Marshall v. Anderson Excavating & Wrecking Co.

• Decision Date: 06 August 2021
• Docket Number: No. 19-3040,19-3040
• Citation: 8 F.4th 700
• Parties: Rod MARSHALL, Trustee; Kim Quick, Trustee; Ron Kaminski, Trustee; Ron Fucinaro, Trustee; Frank Neuvirth, Trustee; Timothy McCormick, Trustee; International Union of Operating Engineers, Local 571 ; Contractors, Laborers, Teamsters and Engineers Health and Welfare Plan ; Contractors, Laborers, Teamsters and Engineers Pension Plan, Plaintiffs - Appellees v. ANDERSON EXCAVATING & WRECKING COMPANY, also known as Anderson Excavating Co., Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

8 F.4th 700

Rod MARSHALL, Trustee; Kim Quick, Trustee; Ron Kaminski, Trustee; Ron Fucinaro, Trustee; Frank Neuvirth, Trustee; Timothy McCormick, Trustee; International Union of Operating Engineers, Local 571 ; Contractors, Laborers, Teamsters and Engineers Health and Welfare Plan ; Contractors, Laborers, Teamsters and Engineers Pension Plan, Plaintiffs - Appellees

v.ANDERSON EXCAVATING & WRECKING COMPANY, also known as Anderson Excavating Co., Defendant - Appellant

No. 19-3040

United States Court of Appeals, Eighth Circuit.

Submitted: April 14, 2021

Filed: August 6, 2021

Keith I. Kosaki, I, Jeffrey Craig Miller, Duncan Alexander Young, Sr., Young & White, M. H. Weinberg, Weinberg & Weinberg, Omaha, NE, for Plaintiffs-Appellees.

Theodore R. Boecker, Jr., Boecker Law Firm, Omaha, NE, for Defendant-Appellant.

Before SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.

SMITH, Chief Judge.

International Union of Operating Engineers, Local 571 ("Union") and trustees of the Contractors, Laborers, Teamsters, and Engineers Health and Welfare Plan ("Welfare Plan") and Pension Plan ("Pension Plan") (collectively, "plaintiffs") sued Anderson Excavating and Wrecking Co. ("Anderson Excavating") under 29 U.S.C. § 185(a), 29 U.S.C. § 1132, and 29 U.S.C. § 1145.¹ They requested that the district court² order Anderson Excavating to pay the contributions it allegedly owes to the Welfare Plan and Pension Plan, along with interest, liquidated damages, and attorneys’ fees and costs. The district court found Anderson Excavating liable to the plaintiffs for delinquent contributions under § 1145 and entered judgment against it and in favor of the plaintiffs in the amount of $11,956.96 in unpaid contributions; $8,817.96 in prejudgment interest; $8,817.96 in liquidated damages; $38,331 in attorneys’ fees; and $516.50 in nontaxable costs.

Previously on appeal, Anderson Excavating argued that the district court erred in determining damages for unpaid contributions, prejudgment interest, liquidated damages, and attorneys’ fees. We concluded that the district court legally erred in applying the alter-ego doctrine to justify an award of unpaid contributions for an alleged employee's work. Because "[o]ur holding necessarily impact[ed] the remaining issues of prejudgment interest, liquidated damages, and attorneys’ fees[,] .... we decline[d] to reach those issues." Marshall , 901 F.3d at 944.

On remand, the district court removed all contributions for the alleged employee's work and recalculated the amount of prejudgment interest, liquidated damages, and attorneys’ fees. In this second appeal, Anderson Excavating once again argues that the district court erred in determining (1) prejudgment interest, (2) liquidated damages, and (3) attorneys’ fees. We affirm.

I. Background³

On May 27, 2004, Anderson Excavating entered into a collective bargaining agreement (CBA) with the Union. The CBA provides, in relevant part, that Anderson Excavating must contribute to the Welfare Plan and the Pension Plan "in accordance with the terms and conditions of the[ir] [respective] Trust Agreement[s]." Ex. 1 to Compl. at 16, Marshall v. Anderson Excavating & Wrecking Co. , No. 8:14-cv-00096-JMG-CRZ (D. Neb. 2014), ECF No. 1-1. The Welfare Plan's trust agreement, dated April 1, 1962, and the Pension Plan's trust agreement, dated January 1, 1967, give the trustees discretion to bring suit to enforce payment of contributions upon an employer's default. Both trust agreements include express language allowing the trustees to require an employer to pay a reasonable rate of interest and to take any legal action necessary to enforce payment.

In the first appeal, Anderson Excavating argued that the district court erred in determining (1) damages for unpaid contributions, (2) prejudgment interest, (3) liquidated damages, and (4) attorneys’ fees. In reversing the district court on the unpaid-contributions issue, we explained:

[W]e hold that the district court legally erred in applying the alter ego doctrine to justify an award of unpaid contributions for [the alleged employee's] work. Our holding necessarily impacts the remaining issues of prejudgment interest, liquidated damages, and attorneys’ fees. For that reason, we decline to reach those issues. Should Anderson Excavating remain dissatisfied with the reconfigured amounts following remand, it may file another appeal challenging those calculations.

Marshall , 901 F.3d at 944.

