Moriarty Ex Rel. Local Union No. 727, I.B.T. Pension Trust v. Svec , 429 F.3d 710 ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-1699 and 03-1743
THOMAS J. MORIARTY, Trustee on Behalf of the Local Union
No. 727, I.B.T. Pension Trust, and the Teamsters Local
Union No. 727 Health and Welfare Trust,
Plaintiff-Appellee,
Cross-Appellant,
v.
JAMES F. SVEC, individually and doing business as
SVEC & SONS FUNERAL HOME and doing business as WEST
SUBURBAN LIVERY,
Defendant-Appellant,
Cross-Appellee.
____________
Appeals From the United States District Court
for the Northern District of Illinois, Eastern Division
Case No. 96-C-7392—George W. Lindberg, Judge.
____________
ARGUED SEPTEMBER 28, 2005—DECIDED NOVEMBER 21, 2005
____________
Before FLAUM, Chief Judge, and MANION and EVANS,
Circuit Judges
FLAUM, Chief Judge. In this successive appeal, James F.
Svec (“Svec”), the owner of Svec & Sons Funeral Home
2 Nos. 03-1699 and 03-1743
(“Home”) and West Suburban Livery (“WSL”), two sole-
proprietorships, appeals the district court’s determination
that Svec was an employee during the relevant time period
and was therefore required under a collective bargaining
agreement to make contributions on his behalf to a pension
fund and a health and welfare fund (“Funds”), both of which
have plaintiff Thomas J. Moriarty on their respective
boards of trustees. Both Svec and Moriarty appeal the
amount of attorneys’ fees and costs awarded to Moriarty;
Svec appeals the district court’s determination that he must
pay interest, double interest, and audit costs to Moriarty;
Svec appeals the district court’s decision not to sanction
Moriarty under 28 U.S.C. § 1927; and Svec appeals the
district court’s determination that it had jurisdiction over
plaintiff’s claims against WSL. For the reasons stated
herein, we affirm in part and vacate and remand in part.
I. Background
This Court has addressed the dispute between Svec and
Moriarty on two prior occasions. See Moriarty v. Svec, 164
F.3d 323 (7th Cir. 1998) (“Moriarty I”); see also Moriarty v.
Svec, 233 F.3d 955 (7th Cir. 2001) (“Moriarty II”). After
nearly ten years of protracted litigation, this case appears
to have reached its conclusion. While there are issues
remaining that affect the parties, the primary subject of
this appeal is the attorneys’ fees awarded by the district
court. The facts of the original dispute are detailed in this
Court’s prior decisions; the facts contained herein are
limited to those necessary to discuss the issues pending
before this Court.
Until his death on June 29, 1987, James Svec’s father,
Elmer Svec, was the sole owner of Svec & Sons Funeral
Home and the half-owner of West Suburban Livery. As part
of the Funeral Directors Services Association of Greater
Chicago (“FDSA”), Home was bound by a collective bargain-
Nos. 03-1699 and 03-1743 3
ing agreement (“CBA”) to make contributions on behalf of
its employees, including funeral directors, to a pension fund
and a health and welfare fund.
In Moriarty II, this panel remanded two issues to the
district court. The first issue the district court was in-
structed to consider was what percentage of ownership Svec
had in Home and WSL for the time period at issue, January
1, 1987 to June 29, 1987. Both parties admit that using the
formula mandated by the Seventh Circuit, see Moriarty II,
233 F.3d at 963 (citing Goodman Investment Co., 292
N.L.R.B. 340, 347-48 (1989)), Svec owned 3.82% of the
integrated enterprise, Home and WSL, during the relevant
time period.
The second issue this Court remanded for determination
was “what percentage of ownership is necessary before Svec
is considered a principal owner under the CBA[?]” Id.The amount in dispute for the period from January 1,
1987 through June 29, 1987, consists of $1,451 allegedly
owed by Home to the Health and Welfare Fund and $1,038
allegedly owed by Home to the Pension Fund. After nearly
ten years of exhaustive litigation, the potential attorneys’
fees and costs in this case dwarf these claims.
