Brasley v. Fearless Farris Service Stations, Inc. et al

Filing 323

ORDER - IT IS HEREBY ORDERED as follows: Plaintiffs Application for Order Assessing Fees for Servcies Rendered by Actuary James E. Turpin and Mediator D. Duff McKee (Dkt. 312 ) is GRANTED in part and DENIED in part. Defendants shall pay Plaintiffs & #036;35,194.79 for Mr. Turpins fees, but shall not be ordered to pay Plaintiffs portion of the mediators fees. Plaintiffs Supplemental Motion for Attorney Fees (Dkt. 313 ) is DENIED. Defendants Motion for Attorney Fees and Fees of Special Master (Dkt. 315 ) isDENIED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

EDWARD BRASLEY, et. al.,
Case No. 1:08-cv-00173-BLW
Plaintiff,
ORDER

v.
FEARLESS FARRIS SERVICE
STATIONS, INC., et. al.,
Defendants.

INTRODUCTION
The Court has before it Plaintiffs’ Application for Order Assessing Fees for
Services Rendered by Actuary James E. Turpin and Mediator D. Duff McKee (Dkt. 312),
Plaintiffs’ Supplemental Motion for Attorney Fees (Dkt. 313), and Defendants’ Motion
for Attorney Fees and Fees of Special Master (Dkt. 315). ERISA § 502(g), (29 U.S.C.
§ 1132(g)) gives the Court discretion to award attorney fees and costs to either party.
ANALYSIS
1.

Mediator and Actuary Fees
First, Plaintiffs ask the Court to require Defendants pay mediator and actuary fees.

Regarding the mediator fees (a relatively small amount) the parties agreed to split the
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fees. McKee Invoice, Dkt. 314. The Court will not disrupt that agreement and order one
party to pay the other party’s half of those fees.
As for the actuary, the Court earlier asked the Special Master for his
recommendation on fees and costs. Regarding Mr. Turpin, Plaintiffs’ actuary, the Special
Master explained that Mr. Turpin’s calculations assisted the Special Master, and that
Defendants should pay his fees. Special Master Report, p. 20, Dkt. 245. The Court
agreed, and later ordered that Mr. Turpin act under the direction of the Special Master,
noting that it would be unjust for Plaintiffs to be required to pay for services made
necessary by the defendants’ failure to fulfill their responsibilities under ERISA.
Nothing has changed the Court’s mind, and the Court is not persuaded that it
should limit the amount of Mr. Turpin’s fees which Defendants should pay. Although
Plaintiffs made some failed arguments, and neither the Special Master nor the Court
agreed 100% with Mr. Turpin, there can be no doubt his work was done in good faith on
behalf of Plaintiffs and the Special Master. Under ERISA’s mandate that Plaintiffs be
made whole, and the Court’s discretion under ERISA § 502(g) to award costs to either
party, the Court will order Defendants to pay Mr. Turpin’s entire bill.
2.

Attorney Fees
The Court “in its discretion may allow a reasonable attorney’s fee and costs of

action to either party” in an ERISA action. Simonia v. Glendale Nissan/Infiniti Disability
Plan, 608 F.3d 1118, 1120 (9th Cir. 2010); see also 29 U.S.C. § 1132(g)(1). The party
claiming fees and costs need not be the prevailing party, but must show some degree of
success on the merits. Id. (citing Hardt v. Reliance Standard Life Ins. Co., 130 S.Ct.
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2149, 2156-59 (2010). A “claimant can satisfy that requirement if the court can fairly call
the outcome of the litigation some success on the merits without conducting a lengthy
inquir[y] into the question whether a particular party’s success was substantial or
occurred on a central issue.” Id. at 1120-21 (citing Hardt, 130 S.Ct. at 2156-59).
Once a party establishes “some degree of success on the merits,” the Court may
exercise its discretion to grant fees and costs under § 1132(g)(1). Id. In the Ninth Circuit,
a district court exercising its discretionary must consider five factors set forth in Hummell
v. S.E. Rykoff & Co., 634 F.2d 446 (9th Cir.1980). The factors are: “(1) the degree of the
opposing parties’ culpability or bad faith; (2) the ability of the opposing parties to satisfy
an award of fees; (3) whether an award of fees against the opposing parties would deter
others from acting under similar circumstances; (4) whether the parties requesting fees
sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a
significant legal question regarding ERISA; and (5) the relative merits of the parties’
positions.” Id.
After a 2010 bench trial, the Court issued a judgment in favor of Plaintiffs.
Considering the factors above, the Court then awarded Plaintiffs their attorney fees in the
amount of $390,153.60 plus costs in the amount of $537.67. Dkt. 167. That was
November 23, 2010. Almost six years later, Defendants have now finally complied with
the Court’s Judgment.
In terms of wrapping up a case post-judgment, those six years have been more
frustrating than almost any other case I have dealt with in my nearly 30 years as a judge.

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Now, each side wants the other to pay for their attorney fees incurred during those six
years.
The Court will deny both requests. The Court could list a litany of moves by each
party since the judgment and explain who got what right and who got what wrong, but
the simplest and most accurate way for the Court to explain its reasoning is to note that
the Court was required to appoint a Special Master to resolve the issue of compliance
with the Court’s judgment, and that the Special Master ultimately recommended that the
Qualified Plan be terminated and that Defendants pay Plaintiffs lump sum amounts – a
concept neither party suggested or advocated. The Court ultimately agreed with the
Special Master, and Defendants have now fulfilled their responsibilities. Under these
circumstances, neither party has met the threshold requirement of establishing a degree of
success on the merits since the time the Court issued judgment in favor of Plaintiffs and
awarded them almost $400,000 in fees and costs. Accordingly, both motions for attorney
fees will be denied.
ORDER
IT IS HEREBYE ORDERED as follows:
1. Plaintiffs’ Application for Order Assessing Fees for Servcies Rendered by
Actuary James E. Turpin and Mediator D. Duff McKee (Dkt. 312) is
GRANTED in part and DENIED in part. Defendants shall pay Plaintiffs
$35,194.79 for Mr. Turpin’s fees, but shall not be ordered to pay Plaintiffs’
portion of the mediator’s fees.
2. Plaintiffs’ Supplemental Motion for Attorney Fees (Dkt. 313) is DENIED.
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3. Defendants’ Motion for Attorney Fees and Fees of Special Master (Dkt. 315) is
DENIED.

DATED: March 14, 2016

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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