*1 FIRST CORPORATION, TRUST
Plaintiff-Appellee,
v. Petrey
Brenda Fusion BRYANT,
Defendant,
Kay Hamlin, Intervening Defendant-
Appellant.
No. 02-5941.
United States Court Appeals,
Sixth Circuit.
Argued: Jan. 2004.
Decided and Filed: June *2 Irvine, Dean, Ken- Michael
ARGUED: Mill, Sher- W. Appellant. John for tucky, Colorado, Ap- Denver, Howard, man & Dean, Irvine, Michael BRIEF: ON pellee. Mill, W. John Appellant. Kentucky, for Colorado, Denver, Howard, & Sherman Appellee. CLAY, SUHRHEINRICH,
Before: SUTTON, Judges. Circuit SUHRHEINRICH, J., delivered J., CLAY, court, in which opinion joined. 857-63), delivered
SUTTON, (pp. J. dissenting opinion. separate SUHRHEINRICH, Judge. Circuit action, the statutory interpleader than more awarded court plain attorney’s fees (“First Corporation tiff, First of a trustee Trust”), former Retire Employee by the governed Act, 29 U.S.C. Security Income ment (“ERISA”). In Appellant, seq. et § 1001 Hamlin, (“Kay”), tervenor-Defendant, Kay con plan. She beneficiary of that is court the district appeal tends attor awarding its discretion abused limiting Trust and ney’s received. she the amount reasons, RE- we following For fees to VERSE al- hold that further -We Trust. appropriately though fees, inappropri- awarded limited, associated only those her to ately to intervene. her motion with I. Facts into However, thirds. in March state probate court issued a new order Bryant Sons, W.D. Inc., & offered that ordered about one half of the funds to pension plan ERISA-covered benefit to its be distributed to Brenda and the employees, known rest as the Bryant “W.D. & *3 split between Sons, the sons. Inc., The order Money never- Purchase Pension Plan” (“Plan”). theless directed that party” “no was sеrved as to the non- (“directed have access to discretionary, pension plan directed trustee benefits trustee”) “except by a of the Plan until written shortly Court Order after it executed by Judge filed this competent action and the employer jurisdiction.” appoint ed a successor. (“Elvin”), Elvin Bryant Aftér order, each court First Trust re- co-owner of company, serves as the ceived beneficiary distribution election Plan Administrator and authorizes First forms from Elvin authorizing First Trust Trust to payments make to beneficiaries. payments make Brenda, Lorren, and Marvin Sr., L. Bryant, brother, Elvin’s Lee the proportions by ordered was an employee of company and a court. At point, some First also plan participant until his death in 1995. received a copy an antenuptial agree- 1, July 1982, On Marvin designated as ment between Marvin and Brenda that his beneficiary his then-wife Bryant, provided she would receive all sums in now Kay (“Kay”), Hamlin the Appellant in excess of pension his this case. sons, Marvin and had two Over, should he die during the marriage. (“Lorren”) Bryant Lorren M. and Marvin time, First Trust repeated received tele- Bryant, (“Lee”), Lee Jr. who were also phone calls from all three claimants. parties to the action below. Marvin and Finally, in 1997, January year about a Kay divorced in June 1985. Mаrvin later and one-half after death, Marvin’s First remarried. On the death, date of his he Trust wrote to Elvin as the Plan Adminis- was married to Brenda Fusion Petry trator outlining the multiple requests for Bryant (“Brenda”), also interpleader distributions and the conflicting court or- However, defendant. Marvin never ders. It insisted a resolution of who changed his designated beneficiary after was the beneficiary by February 7, 1997, his divorce Kay. Upon death, his or it would have no alternative family but dispute arose over was who entitled interplead the assets into court for such a pension benefits, his with claims to the determination. pension plan benefit ultimately funds being by sons, made his widow, two his and his Prior to actually filing its interpleader first wife.1 suit, First Trust repeatedly discussed ven- In August 1995, a Kentucky pro- state ue with the attorney for sons, Marvin’s bate court entered an agreed requested order be- who that the action be filed in Lorren, Lee', tween and Brenda that es- Kentucky, where one of the sons resided. sentially pension divided the plan assets First Trust attempted, unsuccessfully, to 1. Marvin had been 1995, married both women just in March a few months his before twice. He 1963, and married in October remarried, death. Shortly they after Marvin but by September were divorced the following elected to July retire effective and year. They then Septеmber remarried in However, receive benefits. was he remained married until their second July killed on well year short of a divorce in 1985. Marvin married Brenda in remarrying after prior Brenda and August they 1993 but were by divorced March having .benefits paid been to him. Marvin year. the next Marvin and Brenda died after he remarried was shot Brenda's brother. join Kay because that it did claimed pro First issue. the venue settle Treasury Regulation, thought that under they sign a Lorren to Lee and posed 1.401(a)-20, mar- Marvin’s 26 C.F.R. Trust for its First and reimburse release n designa- Brenda invalidated riage to fees, exchange, i beneficiary. Kay as tion of suit bring Trust would view, proposal the sons’ Kentucky. motion, court or- Trust’s On accept they refused “blackmail” deposit- funds to interpleaded dered it. funds registry. into the Those court’s ed tendered on were Proceedings A. Colorado tender, $305,459.28. In its amount *4 all funds 1997, “represent[ed] filed 9, they First Trust stated Trust On In Bryant.” the' United Marvin L. action in attributable statutory interpleader ... It tendering the complaint the and filing District Court Colorado. States wife, funds, attor- second incurred modest Marvin’s First named as defendants Trust sons, $2,700. Lee. Lorren and Brenda, ney’s two fees and and his costs-about jurisdiction the court’s Trust invoked 1997, 6, interpleader when the On June statute, 28 interpleader under the federal employer’s stages, initial the was its suit statute, 28 1335, diversity and the U.S.C. Trust as dismissed First of directors board contended Trust im- Plan, effective trustee of directed in Colorado was appropriate venue National mediately, appointed and venue, for 1397, governs, Trust, (“FNBT”), as successor and Bank a actions, it was because interpleader a joined as FNBT was never trustee. citizen of funds and a “claimant” to party. claimant as First Trust’s status Colorado. 1997, op- Lee 14, Lorren and July On Relief Prayer for solely on its was based action, seeking its interpleader posed paid from attorney’s fees to be requesting on change a venue or dismissal pri- attributable to Marvin the Plan assets in Colora- improper was that venue ground of its support or to their distribution. claimant no true resided because do that alleged Trust request, First argued that First They Colorado. ordi- “for the incurred were attorney’s fees based to the funds not a claimant op- and administration necessary nary and They also attorney’s fees. demand for its Plan, have been Pension of the eration request for Trust’s that First contended incurred, not been and reasonably have denied. costs should be attorney’s fees employer].” paid [the ' 5, 1997, opposed First Trust August On name not First Trust did Significantly, proper transfer, contending that it was It neverthe- a defеndant. Hamlin as Kay based on its funds claimant complaint acknowledged less argued that It further attorney’s fees. he was July while or about “[o]n inconven- Kentucky would be litigation wife, Mr. Kay Bryant, to his first married expense an “additional and would be ient pri- as the Kay Bryant designated Bryant assets.” Pension Plan paid out to be attached First Trust beneficiary.” mary added). (emphasis J.A. beneficiary designation complaint the moved to Brenda August On designated Marvin had showing form join party compel First Trust complaint beneficiary. The Kay as his noted Hamlin, first wife. She Marvin’s made had not explained also Kay, nothing prevented later assets. First claim named beneficiary, from challenging the First argument Trust’s that it was a claim- distribution under provisions of ERISA so ant to the funds based on its demand for that without her presence there could attorney’s fees and held that venue Col- complete relief. orado was improper under 28 U.S.C. § 1397 because
On none true September claimants resided moved for its Colorado. The dismissal case, therefore injunction ordered the case suits, further transferred to the East- attor- ney’s ern fees and District of Kentucky. costs. It further The argued court de- that the nied as award of fees moot First should be Trust’s motion out to for made issue, of the funds at dismissal and typical injunctiоn as is for an and rough- suits. ly Both in attorney’s Brenda Mar- fees. The Colora- vin’s sons opposed First Trust’s do court motion. never ruled on Brenda’s motion to The sons noted join that the yet court had not aas defendant.
