Boards of Trustees of the Cement Masons & Plasterers Health & Welfare Trust v. Leewens Corporation

Opinion

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5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 11 BOARDS OF TRUSTEES OF THE CASE NO. 2:23-cv-01626-TL CEMENT MASONS & PLASTERERS 12 HEALTH & WELFARE TRUST et al., ORDER ON MOTION FOR FEES 13 Plaintiffs, AND COSTS v. 14 LEEWENS CORPORATION, 15 Defendant. 16

17 This matter is before the Court on Defendant Leewens Corporation’s Motion for Fees and 18 Costs. Dkt. No. 24. Having reviewed the motion, Plaintiffs’ response (Dkt. No. 27), Defendant’s 19 reply (Dkt. No. 29), and the relevant record, the Court DENIES Defendant’s motion. 20 I. BACKGROUND 21 A. The Project 22 Plaintiffs’ lawsuit arose from construction on the Seattle Aquarium Ocean Pavilion 23 project. Dkt. No. 1 (complaint) ¶ 3.13. Defendant, one of many contractors on the site, installed 24 1 “fluid-applied floor coatings” on the project. Dkt. No. 17 (motion for summary judgment) at 10; 2 see Dkt. No. 8 (answer) ¶ 3.3. 3 B. The Parties 4 Plaintiffs (collectively, “Trusts” or “Trust Funds”) are the Boards of Trustees for three

5 Taft-Hartley trust funds: the Cement Masons & Plasterers Health & Welfare Trust; Cement 6 Masons and Plasterers Retirement Trust; and Western Washington Cement Masons Journeyman 7 and Apprentice Training Trust. See Dkt. No. 1 ¶¶ 1.1–1.3. The Trust Funds collect obligatory 8 contributions from employers pursuant to “collective bargaining agreement[s] or other labor 9 agreement[s]” between labor and management. Id. ¶ 1.5. 10 Defendant is Leewens Corporation, a Washington-based construction contractor that, 11 relevant to this lawsuit, performs “resinous floor coating work.” Dkt. No. 17 at 9. Founded in 12 1976, Defendant is a longtime player in the resinous floor coating game in Seattle. Id. at 10. 13 C. Seattle Community Workforce Agreement (“CWA”) 14 The CWA is a labor agreement that governs labor relations on public-works projects in

15 Seattle and King County. See Dkt. No. 21-2 (CWA) at 14. It is a big-picture legal instrument that 16 “seeks to stabilize wages, hours and working conditions for craft workers, to ensure workers on 17 Covered Projects have the same working conditions, and encourages close cooperation between 18 the City, Unions and Contractors, for a satisfactory, continuous and harmonious relationship 19 between all involved on these projects.” Id. at 15. While the CWA governs projects’ larger labor 20 issues and establishes the general rules by which labor and management must abide, the terms 21 and conditions of employment between a contractor and the tradespeople it employs are 22 generally governed on a granular level by a collective bargaining agreement between the 23 contractor and the tradespeople’s union.1 See id. at 21.

24 1 The CWA expressly does not require that workers be union members. 1 Prior to commencing any work on a public-works project, a contractor signs a Letter of 2 Assent that binds them to the CWA. Id. at 16. Of relevance to this case, upon assenting to the 3 CWA, a “[c]ontractor will contribute to, and hereby becomes party to and is bound by bonafide 4 [sic] pension, vacation, health and welfare, apprenticeship and training funds covering workers

5 under [the CWA].” Id. at 19. Plaintiffs here are three such funds. Defendant, “like all contractors, 6 assented to the [CWA].” Dkt. No. 17 at 12. 7 D. The Lawsuit 8 On October 24, 2023, Plaintiffs filed a civil action, alleging that Defendant had employed 9 workers as Cement Masons on the aquarium project, but had not made required fringe-benefit 10 contributions to trust funds—i.e., Plaintiffs—associated with the Cement Masons’ union. See 11 Dkt. No. 1 ¶¶ 3.5, 3.8; see also Dkt. No. 21-2 at 34 (binding Cement Masons’ Local 528 to 12 CWA). That is, in performing some or all of its resinous floor coating work, Defendant had 13 performed “Cement Mason” labor and was therefore obligated to contribute to Cement Mason 14 trust funds. By failing to contribute, Plaintiffs alleged that Defendant had breached, inter alia,

