Central States Areas Pension Fund v. Central Cartage Co.
| Decision Date | 27 January 1998 |
| Docket Number | No. 94 C 774.,94 C 774. |
| Citation | 992 F.Supp. 980 |
| Parties | CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, and Howard McDougall, trustee, and Central States, Southeast and Southwest Areas Health and Welfare Fund, and Howard McDougall, trustee, Plaintiffs, v. CENTRAL CARTAGE CO., a Michigan Corporation, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
Thomas Maurice Weithers, Robert Anthony Coco, Patrick J. Connor, Central States Law Department, Rosemont, IL, Albert M. Madden, Central States Law Department, Des Plaines, IL, for plaintiffs.
Patrick A. Moran, Evans & Luptak, P.L.C., Detroit, MI, Grady B. Murdock, Jr., Earl N. Neal & Assoc., Chicago, IL, Scott T. Stirling, Evans & Luptak, Detroit, MI, for defendant.
The plaintiffs, Central States, Southeast and Southwest Areas Pension and Health and Welfare Funds and their trustee, Howard McDougall, ("Fund"), brought suit against Central Transport, Inc.1 and Central Cartage Co. ("Cartage"), seeking to collect delinquent contributions to employee benefit plans. I granted summary judgment for the Fund.2 The parties now dispute the additional amounts that should be awarded the Fund in the final judgment. The Fund also moves to substitute defendants. For the following reasons, the Fund is awarded a total judgment of $1,837,656.77, and the motion to substitute defendants is denied.
The Fund requests $892,111.05 in interest, additional interest, audit costs, attorney's fees, and costs, in addition to the $947,332 in contributions awarded on the summary judgment motion.3 (Pl.'s Statement of Add. Amounts at 2). All of these expenses are recoverable under 29 U.S.C. § 1132(g)(2). Cartage objects to certain amounts the Fund has included in its calculation of additional amounts. Each objection will be considered in turn.
Cartage first argues this court lacks jurisdiction to award the Fund attorney's fees incurred during an interlocutory appeal taken in this case.4 The Fund contends it is entitled to attorney's fees for the appeal and further, this is the first opportunity it has had to request them. Under ERISA, attorney's fees may only be awarded once "a judgment in favor of the plan is awarded." 29 U.S.C. § 1132(g)(2). The interlocutory appeal in this case was taken before the Fund had established a right to benefits. At least one court has considered whether a plaintiff may recover attorney's fees incurred on an appeal taken before the establishment of a right to benefits. Flanagan v. Inland Empire Elec. Workers Pension Plan & Trust, 3 F.3d 1246, 1253-53 (9th Cir.1993). In Flanagan, the court overturned a grant of summary judgment to the defendant and then considered whether the plaintiffs were entitled to recover attorney's fees for the appeal. 3 F.3d at 1252. The court recognized that an award of attorney's fees is only proper under ERISA once the plaintiff has established an ERISA violation. Id. at 1253. Since the plaintiffs had yet to prove the defendants had violated ERISA, the court found an award of attorney's fees premature. Id. at 1254. The court specifically noted that "[t]he district court may award the plaintiffs fees (including fees for th[e] appeal) at a later date if the plaintiffs establish that the defendants have violated ERISA." Id.; see also Rodriguez v. Handy, 873 F.2d 814, 817-18 (5th Cir.1989) ().
The Fund's request for attorney's fees at the time of the interlocutory appeal in this case would have been premature because the Fund had yet to prevail on the merits in the district court. I find the Flanagan court's reasoning persuasive and conclude that I do have jurisdiction to award attorney's fees for the interlocutory appeal.5
Cartage also argues that attorney's fees should not be awarded in this case because its interlocutory appeal was "substantially justified." Regardless of whether the interlocutory appeal was or was not justified, 29 U.S.C. § 1132(g)(2) states "the court shall award . . . reasonable attorney's fees."6 Even if the award of attorney's fees was not mandatory, it is clear the Fund attorney's fees incurred during the interlocutory appeal are a proper expense.
