Old Blast, Inc. v. Operating Engineers Local 324 Pension Fund , 677 F. App'x 223 ( 2017 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0061n.06
No. 16-1260
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Jan 24, 2017
DEBORAH S. HUNT, Clerk
OLD BLAST, INC., et al.,
Plaintiffs-Appellants,
v.
OPERATING ENGINEERS LOCAL 324 PENSION
FUND,
Defendant-Appellee.
ORDER
Before: CLAY, KETHLEDGE, and DONALD, Circuit Judges.
Old Blast, Inc. and Joyce Denonville sued the Operating Engineers Local 324 Pension
Fund, arguing that ERISA’s imposition upon Old Blast of withdrawal liability to the Fund was
unconstitutional. The district court granted the Fund’s motion to dismiss. We affirmed on
procedural grounds, holding that Denonville lacked standing and Old Blast’s claims were barred
by res judicata. In a concurring opinion, Judge Clay explained that Old Blast and Denonville’s
substantive arguments also failed on the merits, noting specifically that “Old Blast’s facial
constitutional challenge was meritless, and arguably frivolous.” Old Blast, Inc. v. Operating
Eng’rs Local 324 Pension Fund, No. 16-1260, 2016 WL 6407244, at *4 (6th Cir. Oct. 31, 2016).
The Fund then filed a motion for attorney’s fees in the amount of $8,190, and the plaintiffs filed
a response. We now grant the Fund’s motion under Federal Rule of Appellate Procedure 38.
No. 16-1260, Old Blast, Inc., et al. v. Operating Eng’rs Local 324 Pension Fund
Rule 38 “affords us discretion to assess just damages when confronted with a frivolous
appeal.” Miller v. Toyota Motor Corp., 554 F.3d 653, 654 (6th Cir. 2009) (internal quotation
marks and citation omitted). We can issue sanctions under Rule 38 if we determine that an
appeal was frivolous. Hogan v. Jacobson, 823 F.3d 872, 886 (6th Cir. 2016). An appeal is
frivolous if it had “no reasonable expectation of altering the district court’s judgment.” Wilton
Corp. v. Ashland Castings Corp., 188 F.3d 670, 676 (6th Cir. 1999).
Here, the plaintiffs had no prospect whatsoever of altering the district court’s judgment
based on the arguments they presented to this Court. Specifically, the plaintiffs offered no
response to the Fund’s arguments that Denonville lacked standing as a shareholder and that Old
Blast’s claims were barred by res judicata. Both of those arguments were plainly correct, and
both were adopted by this Court. Moreover, as Judge Clay thoroughly explained in his
concurrence, the plaintiffs’ substantive arguments were meritless. See Old Blast, 2016 WL
6407244, at *3-4. The plaintiffs’ counsel simply should have known better than to pursue an
appeal on the grounds presented here.
The appeal in this case was frivolous. We therefore grant the Fund’s motion for
attorney’s fees in the amount of $8,190, which shall be paid by the plaintiffs’ appellate counsel
rather than by the plaintiffs themselves.
ENTERED BY ORDER OF THE COURT
__________________________________
Deborah S. Hunt, Clerk
-2-