On July 23, 2002, on remand from Moriarty II, the district
court granted Moriarty’s motion for summary judgment on
the remaining ownership issues. The district court found
that Svec owned 3.82% of the integrated enterprise from
January 1, 1987 to June 29, 1987.
Although Svec had repeatedly advocated for a 10%
ownership rule, under which any person owning less than
10% of a business would be considered an employee, Svec
introduced a new position regarding the requirements for
“substantial” or “significant” ownership. Svec proposed a
new rule under which he, as the son of the owner, would
have been considered a “substantial” or “significant” owner
on the basis of his father’s ownership. The district court
4 Nos. 03-1699 and 03-1743
rejected this new formulation and found that, “Defendant
has presented no evidence showing that [the 10% rule] was
in any way inconsistent with the collective bargaining unit
or that it is unreasonable. . . . Accordingly, no reasonable
jury could find against the plaintiff on the issue of whether
3.82% ownership was sufficient for defendant to be a
significant or substantial owner.”
Svec also brought a motion for attorneys’ fees under 28
U.S.C. § 1927. That statute provides that “[a]ny attorney . .
. who so multiplies the proceedings in any case unreason-
ably and vexatiously may be required by the court to satisfy
personally the excess costs, expenses, and attorneys’ fees
reasonably incurred because of such conduct.” 28 U.S.C.
§ 1927.
Svec’s claim for attorneys’ fees was based upon an
allegation that Moriarty knew Svec owned the funeral home
after his father’s death on June 29, 1987, and unreasonably
pursued claims for contributions for that time period
anyway. The district court found that although plaintiff’s
counsel had acted unreasonably by failing to look in the
court file of Elmer Svec’s estate to determine ownership,
such conduct was not “vexatious.” The district court there-
fore denied Svec’s motion for attorneys’ fees under 28 U.S.C.
§ 1927.
On October 8, 2002, the district court issued two of the
seven orders that make up its findings on remand. Moriarty
requested a recovery of $277,644.06 from Svec. Of this,
$191,779.28 were attorneys’ fees. The district court found
that these attorneys’ fees covered too long a time period.
Citing this Court’s ruling in Moriarty II, the district court
found that because the defendant had made a substantial
offer to settle on December 30, 1997, for $43,000, Svec was
not liable for attorneys’ fees Moriarty incurred after that
date. Memorandum and Order of October 8, 2002, at 3
(quoting Moriarty II, 233 F.3d at 967 (“an offer is substan-
Nos. 03-1699 and 03-1743 5
tial if, as in this case, the offered amount appears to be
roughly equal to or more than the total damages recovered
by the prevailing party”). In addition, the district court
found that an offer made by Svec to settle for $43,424.26 on
November 17, 1997, was also a substantial offer.1 Memoran-
dum and Order of October 8, 2002, at 5. As a result, the
district court found that it must consider the November
offer a “substantial offer of settlement” in determining
attorneys’ fees. Id. The district court concluded that any
attorneys’ fees accrued after November 14, 1997, “would be
zero percent of the load star [sic] amount for that period,
and that is what the court will award.” Id. at 6.
Based upon this determination, the district court an-
nounced its intention to award Moriarty “reasonable . . .
costs of the action” under 29 U.S.C. § 1132(g)(2)(D) for costs
and attorneys’ fees prior to November 14, 1997. Memoran-
dum and Order of October, 8, 2002, at 6. The court also
found that costs for “post-audit issues” were properly
included in the plaintiff’s costs. Interest and double interest
were added to the judgment. See 29 U.S.C. § 1132(g)(2)(B),
(C). The district court asked Moriarty to submit an
amended final draft judgment in accordance with these
findings.
On November 19, 2002, the district court issued an
additional order. This order appears to grant Moriarty
attorneys’ fees at the rate of $225.00 per hour rather than
$165.00 per hour. The order states that the issue of attor-
neys’ fees was previously decided and further argument was
1
This “offer” was actually an attempted acceptance. Svec was
attempting to accept an offer previously made by Moriarty, which
Moriarty was no longer holding open. Svec indicated a willingness
to accept Moriarty’s previous offer by phone on November 14,
1997, and by letter on November 17, 1997. The two dates are used
interchangeably by the district court.