ruled on Brenda’s pending counterclaim or the transfer They motion. further argued B. Kentucky Proceedings that an of attorney’s fees would be After the case was transferred to the *5 improper given First Trust’s bad faith con- Kentucky court, First Trust ten- duct in the litigation, citing First Trust’s dered an $35,959.27 additional into the selection an of improper venue and de- court registry they because were addition- mands for attorney’s fees exchange for a al funds disputed in Brenda’s counter- Brenda, settlement. hand, the other claims. brought This the amount of inter- argued that First Trust had failed to de- pleaded $341,418.55. funds to posit all the funds at issue into the court’s registry. She also alleged 7, that On April 1998, First Kay Trust moved to inter- was an trustee, that, ERISA vene. as First did oppose her mo- Trust had violated provisions various of tion to intervene, did but not explain why ERISA, it was not any entitled to join attor- failed to her in the place. first On ney’s fees. 4, 1998, June the Kentucky district court granted Kay’s motion to intervene.
On 16, 1997, October Brenda filed her answer, asserted counterclaims Having successfully intervened, Kay against First Trust for of breach its fidu- filed an answer and a counterclaim under ciary duties under ERISA. She also ERISA. In her counterclaim she sought a sought attorney’s fees from First Trust declaratory judgment that was she entitled ERISA, U.S.C. 1132(g)(1).2 In to all the proceeds of Marvin’s account reply to Brenda’s counterclaims, First because was only she his designated bene- Trust, admitted it trustee, was the but ficiary. She also sought attorney’s her asserted the named fiduciary pres- was the fees and pursuant costs ERISA, ident or other designee of the employee. 1132(g)(1). In response to Kay’s In defense, First Trust stated it did not counterclaim, First argued Trust it had act as a fiduciary when it filed the inter- been replaced as trustee and had no con- pleader complaint. trol or authority over the Plan assets. It On 12, 1997, November the District argued also that the funds had already Court for the District of rejected Colorado deposited been into the court’s registry so 2. Brenda also asserted a variety of state Bryant law Plan, for benefits under the of breach against cross-claims the sons and a duties, third- fiduciary ERISA attorney's fees party complaint against the Plan and Elvin under ERISA. assets, as well as her of the Plan comply with bution could not it therefore that $8,813.69. in the amount of attorney’s funds to her. fees pay it to directing order motion, sought the sons also By separate Kay mоved for sum- On June $39,046.89. attorney’s fees the amount was no there argued She mary judgment. was fact that she of material issue genuine objected attorney’s Trust First attributable the funds to all entitled filed and the sons. fees affidavits as the plan account pension Marvin’s Kay’s, it had not As to insisted opposed beneficiary. Brenda designated Trust, against against but prevailed grounds. on a number Kay’s motion instead, she was not enti- so that Brenda December On argued Trust also fees. First tled on Brenda’s summary judgment moved pay attorney’s it should not have and for counterclaims ordinary “incurred Brenda, it was entitled arguing her claims” because it pursuing course provi- fee-shifting under ERISA’s its fees that caused the dis- not First Trust January sion, 1132(g)(1). On over Marvin’s benefits. pute 14, 1999, separate- moved also court is- the district April On from the dismissed ly to be disposing orders a series of four sued action, injunction, and for for an in the case. remaining issues most authority to the court had argued It order, court ruled In one rule that general under the it fees attor- entitled to its First Trust would be to at- entitled interpleading plaintiffs are stakeholder ney’s fees as disinterested award should and that the torney’s fees *6 the the interests of fund’s “protected who funds, gen- is the interpleaded the from in resolv- beneficiary parties and the aided practice. eral dispute over the dece- ongoing their ing 22, 1999, court the district January On order, In a second the dent’s estate.” summary judg- motion Kay’s for granted for attor- motion court denied the sons’ of the inter- ment, resolving the merits it that doing, In so found the ney’s fees. Kay was The court suit. held pleader conduct engaged culpable “not had bank pension benefits all of Marvin’s entitled constituting bad faith.” The acts or other beneficia- designated his she was because argu- rejected the sons’ specifically court ry. wrong venue or filing ments sons, Thereafter, along with Kay and the settle attempt evidenced First Trust’s Elvin, jointly opposed Plan and the faith. bad They also for dismissal. motion Trust’s April on the In a third order issued for attor- request Trust’s opposed motion First Trust’s granted court fees, improper Trust’s noting First ney’s coun- on Brenda’s summary judgment for forum, to file the its decision choice that Brenda Although it held terclaims. rath- statute the under action proper Kay was the standing lacked since name ERISA, failure to and er than funds, it nonetheless re- owner of the they noted Lastly, as a defendant. First Trust was in dicta that marked First Trust fees inequity awarding the because, under its fiduciary of the Plan They asserted Kay’s benefits. have discretion- terms, Trust did not case that postures in the Trust’s was First assets, citing plan the 29 ary over control it more and made litigation prolonged 1002(21)(A). de- The court also U.S.C. January costly difficult. On and request for fees Brenda’s nied and distri- judgment for final Kay moved because summary judgment was awarded alone may represent work also to.First Trust on all her claims. The court clients, done his other sons, Elvin, then pay ordered Brenda to First Trust’s However, the Plan. he averred that attorney’s fees. $1,000 was incurred for work solely done Kay’s on behalf. He did not mention order,
