Ruiz v. Publix Super Markets, Inc.

Filing 61

ORDER denying 56 Motion for Attorney Fees. Signed by Judge Susan C Bucklew on 5/3/17. (JD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ARLENE RUIZ,
Plaintiff,
v.

Case No. 8:17-cv-735-T-24 TGW

PUBLIX SUPER MARKETS, INC.,
Defendant,
_______________________________
PUBLIX SUPER MARKETS, INC.,
Defendant/Counter-Plaintiff
v.
ARLENE RUIZ, ALEXANDER PEREZVARGAS, ANDREA VARGAS, and
JESSICA VARGAS,
Counter-Defendants.
___________________________________/
ORDER
This cause comes before the Court on Publix’s Motion for Attorneys’ Fees. (Doc. No.
56). Plaintiff Arlene Ruiz opposes the motion. (Doc. No. 60). As explained below, Publix’s
motion is denied.
I. Background
Irialeth Rizo is a former Publix employee who died from cancer on January 19, 2015.
During her employment with Publix, Rizo participated in the Publix Super Markets, Inc.
Employee Stock Ownership Plan (“ESOP”) and the Publix Super Markets, Inc. 401(k) SMART
Plan (“401(k) Plan”). The Summary Plan Descriptions for the ESOP and the 401(k) Plan both

provide that in order to change the designated beneficiary, the participant must fill out and
submit a signed Beneficiary Designation Card. In October of 2008, Publix received Beneficiary
Designation Cards from Rizo changing her prior designated beneficiaries for both her ESOP and
401(k) Plan to Counter-Defendants Alexander Perez-Vargas, Andrea Vargas, and Jessica
Vargas.

In September of 2011, Rizo was diagnosed with cancer. In January of 2015,

when Rizo was getting her affairs in order after her cancer had progressed, Rizo attempted to
change her beneficiaries for both her ESOP and 401(k) Plan to Plaintiff Arlene Ruiz.1 Rizo did
so by sending a letter stating this intention and attaching that letter to unsigned Beneficiary
Designation Cards.
Rizo died on January 19, 2015. Thereafter, Publix received Rizo’s letter, as well as the
Beneficiary Designation Cards. Publix did not process the proposed beneficiary changes,
because the Beneficiary Designation Cards were not properly filled out, as Rizo had not signed
and dated them. When Ruiz made a claim for benefits under the ESOP and the 401(k) Plan after
Rizo’s death, Publix denied her claim. Thereafter, Ruiz filed the instant lawsuit for ERISA
benefits.
Both parties moved for summary judgment on the issue of whether Ruiz was the
beneficiary of Rizo’s ESOP and 401(k) Plan. Publix argued that Ruiz was not the beneficiary,
because Rizo did not strictly comply with the requirements for filling out the Beneficiary
Designation Cards in order to make Ruiz the beneficiary of her ESOP and 401(k) Plan. Ruiz
argued that the doctrine of substantial compliance applied, and because Rizo substantially
complied with the procedure for changing her beneficiary to Ruiz, the Court should find that

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Rizo and Ruiz had been in a long-term, committed relationship prior to Rizo’s death.
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Ruiz was the beneficiary of Rizo’s ESOP and 401(k) Plan.
The Court found that the case law cited by the parties supported both of their positions
and that based on their cited authority, it was unclear whether the Eleventh Circuit would apply
the doctrine of substantial compliance. However, the Court also noted that it was not clear that
the doctrine of substantial compliance is still viable after the Supreme Court’s decision in
Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, 555 U.S. 285 (2009).
Neither party addressed, or even cited to, the Kennedy decision.
In Kennedy, the decedent’s estate and the decedent’s ex-wife both made claims as the
beneficiary of a savings and investment plan (“SIP”), which was an ERISA plan. See id. at 28889. The ex-wife was the named beneficiary of the SIP. See id. at 289. In rejecting the estate’s
claim, the Supreme Court explained:
ERISA requires [e]very employee benefit plan [to] be established and
maintained pursuant to a written instrument, specify[ing] the basis on
which payments are made to and from the plan. The plan
administrator is obliged to act in accordance with the documents and
instruments governing the plan insofar as such documents and
instruments are consistent with the provisions of [Title I] and [Title
IV] of [ERISA], and ERISA provides no exemption from this duty
when it comes time to pay benefits. . . .
The Estate's claim therefore stands or falls by the terms of the plan,
a straightforward rule of hewing to the directives of the plan
documents that lets employers establish a uniform administrative
scheme, [with] a set of standard procedures to guide processing of
claims and disbursement of benefits. The point is that by giving a
plan participant a clear set of instructions for making his own
instructions clear, ERISA forecloses any justification for enquiries
into nice expressions of intent, in favor of the virtues of adhering to
an uncomplicated rule: simple administration, avoid[ing] double
liability, and ensur[ing] that beneficiaries get what's coming quickly,
without the folderol essential under less-certain rules.
*

