Defined Ben. Salaried Plan, 98 F.Supp.2d 803, 811 (E.D. Mich., 1999) (holding the

plaintiff was still entitled to recover fees under ERISA even though the substantive claim

was moot, because there was “some evidence that GM may have misstated the facts by

taking credit for having discovered the calculation error when it was Plaintiff who initially

brought the matter to GM’s attention”); see also Petro v. Flintkote Co., 633 F. Supp. 10,

11-12 (N.D. Ohio 1986) (awarding attorney’s fees in an ERISA action that was “casually

related to securing the relief obtained,” despite granting the Defendants’ motion to dismiss

15

the case as moot). See also GMRI, Inc., 149 F.3d at 451-452 (applying version of catalyst

theory under FOIA).

Post-Buckhannon, other Courts of Appeal considering the issue continue to apply

the catalyst theory to the ERISA fee statute because § 1132(g)(1) lacks the “prevailing

party” limitation. See Templin v. Independence Blue Cross, 785 F.3d 861, 865 (3rd Cir.

2015) (discussing post-Buckhannon case law and holding that catalyst theory continues

to apply to ERISA fee provision); Scarangella v. Group Health, Inc., 731 F.3d 146, 154-

55 (2d Cir. 2013) (same). Based on the undersigned’s review of pre- and post-

Buckhannon case law, the Sixth Circuit appears likely to agree. See McKay v. Reliance

Standard Life Ins. Co., 428 Fed. Appx. 537, 545 (6th Cir. 2011) (holding that remand

order constituted “some degree of success on the merits” supporting ERISA fee award

even though plaintiff was denied benefits after remand); Knickerbocker v. Ovako-Ajax,

Inc., 1999 WL 551409, at *5 (6th Cir. 1999) (per curiam) (pre-Buckhannon suit holding

that plaintiff may be able to recover fees under ERISA based on catalyst theory). In the

more recent case of Amos v. PPG Industries, Inc., No. 2:05-cv-70, 2019 WL 3889621, at

*11 (S.D. Ohio August 16, 2019), Magistrate Judge Deavers cited to Scarangella with

approval when holding that a settlement agreement under ERISA evidenced “some

degree of success.” Amos is consistent with the sentiments expressed in Hardt and

Ruckelshaus that a litigant may recover fees even without a court order, including under

a catalyst theory. District courts in other circuits have reached similar conclusions. See

Barnes v. AT & T Pension Benefit Plan—Nonbargained Program, 963 F.Supp.2d 950, 963-

964 (N.D. Cal., 2013) (“[T]he catalyst theory remains viable for purposes of §

1132(g)(1).”); Glover v. Hartford Life and Accident Insurance Company, 617 F.Supp.3d

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90, 100 (D.N.H. 2022) (finding catalyst theory to be persuasive, holding that voluntary

extrajudicial settlement entitled plaintiff to fees under ERISA); contrast Desharnais v.

Unum Life Ins. Co. of Am., No 5:19-cv-6599-EJD, 2021 WL4481861 (N.D. Cal. Sept. 30,

2021) (agreeing that ERISA supports a catalyst theory, but denying fees where plaintiff

failed to show how lawsuit was “a contributing factor” in the post-litigation award).

The same result was obtained in post-Buckhannon decisions that have reviewed

the continued viability of the catalyst theory under analogous fee provisions. See, e.g.,

Ohio River Valley Env'l Coalition, Inc. v. Green Valley Coal, 511 F.3d 407, 414 (4th Cir.

2007) (Surface Mining Contro! and Reclamation Act); Sierra Club v. Env'l Protection

Agency, 322 F.3d 718, 726 (D.C. Cir. 2003) (Clean Air Act); Loggerhead Turtle v. Cty.

Council, 307 F.3d 1318, 1325 (11th Cir. 2002) (Endangered Species Act); Environmental

and Policy Institute v. Tennessee Valley Authority, No.: 3:22-CV-220-TAV-DCP, 2025 WL

410075, at *2-3 (E.D. Tenn. Feb. 5, 2025) (acknowledging that seven Courts of Appeal

have held that the catalyst theory applies in the FOIA context, denying fees only because

plaintiff had not shown that its lawsuit “had a substantive causative effect”); Lawrence v.

United States Small Business Admin., No. 20-11637, 2021 WL 4398328, at *8 (E.D. Mich.

Sept 27, 2021) (awarding fees under FOIA where plaintiffs lawsuit was “a contributing

cause” of post-litigation release of documents); U.S. v. Board of Cnty. Commissioners of

Hamilton Cnty., OH, No. 1:02-cv-107-SAS, 2005 WL 2033708, at *16 (S.D. Ohio Aug. 23,

2005) (catalyst theory still applies under Clean Water Act).