Finally, a fourth contingency agreement. granted court Kay’s motion for attorney’s 1132(g)(1), and or- July 1999, by On agreed order, the dered the clerk to disburse to her the district court pension ordered the funds from pension Marvin’s plan that had benefits and interest to be disbursed to been deposited with court, only but Kay, except $56,133.19, the amount of after subtracting attorney’s requested attorney’s fees still at July 29, issue. On by First fees, Trust. Regarding Kay’s 1999, by agreed order, the court dismissed granted fees, her attorney’s but lim- claims, all counterclaims, and cross-claims ited her to those fees accumulated in Brenda, among sons, Elvin, Plan, her efforts intervene. Kay. May 12, 1999, On Kay moved the court On September 29, 1999, the court re April reconsider its 23 order awarding versed itself regarding the award fees to Trust, fees to First arguing that April 23, 1999, granting provision ERISA, anti-alienation Kay’s motion for reconsideration based on 1056(d)(1), U.S.C. § precluded ERISA’s anti-alienation provision. In de out of plan benefits. nying attorney’s Trust, fees to First Meanwhile, First Trust submitted its fee 1056(d)(1)’s court ruled that prohibition $68,588.91. the amount of It on the assignment or alienation of pension $12,455.72 argued that of the fees it in- benefits barred an award of attorney’s fees curred were directly attributable to Bren- here. da’s counterclaim and should paid On October First Trust moved her. argued It remainder, for reconsideration of the September 29 $56,133.19,should be paid from the funds order, arguing that ERISA’s anti-alien *7 deposited into the court. In justifying its ation provision did not apply because the high requested award, First Trust laid the had deposited funds been into the court’s blame the protracted for proceedings at registry. Alternatively, First Trust ar the feet of the sons and Brenda. First gued that provisions ERISA’s clearly allow Trust not did accuse improper con- for plan administration costs and attor case, duct in the however. ney’s Thus, fees. requested Kay then submitted her request that the court reinstate its earlier decision the $3,184.37, amount of which reflected 23, 1999. of April the court’s order restricting her fees re- quest to those incurred in On intervening. the district court re- She requested also an upward adjustment, itself again, versed this time granting First as is rights cases, done civil Trust’s motion rеflect for reconsideration. It con- the' obtained, success she arguing 1056(d)(1) § that an cluded that inapplicable was upward adjustment of 100% was appropri- ground the that ERISA’s anti-alien- ate. request Her total was ation provision therefore implicated was not once $6,368.74. Her attorney’s affidavit ac- funds are removed from fidu- knowledged that billing some did ciary entries responsibility plan of the manager. not specify that work was done on behalf The court held deposit that the into the
849 by held remaining tion of her assets still to” bene- “equivalent registry court’s for First Trust had also moved by the court. and received paid to having been fits the amount of a decision on therefore, a fee award beneficiary, and right enforceable not be would 3, 2002, the court entered July On further rea- court Plan. The district jud case, and gment, dismissed the not- permissible an award was soned supplemental and costs in a assessed fees because the provision withstanding that First The order directed order. an ERISA always tried as had been case $53,555.29, interest, out paid plus Trust be complaint case, fact that despite the The registry. funds in the court’s ERISA, and mention specifically did all re further directed that sums order attorney’s fees sought herself registry in the be disbursed maining therefore held: The court the amount Kay Hamlin. held .It above, clearly record, as detailed reasonable by First Trust was requested practiced under this case was shows that hourly charged, spent to time rates controlled the that statute § 1132 and First Trust’s but reduced the case. disposition of substantive sought trying the fees to recov extent that attor- an award of does not bar excessive. The er its fees were granted as those neys’ fees such amounts shifted some of the court also and, April order of court’s Kay to Brenda requested fact, 29 U.S.C. authorizes fee awards. to work they were attributable because Thus, rein- the court will 1132(g)(1). Fi counterclaims. to Brenda’s pertaining granting order April state its Trust’s award nally, the court offset First attorneys’ fees. Kay. The court by amount awarded to award, determined that her fee that ERISA further remarked The court limited to those fees previously had used plan assets to be authorized expressly intervene, efforts to associated with her in a number costs administration motion to inter for her amounted citing provisions, vene, This and counterclaim. answer 1103(c)(1)(authorizing plan assets to be §§ of work at on ten hours amount was based costs), plan administration used for doing, In so hourly rate $100. (to 1104(a)(l)(A)(ii) ex- defray reasonable failed to rebut had court noted administering plan), penses of objections raised the various 1108(c) (for fiduciary compensating Brenda Finally, the court ordered Trust. of his performance services rendered $18,559.50 Trust. to First pay provi- that these plan), duties with attor- award of permit reasonable sions *8 Kay appeals. plan. The for service to the
ney’s fees Analysis II. that because court concluded part as of interpleader action had filed the 2000, 18, the ruling May final of In its duties, lawsuit’s the plan its administration 23, April 1999 its court reinstated district part plan of admin- were incurred as costs attorney’s fees granting First order to its entitled and it was therefore istration May In its statute. the under that reiterated Finally, the court stat- 18, court also ruling, the district 2000 to the limited Kay’s award of fees was of the attorney’s provision fees that the ed intervening. expenses of fee statute, § authorizes 1132(g), ERISA April granted those such of inac- awards period after a On as. that the court held Finally, the court, 23 order. for distribu- Kay moved by tion the 850 provision
anti-alienation
imped-
was not an
First Trust counters that the anti-alien-
provision.
iment to the
atioii
attorney’s
award of
be-
does not apply
pen-
fees
after
sion funds are removed
cause ERISA
from the fiduciary
itself includes exceptions to
responsibility
plan
manager.
1056,
§
In
expressly authorizing plan assets
words,
1056(d)(1)
other
§
cоntends that
to be
plan
used for
administration costs.
is inapplicable once funds
no longer
are
Kay challenges
holding
this
on a number
under
Plan,
the “control” of the
having
grounds. First,
of
she contends that the
deposited
been
in the court’s registry pur-
district court’s award of attorney’s fees to
§
suant
to 28 U.S.C.
1335. First Trust
Trust, payable
benefits,
out of her
that,
further alleges
as a trustee of the
violates ERISA’s anti-alienation provision. Plan, it
a fiduciary
within the meaning
Kay also asserts
ERISA,
a
of
prevailing
and entitled
party may.
part
as
be
awarded fees
administrative
under
duties. First
also
Further,
maintains that
1132(g).
the
argues
district court
she
the
had discretion under both
district court
ERISA and
failed to consider
appro-
the
statutory interpleader
to award it fees.
priate
in awarding
factors
attorney’s fees
Trust,
to First
and in limiting those award-
Although
arguments
these
raise
num-
ed to her.
ber of interesting
complex issues3,
we
3. Because we
grounds,
rule on alternative
we
administrator.”).
the hands of the
26Cf.
do
Kay’s
not
argument
need to address
§ 1.401(a)-13(c)(1)(ii)
C.F.R.
