Fallo v. Picadilly Cafeterias

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-31283 Summary Calendar

SCOTT FALLO; KASEY FALLO,

Plaintiffs-Appellants,

versus

PICCADILLY CAFETERIAS, INC.; ET AL.,

Defendants,

PICCADILLY CAFETERIAS, INC.,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Louisiana (94-CV-907-M) -------------------- May 1, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Plaintiffs-Appellants Scott and Kasey Fallo appeal the

district court’s order denying their motion for attorney’s fees and

costs incurred in the instant Employment Retirement Income Security

Act (ERISA) suit. The Fallos argue that the district court abused

its discretion in denying the motion.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. The district court, by adopting the magistrate judge’s report

and recommendation, determined that an award was unwarranted

because, although Piccadilly had the ability to satisfy such an

award, there was no indication that Piccadilly had acted in bad

faith, that an award in the instant case would have a deterrent

effect, and that the instant suit would benefit all participants of

an ERISA plan or would resolve a significant ERISA question. The

district court also reasoned that Piccadilly’s legal position was

not so disproportionately meritless as to justify an award. After

reviewing the record and the briefs of the parties, we cannot say

that these findings are clearly erroneous or that they represent an

abuse of discretion. See Ramsey v. Colonial Life Ins. Co. of

America, 12 F.3d 472, 480 (5th Cir. 1994). Accordingly, the

district court’s order denying the Fallos’ motion for attorney’s

fees and costs is AFFIRMED. See id.; Harms v. Cavenham Forest

Industries, Inc., 984 F.2d 686, 694 (5th Cir. 1993).

AFFIRMED.