Employers Mutual Casualty Company v. MK Weeden Construction, Inc., 1:24-cv-00112

Employers Mutual Casualty Company (EMC) sued several Montana-based corporate and individual defendants for issues related to indemnity obligations under a General Application and Agreement of Indemnity (GAI) for surety bonds.
EMC and all defendants except Monte K. Weeden reached a settlement; proceedings as to Mr. Weeden were stayed due to his Chapter 11 bankruptcy.
The Court initially granted EMC's motion for attorneys' fees and costs, based on a stipulation requiring an "unopposed" motion, awarding $144,968.50 in total.
Defendants moved to amend the judgment, objecting to $1,991 in attorneys’ fees allegedly incurred solely during Mr. Weeden’s bankruptcy proceeding and arguing that the “unopposed” motion was misrepresented.
Defendants also sought $1,350 in fees for filing the motion to amend, claiming EMC misrepresented the status of conferral in the fees motion title and filings.

Issue	Plaintiff’s Argument	Defendant’s Argument	Held
Whether EMC’s fees motion was improperly titled “unopposed”	EMC followed the order and settlement agreement by filing as “unopposed”	EMC misrepresented the status; Defendants hadn’t seen necessary billing records	Court found misrepresentation; error warranted amending judgment
Whether $1,991 in fees from the bankruptcy Adversary Proceeding are recoverable now	EMC entitled under GAI and relevant law to recover Adversary Proceeding fees now	Fees not recoverable until a prevailing party is determined in the Adversary Proceeding	Fees not recoverable now; may only be recovered after prevailing party is determined
Whether Defendants are entitled to $1,350 for motion to amend	No basis for Defendants to recover such fees	Defendants incurred costs due to EMC’s alleged misrepresentation	No legal grounds for awarding these fees; request denied
Timing of fee recovery under the GAI and Montana law	EMC entitled to immediate recovery under contract and law	Fee recovery requires determination of a prevailing party per Montana reciprocal fee statute	Fees for unresolved proceedings may not be awarded until resolution and a party prevails

Travelers Cas. & Sur. Co. of Am. v. Pac. Gas & Elec. Co., 549 U.S. 443 (2007) (a creditor is not precluded from seeking contract-based attorneys’ fees incurred during bankruptcy, but state law governs their recovery and timing)
Turner v. Burlington N. Santa Fe R.R. Co., 338 F.3d 1058 (9th Cir. 2003) (sets standard for amending judgments under Rule 59(e))