*

*
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The plan provided an easy way for [the decedent] to change the
designation, but for whatever reason he did not. The plan provided a
way to disclaim an interest in the SIP account, but [the ex-wife] did
not purport to follow it. The plan administrator therefore did exactly
what [ERISA] required: the documents control, and those name [the
ex-wife].
Id. at 300–01, 303–04 (quotation marks and internal citations omitted).
Based on Kennedy, this Court concluded the following in its summary judgment order:
[I]t is doubtful that the doctrine of substantial compliance remains
viable, given the Supreme Court’s emphasis on the duty of a plan
administrator to act in accordance with the plan documents. The
Supreme Court specifically stated that ERISA forecloses any
justification for inquiries into expressions of intent that do not
comply with the plan documents. See id. at 301. Thus, it appears to
this Court that the doctrine of substantial compliance did not survive
the Supreme Court’s decision in Kennedy.
Without the doctrine of substantial compliance, it is clear that the last
valid beneficiary designations in effect are the ones Publix received
in October 2008 naming the Vargas Counter-Defendants as the
beneficiaries of the ESOP and the 401(k) Plan. As such, Publix is
entitled to summary judgment.
(Doc. No. 49, p. 16–17).
Thereafter, the Court entered judgment in favor of Publix on Ruiz’s amended complaint.
The instant motion for attorneys’ fees followed.
II. Motion for Attorneys’ Fees
Publix now seeks $50,742 is attorneys’ fees. (Doc. No. 57). Ruiz opposes the motion,
arguing that: (1) Publix failed to request attorneys’ fees in its answer; and (2) the Court, in its
discretion, should deny Publix’s request for an award of attorneys’ fees. Accordingly, the Court
will address both arguments.