6 Nos. 03-1699 and 03-1743
“barred by the law of the case.” Order of November 19,
2002.
On December 4, 2002, the district court issued a judgment
in favor of the plaintiff in the amount of $99,880.87. This
judgment consisted of:
(A) $20,191.50 in delinquent contributions—
(i) $1,351.00 - owed by the Funeral Home to the
Health and Welfare Fund for the period January 1,
1987 through June 30, 1987;
(ii) $1,038.00 - owed by the Funeral Home to the
Pension Fund for the period January 1, 1987
through June 30, 1987;
(iii) $11,444.00 - owed by WSL to the Health and
Welfare Fund for the period October 1, 1993
through December 31, 1995;
(iv) $6,358.50 - owed by WSL to the Pension Fund
for the period [ ] October 1, 1993 through December
31, 1995.
(B) $25,814.05 in interest through October 22, 2002 on
the delinquent contributions at the rate set forth in the
Funds’ trust agreements;
(C) $25,814.05 in double interest, as allowed pursuant
to 29 U.S.C. § 1132(g)(2)(C)(ii);
(D) $10,557.02 in audit costs;
(E) $281.00 in costs for prosecuting this suit; and
(F) $17,223.25 in attorneys [sic] fees.
Nos. 03-1699 and 03-1743 7
Order of December 4, 2002, at 2.2
Moriarty submitted a motion to reconsider the amount of
attorneys’ fees and costs under Federal Rule of Civil
Procedure 59(e). Upon reconsideration, the district court
again found that both the November 14, 1997, and the
December 30, 1997, offers were substantial. Despite this
finding, the district court chose to amend its prior order.
The new district court order found:
[T]here were two substantial offers of settlement made
in late 1997. The court believes that it was somewhat
inconsistent, though, in holding that the Seventh
Circuit’s determination that the 12/30/1997 offer was
substantial foreclosed plaintiff’s argument that there
was no substantial offer of settlement, but then using
the 11/14/1997 date to cut off attorneys fees and costs.
The court is, therefore, amending its prior orders to
allow attorneys fees and costs plaintiff incurred prior to
12/30/1997.
Order of February 12, 2003.
The district court entered its last order in this case on
February 19, 2003. It adjusted the award of attorneys’ fees
in the December 4, 2002 order to reflect the change in cut-
off from November 14, 1997, to December 30, 1997. As such,
the attorneys’ fees owed by Svec to Moriarty were increased
$23,821.88 (from $17,223.25 to $41,045.13). This alteration
made the final judgment against Svec $123,702.75.
Amended Judgment Order of February 19, 2003.
Svec now appeals the judgment of the district court and
Moriarty cross-appeals.
2
The awards by the district court that are at issue in this appeal
are contained in (A)(i), (A)(ii), (B), (C), (D), (E), and (F). The values
of the delinquent contributions in (A)(iii) and (A)(iv) are not
disputed by either Moriarty or Svec.
8 Nos. 03-1699 and 03-1743
II. Discussion
A. Liability for Contributions to the Funds
This Court reviews a district court’s decision to grant
summary judgment de novo. See Dugan v. Smerwick
Sewerage Co., 142 F.3d 398 (7th Cir. 1998). Summary
judgment is appropriate where no genuine issue of material
fact exists and the moving party is entitled to judgment as
a matter of law. Id. In reviewing summary judgment
motions, this Court construes the record in the light most
favorable to the non-moving party. Id.Contributions to the Funds were required for all employ-
ees of Home/WSL. Principal owners, however, were exempt
from the contribution requirements. In its Moriarty II
opinion, this Court instructed the district court to deter-
mine “what percentage of ownership is necessary before
Svec is considered a principal owner under the CBA. Svec
claims that ten percent ownership is sufficient, but Mori-
arty has an opportunity on remand to show that this figure
is incorrect.” Moriarty v. Svec II, 233 F.3d 955, 963 (7th Cir.
