UNITED STATES CO URT OF APPEALS

TENTH CIRCUIT

TRUSTEES OF THE EIGHTH DISTRICT ELECTRICAL PENSION FUND; INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 354,

Plaintiffs–A ppellants,

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 judgme nt does not constitute bi nding 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 Court2 This appeal is brought by a un ion (International Brotherhood of Electrical Works, Local 354) and trustees of a pension fund (Eighth

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

claimed that three elect rical 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 collectiv e bargaining agreements and the Employee Retirement Inco me Security Act of 1974. The district court granted su mmary judgment to the electric companies and Mr. Larsen, holding th at the claims were precluded by res judicata because of a prior suit brought by the union. Th e trustees and the union appealed the summary judgment ru ling, but did so ou t of time. Thus, we lack jurisdiction over this part of the appeal. The district court also granted $134,078.90 in cost s and attorneys’ fees to the electric companies and Mr. Larsen. The union and the trustees

1 In their notice of ap peal, the union and trustees included Larsen Electric of Nevada, LLC as an appellee. But, in their appeal briefs, the union and trustees omitted any referenc e to Larsen Elec tric of Nevada, LLC. The omission appear s to be inadvertent, an d the appellees treated Larsen Electric of Nevada , LLC as one of the elect ric companies situated identically with the other two.3 argue that the court should not ha ve assessed any attorneys’ fees. 2 The defendants concede the union’s challenge, but not the trustees’. We reject the trustees’ challenge, ho lding that the district c ourt acted in its discretion

to award fees. I. The Summary Judgment Ruli ng: Timeliness of the Appeal Though the parties do not question jurisdicti on, 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 clai ms are precluded by res judicata. The appeal on this issue was not timely filed; thus, we lack jurisdiction over th e appeal of the summa ry judgment ruling. The notice of appeal was due 30 da ys from the entry of judgment. Fed. R. App. P. 4(a)(1)(A). The trus tees and the union filed the notice of appeal over a year after th e 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 un ion do not challenge the award of costs (apart from the award of a ttorneys’ fees).4 attorneys’ fees, characterizing the mo tion as one to alter or amend the judgment under Fed. R. Ci v. 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 judg ment under Rule 59], the time to file an appeal runs for all parties from th e entry of the order disposing of the last such remaining motion.” According to the trustees and the un ion, 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 th is 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 ame nd the judgment. To the contrary, the filing of a

motion for a fee award sh ows that the electric co mpanies 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 with drawal liability clai m; therefore, the

union did not assert this cl aim. This argument is illogical, for parties often5 assert meritless claims. Thus, the dist rict court could re asonably interpret its own judgment as on e against the un ion on the withdr awal liability

claim. Because the motion for attorneys’ fe es could not be construed as a Rule 59 motion, th e notice of appeal on the summary judg ment ruling was not timely. Therefore, we lack jurisdiction to cons ider 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. Lars en 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 re verse the grant of attorneys’ fees against the union.

B. Pension Fund

The district court did not abuse its discretion in asse ssing attorneys’ fees against the trustees. 3

3 The trustees and the union do not challeng e the amount of fees awarded; the challenge i nvolves only the decision to grant attorn eys’ 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’ culpab ility or ba d faith, 2. the opposing parties’ ability to satisfy an award of attorneys’ fees,

3. the deterrence of a fee awar d on other parties considering similar claims in the future, 4. whether the parties requesting fees sought either to resolve a significant legal question rega rding the Employee Retirement Income Security Ac t or to benefit al l 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 stat ute governs the award of attorneys’ fees. The trustees believ e 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 conc lude 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 erro neously applied the first

factor because

● the defendants conced e that the trustees ha d not acted in bad faith, and

● the union’s alleged fa ult 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 dist rict court did not err by balancing the parties’ blameworthin ess rather than narrowly considering whether the

trustees had acted in bad faith.

The court also acted in its discretion by at tributing 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 Ci r. 1990) (explaining the Gordon factors’ application to § 1132 (g)(1) claims and listing othe r circuit courts that have adopted the Gordon factors for a § 1451(e) clai m). Thus, we need not decide which statute governs th e award of attorneys’ fees.8 (explaining that the union and the tr ustees 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 th en 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 dete rmining that the trustees were more blameworthy than the el ectric companies or Mr. Larsen.

3. Fifth Factor: The Relative M erits of the Parties’ Positions The trustees argue that the district court failed to properly assess the relative merits of the parties’ pos itions. We reject this argument. In doing so, we give at least some weight to th e defendants’ status as prevailing parties. Graham v. Hartford Life Ins. Co. , 501 F.3d 1153, 1162 (10th Cir. 2007). The di strict court not only aw arded judgment to the defendants, but also comme nted on the weakness of the trustees’ alter ego theory. In the course of denying th e electric companies and Mr. Larsen’s motion for judgment as a matter of law, the district court commented:

“I’ve reached the conclu sion 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 go ing to deny the motion . . . .” Appellant’s App., vol. II at 739. The district court ultimately re jected the claims based on res judicata. Though the trustees appeal th at ruling, we lack jurisdiction over9 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 a ssessment of the parties’ relative strengths and weaknesses. 4. Summary

The district court did not abuse its discretion in we ighing the first and fifth factors against the trustees. The trust ees do not question the

district court’s consideration of th e other three fact ors. 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 agains t the union and affirm the fee award agai nst the trustees.

Entered for the Court

Robert E. Bacharach Circuit Judge

5 In their brief, the electric companie s and Mr. Larsen re serve the right to submit a declaration of a ttorneys’ fees and costs upon a ruling affirming the district cour t’s decision.