Cartage next argues that the Fund's printing of its Supreme Court brief for the appeal from the Seventh Circuit is a nontaxable item under 28 U.S.C. § 1920 and Supreme Court Rule 43 and thus, may not be recovered. The Fund argues that 28 U.S.C. § 1132(g)(2) permits the award of costs that are not otherwise taxable. However, the Supreme Court has decided the expense of printing a brief is not taxable. Supreme Court Rule 43.3. Thus, costs for printing briefs are not taxable under 28 U.S.C. § 1920 and may not be recovered by the Fund. Haroco, Inc. v. American Nat'l Bank & Trust Co. of Chicago, 38 F.3d 1429, 1440 (7th Cir.1994) ().
Cartage next argues that the Fund's attorney's fees should be denied because the Fund could have amended its complaint in a previous case to include the claims presented in the instant case.7 Cartage believes the attorney's fees in this case are duplicative. The Fund points out, however, that it could not have amended its previous complaint because discovery had closed in that case four months before this litigation commenced. Additionally, this case involved a different time period than the previous case and, while some issues did overlap, the issue of appellate jurisdiction was unique in this case and the facts that led to waiver of Cartage's ADR defense were different in each case.
Other than a general argument that this case could have been avoided and thus fees should not be awarded, Cartage presents no evidence that any of the Fund's fees are duplicative. This case was not avoided, the Fund did prevail, and it may properly be awarded attorney's fees under ERISA.
Cartage next suggests that the Fund's attorney's fees should be halved since one of the defendants, Central Transport, Inc., was dismissed from the case. Cartage cites Zemko v. Muntz Indus., Inc., No. 94 C 761, 1995 WL 431168 (N.D.Ill. July 19, 1995), for the proposition that a prevailing party may not recover attorney's fees against one defendant for work that involved another defendant later dismissed from the case. In Zemko, the plaintiff proceeded against each defendant on "substantially different" theories of law, seeking recovery against one defendant based on state law and against another defendant based on ERISA. 1995 WL 431168, at *2. The court found that "[b]ecause the claims against the two defendants [were] distinct, Plaintiff's failure to prevail against [Defendant A] mean[t] that Plaintiff may not recover attorney's fees against [Defendant B] for work performed on the claim against [Defendant A]." Id.
The Supreme Court has noted that the first question that must be asked in determining whether legal fees are appropriate in this circumstance is whether "the plaintiff fail[ed] to prevail on claims that were unrelated to the claims on which he succeeded?" Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The Supreme Court also noted that "[a] request for attorney's fees should not result in a second major litigation." Id. at 437. Unlike the plaintiff in Zemko, the Fund brought the same claim against both defendants in this case. Ultimately, one of the defendants was dismissed. Still, while both defendants remained in the case, they continually filed joint papers. Cartage has not objected to specific portions of the Fund's request for fees or pointed to any portion of the Fund's billing that indicates work done solely on the claim against Central Transport, Inc. Under these circumstances, I find that Cartage's request for attorney's fees is proper.
Cartage next contends that an award of attorney's fees of nearly $50,000 to the Health and Welfare Fund is unreasonable because the Fund only recovered $987. The request of $50,000 by the Health and Welfare Fund is pure happenstance, as it was the plaintiffs who decided how to allocate attorney's fees. The total amount requested, close to $100,000, is reasonable given this litigation. Additionally, the Seventh Circuit has found that fees need not be calculated proportionally to damages. Alexander v. Gerhardt Enterprises, Inc., 40 F.3d 187 (7th Cir.1994) (citations omitted).
Cartage also objects to the Fund's cost request for Westlaw charges and "in-town travel." Computerized legal research is a task generally performed by attorneys, paralegals and law clerks. It is a cost incident to attorneys' fees. E.E.O.C. v. Sears Roebuck & Co., 111 F.R.D. 385, 394 (N.D.Ill. 1986). Because it is a tool to make more efficient use of an attorney's time, charges for it are really expenses associated with attorneys' fees. Haroco, Inc., 38 F.3d at 1441. Consequently, while the Fund's request is not allowable as a cost, it is allowable as part of the attorney's fees. Accordingly, the costs must be reduced by $2411.33 and the attorney's fees increased by the same amount.
As noted in Zemko, travel time is compensable as part of a reasonable fee. 1995 WL 431168 at *3. The Fund, however, has requested $176.51 in travel expenses but does not specifically state what the "in-town travel" was for or how it was related to this case. Due to the lack of explanation or justification for these costs, they will be disallowed.
Finally, Cartage argues that the Fund's legal fees should not be calculated at market...
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