2000).
The remand order specifically gave Moriarty, but not
Svec, leave to show that the ten percent figure was incor-
rect. The district court adopted ten percent as the standard
for “substantial/significant” ownership, as Svec had re-
quested at every stage of these proceedings. Svec may not
now reverse course and adopt a position contrary to his
posture throughout the course of litigation. The district
court properly declined to consider this new argument by
Svec given the clear directive of Moriarty II.3 Because Svec
was an employee, not a principal owner, during the period
3
The district court also evaluated the merits of Svec’s claim that
3.82% ownership could qualify as “significant/substantial” under
the CBA. We need not revisit this evaluation.
Nos. 03-1699 and 03-1743 9
in dispute, we affirm the district court’s holding awarding
$1,351.00 in delinquent contributions to the Health and
Welfare Fund for the period January 1, 1987 to June 29,
1987, and $1,038.00 in delinquent contributions owed to the
Pension Fund for the period January 1, 1987 to June 29,
1987.
B. Attorneys’ Fees
The district court awarded $41,045.13 in attorneys’ fees
to Moriarty based upon ERISA’s mandatory fee provision.
29 U.S.C. § 1132(g)(2)(D) (“In any action under this
subchapter . . . in which a judgment in favor of the plan is
awarded, the court shall award the plan—reasonable
attorney’s fees and costs of the action, to be paid by the
defendant[.]”) (emphasis added). District courts have wide
discretion to determine what constitutes reasonable attor-
neys’ fees. We review these awards for abuse of discretion.
Moriarty v. Svec II, 233 F.3d 955, 963 (7th Cir. 2001) (citing
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)). “However,
when fees are adjusted because of a principle of law our
review is de novo.” Id. (citing Jaffee v. Redmond, 142 F.3d
409, 412-13 (7th Cir. 1998)).
The seven orders of the district court do not provide a
clear picture of why the total amount of attorneys’ fees
awarded is appropriate. Because several questions remain
regarding the proper hourly rate and the time period
covered by the attorneys’ fees, we have no choice but to
vacate the award and remand this issue to the district
court.
In Moriarty II, this Court outlined the factors to be
considered in determining a reasonable amount of attor-
neys’ fees. 233 F.3d at 965-68. Although many issues that
contribute to attorneys’ fees are left to its sound discretion,
the district court must demonstrate that it has considered
the proportionality of attorneys’ fees to the total damage
10 Nos. 03-1699 and 03-1743
award, as well as the existence of substantial settlement
offers. Id. at 968. In addition, the district court must
provide an explanation of the hourly rate used, which is
sufficient for this court to determine whether the district
court has acted within its discretion. Id. at 965.
1. Proportionality
The district court did not address the proportionality of
attorneys’ fees. Given the extended litigation in this case,
attorneys’ fees may be disproportionate to the damages
awarded. This Court previously offered an analysis of the
importance of proportionality in an award of attorneys’ fees.
See Moriarty II, 233 F.3d at 967-68. Furthermore, this
Court specifically instructed the district court to analyze
proportionality in this case. As this Court stated in Mori-
arty II:
[P]roportionality concerns are a factor in determining
what a reasonable attorney’s fee is. . . . [T]he district
court’s fee order should evidence increased reflection
before awarding attorney’s fees that are large multiples
of the damages recovered or multiples of the damages
claimed. . . . [W]e remand for such evaluation. On
remand . . . the district court should consider . . .
proportionality factors in exercising its discretion in
fashioning a reasonable attorney’s fee.
Id. at 968.
This Court takes no position as to whether the attorneys’
fees were proportional to the amount of the award. We must
require, however, that the district court analyze this issue.
Because there has been no discussion of proportionality, we
must again remand this issue to the district court.
