United States Court of Appeals

For the Eighth Circuit

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No. 11-2885

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Treasurer, Trustees of Drury Industries, Inc. Health Care Plan and Trust

lllllllllllllllllllll Plaintiff - Appellant

v.

Sean Goding; Casey & Devoti, P.C.

lllllllllllllllllllll Defendants - Appellees

____________

 Appeal from United States District Court 

for the Eastern District of Missouri - Cape Girardeau

____________

 Submitted: April 19, 2012

 Filed: September 7, 2012

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Before MURPHY, MELLOY, and GRUENDER, Circuit Judges.

____________

MELLOY, Circuit Judge.

Sean Goding was a beneficiary of an ERISA (Employee Retirement Insurance 

Security Act, 29 U.S.C. § 1001, et seq.) Plan administered by Treasurer, Trustees of

Drury Industries, Inc. Health Care Plan and Trust ("Drury"). Goding sustained

injuriesin a slip and fall accident and received $11,423.79 in benefits fromthe Druryadministered Plan. Goding also obtained compensation through the settlement of a

civil suit related to those injuries. Pursuant to a subrogation provision in the ERISA
Plan, Drury attempted to secure reimbursement from Goding for the benefits it paid,

but was unable to do so after Goding declared bankruptcy. Drury then attempted to

obtain that reimbursement from the firm that represented Goding, Casey & Devoti,

P.C. ("Casey"). The district court found that Drury could not obtain such 1

reimbursement because Casey had not agreed to the Plan's subrogation provision and

consequently was not contractually bound by it. It also found that Drury could not

maintain a suit against Casey in equity and could not bring a state cause of action for

conversion against Casey. Finally, after several more months oflitigation, the district

court awarded Casey attorneys' fees for successful defense of a subsequent motion. 

We now affirm the district court in all respects.

I

The Plan contains a subrogation provision that "appl[ies] when Plan benefits

are paid as a result of injuries or illness you sustained and you have a right to a

Recovery or have received a recovery." Under this provision:

The Administrator, on behalf of the Employer, has the right to recover

Plan payments made on your behalf from any party responsible for

compensating your injuries. The following apply:

-The Administrator, on behalf of the Employer, has first

priority for the full amount of benefits they have paid from

any Recovery regardless of whether you are fully

compensated, and regardless of whether the payments you

receive make you whole for your losses and injuries.

The Honorable Stephen N. Limbaugh, Junior, United States DistrictJudge for

1

the Eastern District of Missouri.

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-You and your legal representative must do whatever is

necessary to enable the Administrator, on behalf of the

Employer, to exercise their rights and do nothing to

prejudice them.

- The administrator, on behalf of the Employer, has the

right to take whatever legal action they see fit against any

party or entity to recover the benefits paid under the Plan.

- To the extent that the total assets from which a Recovery

is available are insufficient to satisfy in full the

Administrator's subrogation claim and any claim still held

by you, the Administrator'ssubrogation claim shall be first

satisfied before any part of Recovery is applied to your

claim, your attorney fees, other expenses or costs.

In addition to receiving benefits from the ERISA Plan, Goding also brought a

civil suit for negligence. In that action, he was represented by the law firm Casey.

During its representation of Goding, Casey twice acknowledged Drury's

subrogation agreement. First, on January 15, 2009, Casey wrote in correspondence

with Drury, "[t]his will confirm that we do acknowledge Drury Inns, Inc.'s, lien in this

matter." Second, on March 16, 2009, Casey wrote: "we are not challenging your right

to reimbursement/subrogation for payments made for the health care of Sean Goding

relating [to] the injuries caused by his fall at the Hilton." Goding, through Casey,

eventually settled the civil suit. When Casey received the settlement money, it kept

a portion for payment of its attorneys' fees, held $11,423.79 (the amount subject to

Drury's subrogation interest) in trust, and disbursed the remainder to Goding. After

about a month, however, Casey also disbursed the $11,423.79 to Goding. Despite

receiving this money, Goding eventually declared bankruptcy and has not reimbursed

Drury for the benefits it paid him.

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Drury then attempted to recover those benefits from Casey, bringing this suit

and asserting theories of equitable lien by agreement, restitution, imposition of a

constructive trust, tortious interference with contractual relations, and conversion. 