15 the CWA and the Cement Masons’ collective bargaining agreement. See Dkt. No. 1 ¶ 4.2. 16 Plaintiffs alleged further that Defendant’s failure to make fringe-benefit contributions violated 17 ERISA. Id. ¶ 4.5. Plaintiffs sought past-due and delinquent fringe-benefit contributions, 18 liquidated damages, accrued pre- and post-judgment interest, and attorney fees. Id. at 8–9. Trial 19 was scheduled (Dkt. No. 11), and discovery commenced (Dkt. No. 10). On December 6, 2024, 20 discovery concluded. Dkt. No. 11. 21 On December 18, 2024, Plaintiffs moved to voluntarily dismiss the case under Federal 22 Rule of Civil Procedure 41(a)(2). Dkt. No. 14 at 1. Plaintiffs advised that, through discovery, 23 they determined that the amount they could potentially recover from Defendant was “modest”

24 and was not worth additional attorney fees and costs. Id. at 3. By January 6, 2025, the deadline 1 for the Parties to file dispositive motions, the Court had not yet ruled on the motion to dismiss, 2 and Defendant moved for summary judgment that day. Dkt. No. 17. On January 21, 2025, the 3 Court granted Plaintiffs’ motion to dismiss and struck Defendant’s motion for summary 4 judgment as moot. Dkt. No. 23. The Court ordered Defendant to file any motion for fees and

5 costs by March 7, 2025 (id. at 3), and Defendant did so, filing the instant motion on February 13, 6 2025 (Dkt. No. 24). Plaintiffs responded (Dkt. No. 27), and Defendant filed a reply brief (Dkt. 7 No. 29). 8 II. LEGAL STANDARD 9 Under Section 502 of ERISA, “In any action under this subchapter (other than an action 10 described in paragraph (2)) by a participant, beneficiary, or fiduciary, the court in its discretion 11 may allow a reasonable attorney’s fee and costs of action to either party.” 29 U.S.C. 12 § 1132(g)(1).2 “[T]his provision does not limit the availability of attorney’s fees to the 13 ‘prevailing party,’” but “a fees claimant must show some degree of success on the merits before 14 a court may award attorney’s fees under § 1132(g)(1).” Hardt v. Reliance Standard Life Ins. Co.,

15 560 U.S. 242, 253–55. “[A] claimant can satisfy that requirement if the court can fairly call the 16 outcome of the litigation some success on the merits without conducting a lengthy inquiry into 17 the question whether a particular party’s success was substantial or occurred on a central issue.” 18 Simonia v. Glendale Nissan/Infiniti Disability Plan, 608 F.3d 1118, 1120–21 (9th Cir. 2010) 19 (quoting Hardt, 560 U.S. at 255)). “Only after passing through the ‘some degree of success on 20 the merits’ door is a claimant entitled to the district court’s discretionary grant of fees under 21 § 1132(g)(1).” Id. at 1121. 22 // 23 //