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A. Requesting Attorneys’ Fees
Ruiz first argues that the Court should deny Publix’s motion for attorneys’ fees because
Publix failed to request attorneys’ fees in its answer. The Court rejects this argument, as this
Court has found that an ERISA defendant’s failure to request attorneys’ fees in its answer does
not bar a later motion for attorneys’ fees. See Medicomp, Inc. v. United Healthcare Ins. Co.,
2013 WL 5741391, at *1 (M.D. Fla. Aug. 23, 2013), adopted by 2013 WL 5740097 (M.D. Fla.
Oct. 22, 2013).
B. Discretion to Award Attorneys’ Fees
Next, Ruiz argues that the Court, in its discretion, should deny Publix’s request for an
award of attorneys’ fees. As explained below, the Court agrees.
Pursuant to 29 U.S.C. § 1132(g)(1), this Court “in its discretion may allow a reasonable
attorney's fee and costs of action to either party.” The Supreme Court interprets this statute as
allowing attorneys’ fees to be awarded to a party as long as that party has achieved some degree
of success on the merits. See Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 245
(2010). If the party seeking attorneys’ fees has achieved some degree of success on the merits,
the court may then consider a five-factor test in exercising its discretion in determining whether
to award attorneys’ fees. See id. at 255 n.8; see also Cross v. Quality Management Group, LLC,
491 Fed. Appx. 53, 55 (11th Cir. 2012). Those five factors consist of the following:
(1) the degree of the opposing parties' culpability or bad faith; (2) the
ability of the opposing parties to satisfy an award of attorney's fees;
(3) whether an award of attorney's fees against the opposing parties
would deter other persons acting under similar circumstances; (4)
whether the parties requesting attorney's fees sought to benefit all
participants and beneficiaries of an ERISA plan or to resolve a
significant legal question regarding ERISA itself; and (5) the relative
merits of the parties' positions.
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Florence Nightingale Nursing Service, Inc. v. Blue Cross/Blue Shield of Alabama, 41 F.3d 1476,
1485 (11th Cir. 1995); see also Hardt, 560 U.S. at 249 n.1; Cross, 491 Fed. Appx. at 55. “No
single factor is necessarily outcome-determinative.” Waschak v. The Acuity Brands, Inc. Senior
Management Benefit Plan, 384 Fed. Appx. 919, 924 (11th Cir. 2010).
In this case, it cannot be disputed that Publix has achieved success on the merits, as the
Court has entered judgment in Publix’s favor on Ruiz’s claim. However, the Court has
discretion regarding its decision whether to award Publix its attorneys’ fees. The Court has
considered the five-factor test and concludes that an award of attorneys’ fees is not warranted.
The first factor that the Court has considered is the degree of Ruiz’s culpability or bad
faith. “[B]ad faith is more than mere negligence; it is the conscious doing of a wrong, where an
attorney knowingly or recklessly pursues a frivolous claim or engages in litigation tactics that
needlessly obstruct the litigation of non-frivolous claims, or deliberate deception, gross
negligence or recklessness.” Cross, 491 Fed. Appx. at 56 (quotation marks and internal citations
omitted). Here, Ruiz cannot be considered culpable or to have acted in bad faith. She had nonfrivolous legal authority that supported her position. As such, this factor weighs against an
award of attorneys’ fees.
Next, the Court considered Ruiz’s ability to satisfy an award of attorney's fees. Neither
party really addressed this factor beyond Ruiz’s conclusory statements that an attorneys’ fee
award would be a financial hardship for her. Thus, this factor appears to weigh against an award
of attorneys’ fees.
Next, the Court considered whether an award of attorney's fees against Ruiz would deter
other persons acting under similar circumstances. The Court finds that a fee award would likely

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deter a purported beneficiary from relying on the doctrine of substantial compliance to support
their beneficiary status. Thus, this factor weighs in favor of an award of attorneys’ fees.
Next, the Court considered whether Publix sought to benefit all participants and
beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA itself.
The Court agrees with Publix that this case involves a significant legal question regarding
ERISA. Thus, this factor weighs in favor of an award of attorneys’ fees.
Next, the Court considered the relative merits of the parties' positions. While the Court
found that Publix’s position was legally correct, the Court cannot deny that the result may appear
inequitable given Rizo’s clear intent to change her beneficiary for the ESOP and the 401(k) Plan
to Ruiz. Furthermore, the case law is not completely without doubt that the doctrine of
substantial compliance has no viability after Kennedy, as some courts outside of the Eleventh
Circuit have continued to consider the doctrine. See, e.g., Burns v. Orthotek Inc. Employees
Pension Plan & Trust, 695 F. Supp.2d 859, 864–66 (N.D. Ind. 2010); Unum Life Ins. Co. of
America v. Scott, 2012 WL 1068978, at *3–5 (D. Conn. Mar. 29, 2012); Koga-Smith v. MetLife,
2013 WL 971468, at *2–3 (N.D. Cal. Mar. 12, 2013). As such, the Court concludes that this
factor weighs against an award of attorneys’ fees.
After considering the five factors set forth above, the Court concludes that an award of
attorneys’ fees is not warranted under the facts of this case. Therefore, the Court denies Publix’s
motion.
III. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that Publix’s Motion for Attorneys’
Fees (Doc. No. 56) is DENIED.

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DONE AND ORDERED at Tampa, Florida, this 3rd day of May, 2017.

Copies to:
Counsel of Record

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