Upon cross-motions for summary judgment, the district court, on March 1, 2010,

granted Casey's motion and denied Drury's. Over a year later on March 15, 2011,

2

Drury filed a second motion for summary judgment, claiming it was based on new

authority. This claimed new authority was Boeing Co. v. Thurmon, No. 4:9-cv-1456,

2009 WL 4782085 (E.D. Mo. Dec. 7, 2009), which was actually decided months

before the court ruled on the first motion for summary judgment. The district court

denied this second motion on May 19, 2011. A month later, Drury filed a third

motion, this time for reconsideration, which the district court also denied. After

entering final judgment,the district court awardedCasey attorneys' feesincurred after

Casey received Drury's motion for reconsideration. In the order awarding fees, the

district court noted that Drury had stretched out the litigation more than a year after

the initial decision for no legitimate reason.

Drury appeals from thatseries of orders, arguing that the district court erred in

denying the claims for enforcement of an equitable lien and conversion, and in

awarding attorneys' fees to Casey. We find no error and consequently affirm the

district court on all issues.

II

We must first consider whether the district court erred in granting Drury leave

to file an untimely notice of appeal under Federal Rule of Appellate Procedure 4(a). 

"[T]he time limits set forth in [Rule] 4(a) are jurisdictional because the limits are

The case remained open and no judgment entered under Fed. R. Civ. P. 58 2

because the portion of the case against Sean Goding had been stayed by the

bankruptcy filing.

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derived from statute, 28 U.S.C. § 2107(a)." United States v. Watson, 623 F.3d 542,

545 (8th Cir. 2010) (citing Bowles v. Russell, 551 U.S. 205, 212–13 (2007)). We

review a district court's grant of a motion for extension of time to file a notice of

appeal for abuse of discretion. Metro. Fed. Bank, F.S.B. v. W.R. Grace & Co., 999

F.2d 1257, 1259 (8th Cir. 1993). 

Under Rule 4(a)(1), the time for filing a notice of appeal is thirty days "after

entry of judgment or order appealed from." The district court may extend the time to

file a notice of appeal if the party seeking an extension "shows excusable neglect or

good cause." Fed. R. App. P. 4(a)(5)(A)(ii). We consider four factors in determining

whether excusable neglect or good cause for an extension exists: (1) the danger of

prejudice to the non-moving party; (2) the length of delay and its potential impact on

judicial proceedings; (3) the reason for the delay, including whether it was within the

reasonable control of the movant; and (4) whether the movant acted in good faith. 

Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 462 (2000) (citing Pioneer Inv.

Servs. Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380, 395 (1993)). These four

factors are not equally important; "the excuse given for the late filing must have the

greatest import" and "will always be critical to the inquiry." Lowry, 211 F.3d at 463. 

We have recognized that "excusable neglect includes late filings caused by

inadvertence, mistake or carelessness." Sugarbaker v. SSM Health Care, 187 F.3d

853, 856 (8th Cir. 1999) (internal quotation marks omitted). To be reasonable, it is

not necessary that the neglect be "caused by circumstances beyond the control of the

movant." Lowry, 211 F.3d at 463 (internal quotation marks omitted).

The reason for Drury's untimely filing here is a computer error. Drury's

counsel used a calendaring application to calculate the date thirty days from the entry

of final judgment, but that application produced an output that was one day later than

the actual deadline. Because the date the program produced was a Saturday, Drury

filed its notice of appeal on the following Monday.

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The district court's determination that this inadvertent mistake or carelessness

was excusable neglect was not an abuse of discretion. Drury missed the deadline not

because it ignored the deadline or procrastinated but because it made an error in

attempting to comply. Compare Sugarbaker, 187 F.3d at 856 (finding excusable

neglect when an attorney attempted to comply with a deadline but miscalculated it

and filed the request one day late), with Lowry, 211 F.3d at 463–64 (finding neglect

was not excusable when the delay was due to "garden-variety attorney inattention,"

and the attorney's excuses for it were "thin" and confused). But see Symbionics Inc.

v. Ortlieb, 432 F. App'x 216, 220 (4th Cir. 2011) (unpublished) ("Counsel's total

dependence on a computer application . . . to determine the filing deadline for a notice

of appeal is neither extraneous to nor independent of counsel's negligence. . . . [T]his

neglect is precisely the sort of run-of-the-mill inattentiveness by counsel that we have

consistently declined to excuse in the past." (internal quotation marks omitted)). 

The other factors also support the district court'sfinding of excusable neglect. 

The first two factors weigh in favor of Drury: because the filing was only one day

late, both the danger to the non-moving party and the length of delay were minimal. 