(defining "as
1056(d)
prohibits
attorney's
the award of
signment” or
"[a]ny
"alienation” as
direct or
However,
fees in this case.
we note that
(whether
arrangement
indirect
revocable or
ERISA's
provision
anti-alienation
not
does
irrevocable) whereby a party acquires from а
specify
protections
when its
come to an end.
participant
beneficiary
or
right
or interest
Guidry
See
v. Sheet Metal Workers National
in,
to,
plan
enforceable
the
or
all or
Fund,
(10th
Pension
F.3d
39
1080
Cir.
part
is,
of a
benefit
may
or
1994) (en banc) ("The [anti-alienation] provi
become, payable
participant
the
or benefi
”
sion focuses on benefits ... but is silent on
ciary
added)).
(emphasis
whether the term is meant to include benefits
Although, contrary to First Trust’s
asser-
the nature of the
long
distributed funds no
tion, it is
interpleaded
doubtful that the
er
funds
within
fund and
plan par
held
having
could
considered as
ticipant
"been released
or beneficiary.”). This Court has
properly
to the
designated
adopted
beneficiary”
Tenth
view
pro
Circuit’s
that the
1056(d)
purposes
§of
they
merely
once
longer applies
vision
were
no
"once the benefits
deposited in
registry,
have
court’s
been
properly
released to
designated
”
beneficiary.
States,
court determined that
Hamlin was
Central
Southeast &
proper
beneficiary
Howell,
January
ap-
Southwest Areas
Fund
Pension
v.
227
(6th
proximately
Cir.2000).
three
prior
F.3d
months
See
court’s
also In re
Weinhoeft,
(7th
Cir.2001)
F.3d
First Trust.
("A
words,
pension
although
other
physically
trust is
not
inalienable no
matter how
her
strong
possession,
award,
at
equitable
the сreditor's
the time of the
claim to
money,
and funds
funds had been
not in
"distributed” to
trusts are
because
alienable no
had been a
matter
there
how much the
determination
debtor
assets
prefer
Thus,
would
keep
belonged
Kay.
the value of
creditors’
the district court
held,
hands.
proof
ultimately
imposition
is the
rule
of a
that as
constructive
soon as funds are
plan,
improper
1056(d).
was not
withdrawn from
trust
creditors can
freely.”);
reach them
We
need
definitely
v.
also
Robbins
resolve whether
*9
DeBuono,
(2d
218
Cir.2000)
F.3d
203
First Trust is a "fiduciary”
by
as defined
("Section 1056(d)'s
ERISA,
requirement
1002(21)(A)
§
29
(defining
U.S.C.
a
plans
provision against
contain a
assignment
fiduciary as one who
"discretionary
exercises
or alienation of
does not
authority
benefits
com
discretionary
read
or
respecting
control
fortably
prohibition
as a
management
creditors
of such
any
or exercises
reaching pension
they
once
benefits
authority
have left
respecting management
or control
Rather,
they
dispositive.
not
mat-
therefore
today, as this
them
to address
decline
a
representing
simply considerations
attor-
are
under ERISA’s
easily resolved
is
ter
at 937.
approach.
Id.
is
First Trust
flexible
because
provision,
fee
ney’s
any event.
fees in
attorney’s
not entitled
court’s de
review
We
un
attorney’s
of
fee
an
termination
Attorney’s Fees
A.
of discretion.
1132(g)
§
for an abuse
der
bene-
participant,
by plan
a
action
In an
exists
abuse of discretion
at 939. “An
Id.
court, in its discre-
fiduciary, the
ficiary, or
and
has the definite
the court
when
attorney’s
tion,
a reasonable
“may allow
made
district court
that the
conviction
firm
party.”
either
costs of action
and
judgment
its conclusion
error of
clear
a
added). See
(emphasis
1132(g)(1)
Id.
factors.”
relevant
upon weighing
Prods., Inc., 98
v.
Foltice Guardsman
also
King, 775
Labor v.
Dept.
(quoting Sec.
of
of
Cir.1996).
(6th
This Court
933, 936
F.3d
Cir.1985)).
(6th
666, 669
F.2d
rejected
presumption
a
has
awarded
ordinarily be
should
fees
Trust
1. First
v.
also Gibbs
Id.See
plaintiff.
prevailing
Cir.2000)
(5th
Gibbs,
500-03
210 F.3d
Faith
a. Bad
from other
(same; discussing precedent
that First
court held
The district
circuits).
faith or
engaged
had not
bad
in as
test
a five-factor
utilize
We
It
un
disagree.
is
We
culpable conduct.
properly
the district court
sessing whether
First Trust
filed
disputed that
awarding fees:
its discretion
exercised
party
venue,
join Kay as
failed to
wrong
(1)
party’s
opposing
the
degree of
as a
her existence
it knew of
though
even
(2)
faith;
opposing
or bad
culpability
in a dis
claimant,
got embroiled
and then
award of
satisfy an
party’s ability
claimants, which
the various
with
pute
(3)
fees;
effect
the deterrent
litigation,
it in the
entangled
further
under
persons
on other
an award
agree to
claimants
demanding that
(4)
circumstances;
whether
similar
from as
enjoined
they be
stipulate
to confer
sought
requesting
party
relating
against First Trust
serting claims
and
participants
all
common benefit
court.
with the
deposited
funds
re-
plan or
an ERISA
beneficiaries
in-
followed
properly
Had
regard-
legal questions
significant
solve
proper
sued in
procedures,
terpleader
(5)
ERISA;
merits
the relative
ing
claimants
venue,
all
and impleaded
positions.
parties’
aware,
legally
as was
it was
of which
gotten
have
do,
it would
obligated
at
775 F.2d
King,
(quoting
at 936-37
Id.
litigation.
entangled
statutory and
669).
are not
These factors
added).
omitted;
Plan docu-
emphasis
sets,”
investment
“renders
disposition of as
or
directed,
Trust is
state that
ments
discre
compensation, or "has
advice” for
Plan,
"nondiscretionary” trustee under
responsibil
discretionary
authority or
tionary
fiduciary.
See
the named
is not
and
¶¶
plan”).
ity
such
in the administration
Cf.
(D);
Agreement
10.03(B)
Adoption
Marsh,
119 F.3d
Co. v.
Metropolitan
Ins.
Life
Furthermore,
repeatedly
First Trust
Cir.1997)
1.02.
