UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

 

TRUSTEES OF THE EIGHTH 

DISTRICT ELECTRICAL 

PENSION FUND; 

INTERNATIONAL 

BROTHERHOOD OF 

ELECTRICAL WORKERS, LOCAL 

354, 

 Plaintiffs–Appellants, 

v. 

WASATCH FRONT ELECTRICAL 

AND CONSTRUCTION, LLC; 

LARSEN ELECTRIC, LLC; 

SCOTT R. LARSEN, individually; 

LARSEN ELECTRIC OF 

NEVADA, LLC, 

 No. 13-4093 

 (D.C. No. 2:09-CV-00632-CW) 

 (D. Utah) 

 Defendants–Appellees. 

ORDER AND JUDGMENT*

Before GORSUCH, SEYMOUR, and BACHARACH, Circuit Judges. 

 

*

 This order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

But, the order and judgment may be cited for its persuasive value under 

Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

December 22, 2014

Elisabeth A. Shumaker 

Clerk of Court
2 

 This appeal is brought by a union (International Brotherhood of 

Electrical Works, Local 354) and trustees of a pension fund (Eighth 

District Electrical Pension Fund). In district court, the union and trustees 

claimed that three electrical companies (Wasatch Front Electric and 

Construction, LLC; Larsen Electric of Nevada, LLC;1

 and Larsen Electric, 

LLC) and one of their owners (Mr. Scott Larsen) had failed to make 

payments required under collective bargaining agreements and the 

Employee Retirement Income Security Act of 1974. 

 The district court granted summary judgment to the electric 

companies and Mr. Larsen, holding that the claims were precluded by res 

judicata because of a prior suit brought by the union. The trustees and the 

union appealed the summary judgment ruling, but did so out of time. Thus, 

we lack jurisdiction over this part of the appeal. 

 The district court also granted $134,078.90 in costs and attorneys’ 

fees to the electric companies and Mr. Larsen. The union and the trustees 

 

1

 In their notice of appeal, the union and trustees included Larsen 

Electric of Nevada, LLC as an appellee. But, in their appeal briefs, the 

union and trustees omitted any reference to Larsen Electric of Nevada, 

LLC. The omission appears to be inadvertent, and the appellees treated 

Larsen Electric of Nevada, LLC as one of the electric companies situated 

identically with the other two. 
3 

argue that the court should not have assessed any attorneys’ fees.2 The 

defendants concede the union’s challenge, but not the trustees’. We reject 

the trustees’ challenge, holding that the district court acted in its discretion 

to award fees. 

I. The Summary Judgment Ruling: Timeliness of the Appeal

 Though the parties do not question jurisdiction, we must always 

assure ourselves of our jurisdiction. Weber v. GE Grp. Life Assur. Co. ̧ 

541 F.3d 1002, 1009 (10th Cir. 2008). The timely filing of a notice of 

appeal is jurisdictional. Ray Haluch Gravel Co. v. Centr. Pension Fund of 

Int’l Union of Operating Eng’rs & Participating Emp’rs, __ U.S. __, 134 S. 

Ct. 773, 779 (2014). In this appeal, the trustees and the union argue that 

the district court erred by holding that the claims are precluded by res 

judicata. The appeal on this issue was not timely filed; thus, we lack 

jurisdiction over the appeal of the summary judgment ruling. 

The notice of appeal was due 30 days from the entry of judgment. 

Fed. R. App. P. 4(a)(1)(A). The trustees and the union filed the notice of 

appeal over a year after the entry of judgment. Thus, the appeal was late. 

The trustees and the union argue that the appeal deadline was 

extended by the electric companies and Mr. Larsen’s filing of a motion for 

 

2

 The trustees and the union do not challenge the award of costs (apart 

from the award of attorneys’ fees). 
4 

attorneys’ fees, characterizing the motion as one to alter or amend the 

judgment under Fed. R. Civ. P. 59. We disagree. 

The trustees and the union rely on Fed. R. App. P. 4(a)(4)(A)(iv), 

which provides that “[i]f a party timely files in the district court [a motion 

to alter or amend the judgment under Rule 59], the time to file an appeal 

runs for all parties from the entry of the order disposing of the last such 

remaining motion.” According to the trustees and the union, the motion 

for attorneys’ fees should qualify as a Rule 59 motion because the electric 

companies and Mr. Larsen were trying to alter the judgment by broadening 

it. This argument has two steps: 

1. The district court had limited the judgment on withdrawal 

 liability to the pension fund. 

2. The electric companies and Mr. Larsen wanted this judgment to 

 run against the union as well as the pension fund. 

The district court properly rejected this argument. 

The electric companies and Mr. Larsen said nothing to suggest that 

they were wanting to amend the judgment. To the contrary, the filing of a 

motion for a fee award shows that the electric companies and Mr. Larsen 

viewed the judgment as a complete win. 

The trustees and the union argue that under 29 U.S.C. § 1381(a), 

unions are not allowed to assert a withdrawal liability claim; therefore, the 

union did not assert this claim. This argument is illogical, for parties often 
5 

assert meritless claims. Thus, the district court could reasonably interpret 

its own judgment as one against the union on the withdrawal liability 

claim. 

Because the motion for attorneys’ fees could not be construed as a 

Rule 59 motion, the notice of appeal on the summary judgment ruling was 

not timely. Therefore, we lack jurisdiction to consider this part of the 

appeal. 

II. Attorneys’ Fees 

 We reverse the fee award against the union and affirm the fee award 

against the pension fund. 