There was also no indication that Drury's tardy filing was in any way motivated by

bad faith. Accordingly, the district court did not abuse its discretion in granting 3

Drury leave to file an untimely notice of appeal.

Casey asks us to consider these last three factors more broadly, arguing we 3

should consider Drury's conduct throughout thislawsuit cumulatively along with the

danger to Casey, the delay, and the bad faith stemming from this particular motion. 

However, our cases do not indicate that such a broad, cumulative approach is

appropriate, and we decline to embrace it here. See, e.g., Lowry, 211 F.3d at 463–64

(discussing only the immediate circumstances surrounding the tardy filing);

Sugarbaker, 187 F.3d at 856 (same).

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III

Drury attempts to recover its subrogation lien via two avenues. First, it argues

it may enforce the terms of the ERISA Plan against Casey because Casey agreed to

those terms. Second, Drury argues that even if Casey did not agree to those terms,

Drury may sue Casey in equity. Although we agree that recovery is generally

possible under either of those theories, see CGI Tech. & Solutions, Inc. v. Rose, 683

F.3d 1113, 1117 (9th Cir. 2012) (noting that ERISA § 502(a)(3) does not limit the

universe of possible defendants to only signatories of ERISA plans, and that equitable

actions against trustees or fiduciaries may also be possible), in this case, neither

allows Drury to recover. 

A

We now turn to the merits of the case and consider whether Casey's

acknowledgment of the Plan's subrogation provision created an implied contract

between Casey and Drury. "We review the decision to grant summary judgment de

novo and will affirm if, viewing the evidence in the light most favorable to the

nonmoving party, we conclude there are no genuine issues of material fact and the

moving party is entitled to judgment as a matter of law." Halbach v. Great-West Life

& Annuity Ins. Co., 561 F.3d 872, 875 (8th Cir. 2009). A subrogation agreement

between a client and an ERISA plan is only enforceable against a client's attorney if

the attorney "agrees with a client and a plan to honor the plan's subrogation right."

S. Council of Indus. Workers v. Ford, 83 F.3d 966, 969 (8th Cir. 1996); see also

Hotel Emps. & Rest. Emps. Int'l Union Welfare Fund v. Gentner, 50 F.3d 719, 721

(9th Cir. 1995) (Lay, J., sitting by designation) ("A subrogation agreement or lien can

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be enforced against the attorney only if the attorney agrees with the client and creditor

to protect the lien.").4

In Gentner, the Ninth Circuit reasoned that "[m]ere notice or knowledge of the

subrogation agreement or lien does not constitute an implied contract" between the

attorney and the plan. Gentner, 50 F.3d at 721. In that case, the client, Joseph

Newell, received benefits from an ERISA fund for injuries he suffered when he was

struck by a car. In connection with those benefits, Newell executed a subrogation

agreement with the fund in which he agreed to reimburse the fund for all payments

it made to himto the extent that he received money from any other insurer. Id. at 720. 

Newell's attorney was aware of the subrogation agreement but did not sign or

otherwise agree to it. Id. The Ninth Circuit held that under these facts, the fund

could not enforce the lien as an implied contract against the attorney. Id.

Unlike in Gentner, the attorney in Ford not only knew about the subrogation

agreement but also "himself signed the subrogation agreement." Ford, 83 F.3d at 969. 

In that case, before the client settled her personal injury claim with the plan

administrator, both she and her attorney "signed a subrogation agreement providing

that they would reimburse the fund from the proceeds of any recovery received for

[the client's] injuries." Id. at 968. This was the key fact for our holding in that case. 

InCGI Technologies, the NinthCircuitrecognized the abrogation of Gentner's 4

holding that the universe of possible defendants under § 502(a)(3) only includes

attorneys when they were signatories of ERISA plans. 683 F.3d at 1117 (citing

Harris Trust & Savings Bank v. Salomon Smith Barney, 530 U.S. 238 (2000)). As

discussed above, we agree with the Ninth Circuit that attorneys may be liable in

equity even if they are not signatories to ERISA plans. However, we believe Gentner

is still valid and instructive with regard to its analysis of the circumstances under

which attorneys may become signatories to ERISA plans. Accordingly, our

referencesto Gentner should be understood to rely only on that case's analysis of that

narrow issue.

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Id. at 969. Citing Gentner, we determined that "[b]ecause [the attorney] himself

signed the subrogation agreement, . . . the complaint also stated an ERISA claim

against him for violation of the subrogation clause." Id.