(6th
(noting
"when
insisted
fiduciary,
has
being a
disclaimed
for an
claims
company administers
insurance
However, as
trustee.
merely a directed
is
it
stated,
plan and has the
employee
benefit
welfare
question be-
claims,
not decide this
we need
the сom
deny the
authority
grant or
attorney's
is not entitled
cause
'fiduciary'
pany is an ERISA
any event.
under ERISA
1002(2 1)(A)(iii)”;
quotation marks
internal
*10
can discern no valid
why
We
reason
First Trust’s decision not to oppose Kay’s
join
not
Kay
First Trust did
as a party motion to intervene is not equivalent to
clearly
it
since
knew that she
was
joining her
a party,
as
as First Trust
designee,
by
as evidenced
its attachment
At,
lamely implies.
minimum,
First
Furthermore,
to the complaint.4
First
culpable
Trust is
pointless
for this
failure
Trust cannot excuse the fact that it pro-
Kay
initially
add
and for repeatedly
it
ceeded as did
on
basis that it mistak-
failing
correct it.
enly believed that under a particular trea-
agree
We also
Kay
with
that the court
sury regulation, Bryant’s marriage
abused
its discretion
not basing its
Bryant
Brenda
invalidated the earlier des-
First Trust’s failure to
file
ignation of his
beneficiary;
first wife as
proper venue. First Trust’s
precisely
that is
contention
the sort of determination
supposed
is
to be made in
fees trans-
the course
forms a
litigation
purportedly
after
parties
are
disinterested
interpled
stake-
Trust,
and First
as
holder into a
disinterested
true
stake-
claimant within the
holder, is out of the case.
meaning of the interpleader statute is un-
reasonable.5 First Trust did not file this
We also
why
cannot fathom
ERISA,
action under
and indeed reрeated-
join
not
did
once Brenda moved for
ly disclaimed that it
a fiduciary
was
under
joined.
her to be
needlessly
was
put
ERISA. For example, when Brenda filed
expense
of having to move to inter-
,
her counterclaim against
Trust,
First
vene.
importantly,
More
First Trust nev-
that it
stated
had not
acted as a
explanation
fiduciary
er offered
why
it failed
when it
join
filed
as a
complaint.
defendant. Full disclo-
Furthermore,
sure
the complaint of her
status
Trust is a sophisticat-
as the
designated beneficiary
entity,
ed
simply
is
not
equiv-
not
with
unfamiliar
the concepts
alent to joining
defendant,
her as a
interpleader,
be-
stakeholder,
disinterested
cause it shifted the
Kay. Likewise,
onus to
and claimant.6 Finally, the
provi-
venue
4.It
has been
claimants,
intimated that First Trust failed
the stakeholder. Id.
join Kay
Therefore,
because of concerns about de
citizenship
Trust’s Colorado
stroying diversity.
complaint
First Trust’s
in
was not relevant.
statute,
voked the interpleader
§
jurisdiction
a source of
independent
5.
points
out that
the Colorado
question
jurisdiction
diversity
federal
or
faith,
findings
district court made no
of bad
jurisdiction. See 4 Moore's
dispositive.
if
should be
It is clear
Federal
Practice,
22.04[2][b],
supra,
Moreover,
§
at 22-56.
that the court did
findings
not make such
diversity required
§
only
under
1335 is
mini
because the merits were moot once it ruled
i.e.,
diversity,
mal
two or more claimants
that venue was improper in Colorado. Ac-
need to be of
citizenship.
diverse
Id. at 22-57
cordingly, the lack of bad
finding by
faith
(citing
Tashire,
State
Fire
Farm
& Cas. Co. v.
the Colorado district court is irrelevant.
386 U.S.
87 S.Ct.
18 L.Ed.2d
(1967)). Here,
diversity
minimal
was
Interpleader
6.
procedural
is "a
device used to
met
Kay's
with or
presence
without
so that
conflicting
money
resolve
proper
claims
or
the court had jurisdiction
ty.”
al.,
4 James Wm.
et
Moore
Moore’s
Brenda was a
Georgia,
citizen of
Lorren
(3d
Federal Practice
at
22.02[1]
22-7
Carolina,
a citizen of North
ed.2002)
Lee was a
[hereinafter Moore’s
Federal
Prac
Kentucky.
citizen
Kay's
Kentucky, citizen
See
also 7 Charles Alan
Wright
tice].
et al.,
ship did not defeat
diversity
the minimal
re
at 533
Federal
Practice
and Procedure
quirement
already
(3d ed.2001)
because there were
more
(viewing interpleader as "a re
than two adverse claimants of
joinder
different citi
device”)
medial
[hereinafter Federal
Also,
zenship.
citizenship
courts look at the
Federal Inter-
Practice
Procedure].
*11
as an “honest mis
cannot
dismissed
clear on
statute is
interpleader
sion of
Foltice,
(stating
argument should be awarded attor- ney’s litigation fees for inevitably that re- Quite simply, Kay prevailed cleanly, — sulted from its obviously own erroneous unequivocally, absolutely. event, any choice forum. it cannot has taken losing position in virtually be contended litigation that the pursued by every significant issue involved in this the sons-even if proven to be in bad faith case, from the venue matter to the valua- (which demonstrate)'— First Trust did not matter, tion Kay to whether should be is appropriate an basis for an award of joined, and advising even to the court on attorney’s against Kay, rather than which claimant superior had rights to the against individually. the sons benefits,8 not to mention the fact that First Trust is aggressively seeking
b.Ability
Pay
to
fees when it knew or should have known
from the outset that the source of reim-
c.Deterrence
bursement for its fees should be from “the
d.Common
Benefit
Trust Fund”
employer.
or the
Apart from
merely filing the interpleader suit for a
These three
weigh
factors also
court
to
the ownership dispute,
resolve
ruling
court’s
requiring Kay to
First Trust cannot be said to have taken
pay First
Trust’s
Kay
positions.
meritorious
demonstrated that she
a
has
net worth of
$500,000.
than
less
possibly
There cannot
Furthermore, we cannot help but note
deterrent effect in awarding a fee
inequity
considerable
of extracting
against Kay,
Kay
since
did nothing wrong.
Kay’s
benefits First Trust’s attor-
merely
Kay
sought
that
ney’s
benefits
were
fees that were
virtually
related to
rightfully hers,
moreover,
properly
entire
proceedings
this
that
case—fees
judicial
employed the
machinery
seeking
jacked
First
up
Trust
with
argu-
numerous
‘
'
Gibbs,
funds. See
ments,
The first and fifth Foltice
interpleader
stat-
Kay,
torney’s fees under
clearly
an award to
for the
favor
account,
they were the
initially
the additional
fends because
which were not
vin’s
but
all,
Trust,
subject
Brenda’s counterclaims.
after
tendered
included.
minimum,
interpleader
Again,
The federal
statute
at a
for all the reasons
ute.10
opinion, equity
in this
does not
discussed
separate provisions per
three
consists of
an
favor
subject
jurisdiction,
taining to
matter
Trust, and the district court
abused
1335; venue,
1397;
§
§
28 U.S.C.
U.S.C.
in holding
discretion
More-
otherwise.
process,
and service of
over,
equitable grounds
such a result on
not contain
statute does
would be inconsistent with our decision
provision.
See 28 U.S.C.
that First Trust
is not entitled to attor-
merely
have
relied on lan
1335. Courts
ney’s
express statutory pro-
under an
guage
provides
cir-
vision that authorizes fees
certain
juris
process
personal
for service of
cumstances.
statutory interpleader,
diction for
effect that
the “district
shall hear
Contingency
C.
