Trustees of the Utah Carpenters and Cement Masons Pension Trust et al v. Perry Olsen Drywall et al
Filing
113
MEMORANDUM DECISION granting 105 Motion for Attorney Fees. the court ORDERS that the Plaintiff be granted attorneys fees in the amount of $24,896 to be paid by theDefendant POD. Signed by Judge David Sam on 8/5/13. (jmr)
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
TRUSTEES OF THE UTAH
CARPENTERS’ AND CEMENT MASONS’
PENSION TRUST; UTAH
CARPENTERS’ AND CEMENT MASONS’
PENSION TRUST,
Plaintiffs,
Case No. 2:10-cv-00809-DS
MEMORANDUM DECISION ON MOTION
FOR ATTORNEY’S FEES
vs.
ELIZABETH LOVERIDGE, TRUSTEE
FOR PERRY OLSEN DRYWALL, INC.;
OKLAND CONSTRUCTION COMPANY,
INC., a Utah Corporation; NEW
STAR GENERAL CONTRACTORS, INC.,
a Utah Corporation; and CULP
CONSTRUCTION COMPANY, a Utah
Corporation,
Defendants.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Before the Court is Plaintiff’s motion for Attorney’s Fees and
Costs,
and
the
parties’
subsequent
filings
related
thereto.
Plaintiff’s motion asks court to award attorney’s fees as allowed
by 29 U.S.C. § 1451(e).
BACKGROUND
Elizabeth Loveridge, Trustee for Perry Olsen Drywall Inc.
(“POD”) (and three other defendants who have already resolved the
issue) sought to vacate an arbitrator’s decision that they
withdrew from the Utah Pension Plan (“Plan”), thus incurring
withdrawal liability.
The Court resolved all issues on summary
judgment in favor of the Plan.
The arbitrator previously awarded
attorney’s fees to the Plan for POD’s misconduct during the
course of arbitration, and they now seek attorney’s fees incurred
to affirm the arbitrator’s award, per Federal Rule of Civil
Procedure 54(d) and 29 U.S.C. § 1451(e).
They are asking for one
fourth of the attorney’s fees and costs incurred because POD is
just on of the four original defendants in this case.
The amount
requested is $24,896.
ANALYSIS
The Multiemployer Pension Plan Amendment Act (“MPPAA”) does
not give a standard to use when considering whether to award
attorney’s fees and the Tenth Circuit has not issued an opinion
on the issue.
Other circuits have incorporated the approach used
under 29 U.S.C. § 1132(g)(1), the Employee Retirement Income
Security Act (“ERISA”).
This standard states “the court in its
discretion may allow a reasonable attorney’s fee and costs of
action to either party.”
The MPPAA specifically allows for the recovery of attorney’s
fees in certain cases, and although the Tenth Circuit has never
issued a decision revealing what standard is to be used, other
circuits have.
The Seventh Circuit adopted the standard of
awarding attorney’s fees as the same standard under 29 U.S.C. §
2
1132(g)(1) in Continental Ca Co., Inc. V. Chicago Truck Drivers,
Helpers & Warehouse workers Union (Independent) Pension Fund, 921
F.2d 126, 127 (7th Cir. 1990).
The factors to consider when
reviewing a motion for fees include the degree of the opposing
parties’ culpability or bad faith, the ability of the opposing
parties to personally satisfy an award of attorney’s fees,
whether an award of attorney’s fees against the opposing parties
would deter others from acting under similar circumstances,
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, the relative merits
of the parties positions.
Gordon v. U.S. Steel Corp., 724 F.2d
106, 109 (10th Cir. 1983).
In examining the degree of each party’s culpability or bad
faith, the plaintiff points out that the defendants have already
been found to have engaged in substantial misconduct during the
arbitration process, such as testifying untruthfully or
misrepresenting the record.
Also, the fact that the defendants
refused to accept an arbitrator’s award and then failed to
prevail in this court lends more weight to the awarding of
attorney’s fees.
Continental, 921 F.2d at 128.
As for the losing parties’ ability to satisfy an award for
attorney’s fees, the fact that the defendant POD has filed for
3
bankruptcy protection does not mean an award cannot be issued
against it.
It may just be that the plaintiffs may not be able
to collect right away.
As has been stated, this is a case of first impression with
no close precedent in the Tenth Circuit.
However, in other
relevant cases the Tenth Circuit has awarded attorney’s fees,
explaining “If we permit parties who lose in arbitration to
freely relitigate their cases in court, arbitration will do
nothing to reduce congestion in the judicial system.”
DMA Int’l,
Inc. V. Qwest Communications Int’l, Inc., 585 F.3d 1341, 1346
(10th Cir. 2009).
Awarding attorney’s fees in cases such as this
one should make parties reconsider challenging an arbitrator’s
ruling.
CONCLUSION
Based upon the foregoing factors, the Court concludes that
the
Plaintiff should be awarded the attorney’s fees incurred
defending the pension plan as such fees are recoverable under
MPPAA legislation.
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Therefore, the court ORDERS that the Plaintiff be granted
attorney’s fees in the amount of $24,896 to be paid by the
Defendant POD.
SO ORDERED.
DATED this 5th day of August, 2013.
BY THE COURT:
DAVID SAM
SENIOR JUDGE
UNITED STATES DISTRICT COURT
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