24 2 Paragraph (2), 29 U.S.C. § 1132(g)(2), is inapplicable to this case. 1 When deciding whether to exercise its discretion to award fees under Section 1132(g)(1), 2 Ninth Circuit courts must consider the five factors set forth in Hummell v. S.E. Rykoff and 3 Company, 634 F.2d 446, 453 (9th Cir. 1980). Simonia, 608 F.3d at 1121. The five factors are: 4 (1) the degree of the opposing parties’ culpability or bad faith; (2) the ability of the opposing parties to satisfy an award of fees; 5 (3) whether an award of fees against the opposing parties would deter others from acting under similar circumstances; (4) whether 6 the parties requesting fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal 7 question regarding ERISA; and (5) the relative merits of the parties’ positions. 8 9 Hummell, 634 F.2d at 453. “No one of the Hummell factors . . . is necessarily decisive, and some 10 may not be pertinent in a given case.” Smith v. CMTA-IAM Pension Tr., 746 F.2d 587, 590 (9th 11 Cir. 1984) (citing Carpenters S. Cal. Admin. Corp. v. Russell, 726 F.2d 1410, 1416 (9th Cir. 12 1984)); see also Bunger v. Unum Life Ins. Co. of Am., 231 F. Supp. 3d 865, 870 (W.D. Wash. 13 2017) (“The Hummell factors do not require the Court to find that each factor weighs in support 14 of fees because the factors ‘reflect a balancing.’” (quoting McElwaine v. US West, Inc., 176 F.3d 15 1167, 1173 (9th Cir. 1999))). 16 III. DISCUSSION 17 A. “Some Degree of Success on the Merits” 18 As a threshold question, the Court must first determine whether Defendant achieved 19 “some degree of success on the merits” and is entitled to consideration for attorney fees. 20 Simonia, 608 F.3d at 1121. Here, Defendant argues that it “clearly obtained success on the merits 21 because its motion for summary judgment convinced [Plaintiffs] to abandon all causes of 22 action.” Dkt. No. 24 at 16. Defendant asserts that its efforts resulted in “complete success” (id. at 23 17), as “after 18 months of defending itself[, Defendant] obtained a complete dismissal of all 24 claims without paying a dime . . .” (Dkt. No. 29 at 6). Plaintiffs disagree. Plaintiffs argue that 1 Defendant’s motion for summary judgment did not inspire them to dismiss the case; they assert 2 that they gave notice of their intent to voluntarily dismiss the case four days before they became 3 aware that Defendant intended to move for summary judgment.3 See Dkt. No. 27 at 5. Plaintiffs 4 assert further that “[Defendant’s] success, if any, can only be described as procedural in nature,

5 as prior to the motion to dismiss, [Defendant] did not take any action in this case.” Id. at 6.4 6 Neither side provides authority where a court encountered a similar procedural history to 7 that presented here—that is, where a plaintiff’s voluntary, post-discovery dismissal terminated 8 the proceedings and mooted a defendant’s motion for summary judgment—and then adjudicated 9 the issue of whether a party had enjoyed “some” success. But Defendant correctly notes that a 10 “lengthy inquiry” into the question is inappropriate. Dkt. No. 29 at 6 (quoting Ruckelshaus v. 11 Sierra Club, 463 U.S. 680, 688 n.9 (1983)). And Plaintiffs’ observation that “[Defendant] fails to 12 identify any successes on the merits” (Dkt. No. 27 at 6) is unconvincing, given that affirmatively 13 scoring points is not necessarily a defendant’s motivation in a civil action. See CRST Van 14 Expedited, Inc. v. E.E.O.C., 578 U.S. 419, 431 (2016) (explaining that “[p]laintiffs and

15 defendants come to court with different objectives,” and that a “defendant has . . . fulfilled its 16 primary objective whenever the plaintiff’s challenge is rebuffed”). Certainly Defendant has seen 17 Plaintiffs’ challenge neutralized—albeit by Plaintiffs’ own hands via a voluntary dismissal. 18 3 This assertion is contradicted by the record. The email attached to the declaration of Noelle Dwarzski in support of 19 Plaintiffs’ opposition to Defendant’s motion for fees reveals that Defendant’s counsel wrote Plaintiffs’ counsel on December 4, 2024, to confer “regarding the imminent motion for summary judgment” it was going to file and to lay 20 out the grounds for its intended motion. Dkt. No. 28 at 5–7. But according to Dwarzski’s declaration, Plaintiffs did not notify Defendant that they intended to dismiss the case until December 13, 2024, nine days later. Id. at 1 ¶ 3. 21 The Court does not presume that Defendant’s correspondence of December 4 necessarily motivated Plaintiffs’ decision to dismiss. It certainly appears, however, that Defendant informed Plaintiffs about its intention to move for summary judgment before Plaintiffs informed Defendant about their intention to move for voluntary dismissal. 22 4 It is not clear what Plaintiffs mean here. Prior to Plaintiffs’ motion to dismiss, Defendant appeared in the case (Dkt. No. 6), filed a corporate disclosure statement (Dkt. No. 7), answered Plaintiffs’ complaint (Dkt. No. 8), filed a joint 23 status report with Plaintiffs (Dkt. No. 10), and moved with Plaintiffs to bifurcate the case (Dkt. No. 12). Plaintiffs’ briefing here also indicates that Defendant participated in discovery. See Dkt. No. 27 at 14. All of this demonstrates 24 that Defendant did indeed “take . . . action in this case.” 1 Moreover, Plaintiffs’ admission that, “[f]ollowing the completion of discovery, [Plaintiffs] 2 evaluated their case and concluded the costs of litigation exceeded the potential recovery amount 3 of contributions,” indicates that Defendant’s active engagement as an adversary at the very least 4 contributed to Plaintiffs’ decision to quit the fight. See Dkt. No. 27 at 7.

