United States District Court, D. Minnesota
TERRY NELSON, JOHN NESSE, CLARK ANDERSON, and GARY MEYERS and their successors in their capacities as Trustees and Fiduciaries of the Painters and Allied Trades District Council No. 82 Health Care Fund, the Painters and Allied Trades District Council No. 82 Vacation Fund, the Painters and Allied Trades District Council 82 STAR Fund, the International Painters and Allied Trades Industry Pension Fund, the Finishing Trades Institute of the Upper Midwest Trust Fund, the National Painting, Decorating, and Drywall Apprenticeship Committee, the St. Paul Painting Industry Pension Fund, the Minneapolis Local 386 Drywall Finishing Industry Pension Fund, the Finishing Trades Institute, the Painters and Allied Trades Labor Management Cooperation Initiative, and each above-named Fund, Plaintiffs,
FRANA COMPANIES, INC.; DIAMOND DRYWALL, INC.; DAVID STELLMACH; KAREN STELLMACH; TWIN CITIES DRYWALL, INC.; and JOHN DOES 1-2, Defendants.
S. Wosmek, Christy E. Lawrie, and Amy L. Court, MCGRANN SHEA
CARNIVAL STRAUGHN & LAMB, CHARTERED, for plaintiffs.
D. Kappenman, Michael R. Link, and Gregory L. Peters, SEATON,
PETERS & REVNEW, P.A., for defendant.
Patrick J. Schiltz United States District Judge
a bench trial, the Court entered judgment in favor of
plaintiffs and against defendant Diamond Drywall, Inc.
(“Diamond”) in the amount of $68, 069.55. ECF No.
348. Plaintiffs now seek an award of $15, 447.91 in
attorney's fees and costs against Diamond under 29 U.S.C.
§ 1132(g)(2). For the reasons that follow, the Court
denies plaintiffs' motion as untimely.
filed this action against Diamond and several other
defendants seeking well over a million dollars in delinquent
fringe-benefit contributions and liquidated damages.
Plaintiffs brought 15 claims against defendants, including
claims under the Employee Retirement Income Security Act
(“ERISA”), 29 U.S.C. § 1001 et seq., the
Racketeer Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. § 1961 et seq., the
Minnesota Uniform Fraudulent Transfer Act, Minn. Stat. §
513.41 et seq., and the common law. The Court dismissed all
of plaintiffs' claims, save their ERISA and
breach-of-contract claims. Those claims proceeded to trial.
After a nearly two-week bench trial, the Court found that
plaintiffs had failed to prove that defendants owed any
delinquent contributions-with the exception of a minor amount
that Diamond has never disputed and that apparently remained
unpaid at the time of trial only because plaintiffs did not,
as promised, contact Diamond to set up a payment plan.
Court entered judgment on March 31, 2017. No party filed an
appeal. Frana Companies, Inc. filed a (timely) bill of costs
on April 19, 2017. See D. Minn. LR 54.3(c)(1). On
May 2, 2017-32 days after the Court entered
judgment-plaintiffs filed their motion for attorney's
fees and costs. ECF No. 351.
54(d) of the Federal Rules of Civil Procedure generally sets
forth the procedure for claiming attorney's fees. Under
that rule, “[a] claim for attorney's fees and
related nontaxable expenses must be made by motion unless the
substantive law requires those fees to be proved at trial as
an element of damages.” Rule 54(d) requires that such a
motion be filed “no later than 14 days after the entry
of judgment.” Plaintiffs obviously failed to file their
motion within 14 days after the judgment was entered.
argue, however, that they did not need to file a motion under
Rule 54(d)-and therefore the 14-day deadline does not
apply-because “substantive law require[d] [their] fees
to be proved at trial as an element of damages.”
Plaintiffs' argument is unavailing for two reasons:
First, the argument is incorrect. Second, even if the
argument were correct, plaintiffs' motion would still be
Wiley v. Mitchell, 106 F.App'x 517 (8th Cir.
2004), the Eighth Circuit explained the distinction between
fees that are governed by Rule 54(d) and fees that are
considered an element of damages to be proved at trial.
Specifically, the Eighth Circuit explained that when fees are
incurred for work done during the case and their
recoverability is contingent on the outcome of the case, they
are not considered damages but rather are governed by Rule
54(d). Id. at 522-23.
exactly the case here. Plaintiffs are seeking fees for their
work in litigating this case-and, in order to be entitled to
fees, plaintiffs had to prevail on the merits. See
29 U.S.C. § 1132(g)(2) (stating that it applies in any
action for delinquent contributions “in which a
judgment in favor of the plan is awarded”). Under
Wiley, then, fees recoverable under §
1132(g)(2) are not an element of damages, but instead are
governed by Rule 54(d).
cite a few district-court decisions to the contrary. See,
e.g., Hanley v. Herrill Bowling Corp., No.
94-4611, 1996 WL 79324 (RPP) (S.D.N.Y. Feb. 23, 1996).
Apparently, these courts read the language of §
1132(g)(2) to mandate such treatment because the right to
recover fees appears as part of a list of items that a
prevailing plaintiff is entitled to recover. The Court does
not find this reasoning persuasive. More importantly, this
reasoning is inconsistent with Wiley-which, although
unpublished, has been characterized as “highly
persuasive” by this Court, National Union Fire
Insurance Co. of Pittsburgh v. Donaldson Co., No.
10-4948 (JRT/TNL), 2016 WL 4186930, at *4 (D. Minn. Aug. 8,
2016), and which relied on published decisions of the Seventh
and Eleventh Circuits, see Rissman v. Rissman, 229
F.3d 586, 588 (7th Cir. 2000); Capital Asset Research
Corp. v. Finnegan, 216 F.3d 1268, 1270-71 (11th Cir.
plaintiffs are correct, however, their motion is still
untimely. If attorney's fees in this case are in fact an
element of damages to be proven at trial, then plaintiffs had
to either (1) prove those damages at trial or (2) seek to
amend the judgment to include those damages. As it was
obviously impossible for plaintiffs to prove their fees at
trial, plaintiffs should have sought to amend the judgment to
include them. The Federal Rules of Civil Procedure provided
several options for plaintiffs to seek to amend the judgment,
but all of them required plaintiffs to file a motion no later
than 28 days after the entry of judgment. See Fed.
R. Civ. P. 52(b), 59(b), 59(e). The Court has no authority to
extend these deadlines. Fed.R.Civ.P. ...