Nos. 03-1699 and 03-1743 11
2. Hourly Rate
The district court’s rulings regarding the proper hourly
rate for Moriarty’s counsel are internally inconsistent. On
remand, the district court’s only discussion of the proper
rate for attorneys’ fees consists of the following two sen-
tences: “Defendant contends that plaintiff inappropriately
requests attorney’s fees at the rate of $225.00 per hour
rather than $165.00 per hour. This argument is barred by
the law of the case.” Order of November 19, 2002.
Although the meaning of this statement is somewhat
vague, it appears “this” refers to the subject of the previous
sentence, i.e., the defendant’s contention. Therefore, a plain
reading of the district court’s order is that the law of the
case bars Svec from arguing that Moriarty cannot request
a $225.00 hourly rate, thereby sanctioning a rate of $225.00
per hour for Moriarty’s counsel.
Although the district court appeared to indicate that the
law of the case mandated an hourly rate of $225 and the
court could not consider a rate of $165, the opposite is true.
During oral argument, this Court attempted to resolve the
ambiguity in the district court’s order. Neither party,
however, could explain what “law of the case” the district
court’s Order of November 19, 2002, referred to.
Previous rulings as to the proper hourly rate are no more
illuminating. Neither party cited what appears to be the
first statement in the record concerning this subject: a
March 24, 1998 finding by the district court that rates of
$225 per hour for partners and $200 per hour for associates
are reasonable. This issue was next discussed on October
29, 1999, when the district court found $165 per hour to be
the market rate for the legal services provided to Moriarty.
This Court approved of that finding in Moriarty II, stating
that “Given the evidence before it, the district court did not
abuse its discretion in deciding that $165 is the hourly rate
for Jacob, Burns work.” 233 F.3d at 965.
12 Nos. 03-1699 and 03-1743
The issue of the hourly rate for attorneys’ fees thus
appeared to be settled. If the district court had cited
Moriarty II or its own previous rulings to find an hourly
rate of $165, the law of the case would have barred any
attempt by Moriarty to inflate the hourly rate.
Svec alleges that despite its earlier order, the district
court awarded attorneys’ fees at rates of $225 and $200 per
hour. As this Court stated in Moriarty II, “The lawyer’s
regular rate is strongly presumed to be the market rate for
his or her services.” Id. at 965 (citing Central States Pension
Fund v. Central Cartage Co., 76 F.3d 114, 116-17 (7th Cir.
1996); Gusman v. Unisys Corp., 986 F.2d 1146, 1150 (7th
Cir. 1993)). The market rate previously found by the district
court and approved of by this Court in Moriarty II is $165
per hour. Id. Thus, the law of the case has established $165
per hour as the appropriate rate for the services of Mori-
arty’s counsel. If the district court no longer believes this
rate to be appropriate, it must provide a comprehensive
explanation. We remand this issue to the district court for
findings consistent with this opinion.
3. Substantial Offers to Settle
The district court’s findings as to whether Svec made a
substantial offer to settle are perplexing. On remand, the
district court correctly characterized Moriarty II as holding
the December 30, 1997 offer by Svec to be substantial. See
Moriarty v. Svec II, 233 F.3d 955, 967 (7th Cir. 2001) (“[A]n
offer is substantial if, as in this case, the offered amount
appears to be roughly equal to or more than the total
damages recovered by the prevailing party.”). Svec’s
substantial offer to settle on December 30, 1997, does not
preclude the possibility that other substantial offers were
made, nor does it preclude that attorneys’ fees may be
collected after that point. The law of this case, however,
Nos. 03-1699 and 03-1743 13
bars any claim that the December 30, 1997 offer was not
substantial.4
In Moriarty II, this Court stated that “[s]ubstantial
settlement offers should be considered by the district court
as a factor in determining an award of reasonable attorney’s
fees.” Id. The district court appears to have interpreted this
language to mandate the termination of fees following a
substantial settlement offer. Nevertheless, the district court
did not abuse its discretion by cutting off the recovery of
attorneys’ fees after Svec made a substantial settlement
offer. This Court cannot, however, affirm the district court’s
determination that the relevant substantial offer in this
case was made on December 30, 1997.
In its Memorandum and Order of October 8, 2002, the
district court found that Svec’s December 30, 1997 offer was
substantial and that an earlier offer on November 14, 1997,
for a slightly larger sum of money, was also substantial.