Fees
*14
case,
may
and
dis
determine
Kay’s request
As for
to have her
liability,
charge
plaintiff
from further
considered,
contingency
agreement
fee
it is
injunction
and make
permanent,
make the
First,
without merit.
shе did not raise her
judg
its
appropriate
all
orders
enforce
contingency agreement
long
until
after the
ment,”
attorney’s fees.
to award
court limited her fees to those incurred in
added).
§
(emphasis
2361
Federal
Practice
Moreover,
intervening.
attorney’s
her
1719,
§
supra,
at 674.
ocedure,
and Pr
acknowledged
affidavit
that calculation of
4
supra,
Praotice,
Moore’s
Federal
attorney’s
by the
fees is made
lodestar
22.06,
§
Despite
at
the lack of
22-98.11
contingency
method even when
there is
authorization,
statutory
explicit
“modern
agreement.
properly present
Even if she
practice
federal
follows the traditional eq
below,
ed this issue
our
is clear that
law
uity
gives
rule that
the trial court discre
may
fee awards
not be enhanced for the
tion to allow a disinterested stakeholder to
contingency.
risks of
See Drennan v.
attorney’s
246,
recover
fees and costs from the
Corp.,
General Motors
977 F.2d
253
(6th Cir.1992)
stake
at 22-98 to 22-99
4.
(citing City Burlington
itself.” Id.
& n.
v.
of
any provi-
prevailing litigant
did
The district court
not cite
in the United States the
is
interpleader
sup-
sion of the federal
statute in
ordinarily
attorney's
not entitled to collect
fees,
port
authority
attorney's
of
award
under our so-called
"American Rule.”
merely
Specifically,
but
relied on cаse
law.
Alyeska Pipeline Serv. Co. v. Wilderness Soci
Boyd,
cited Prudential Ins. Co. America v.
240, 247,
1612,
ety,
of
421 U.S.
S.Ct.
44
95
1494,
(11th Cir.1986),
781 F.2d
1497
for the
Indeed,
(1975).
L.Ed.2d 141
it is the domain
proposition
that "in an
action
Congress
of
to determine the circumstances
attorneys'
generally
costs and
fees are
award-
attorney's
under which
fees are to be award
plaintiff
ed ...
who initiates the inter-
262,
ed.
Id. at
857 it is assets and beneficiary his 112 S.Ct. U.S. Dague, 505 parties when the fail unsurprising (1992)); Murphy perhaps see also L.Ed.2d dispute In that Co., quickly. to resolve that Ins. Standard v. Reliance Life sense, surprises here. Cir.2001). there are no What (11th 1313, 1315 F.3d majority declines surprises me is that the' on remand Accordingly, dis- long-suffering deference to the give Kay’s initial is to reconsider given the thankless task judge trict court fees, able to sub- she is if dispute over this internecine presiding her solely on hours worked stantiate found only party designates them to' her efforts behalf, limiting without good to have faith district court acted to intervene. litigation frenzy throughout —the saga. L re- the villain bank —as Appeal on D. Fees Costs dissent. spectfully she is entitled Finally, Kay argues appeal. on and costs attorney’s fees to her I. to 29 pursuant An award death, Bryant’s after Mr. Soon made for may also be 1132(g) competing demands on his Trust receivéd appeal. See attorney’s fees incurred Pe- from Brenda Fuston plan assets—first 670; at see also Schwartz 775 F.2d King, (Mr. wife), trey Bryant Bryant’s second *15 (6th 1116, 1119 n. 5 Gregori, 160 F.3d v. (Mr. Bryant Lorren and Lee then from Cir.1998). undertook analysis we The sons). year the next Bryant’s two Over of appropriateness the regarding above half, conflicting a First Trust received applies attorney’s fees awarding equal her County, Ken- Whitley orders from entitled to her attor Kay whether is ly to court how Mr. tucky, about probate re Accordingly, on appeal. on ney’s fees be dis- plan assets should Bryant’s pension to mand, is directed provided An 1995 order August tributed. attorney’s- fees to award reasonable plan assets that one-third in an appeal this amount with connection Bryant to Brenda distributed should be by the district court. determined to be to should be distributed and two-thirds however, III. Conclusion In March two sons. or- court issued a new probate Kentucky reasons, RE- we foregoing For Trust to dis- der, directing First this time to of the award VERSE plus of the assets tribute one-half REVERSE Trust. We also sons, to be divided which was the two Appellant them, and to hold the equally between was extent that she only to the Hamlin half) less than (slightly assets remaining her efforts inter- limited to improperly party, No court order. pending further Finally, the fees we award vene.' instructed, permitted further was the court RE- Appellant and appeal this costs of remaining to the assets have access matter the district court MAND executed Court Order “except by written determination. expeditious JA competent jurisdiction.” by Judge SUTTON, Judge, dissenting. Circuit notified the January First Trust man two different wom- marries
When administrator, Bryant, Elvin plan by the brothеr and is murdered en twice and con- conflicting demands had received wife, unsurprising perhaps it is his second about Mr. flicting state-court -orders proper about the dispute arises when address or assets. the Hamlin' —her'current whether Bryant’s pension plan Unless soon, It itself First Trust she was even alive. is unclear from the dispute resolved it would “have no alter- First Trust even knew Bryant, told Elvin record whether her name, interplead pro- native than to assets maiden as the information jurisdiction proper question beneficiary designation into a court vided form possible expense at an to the account “Kay Bryant.” Lastly, the name expense additional ultimate benefi- Treasury Regulation, that a Trust believed removed). (emphasis ciary.” 1.401(a)-20, JA 259 ir- 26 C.F.R. made Hamlin because, regulation, relevant later, A months few Bryant’s marriage Bryant Mr. to Brenda interpleader complaint filed an First Trust designation invalidated the earlier of his statute, interpleader under the federal Q-25, first wife. See id. at A-25. This in the United States Dis- out to view turned be incorrect because the District of Colorado. trict Court for Bryant Brenda had been married to Mr. the Colorado district complaint asked Bryant year for less than a at the time he court to determine who was entitled died, designa- which meant that the initial First Trust believed that disputed funds. regulation. tion was still valid under the proper was a venue for the action Colorado Id. corpora- because First Trust is a Colorado principal place
tion with its of business In accordance with the stat plan assets were Colorado and because ute, deposited plan all of the held in Colorado. Bryant $305,- assets to Mr. attributable — 459.28—into the Colorado district court’s missing dispute from the