Here, Drury argues that Casey should be bound by the subrogation agreement

on the basis of two letters Casey sent to Drury. First, in a January 15, 2009 letter,

Caseywrote: "This will confirm that we do acknowledge Drury Inns, Inc.'slien in this

matter." And second, in a March 16, 2009 letter: "we are not challenging your right

to reimbursement/subrogation for payments made for the health care of Sean Goding

relating [sic] the injuries caused by his fall at the Hilton." These statements clearly

acknowledge the validity and existence of a subrogation agreement between Goding

and Drury. However, absent from these statements or any other communication

identified by Drury is a promise by Casey to take any action to himself enforce the

subrogation agreement or even to ensure that Goding abide by it.

Without such a promise, the acknowledgment alone is insufficient to establish

an implied contract. As the district court noted,

this is not a case like Ford, in which the lawyer actually signed the

subrogation agreement. Nor is it a case in which the lawyer

unequivocally agreed to transmit a specified amount of money to the

plaintiff upon the settlement of the underlying case. Instead, the

correspondence consists of nothing more than a simple acknowledgment

that the plaintiff held a lien against the settlement proceeds by virtue of

its subrogation agreement with Goding. Again, Casey was not a party

to that subrogation agreement, and there is no other evidence of a

professional or contractual relationship between plaintiff and Casey that

would support a duty to plaintiff. And, as held in Gentner, mere notice

or knowledge of the subrogation agreement or lien does not constitute

an implied contract. Ultimately, although Casey acknowledged the lien,

it did not agree to honor or protect the lien.

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Treasurer, Trustees of Drury Indus., Inc. v. Sean Goding and Casey & Devoti, P.C.,

No. 09-00121, slip op. at 4 (E.D. Mo. March 1, 2010) (memorandum and order). We

agree with the district court's well-reasoned conclusion on thisissue. Although Casey

acknowledged the existence of the lien against the settlement proceedings, it never

agreed with Drury and Goding to honor the Plan's subrogation right. Because Casey

was not a party to the subrogation agreement, Drury cannot enforce that agreement

against Casey.

B

Drury argues that even if Casey did not itself agree to the subrogation

agreement in the Plan, itstill has an equitable remedy against Casey because "Drury's

lien attached at the moment Casey received the disputed settlement funds on behalf

of Goding." However, this argument is unavailing. Section 502(a)(3) of ERISA

authorizes persons to bring a civil action for violation of a plan, but only to obtain

equitable, not legal, relief. 29 U.S.C. § 1132(a)(3); see also Great-West Life &

Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210 (2002) (limiting equitable relief in

§ 502(a)(3) to "those categories of relief that were typically available in equity." 

(internal quotation marks omitted)).

In equity, there was no cause for restitution where the trustee of property

wrongfully disposed of another's property, but no longer held that property or its

product. Knudson 524 U.S. at 213–14 (quoting Restatement (First) of Restitution

§ 215 (1937)). A party who has been wrongfully divested of its property was not

entitled to equitable relief "merely because of the character of the wrong done to

him." Restatement Restitution, at § 215(1) cmt. a (1937). Instead, it could only

recover if it proved not only that the other party "once had property legally or

equitably belonging to [it]," but also "that he still holds the property or properties

which is in whole or part its product." Id. The Restatement describes this distinction

between legal and equitable remedies as follows:

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if it is shown that the property or proceeds have been dissipated so that

no product remains, [the party's] claim is only that of a general creditor

of the wrongdoer. Thus, if the wrongdoer has used the money of the

claimant in speculation and has lost it all, the claimant cannot enforce

a constructive trust of or an equitable lien upon other property of the

wrongdoer, and has only a personal claim against the wrongdoer, and is

not entitled to priority over other creditors of the wrongdoer.

Id. In other words, where the wrongdoer no longer has the property at issue in its

possession, the claim against that party is legal, not equitable. Knudson, 534 U.S. at

210.

Because the recipients of ERISA benefits in Great West Life & Annuity

Insurance Co. v. Knudson no longer possessed the settlement funds to which the plan

claimed entitlement, Great West had no equitable claim and could not recover those

benefits. Knudson, 534 U.S. at 214. The claim in that case was similar to the one

here. The Knudsons had received benefits under an ERISA plan and had also

collected money in a civil settlement. The ERISA plan contained a subrogation

clause, under which the covered employees were obligated to return benefits to Great

West to the extent they received compensation for the same injuries from another

source. Id. at 207. The settlement funds in that case were not paid directly to the

Knudsons but were disbursed by two checks, one to respondents' attorney and the

other to a Special Needs Trust (as required by California law). Id. at 214. Thus,

"[t]he basis for petitioners' claim [was] not that respondents [held] particular funds

that, in good conscience, belong[ed] to petitioners, but that petitioners [were]

contractually entitled to some funds for benefits that they conferred." Id. The kind

of restitution Great West sought, "therefore, [was] not equitable—the imposition of

a constructive trust or equitable lien on particular property—but legal—the

imposition of personal liability for the benefits that they conferred on respondents." 