Based upon this determination, the district court found that
“a reasonable attorney’s fee for the period after November
14, 1997, would be zero percent of the load star [sic] amount
for the period, and that is what the court will award.”
Memorandum and Order, October 8, 2002, at 6. This
determination was logical and well founded. If an offer of
$43,000 is a substantial offer, a previous offer for a larger
amount must also be substantial. We affirm the district
court’s finding that both offers were substantial.5
4
Moriarty’s argument that Svec’s December 30, 1997 offer was
not substantial fails to note that the current total damages
include years of additional costs and interest. As this Court found
in Moriarty II, at the time the offer was made, it was substantial.
5
Determinations by the district court as to whether an offer is
substantial are reviewed for abuse of discretion. See Moriarty v.
Svec II, 233 F.3d 955, 968 (7th Cir. 2001).
14 Nos. 03-1699 and 03-1743
The district court, however, made further findings that
complicated this issue. While continuing to hold that “there
were two substantial offers of settlement made in late
1997,” the district court stated:
The court believes that it was somewhat inconsistent,
though, in holding that the Seventh Circuit’s determi-
nation that the 12/30/1997 offer was substantial fore-
closed plaintiff’s argument that there was no substan-
tial offer of settlement, but then using the 11/14/1997
date to cut off attorneys [sic] fees and costs. The court
is, therefore, amending its prior orders to allow attor-
neys [sic] fees and costs plaintiff incurred prior to
12/30/1997.
We fail to see the inconsistency found by the district court.
If the December 30 offer was substantial and an offer for a
greater sum was previously made, that offer is also substan-
tial. It is inconsistent to find, as the district court did, that
although a substantial offer was made on November 14,
attorneys’ fees should be recovered until a second substan-
tial offer was made.
If the district court chooses to use a substantial offer as a
cut-off point for the award of attorneys’ fees, such a decision
is within its discretion given the facts of this case. However,
the district court must offer an explanation as to why it
chooses to use one substantial offer as a cut-off, but not
another. As such, we remand to the district court with
instructions to make one of three possible findings on this
issue. The district court may find: (1) the November 14,
1997 offer was substantial and is therefore the appropriate
cut-off point for attorneys’ fees; (2) that despite the fact that
both offers were substantial, the December 30, 1997 offer
was a more appropriate cut-off (this conclusion would
require further explanation); or (3) now that the district
court is freed from the misapprehension that no fees may be
collected after a substantial offer is made, it may find that
Nos. 03-1699 and 03-1743 15
although a substantial offer is an important factor in
determining attorneys’ fees, other factors lead it to conclude
that Svec is liable for some portion of attorneys’ fees
incurred after a substantial offer was made.
Once the district court has made findings regarding
proportionality, the proper hourly rate, and the issue of
substantial offers, the district court should enter a new
award of attorneys’ fees against Svec, to replace the current
award of $41,045.13.
C. Interest, Double Interest, and Audit Costs
The district court allowed interest, double interest, and
audit costs to continue to accrue after the attorneys’ fees
awarded to Moriarty were cut off. We affirm the district
court’s decision on this issue.
The exact statutory language at issue states:
(g) Attorney’s fees and costs; awards in actions involv-
ing delinquent contributions . . .
(2) In any action under this subchapter by a fidu-
ciary for or on behalf of a plan to enforce section
1145 of this title in which a judgment in favor of the
plan is awarded, the court shall award the plan—
(A) the unpaid contributions,
(B) interest on the unpaid contributions,
(C) an amount equal to the greater of—
(i) interest on the unpaid contributions, or
(ii) liquidated damages provided for under
the plan in an amount not in excess of 20
percent (or such higher percentage as may
be permitted under Federal or State law) of
the amount determined by the court under
subparagraph (A),
16 Nos. 03-1699 and 03-1743
(D) reasonable attorney’s fees and costs of the
action, to be paid by the defendant, and
(E) such other legal or equitable relief as the
court deems appropriate.