 A. Union

 The electric companies and Mr. Larsen conceded in oral argument 

that the attorneys’ fees should not have been assessed against the union. 

Oral Arg. at 32:08-33:03. With this concession, we reverse the grant of 

attorneys’ fees against the union. 

B. Pension Fund 

The district court did not abuse its discretion in assessing attorneys’ 

fees against the trustees.3

 

3

 The trustees and the union do not challenge the amount of fees 

awarded; the challenge involves only the decision to grant attorneys’ fees. 
6 

 1. Standard for a Fee Award

 The district court has discretion to award attorneys’ fees under the 

Employee Retirement Income Security Act. Gordon v. U.S. Steel Corp., 

724 F.2d 106, 108 (10th Cir. 1983). Therefore, we review the district 

court’s order for abuse of discretion. Id. Under this standard of review, 

we will reverse only if the district court clearly erred in its judgment. Id.

 To determine if a party should be awarded attorneys’ fees for a 

withdrawal liability claim, the district court must weigh five factors: 

1. the degree of the opposing parties’ culpability or bad faith, 

2. the opposing parties’ ability to satisfy an award of attorneys’ 

fees, 

3. the deterrence of a fee award on other parties considering 

similar claims in the future, 

4. whether the parties requesting fees sought either to resolve a 

significant legal question regarding the Employee Retirement 

Income Security Act or to benefit all participants and 

beneficiaries of an ERISA plan, and 

5. the relative merits of the parties’ positions. 

Cardoza v. United of Omaha Life Ins. Co., 708 F.3d 1196, 1207 (10th Cir. 

2013). 4

 No single factor is dispositive. Id. 

 

4

 The parties disagree on which statute governs the award of attorneys’ 

fees. The trustees believe the proper statute is 29 U.S.C. § 1451(e), while 

the electric companies and Mr. Larsen argue that both 29 U.S.C. §§ 

1132(g)(1) and 1451(e) apply. But, we believe the five-factor test would 

apply under both statutes. See Anita Founds., Inc. v. ILGWU Nat’l Ret. 
7 

 The trustees confine their challenge to the district court’s application 

of the first and fifth factors. We conclude that the court did not clearly err 

in applying these factors. 

2. First Factor: The Degree of the Opposing Parties’ 

Culpability or Bad Faith 

 The trustees argue that the district court erroneously applied the first 

factor because 

● the defendants concede that the trustees had not acted in bad 

 faith, and 

● the union’s alleged fault should not be attributed to the 

 trustees. 

We reject both arguments. 

 Despite the defendants’ concession, the district court had to decide 

how to apply the first factor. Doing so, the court focused on “the degree of 

blameworthiness” between the parties. Appellant’s App., vol. II at 853. 

This focus was reasonable, and the district court did not err by balancing 

the parties’ blameworthiness rather than narrowly considering whether the 

trustees had acted in bad faith. 

 The court also acted in its discretion by attributing fault to the 

trustees, as well as the union. See Appellant’s App., vol. II at 853-54 

 

Fund, 902 F.2d 185, 199 (2d Cir. 1990) (explaining the Gordon factors’ 

application to § 1132(g)(1) claims and listing other circuit courts that have 

adopted the Gordon factors for a § 1451(e) claim). Thus, we need not 

decide which statute governs the award of attorneys’ fees. 
8 

(explaining that the union and the trustees were at fault). The court 

regarded the trustees as blameworthy, reasoning that they had taken their 

chances in the prior suit by relying on the union and then filing a new 

action only after the union had lost. Id. In balancing the relative fault of 

the parties, the court acted in its discretion by determining that the trustees 

were more blameworthy than the electric companies or Mr. Larsen. 

3. Fifth Factor: The Relative Merits of the Parties’ Positions

 The trustees argue that the district court failed to properly assess the 

relative merits of the parties’ positions. We reject this argument. 

 In doing so, we give at least some weight to the defendants’ status as 

prevailing parties. Graham v. Hartford Life Ins. Co., 501 F.3d 1153, 1162 

(10th Cir. 2007). The district court not only awarded judgment to the 

defendants, but also commented on the weakness of the trustees’ alter ego 

theory. In the course of denying the electric companies and Mr. Larsen’s 

motion for judgment as a matter of law, the district court commented: 

“I’ve reached the conclusion that although the evidence is, in my 

judgment, at this point very weak, there is sufficient evidence before the 

court to allow the case to proceed, and so I’m going to deny the motion 

. . . .” Appellant’s App., vol. II at 739. 

 The district court ultimately rejected the claims based on res 

judicata. Though the trustees appeal that ruling, we lack jurisdiction over 
9 

that part of the appeal. Without jurisdiction to consider any of the 

trustees’ appeal points on the summary judgment ruling, we cannot disturb 

the district court’s discretionary assessment of the parties’ relative 

strengths and weaknesses. 

4. Summary 

The district court did not abuse its discretion in weighing the first 

and fifth factors against the trustees. The trustees do not question the 

district court’s consideration of the other three factors. In these 

circumstances, the court did not err in assessing attorneys’ fees against the 

trustees. 

III. Conclusion

We lack jurisdiction to consider the appeal on the district court’s 

award of summary judgment. Thus, we dismiss this part of the appeal.5

We reverse the award of attorneys’ fees against the union and affirm 

the fee award against the trustees. 

 Entered for the Court 

 Robert E. Bacharach 

 Circuit Judge 

 

5

 In their brief, the electric companies and Mr. Larsen reserve the right to 

submit a declaration of attorneys’ fees and costs upon a ruling affirming the 

district court’s decision.