Id.

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On the other hand, in Sereboff v. Mid Atlantic Medical ServicesInc., 547 U.S.

356 (2006), the Sereboffs, recipients of ERISA benefits, actually received and held

the benefits from their settlement, and thus Mid Atlantic could maintain an equitable

action against them. Id. at 362–63. This was because Mid Atlantic "sought

specifically identifiable funds that were within the possession and control of the

Sereboffs—that portion of the tort settlement due Mid Atlantic under the terms of the

ERISA plan, set aside and preserved in the Sereboff's investment accounts." Id.; see

also Longaberger Co. v. Kolt, 586 F.3d 459, 469 (6th Cir. 2009) (holding that

equitable relief under § 502(a)(3) was proper because Longaberger "properly

identified a specific fund . . . that was in the possession and legal control of [the

defendant], but belonged in good conscience to the Plan.").

Here, like in Knudson, Drury is essentially attempting to impose personal, or

legal, liability on Casey for the benefits it conferred on Goding. After receiving the

settlement funds from Goding's personal injury law suit, Casey initially held in trust

the $11,423.79 to which Drury claims an interest, but he eventually disbursed the

entirety of that sum to Goding. Casey thus no longer has any money to which Drury

claims an interest. Accordingly, any action by Drury to recover from Casey is legal,

not equitable. Because § 502(a)(3) allows only equitable relief, the district court was

correct in denying Drury's motion for summary judgment on this issue.

C

Drury also attempts to bring a state cause of action against Casey for

conversion of the settlement funds over which Drury asserts an interest. However,

we may not consider this cause of action because it is preempted by ERISA. ERISA's

preemption provision states its enforcement provisions "shall supersede any and all

State laws insofar as they may now or hereafter relate to any employee benefit plan

described in section 1003(a) of this title." 29 U.S.C. § 1144(a); Aetna Health Inc. v.

Davila, 542 U.S. 200, 209 (2004). Congress intended courts to read this provision

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broadly, in order to protect ERISA's "uniform regulatory regime over employee

benefit plans." Davila, 542 U.S. at 208. In particular, the Court has sought to protect

ERISA's "integrated enforcement mechanism," § 502(a), which "is a distinctive

feature of ERISA, and essential to accomplish Congress' purpose of creating a

comprehensive statute for the regulation of employee benefit plans." Id. at 208; see

also Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54 (1987) ("The six carefully

integrated civil enforcement provisions found in § 502(a) of the statute as finally

enacted . . . provide strong evidence that Congress did not intend to authorize other

remedies that it simply forgot to incorporate expressly." (internal quotation marks

omitted)).

ERISA preempts state causes of action whenever "the individual is entitled to

such coverage only because of the terms of an ERISA-regulated employee benefit

plan, and where no legal duty (state or federal) independent of ERISA or the plan

terms is violated." Davila, 542 U.S. 200, 210 (2004). "In other words, if an

individual, at some point in time, could have brought his claim under ERISA

§ 502(a)(1)(B), and where there is no other independent legal duty that is implicated

by a defendant's actions, then the individual's cause of action is completely preempted by ERISA § 502(a)(1)(B)." Id.

Drury alleges that the ERISA Plan required Casey to hold in trust and

eventually to return to Drury any settlement money Goding received for his injuries. 

Any right that Drury has to the settlement money obtained by Casey and Goding was

created by and emanates solely from the Plan. Therefore, Drury's only avenue for

enforcing the subrogation agreement in the Plan is ERISA; it may not resort to state

law causes of action.

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IV

Drury finally argues that the district court should not have awarded attorneys'

fees in this case. It asserts that ERISA § 502(a)(1) does not permit the award of

attorneys' fees to attorneys that act as counsel to their own firms, as Casey did here. 

Section 502(g)(1) provides that for "any action under this subchapter . . . by a

participant, beneficiary, or fiduciary, the court in its discretion may allow a

reasonable attorneys' fee and costs of action to either party." 29 U.S.C. § 1132(g)(1).