29 U.S.C.A. § 1132(g)(2).
1. Interest and Double Interest
Svec is required to pay interest and double interest on the
delinquent contributions. See 29 U.S.C.A. §§ 1132(g)(2)(B),
(C). Svec’s arguments against payment rely upon a strained
statutory interpretation based on Public Citizen v. United
States Department of Justice, 491 U.S. 440, 454 (1989). In
Public Citizen, the Supreme Court found that words of
general meaning sometimes do not represent the legisla-
ture’s true intent. Id. Svec, however, presents no evidence
that the legislature did not mean what it said when it
mandated interest and double interest on unpaid contribu-
tions.
Svec also claims that he should not be forced to pay the
interest costs because Moriarty prolonged this litigation.
The district court did not abuse its discretion in finding that
Moriarty did not prolong this litigation.
While attorneys’ fees and costs must be “reasonable,”
there is no such qualifier placed upon the award of interest
and double interest. See 29 U.S.C.A. §§ 1132(g)(2). The
“reasonable” requirement in the context of fees and costs
creates a latitude for the district court that does not exist in
the awarding of interest. The statutory language has clear
implications in this case. In an action “involving delinquent
contributions . . . the court shall award the plan . . . interest
on the unpaid contributions, [and] an amount equal to the
greater of interest on the unpaid contributions, or liqui-
dated damages[.]” 29 U.S.C.A. §§ 1132(g)(2)(B), (C).
Nos. 03-1699 and 03-1743 17
We affirm the judgment of the district court requiring
Svec to pay Moriarty interest and double interest totaling
$51,628.10 on the unpaid contributions.
2. Audit Costs
Svec also claims that the audit costs were excessive. Of
the $10,557.02 in audit costs, Svec claims $3,868.75 should
not be paid because “it was plaintiff’s attorney’s negligence
in prolonging the litigation that resulted in additional audit
costs.” Svec presents no evidence that the district court
abused its discretion by awarding these costs. Additionally,
there was no factual finding by the district court to support
Svec’s claim that Moriarty should be denied fees or costs
because of alleged “negligence.” The district court correctly
found that audit costs were part of the relief due to plaintiff
under 29 U.S.C.A. § 1132(g)(2)(E). “Because an award of
audit costs to the prevailing party is consistent with the
policy of encouraging full and fair contributions, we hold
that audit costs are recoverable under subsection (E).”
Operating Engineers Pension Trust v. A-C Co., 859 F.2d
1336, 1343 (9th Cir. 1988). We affirm the district court’s
finding that Svec must pay Moriarty $10,557.02 in audit
costs.
3. Costs
The total costs at issue in this case are $281. Svec makes
no argument that this assessment was improper. Nonethe-
less, Svec alleges in an argument heading that “The District
Court Erred in Awarding Plaintiff . . . Costs[.]” The Court
finds no basis to challenge the assessment of costs and
affirms the holding of the district court.
18 Nos. 03-1699 and 03-1743
D. Sanctions Against Moriarty Under 28 U.S.C. § 1927After his father’s death on June 29, 1987, Svec was
clearly the owner of Home and no longer an employee. Svec
argues that any claims by Moriarty that concern his
employment status after his father’s death on June 29,
1987, were the result of unreasonable and vexatious
litigation. The district court may impose sanctions to punish
unreasonable and vexatious litigation:
Any attorney or other person admitted to conduct cases
in any court of the United States or any Territory
thereof who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the
court to satisfy personally the excess costs, expenses,
and attorneys’ fees reasonably incurred because of such
conduct.
28 U.S.C. § 1927 (emphasis added).
We review district court decisions to grant or deny
sanctions under 28 U.S.C. § 1927 for an abuse of discretion.
In re TCI Ltd., 769 F.2d 441, 448 (7th Cir. 1985). Svec
claims he “incurred $95,406.50 in attorneys fees and
$7,917.93 in costs from 1996 through September 20, 1999 in
defending against plaintiff’s unmeritorious claim.” The
district court found that Moriarty’s counsel acted negli-
gently and unreasonably by failing to obtain the probate file
for Elmer Svec’s estate; however, the district court did not
find this behavior “vexatious.” The district court went on to
find that 28 U.S.C. § 1927 requires both unreasonable and
vexatious behavior.