Conspicuously however, registry. deposit represented This first point, was Mr. up to this wife, Bryant’s share of the assets as of (formerly Hamlin Bryant’s first (each plan participant’s June indi Kay Bryant). conspicu- absence was Her *16 plan’s vidual interest in the assets was beneficiary ous because First Trust had a computed annually, once on June 30th July from designation designat- form 1982 Later, year). each First Trust made a Bryant” primary ing “Kay plan as deposit earnings second were not In beneficiary. complaint, JA 65. 30, 1997. calculated until June Bryant acknowledged First Trust Mr. Bryant designated Kay primary had as the filing complaint, In in- First Trust beneficiary copy in 1982 and attached a of curred modest fees and costs-—about beneficiary designation form the 1982 to $2,700. filing complaint, Soon after the complaint. proposed First Trust to the claimants that (1) they stipulate First Trust had several reasons for not to dismiss First Trust (2) case, naming Kay Bryant complaint, none from the that the claimants be (they acknowledge) enjoined asserting of which turns out against now claims particularly deposited to have been sound. None of First Trust related to the funds (3) Kentucky orders issued to First with the court and that First Trust be (or $2,700 See, Kay Trust mentioned Hamlin in attorney awarded its fees. matter) Marsh, Bryant, e.g., for that and Ms. Hamlin Metrop. Ins. Co. v. Life (6th Cir.1997) (ERISA had made no claim to the assets. First F.3d fidu- Bryant ciary complaint interpleader” Trust knew that Mr. had a of divorced “filed Kay Bryant in 1985 and was married to district court fidu- [the and the “dismissed Bryant ciary] deposited proceeds Brenda at the time of his death. ... [it] after ..., interest, regarding plus First Trust had no information with the clerk of the court”). offered, attorney in exchange, ly in fees. The Colorado Bryant’s court never ruled on Brenda mo- having the case transferred stipulate to to Kay Bryant joined tion to have as a defen- Kentucky, of where the Eastern District to transfer, A belonged in the dant. few months after the felt the suit the claimants sons, however, Bryant howev- Hamlin filed a motion to The two place. first defendant,, intervene -as a er, proposal called the entire “blackmail” oppose it. JA 133. Trust did and which Ken- accept refused to and tucky granted. distriсt court went downhill from quickly Matters trying to from the incurred additional ex- extricate itself there. First Trust no dispute, to the sons’ motion First Trust fared better responding two penses outright, Kentucky Among action than had Colorado. dismiss Bryant’s things, document other First Trust was forced to to Brenda responding participate scheduling discovery con- and scheduling in a requests, participating order, conferences, produce two First Trust preparing scheduling a ference and deposition, respond a for the court to order witnesses for filing and motion n dismissal, discovery, injunction attorney, litigate fees written the issue voluntarily to whether it should be dismissed from -the the claimants refused worse, ultimately litigate case and over attor- Making matters Brenda accept. ney develop- As a a counterclaim result these Bryant filed ments, majority fiduciary duties vast of the fees and alleging breach ERISA, litiga- cross-claims costs incurred state-law were the case relating Bryant’s tion incurred after against the two sons Kentucky transferred to and after third-party complaint against estate and Sons, had intervened. . Bryant Bryant & Hamlin Elvin W.D. administrators, Inc., for breach plan as January the same As late as Bryant Brenda also filed fiduciary duties. ultimately month that the district court joined Kay Bryant to have a mоtion Kay Hamlin concluded was entitled that all claims could defendant to ensure assets, the two sons plan Hamlin and’ proceeding, in one' finally resolved Sons, Inc., Bryant & (along with W.D. oppose. that First Trust did not motion administrators) Bryant, Elvin Colorado, all was said and done Before arguing a brief that First Trust filed *17 incurred at least First Trust had the case dismissed from should in and costs. fees (1) parties “the have [should] because: to file additional claims opportunity full In the Colorado district November (2) desire”; they if against [First Trust] court determined that venue was indeed to ask of the defendants intend in the inter- “certain improper Colorado. Under attorney- an fees statute, action the Court for interpleader pleader Trust, and because judicial against in in arid costs First brought the must “be accrue, expenses continue or more of the claimants re- costs which one the way. knowing no what they First have side.” 28 U.S.C. 1397. Since (3) be”; “First Trust total amount will not a claimant and since none of Trust was Colorado, witnesses employees important in and its are claimants resided the the 791. As for First in this case.” JA court transferred the case to the Eastern fees, ar- attorney the same brief Kentucky. court also de- Trust’s District of to no that First Trust was entitled gued to be nied as moot First Trust’s Trust filed the attorney fees because First rough- the case and for its dismissed from Products, improper Inc., in an venue and action failed tice v. Guardsman 98 F.3d (6th Cir.1996). Kay name Hamlin as a defendant. The 936-37 Consistent poorly complaint, argued, considerations, drafted the brief with -these the court made to incur additional at- the following findings: “forc[ed] [Hamlin] having in torney fees intervene the First, the [First bank has not Trust] case once was transferred here.” JA engaged culpable conduct or other constituting acts bad faith. While this action initially filed in an improper January deciding After 1999 that venue, there is no evidence that Hamlin to all of was entitled bank was motivated to file this suit in assets, plan sought the district court Colorado improper considerations or end, bring dispute to a close. To that filing constituted deliberate April the district court issued proof misconduct. Had there been four in the case. The orders first order conduct, such the District Court in Colo- First Trust’s motion for addressed dis- rado findings could have made such or missal, injunction prohibiting for an dismissed the suit. The court made no parties bringing any claims findings such and instead transferred relating to the pension plan Likewise, the case to this court. attorney assets and for fees. The court offer stipulate bank’s to a different injunction granted the and First Trust’s in exchange venue for its dismissal from fees, attorney motion for but deferred dis- called, the suit cannot be as the defen- attorney missal until the fees had been contend, dants “extortion” or serve -as granting calculated. In First Trust’s mo- evidence of bad faith.... Additionally, award, tion for a fee the court determined early bank’s recommendations con- action, bringing “[i]n cerning the proper recipient of pen- protected [First Trust] interests mistaken, sion funds were but there is beneficiary parties fund’s and aided the no they evidence that were made bad resolving ongoing dispute their over the faith.... original The bank’s choice of decedent’s estate.” JA 947. Accordingly, perhaps venue and inartfully pled com- attorney the court awarded plaint do not appear to be deliberate prevailing party Trust as the in an inter- acts, let alone misconduct. pleader action and briefing by the ordered parties proper on the amount of the award. JA 950-51. (1) April The third of the 23rd orders
The second order denied the two sons’ instructed the clerk to pen- disburse the require pay motion to their Hamlin, sion funds to less First attorney so, doing (2) fees, attorney Trust’s determined applied this Court’s five-factor test attorney Hamlin’s fees should be attorney the award of in an paid by First Trust. The court action, explained ERISA which instructs district *18 its decision to (1) grant Kay Hamlin attorney courts to consider: the opposing par- follows, fees as (2) again applying faith; the five ty’s culpability or bad oppos- the Foltice factors: (3) ing party’s ability pay; to the deterrent (4) award; effect of an whether the party The court will grant Hamlin’s attor- requesting sought fees, the fees to ney’s confer a only but those that fees re- common significant benefit or resolve legal flect expenses her in this action.... (5) ERISA; issues regarding First, the rela- it why is unclear First Trust Cor- tive parties’ positions. merits of the poration Fol- would not include the individual newly ground in Trust on the raised beneficiary designated as the listed anti-alienation that was intended that violated ERISA’s interpleader suit the pension provision, prohibits