ARERR ST i

disregard of his potential liability to Field Container, which undoubtedly shows bad faith on the
part of Shearrill. There is no justification for Shearill’s failure to answer Field Container’s
Complaint. As such, Field Container is entitled to reasonable attorneys’ fees and costs. The
Court has examined Field Container’s submission of the attorneys’ fees and costs it has incurred
in litigating this action, and has determined that those fees and costs are reasonable. As such,

Field Container is entitled to attorneys’ fees and costs in the amount of $19,334.22.

IIL. Conclusion
For the foregoing reasons, Field Container’s motion for attorneys’ fees and costs is

GRANTED.

Enter

C)

David H. Coar
United States District Judge

Dated: September 23, 2004

-4.



(7th Cir. 1998). The second test looks to whether or not the losing party’s position was

“substantially justified.” Id. (citing Bittner v. Sadoff & Rudoy Industries, 728 F.2d 820, 830 (7th

Cir. 1984)). Whatever test the court decides to use, the same question must be addressed: “was
the losing party’s position substantially justified and taken in good faith, or was that party simply

out to harass its opponent?” Meredith v. Navistar International Transportation Corp., 935 F.2d

124, 128 (7th Cir. 1991). There is a “modest presumption” in favor of awarding attorneys’ fees
and costs to the prevailing party in an ERISA cause of action. Id. Although Defendant has not
filed a response to contest Plaintiff's motion for attorneys’ fees and costs, the Court must
determine if the circumstances of this case justify an award of attorneys’ fees and costs to Field
Container, and if so, is the amount that Field Container requests reasonable.

Field Container urges that this is the type of case where attorneys’ fees are warranted for
several reasons. First, Field Container notes that prior to filing suit, it made persistent efforts to
contact Shearrill in order to attempt to settle the parties’ dispute. Second, F ield Container notes
that Defendant failed to answer the Complaint, and did not even appear in this action until after
Field Container filed its motion for default judgment. Subsequently, Defendant disregarded the
additional time afforded to him by the Court to file an answer. Plaintiff contends that Shearrill’s
position, which has been no position at all, is not “substantially justified.”

In addressing Plaintiffs motion for attorneys’ fees and costs, the Court will use the
second test enumerated by the Seventh Circuit, and analyze whether Shearrill’s position was
“substantially justified.” Plaintiffis correct when it asserts that Shearrill’s position, which has
been no position at all, is not “substantially justified.” Defendant’s failure to make any

responses to Plaintiff's letters or Plaintiff's Complaint shows indifference and a complete

3.



Minuto eder Form (06/97)

\

jy United States District Court, Northern District of [linois

y

Name of Assigned Judge David H. Coar Sitting Judge if Other

or Magistrate Judge than Assigned Judge
“|
CASE NUMBER 03 C 7212 DATE 9/23/2004
CASE Field Container Company, L.P. vs. Ezell Shearrill
TITLE

{In the following box (a) indicate the party filing the motion, ¢.g., plaintill, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented. ]

case is closed.

qu)

MOTION:
Field Container’s Motion for Attorneys’ Fees and Costs [Doc. No 12]; [Doc. No. 13]
DOCKET ENTRY:
(1) ii) Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) Qo Answer brief to motion due__. Reply to answer brief due
(4) o Ruling/Hearing on___set for__at
(5) QO Status hearing{held/continued to] {set for/re-set for]on__—_ssetfor sa
(6) im) Pretrial conference[held/continued to] [set for/re-set for]on set for at.
(7) a Trial{set for/re-set for] on__—__at
(8) a [Bench/Jury trial] [Hearing] held/continued to at
(9) im} This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) (Local Rule 41.1 OCFRCP41(ay(l) OO FRCP41(a)(2).

(10) [Other docket entry} Plaintiff's Motion for Award of Attorneys’ Fees and Costs [Doc. No. 12}; [Doc.
No. 13] is GRANTED. Field Container is entitled to attorneys’ fees and costs in the amount of $19, 334.22. This

pod) 1 Mew

a [For further detail see order attached to the original minute order.}

No notices required, advised in open court.

No notices required. uber oF nies

Document
Number

Notices mailed by judge's staff. SEP 2 8 2004

Notified counsel by telephone

slate docketed

X_ | Docketing to mail notices.
Mail AO 450 form docketng deputy initials
“T Copy to judge/magistrate judge ET EAB ord ‘o'n
moe
sif(ic) courtroom ores y dice muted notice
deputy’s Weta df
initials
Date/time,regeived in
“central Clerk's Office mailing deputy initials

20



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DOCKETED

FIELD CONTAINER COMPANY, L.P., )
)
Plaintiff, ) SEP 2 8 2004
) No. 03 C7212
v. )
) HONORABLE DAVID H. COAR
EZELL SHEARRILL )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Before this Court is Plaintiff Field Container Company, L.P.’s (“Plaintiff’ or “Field Container”)
motion for attorneys’ fees and costs, pursuant to a default judgment entered in its favor, and
against Defendant Ezell Shearrill “Defendant” or “Shearrill”), on February 5, 2004. For the
reasons set forth below, Plaintiff's motion for attorneys’ fees and costs is granted. Plaintiff is

entitled to $19,334.22 for the attorneys’ fees and costs incurred in this litigation.

I. Factual and Procedural Background

On October 10, 2003, Field Container filed suit against Defendant, seeking equitable
restitution for payments mistakenly made to the Defendant out of the Field Container Company,
LP. and Related Entities Plan. The two counts of Field Container’s complaint were premised on
unjust enrichment and restitution, pursuant to ERISA section 29 U.S.C. §1132(a)(3)(B)(ii). Field

Container contends that prior to filing its complaint, it made numerous attempts to resolve its

QO


dispute with Defendant by sending four letters to Shearrill, requesting that he return the funds.
Defendant ignored all four letters. Shearrill also failed to answer the Complaint filed by Field
Container. Subsequently, Field Container moved for a default judgment. The day the default
judgment was to be entered, Defendant’s counsel appeared and requested additional time for
Shearrill to answer the Complaint. The Court granted Defendant’s request, but Shearrill failed to
answer or to appear at the scheduled status date. Consequently, on January 29, 2004, this Court
granted Field Container’s motion for entry of a default judgment, and a final judgment order was
entered on February 5, 2004. On March 15, 2004, Plaintiff filed its first motion for attorneys’
fees. However, this Court ordered Field Container to delete pre-filing fees and costs from its
motion. On March 18, 2004, Plaintiff filed its amended motion for attorneys’ fees and costs. It is
that amended motion that is presently before the Court.
Tl. Analysis

Plaintiff brings its request for attorneys’ fees pursuant to ERISA section 29 U.S.C. §
1132(g)(1) (§ 1132(g)(1)”). Pursuant to § 1132(g)(1), “[i]n any action under this
subchapter...the court in its discretion may allow a reasonable attorney’s fee and cost to either
party.” The Seventh Circuit has enumerated two tests for determining whether attorneys’ fees
and costs should be granted to a party in an ERISA action. The first test looks at five factors: 1)
the degree of the offending party’s culpability or bad faith; 2) the degree of the offending parties
to satisfy personally an award of attorneys’ fees; 3) whether or not an award of attorneys” fees
against the offending parties would deter other persons acting under similar circumstances; 4) the
amount of benefit conferred on members of the pension plan as a whole; and 5) the relative

merits of the parties’ positions. Quinn v. Blue Cross and Blue Shield Ass’n, 161 F.3d 472, 478

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