We affirm the district court’s decision to deny Svec
sanctions based upon the behavior of Moriarty’s counsel.
Svec cites many cases in which attorneys who acted unrea-
sonably and vexatiously were sanctioned. He fails, however,
to establish that the conduct in this case was vexatious.
Sanctions may only be awarded under 28 U.S.C. § 1927against an individual who has demonstrated “subjective or
Nos. 03-1699 and 03-1743 19
objective bad faith.” Pac. Dunlop Holdings, Inc. v. Barosh,
22 F.3d 113,120 (7th Cir. 1994) (citing Kotsilieris v.
Chalmers, 966 F.2d 1181, 1184 (7th Cir. 1992)). Svec’s
allegation that Moriarty’s attorney knew of the “principal
owner rule” and still pursued claims against Svec for post-
July 1, 1987 contributions fails to meet the high burden
required to overturn the district court’s findings. Although
Svec alleges that Moriarty’s counsel knew he was the owner
following his father’s death, the district court found no
action by Moriarty’s counsel so egregious as to warrant
sanctions under 28 U.S.C. § 1927. We affirm the district
court’s decision to withhold sanctions, while sharing the
district court’s concern regarding the actions of Moriarty’s
counsel.
Although Svec reargues every allegation against Moriarty
and Moriarty’s counsel, he fails to illustrate how the district
court’s decision not to grant sanctions is an abuse of
discretion. In short, the district court’s holding that the
actions by Moriarty’s counsel do not support sanctions
under 28 U.S.C. § 1927 was not an abuse of discretion.
In a footnote, Svec expands his claim for attorneys’ fees
under 28 U.S.C. § 1927 to include the plaintiff as well as
the plaintiff’s lawyers. A footnote does not preserve an issue
for review. See To-Am Equipment Co., Inc. v. Mitsubishi
Caterpillar Forklift Am., Inc., 152 F.3d 658, 663 (7th Cir.
1998). Therefore, this Court has not examined any claims
against Moriarty under 28 U.S.C. § 1927.
E. Jurisdiction of the District Court to Hear Mori-
arty’s Claims
Svec asks this Court to reconsider its decision in Moriarty
I that the terms of the collective bargaining agreement
covered WSL employees. Although the NLRB found that
Teamsters Local 727 did not represent WSL’s employees,
this Court found the question of representation irrelevant.
20 Nos. 03-1699 and 03-1743
“Once the court found that WSL and the Funeral Home
were a single employer, and that WSL employees performed
livery services, it could impose liability ‘in accordance with
the terms and conditions of [the] . . . agreement.’ ” Moriarty
v. Svec I, 164 F.3d 323, 334 (7th Cir. 1998) (quoting 29
U.S.C. § 1145).
This Court will not revisit an issue it resolved seven years
ago. Law of the case doctrine advises against a court
reopening previously decided issues. Messinger v. Anderson,
225 U.S. 436, 444 (1912). This Court will only reexamine an
earlier decision if it is “convinced that [decision] is clearly
erroneous and would work a manifest injustice.” Arizona v.
California, 460 U.S. 605, 618 n.8 (1983). The jurisdictional
decision in Moriarty I was correct, and we reaffirm that
holding today.
III. Conclusion
For the reasons stated herein, we AFFIRM the district
court’s holding that Svec was an employee subject to the
collective bargaining agreement from January 1, 1987 to
June 29, 1987; we VACATE the district court’s award of
attorneys’ fees and REMAND to the district court for a
determination of the proper amount of attorneys’ fees; we
AFFIRM the district court’s award of interest, double
interest, and audit costs; we AFFIRM the district court’s
denial of sanctions against Moriarty’s counsel; and we
AFFIRM the district court’s assertion of jurisdiction to hear
Moriarty’s claims.
Nos. 03-1699 and 03-1743 21
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-21-05