provid- assets “benefits resolve claims to had not plan!’ being Hamlin ed under [an ERISA] this case. While assets, designa- her “assigned a claim to the or alienated.” stated 1056(d)(1). beneficiary 29, 1999, have alerted September as should the tion On Corporation to the need First Trust motion for granted the reconsidera- sought tion, her in suit include reversing its earlier award of attor- legal to their pension later, assets ney fees to First Trust. Two-weeks Second, the bank has not claimant. however, requested First Trust tо pay that it cannot afford such claimed again, court reverse course which the court Third, may help an award fees. such 18, 2000, May in a did order. “ERISA’s court, are designated beneficiaries ensure provisions,” anti-alienation held suits, making such included future order, in that “do not come effect into litigate likely and more simpler to suits are after funds removed from the the interests of such benefi- protect fiduciary responsibility manag- of the plan The last two factors of Fottice ciaries. er.” JA Since First Trust’s attor- party. weigh against for or either do ney paid already fees from funds would be Thus, weigh of the factors as the balance from the and deposited distributed fees, attorney’s in- favor of an award of court, with the the “fee award will not grant court will such fees. The generate a right enforceable however, fees, are awarded ERISA-governed pension plan, rendering those accumulated limited provisions moot.” ERISA’s anti-alienation movant’s efforts to intervene determined, Moreover, JA 1096. the court actions of First Trust after case. The though even First Trust filed the com- joined an Kay Hamlin was as interven- statute, plaint under the an award ing defendant do not warrant action practiced” case “was ERISA fees. ERISA, 502 of JA 963-64. awards.” a statute that “authorizes fee JA 1098. The court reinstated First Trust’s granted
The fourth order fee award. Bryant’s on Brenda summary judgment required Bryant Brenda counterclaims and through July From attorney pay First Trust’s those objections filed affidavits and parties claims. concerning the amount and reasonableness the. July parties agreed to an
On $300,000 releasing over order final July 3, the court issued a On registry the court’s the amount ten-page determining order remaining Hamlin. The court retained the. of First Trust’s fees. and reasonableness $56,133.19 attorney amount of —the “the amount of time The court held that issue claimed First Trust —until by First Trust’s spent litigation” on this finally could be decided. complexity attorneys, “given so, and that length,” was “reasonable” year predictably For the next or attorneys Trust’s charged by rates court entertained a series of enough, the 1221.. The court JA and clarifica- were reasonable. motions for reconsideration *19 analysis periods. two time divided its into Kay Hamlin moved the court tion. April to work before attorney to The first related reconsider the award of fees registry that out of Hamlin’s funds in the court pen- the court ruled when $53,555.29. be distributed to came to plan assets should sion the court period, Hamlin. For two reductions from First Trust’s made II. It in- for fees: disallowed fees request in by “seeking First Trust to recov- unflattering saga, curred In the face of this I attorneys’ period fees” for this of disagree majority’s er its conclusion with time, 1224, and ordered that Brenda JA the district court abused broad by Bryant pay all fees incurred First Trust discretion to award to First Trust. fees against clear, defending in her counterclaim As the facts make First Trust tried pre-May for The final total fees incur- bank. to extricate itself from the case after $43,070.66. $2,700 period came to ring only attorney in fees—and con- try tinued to to extricate itself from the onward, From First Trust years. case for the next several The other $12,429.63 in claimed an additional Hamlin, parties, including Kay would not fees, acknowledged that these The court years of it. into hear Several the inter- sense, all some related First Trust’s action, pleader argu- Hamlin filed a brief they But pursuit of its own fees. were Trust, ing that First the disinterested reasonable, held, nevertheless the court stakeholder, should not be dismissed be- because First Trust incurred them re- parties op- cause “the have a full [should] motion for sponse to Hamlin’s reconsidera- portunity to additional against file claims tion, ultimately proved unsuccessful. it,” because the “defendants intend to ask did, however, The court reallocate some of attorney ... for an award of Bryant, reducing these fees to Brenda it, “employ- costs” and because its First Trust’s fee award important ees are witnesses case.” th[e] registry court’s for this plan assets party JA 791. A who chooses to take a $11,484.63. period to Added to the amount litigation stance of this sort must take 'the total pre-May for fees came to fees) (the (escalating bitter with the sweet $54,555.29. potential recovery). for an additional court, lastly, reduced this total fee by attorney amount of at Nor rate did the district court let Hamlin. Hamlin penal- Trust owed claimed First Trust off scot-free. The court $6,368.74 the cost of her to inter- having having ized First Trust for filed the action vene in the This pro- wrong having lawsuit. included venue and for failed to posed upward adjustment. Al- include Hamlin Ham- 100% as defendant. though challenged requested First Trust the amount lin expenses received fees, case, responded having of these Hamlin never intervene which were objections, except First Trust’s to reiterate subtracted from First Trust’s award. $6,368.74. (Hamlin, case, moreover, her it Most of the fees in this adding, responded objec- bears other were incurred the case was trans- after during Kentucky tions raised the fee ferred to Hamlin and after be- dispute.) The district court concluded that I party. Although might came have $6,368.74 right Hamlin waived her reduced First Trust’s fees even further make, my say in fees but nevertheless awarded her it been call I had cannot court, for the costs of intervention. ring- Sub- which had a tracting that amount from proceedings, First Trust’s side view of the abused its award, paid the total to be discretion.
863 Hamlin’s at- treatment of majority’s The VASHA, Petitioner, Fatos similarly ignores our deferen-
torney’s fees by doing little more . of review tial standard v arguments that addressing various than GONZALES, Attorney Alberto considered specifically court General, Respondent. v. Mich. rejected below. See Jordan Fund, No. 03-3592. Teamsters Welfare Conf. of Cir.2000) (“A (6th F.3d Appeals, Court of United States making has substantial discretion Circuit. Sixth cases.”). awards ERISA attorney fee majority provided ex- Neither has the Argued: Oct. 2004. court was not why the district
planation Decided and Filed: June that Hamlin had to conclude correct than right to more waived her lastly, criticizes the dis- majority,
The an award to First approving
trict court for (e.g., from the estate that comes Hamlin) than from the rather that, Kay Hamlin’s again, But
plan.
fault, She did not the district court’s. and she makes argument below
make single para- in a appeal argument any legal citation to authori-
graph without has been waived below
ty. argument here, see, Kelsey-Hayes v. e.g., Golden (6th Cir.1996),
Co., 73 F.3d appro- particularly that seems
conclusion ample opportunities
priate given argument raise this Hamlin had to
Ms. attorney she filed over many briefs (and in this disputes) other satellite
case. court’s award
I affirm the district would Hamlin and the attorney fees to both
bank.