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CENTRAL STATES

January 27, 1998

CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, and HOWARD McDOUGALL, trustee, and CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS HEALTH AND WELFARE FUND, and HOWARD McDOUGALL, trustee, Plaintiffs,
v.
CENTRAL CARTAGE CO., a Michigan Corporations, Defendant.



The opinion of the court was delivered by: BUCKLO

 The plaintiffs, Central States, Southeast and Southwest Areas Pension and Health and Welfare Funds and their trustee, Howard McDougall, ("Fund"), brought suit against Central Transport, Inc. *fn1" and Central Cartage Co. ("Cartage"), seeking to collect delinquent contributions to employee benefit plans. I granted summary judgment for the Fund. *fn2" The parties now dispute the additional amounts that should be awarded the Fund in the final judgment. The Fund also moves to substitute defendants. For the following reasons, the Fund is awarded a total judgment of $ 1,837,656.77, and the motion to substitute defendants is denied.

 Additional Amounts

 The Fund requests $ 892,111.05 in interest, additional interest, audit costs, attorney's fees, and costs, in addition to the $ 947,332 in contributions awarded on the summary judgment motion. *fn3" (Pl.'s Statement of Add. Amounts at 2). All of these expenses are recoverable under 29 U.S.C. § 1132(g)(2). Cartage objects to certain amounts the Fund has included in its calculation of additional amounts. Each objection will be considered in turn.

 A. Jurisdiction to Award Fees

 Cartage first argues this court lacks jurisdiction to award the Fund attorney's fees incurred during an interlocutory appeal taken in this case. *fn4" The Fund contends it is entitled to attorney's fees for the appeal and further, this is the first opportunity it has had to request them. Under ERISA, attorney's fees may only be awarded once "a judgment in favor of the plan is awarded." 29 U.S.C. § 1132(g)(2). The interlocutory appeal in this case was taken before the Fund had established a right to benefits. At least one court has considered whether a plaintiff may recover attorney's fees incurred on an appeal taken before the establishment of a right to benefits. Flanagan v. Inland Empire Elec. Workers Pension Plan & Trust, 3 F.3d 1246, 1253-53 (9th Cir. 1993). In Flanagan, the court overturned a grant of summary judgment to the defendant and then considered whether the plaintiffs were entitled to recover attorney's fees for the appeal. 3 F.3d at 1252. The court recognized that an award of attorney's fees is only proper under ERISA once the plaintiff has established an ERISA violation. Id. at 1253. Since the plaintiffs had yet to prove the defendants had violated ERISA, the court found an award of attorney's fees premature. Id. at 1254. The court specifically noted that "the district court may award the plaintiffs fees (including fees for the appeal) at a later date if the plaintiffs establish that the defendants have violated ERISA." Id.; see also Rodriguez v. Handy, 873 F.2d 814, 817-18 (5th Cir. 1989)(finding the district court may award attorney's fees for appeal dismissed due to lack of jurisdiction if plaintiffs later prevail on the merits).

 The Fund's request for attorney's fees at the time of the interlocutory appeal in this case would have been premature because the Fund had yet to prevail on the merits in the district court. I find the Flanagan court's reasoning persuasive and conclude that I do have jurisdiction to award attorney's fees for the interlocutory appeal. *fn5"

 Cartage also argues that attorney's fees should not be awarded in this case because its interlocutory appeal was "substantially justified." Regardless of whether the interlocutory appeal was or was not justified, 29 U.S.C. § 1132(g)(2) states "the court shall award...reasonable attorney's fees." *fn6" Even if the award of attorney's fees was not mandatory, it is clear the Fund attorney's fees incurred during the interlocutory appeal are a proper expense.

 B. Printing Costs

 Cartage next argues that the Fund's printing of its Supreme Court brief for the appeal from the Seventh Circuit is a nontaxable item under 28 U.S.C. § 1920 and Supreme Court Rule 43 and thus, may not be recovered. The Fund argues that 28 U.S.C. § 1132(g)(2) permits the award of costs that are not otherwise taxable. However, the Supreme Court has decided the expense of printing a brief is not taxable. Supreme Court Rule 43.3. Thus, costs for printing briefs are not taxable under 28 U.S.C. § 1920 and may not be recovered by the Fund. Haroco, Inc. v. American Nat'l Bank & Trust Co. of Chicago, 38 F.3d 1429, 1440 (7th Cir. 1994)(finding, in a case dealing with civil RICO and consumer fraud, that the costs for printing briefs in the Supreme Court are not taxable and not recoverable).

 C. Duplicitous Work

 Cartage next argues that the Fund's attorney's fees should be denied because the Fund could have amended its complaint in a previous case to include the claims presented in the instant case. *fn7" Cartage believes the attorney's fees in this case are duplicitous. The Fund points out, however, that it could not have amended its previous complaint because discovery had closed in that case four months before this litigation commenced. Additionally, this case involved a different time period than the previous case and, while some issues did overlap, the issue of appellate jurisdiction was unique in this case and the facts that led to waiver of Cartage's ADR defense were different in each case.

 Other than a general argument that this case could have been avoided and thus fees should not be awarded, Cartage presents no evidence that any of the Fund's fees are duplicitous. This case was not avoided, the Fund did prevail, ...


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