United States District Court, D. Colorado
ORDER ON POST-TRIAL MOTIONS
R. BROOKE JACKSON JUDGE
This order addresses three post-trial motions, each of which has been fully briefed. For the reasons set forth herein, plaintiff’s motion for reconsideration is granted in part and denied in part. Plaintiff’s motion to amend the judgment is granted. Defendant’s motion to stay enforcement of the judgment pending appeal is granted.
Plaintiff, Ceco Concrete Construction, LLC, filed this case on July 3, 2013, seeking to enforce an arbitration award entered pursuant to 29 U.S.C. §1401(a)(1) of the Multiemployer Pension Plan Amendment Act of 1974 (“MPPAA”), an amendment of the Employee Retirement Income Security Act of 1974 (“ERISA”). Defendant/counter-plaintiffs, Centennial States Carpenters Pension Trust and its Board of Trustees, counterclaimed, asking the Court to overturn the arbitrator’s decision.
On December 18, 2014 this Court issued an order on the parties’ cross-motions for summary judgment, granting plaintiff’s motion and denying defendant’s motion. ECF No. 43. That order sets forth the relevant facts in some detail, and I will not repeat that recitation here. On the same day the Clerk’s Office issued the Court’s Final Judgment consistent with the summary judgment order. ECF No. 44.
Thereafter Ceco filed a motion to reconsider the order and judgment to the extent the Court had denied its request for an award of attorney’s fees and costs. ECF No. 45. Ceco also filed a motion to amend the (form of) the judgment. ECF No. 46. Defendant/counter-plaintiffs filed a notice of appeal and a motion to stay enforcement of the judgment without the posting of a supersedeas bond. ECF Nos. 47 and 53.
On February 4, 2015 the Tenth Circuit issued an order abating the appeal pending this Court’s disposition of plaintiff’s motion to amend the judgment. ECF No. 55. Briefing on that motion was completed the next day. Briefing on all three post-trial motions was completed upon the filing of defendant’s reply in support of its motion to stay on February 20, 2015.
On May 6, 2015, after receiving a status report from the parties, the Tenth Circuit issued an order indicating that the appeal would remain abated until this Court disposed of Ceco’s motion to amend the judgment. This order resolves that motion and the other pending post-trial motions.
RESOLUTION OF MOTIONS
A. Plaintiff’s Motion for Reconsideration [ECF No. 45].
Ceco asks the Court to reconsider its decision not to award attorney’s fees or costs pursuant to 29 U.S.C. § 1451(e). Ceco argues, correctly, that by addressing the fees and costs issue in its decision on the merits of the appeal, Ceco did not have an opportunity to brief the issue. Accordingly, I agree that it is reasonable for the Court to reconsider the issue now that the parties have fully briefed it.
The statute provides, “[i]n any action under this section, the court may award all or a portion of the costs and expenses incurred in connection with such action, including reasonable attorney’s fees, to the prevailing party.” Id. In its order on the merits of the appeal this Court noted that neither the statute nor the Tenth Circuit had provided guidance in applying this provision. ECF No. 43 at 21. The Court therefore elected to follow the factors listed in Trustees of Utah Carpenters’ & Cement Masons’ Pension Trust v. Loveridge, No. 2:10-CV-00809-DS, 2013 WL 3994677, at *1 (D. Utah Aug. 5, 2013) aff'd, 567 F. App’x 659 (10th Cir. 2014) in deciding whether to award fees:
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, [and] the relative merits of the parties’ positions.
The Court found that this case involved significant legal questions about the applicability of certain ERISA provisions, and that it did not find that the defendant/counter-plaintiffs challenged the arbitrator’s findings in bad faith. The Court found that the Trust likely could satisfy an award of fees, but that the balance of the Loveridge factors weighed in defendant’s favor. Id. at 22.
In the present motion Ceco argues that, in the absence of Tenth Circuit precedent, this Court should follow the lead of the Seventh Circuit and award attorney’s fees unless defendant/counter-plaintiffs’ position was “substantially justified.” See Continental Can Co., Inc. v. Chicago Truck Drivers, 921 F.2d 126, 127 (7th Cir. 1990) (finding that this standard applies both to § 1451(e) and another fee-shifting statute in ERISA, 29 U.S.C. § 1132(g)(1)). Ceco apparently was not aware, however, that literally four days after this Court issued its order, a panel of the Tenth Circuit enunciated a standard. Trustees of the Eighth District Electrical Pension Fund v. Wasatch Front Electrical and Construction, LLC, 598 F. App’x 563, 565–66 (10th Cir. 2014) (unpublished) (affirming the district court’s award of attorney’s fees under either 29 U.S.C. § 1451(e) or 29 U.S.C. § 1132(q)(1) without deciding which statute governed). Specifically, the court held:
To determine if a party should be awarded attorneys’ fees for a withdrawal liability claim, the district court must weigh five factors:
1. the degree of the opposing parties’ culpability or bad faith,
2. the opposing parties’ ability to satisfy an award of ...