Of course, in most cases, a motion for fees is filed only after the claimant obtains

a favorable judicial ruling, or at least a written settlement agreement that provides

evidence of litigation success. But Plaintiff cites to two unpublished cases involving similar

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facts to those presented here. In Doe v. Raytheon Co., No. 00-12545-RWZ, 2002 WL

1608279 (D. Mass. July 19, 2002), an ERISA claimant administratively exhausted his

claim before filing suit. Immediately after he filed suit, Defendants reversed their decision

and reinstated his benefits. After drawing the reasonable inference that it was the lawsuit

that “convinced defendants of their error,” the court awarded fees. /d. at *2. Similarly, in

Pomerleau v. Health Net of California, Inc., No. CV 11-01654 DDP, 2012 WL 5829850

(C.D. Cal. Nov. 15, 2012), initially the defendant partially denied plaintiffs administrative

appeal but reversed course two weeks after she filed suit. Despite the lack of any

substantive decisions made in the court case, the court awarded fees under a liberal

construction of ERISA’s fee provision.

Wé&S argues that Raytheon and Pomerleau are distinguishable because in both

cases, the defendants reversed their decisions immediately after the plaintiffs filed suit.

In the above-captioned case, the reversal did not occur until seven months after suit was

filed, albeit before any discovery had occurred. According to W&S, the delay between the

date that suit was filed in March and the October 18 letter demonstrates that its reversal

was based on the “additional information provided to and considered by W&S outside

[this] lawsuit.” (Doc. 20, PagelD 146). But Defendants’ argument is unpersuasive given

their failure to identify to Plaintiff or to this Court what “additional information” caused the

reversal, and Plaintiffs counsel’s countervailing submission of evidence of the close

temporal proximity of settlement discussions concerning the precise course of action

taken by W&S (reopening and reversing the appeal decision).

E. Next Steps

At this juncture, Plaintiff has demonstrated that this Court may continue to exercise

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equitable jurisdiction over a claim for fees and costs, and some legal basis for such a

claim under ERISA. But Plaintiff has put the cart before the horse, because she has yet

to file a motion for fees. And in the Sixth Circuit, proving “some degree of success” is

merely the first hurdle to obtaining a fee award under ERISA. If a plaintiff surpasses that

initial hurdle, then the trial court will proceed to apply the five factor test set out in

Secretary of Dep't of Labor v. King, 775 F.2d 666 (6th Cir. 1985). See Pfenning v. Liberty

Life Assurance Company of Boston, 282 F.Supp.3d 1027, 1029 (S.D. Ohio, 2017).

Considering the current procedural posture, the undersigned recommends the

course followed in Outside Legal Counsel PLC v. Transportation Security Administration,

No. 23-cv-10553, 2024 WL 4361941 (E.D. Mich. Sept. 30, 2024). There, the court granted

the agency’s motion to dismiss a FOIA complaint as moot under Rule 12(b)(1) in light of

the agency’s post-litigation production. As in the instant case, the plaintiff had argued that

it was entitled to fees but had not filed a formal motion. Recognizing that a motion could

be appropriate, the court instructed the plaintiff to file any post-judgment motion seeking

a discretionary award of fees under FOIA, pursuant to Rule 54(d), Fed. R. Civ. P., to the

extent that it continued to seek such relief. Accord Roman v. United States Department

of State, No. 1:15-cv-887, 2017 WL 1380039 (W.D. Mich. Mar. 27, 2017).

Ill. Conclusion and Recommendation

Accordingly, IT Is RECOMMENDED THAT:

1. Defendants’ Rule 12(b)(1) motion to dismiss this case as moot (Doc. 15) be

GRANTED, with judgment to be entered in favor of Defendants;

2. Plaintiff shall file any post-judgment motion for a discretionary award of fees

under ERISA pursuant to Rule 54(d), Fed. R. Civ. P., to the extent that she

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continues to seek such relief

s/Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ROBERTA HOUSE-FORSHEE, Case No. 1:24-cv-110

Plaintiff, McFarland, J.

V. Bowman, M.J.

BENEFITS COMMITTEE OF WESTERN & SOUTHERN

FINANCIAL GROUP CO. FLEXIBLE BENEFITS PLAN, et al.,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P 72(b), any party may serve and file specific, written

objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS of

the filing date of this R&R. That period may be extended further by the Court on timely

motion by either side for an extension of time. All objections shall specify the portion(s) of

the R&R objected to, and shall be accompanied by a memorandum of law in support of

the objections. A party shall respond to an opponent's objections within FOURTEEN (14)

DAYS after being served with a copy of those objections. Failure to make objections in

accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S.

140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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