Following remand, the plaintiffs again moved for attorneys’ fees, prejudgment interest, and liquidated damages. Anderson Excavating opposed the motion.

In its order on remand, the district court removed all contributions for the alleged employee's work and awarded $4,285.88 in unpaid contributions to the plaintiffs.

Next, it addressed the plaintiffs’ request for prejudgment interest. The plaintiffs submitted affidavits and exhibits computing prejudgment interest in the amount of $556.43. Anderson Excavating objected to the plaintiffs’ request for prejudgment interest, "reassert[ing] its arguments with respect to the legal basis for awarding prejudgment interest." Marshall v. Anderson Excavating & Wrecking Co. , No. 8:14-cv-00096-JMG-CRZ, 2019 WL 3943441, at *2 (D. Neb. Aug. 21, 2019). The district court, however, "reaffirm[ed] its previous ruling" that a legal basis existed for the award. Id. It also "t[ook] particular note of Anderson Excavating's complaint that the Court based its award of prejudgment interest on a document which was never signed by Anderson, nor even shown to have been delivered to Anderson, labeled Delinquent Policy and Procedure [DPP]." Id. at *3 (quotations omitted).

The DPP "was adopted by the Board of Trustees [of the Welfare Plan and Pension Plan] at the Trustee Meeting held on February 19, 1985." Appellees’ App., Vol. II, at 2. The DPP provides for an "interest rate [of] one and one-half percent, effective rate of 18 percent per annum, on the total amount of Fringe Benefit contributions owed for each delinquent period or partial period." Id. It also requires that "a fixed sum of two cents (.02) per delinquent hour ... be assessed for each delinquent period or partial period to help defray the additional administrative costs because of late payments." Id.⁴ At trial, the plaintiffs offered the DPP as an exhibit, and Anderson Excavating objected based on relevance and foundation. Specifically, it argued that the plaintiffs failed to show that Anderson Excavating agreed to the DPP. The district court overruled the objection.

The court determined that "interest on unpaid contributions is determined by the plan , not the collective bargaining agreement." Marshall , 2019 WL 3943441, at *3. According to the court, "An employer is generally not party to a multiemployer plan, and Anderson Excavating point[ed] to no authority suggesting that an employer's assent to the terms of the plan is required—other, of course, than the employer's implicit assent to the plan when the employer contracts to contribute to the plan." Id. Without expressly stating how it arrived at its prejudgment-interest calculation, the district court ordered Anderson Excavating to pay the plaintiffs $4,657.75 in prejudgment interest, a difference of $4,101.32 from the plaintiffs’ original request of $556.43.

The district court also awarded $4,657.75 in liquidated damages. See 29 U.S.C. § 1132(g)(2)(C).

Finally, the court addressed the plaintiffs’ request for $78,574.68 in attorneys’ fees. Previously, the court had awarded $38,331.00 based on what it perceived to be "duplicate billing." Marshall , 2019 WL 3943441, at *3 (quoting Marshall v. Anderson Excavating & Wrecking Co. , No. 8:14-cv-00096-JMG-CRZ, 2017 WL 1054039, at *2 (D. Neb. Mar. 20, 2017) ). On remand, however, the plaintiffs explained in their motion that "because the case involves two funds, [counsel] divide[d] the time spent on the case equally between the two clients." Id. For example, "plaintiffs’ counsel billed a total of 9 hours to each of the plans for attending two full days of trial." Id. Based on the plaintiffs’ explanation, the court "revisit[ed] the issue" of attorneys’ fees and found "evidentiary support for the plaintiffs’ fee request." Id.

The court maintained its prior finding that $155.00 was a fair and reasonable hourly rate. It then explained that it originally awarded "the sum of $38,331 ... despite the plaintiffs’ relatively modest recovery of damages, because Anderson Excavating was equally responsible for the scope of the litigation, and there were nonmonetary aspects to the award that also had value to the plaintiffs." Id. at *4. But the plaintiffs’ new request for "[t]he sum of $78,574.68 [was] another matter." Id. The court found that while "the claims on which the plaintiffs were unsuccessful were related to their successful claims," and "even considering Anderson Excavating's shared culpability, and the nonmonetary success that the plaintiffs achieved," the plaintiffs failed to "achieve a level of success that makes the hours reasonably expended a satisfactory basis for the award they [sought]." Id.

As a result, the court "cut the plaintiffs’ request in half," concluding the amount of $39,287.34 in attorneys’ fees was "sufficiently proportional to the plaintiffs’ degree of success, both monetary and nonmonetary, and considering the extent to which the plaintiffs’ expenses were engendered by Anderson Excavating's recalcitrance and sloppy bookkeeping." Id. The court also found the "reduction sufficient to encourage the plaintiffs to take a more measured approach to their pursuit of claims against employers." Id.⁵

II. Discussion

On appeal, Anderson Excavating again argues that the district court erred in determining (1) prejudgment interest, (2) liquidated damages, and (3) attorneys’ fees.

"ERISA authorizes fiduciaries of an employee benefit plan to bring suit to compel the payment of delinquent fund contributions." 32BJ N. Pension Fund v. Nutrition Mgmt. Servs. Co. , 935 F.3d 93, 98 (2d...