
    INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS-National Electrical Contractors Association Southwestern Health & Benefit Fund; Board of Trustees of International Brotherhood of Electrical Workers-National Electrical Contractors Association Southwestern Health & Benefit Fund, Plaintiffs-Appellees, v. Jessie DOUTHITT, Defendant-Appellant.
    No. 03-10897.
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit.
    April 29, 2004.
    
      David I. Schiller, Matthew D. Rinaldi, Todd A. Schroeder, Gibson, Dunn & Crutcher, Dallas, TX, for Plaintiff-Appellee.
    Dennis E. Alvoid, Dallas, TX, for Defendant-Appellant.
    Before SMITH, DUHÉ, and WIENER, Circuit Judges.
   PER CURIAM.

Jessie Douthitt appeals the district court’s assumption of subject matter jurisdiction and grant of summary judgment in favor of IBEW-NECA Southwestern Health and Benefit Plan and its Board of Trustees (collectively “the Plan”) in this action pursuant to 29 U.S.C. § 1132(a)(3) for reimbursement of benefits paid on behalf of Douthitt, a plan participant.

"Whether the district court had subject matter jurisdiction is determined based on the plaintiffs complaint. Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir.2001). The Plan’s complaint alleged (1) that the Plan sought reimbursement of money it had paid out previously as benefits from $25,000 Douthitt had recovered from a third party; (2) to which the Plan was entitled pursuant to the reimbursement agreement; and (3) that Douthitt had recovered those funds, which were in his attorney’s trust account. The district court properly exercised subject matter jurisdiction over the instant action because the Plan’s suit was authorized under 29 U.S.C. § 1132(a)(3), and the Plan’s complaint sought recovery directly under that statute. See Bombardier Aerospace Employee Welfare Benefits Plan v. Ferrer, Poirot and Wansbrough, 354 F.3d 348, 356 (5th Cir.2003), pet. for cert. filed, 70 U.S.L.W. 3513 (U.S. Feb. 5, 2004) (No. 03-1135); Bell v. Hood, 327 U.S. 678, 681-82, 66 S.Ct. 773, 90 L.Ed. 939 (1946). Whether Douthitt actually recovered the money, whether his attorney actually held the funds, and whether the Plan now possesses the funds or a check go to the merits of the Plan’s claims, not to the question of the district court’s jurisdiction.

Douthitt asserts that the imposition of a constructive trust was not appropriate in this case because there was no fraud involved and because his wife and attorney would not be unjustly enriched by receiving the funds, to which they were legally entitled under the Texas Common Fund Doctrine. Douthitt did not raise these issues in the district court, and we will not allow him to do so now. See Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). Additionally, Douthitt’s arguments are foreclosed. See Bombardier, 354 F.3d at 358-62.

AFFIRMED. 
      
      . 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.
     