For support, Drury cites Kay v. Ehrler, 499 U.S. 432 (1991), in which the

Supreme Court held that 42 U.S.C. § 1988 does not permit attorneys' fees for an

attorney who represents himself personally. Id. at 438. In that case, the Court noted

that "the word 'attorney' assumes an agency relationship, and it seems likely that

Congress contemplated an attorney-client relationship as the predicate for an award

under § 1988." Id. at 435–36. Thus, where an attorney represents himself personally,

an award of attorneys' fees is not appropriate. Importantly, however, the Court also

noted in dicta that where an organization engages an in-house attorney, that

"organization is not comparable to a pro se litigant because the organization is always

represented by counsel, whether in-house or pro bono, and thus, there is always an

attorney-client relationship." Id. at 436 n.7.

Since Kay, three of our sister circuits have relied on footnote 7 to hold that,

unlike attorneys who represent themselves personally, in-house attorneys for law

firms (and for organizations in general) may be entitled to awards of attorneys' fees. 

In Baker & Hostetler v. United States Department of Commerce, the D.C. Circuit

reasoned that

[i]n explaining that organizations may recover fees when represented by

in-house counsel, the Supreme Court did not distinguish between law

firms and other types of organizations. Nor can we see any principled

basis for making such a distinction. Footnote 7 suggests that an in-

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house counsel for a corporation is sufficiently independent to ensure

effective prosecution of claims, thus justifying fees. An attorney who

works for a law firm certainly is no less independent than an attorney

who works for a corporation. Therefore, it would make little sense to

slice and dice Kay's conclusion regarding "organizations" and apply

footnote 7 to some organizations but not others.

473 F.3d 312, 325 (C.A.D.C. 2006); see also Bond v. Blum, 317 F.3d 385, 400 (4th

Cir. 2003) ("Though representation of a law firm by one of its members presents an

increased risk of emotional involvement and loss of independence, the law firm still

remains a business and professional entity distinct fromits members, and the member

representing the firm as an entity represents the firm's distinct interests in the agency

relationship inherent in the attorney-clientrelationship."); Gold, Weems, Bruser,Sues

& Rundell v. Metal Sales Mfg. Corp., 236 F.3d 214, 218–19 (5th Cir. 2000) ("[W]hen

an organization is represented by an attorney employed by the organization, the

attorney has a status separate from the client.").

We join the Fourth, Fifth, and D.C. Circuits to hold that, where an attorney

represents his or her own firm, Katz does not forbid the award of attorneys' fees. We

agree that there is no meaningful distinction between a law firm and any other

organization on the issue of whether there exists an attorney-client relationship

between the organization and its attorney.

Moreover, we hold that the district court did not abuse its discretion in

awarding attorneys' fees in this case. See Newberry v. Burlington Basket Co., 622

F.3d 979, 982 (8th Cir. 2010) (standard of review). In deciding whether to award

attorneys' fees, the district court should consider the following factors:

(1) the degree of the opposing parties' culpability or bad faith; (2) the

ability of the opposing parties to satisfy an award of attorneys' fees;

(3) whether an award of attorneys' fees against the opposing parties

could deter other persons acting under similar circumstances;

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(4) whether the parties requesting attorneys' fees sought to benefit all

participants and beneficiaries of an ERISA plan or to resolve a

significant legal qeustion [sic] regarding ERISA itself; and (5) the

relative merits of the parties positions.

Lawrence v. Westerhaus, 749 F.2d 494, 496 (8th Cir. 1984) (internal quotation

marks omitted).

Here, the district awarded Casey attorneys' fees not for the entire case,

but only for the expenses associated with the motion for reconsideration:

Although the Court is not convinced that Casey is entitled to the entirety

of its attorney's fees, the Court believes that plaintiff caused defendant

Casey to unnecessarily incur additional litigation expenses subsequent

to plaintiff's filing its Motion for Reconsideration. By that time, Casey

had prevailed not once, but twice, and the Motion for Reconsideration

was by then entirely reargument and without merit.

The court also discussed the second through fifth factors from Lawrence,

finding that Drury could satisfy a fee award, the award would deter othersfrom

engaging in dilatory tactics, Casey sought to help other Plan beneficiaries and

participants to obtain representation in tort actions, and the relative merits were

apparent because Drury "lost its case, on the merits, as a matter of law, three

times." Although Drury argues that these factors do not necessitate an award

of attorneys' fees in this case, the district court was well within its discretion

in awarding them.

Accordingly, we affirm the decision of the district court.

______________________________

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