5 The simple truth here is that Plaintiffs initiated this lawsuit intending to obtain from 6 Defendant fringe benefit contributions, liquidated damages, attorney fees, and pre- and post- 7 judgment interest. See Dkt. No. 1 at 8–9. Fourteen months later, having proceeded through the 8 end of discovery, they terminated the lawsuit having won none of these things. See Dkt. No. 14 9 at 3. If this does not represent a modestly successful outcome for Defendant, the Court is unsure 10 what would. Therefore, the Court finds that Defendant emerges with more than a “purely 11 procedural victory” and has achieved “some degree of success on the merits.” Simonia, 608 F.3d 12 at 1120–21. Defendant is entitled to consideration for fees under 29 U.S.C. § 1132(g)(1). 13 B. The Hummell Factors 14 Having found that Defendant has passed through the “some degree of success on the

15 merits door,” the Court now applies the five Hummell factors to determine whether an award of 16 attorney fees and costs is appropriate. Simonia, 608 F.3d at 1121. “Although the Hummell factors 17 apply to both plaintiffs and defendants in ERISA actions, the Ninth Circuit has recognized that 18 they ‘very frequently suggest that attorney’s fees should not be charged against ERISA 19 plaintiffs.’” Jackson v. Wilson, Sonsini, Goodrich & Rosati Long Term Disability Plan, 768 F. 20 Supp. 2d 1015, 1021–22 (N.D. Cal. 2011) (quoting Tingey v. Pixley-Richards W., Inc., 958 F.2d 21 908, 909 (9th Cir. 1992)). 22 Defendant does not employ the Hummell factors in presenting its argument for fees. See 23 Dkt. No. 24 at 6–17. Instead, Defendant focuses almost exclusively on Plaintiffs’ alleged bad

24 faith in bringing the case in the first place; and on the weakness of the case once brought—that 1 is, the first and fifth factors. See id. Plaintiffs discuss each Hummell factor in their opposition to 2 Defendant’s motion (see Dkt. No. 27 at 6–12), an effort that Defendant attempts to rebut on reply 3 in a half-page’s worth of largely conclusory argumentation (see Dkt. No. 29 at 5–6). The Ninth 4 Circuit has held that district courts “must” consider all five Hummell factors before exercising

5 discretion to award fees under 29 U.S.C. § 1132(g)(1). Simonia, 608 F.3d at 1121. The Court 6 will thus do so with the briefing it has. 7 1. Factor One: Culpability or Bad Faith 8 The first Hummell factor examines “the degree of the opposing parties’”—in this case the 9 Plaintiff Trust Funds’—“culpability or bad faith.” Hummell, 634 F.2d at 453. The Ninth Circuit 10 has not defined culpability or bad faith in an ERISA context, see Oksana B. v. Premera Blue 11 Cross, No. C22-1517, 2024 WL 518897, at *2 (W.D. Wash. Feb. 9, 2024), but “[i]n order to 12 avoid a finding of bad faith under the Hummell factors, plaintiffs must have a reasonable belief 13 that they could prove an actionable ERISA claim,” Cline v. Indus. Maint. Eng’g & Contracting 14 Co., 200 F.3d 1223, 1236 (9th Cir. 2000). Here, Defendant asserts that Plaintiffs never had a

15 viable ERISA claim, and that “Plaintiffs should have known, based on publicly available 16 documents, statutory text, and published decisions, that [this] lawsuit was an improper use of 17 ERISA.” Dkt. No. 24 at 6. Plaintiffs argue that they filed a legitimate complaint under ERISA 18 “to try to collect contributions for covered hours worked.” Dkt. No. 27 at 7. 19 As an initial matter, the Court is concerned that Plaintiffs rely heavily on the fact that 20 documentary evidence indicated that Defendant “reclassified several weeks of its certified 21 payroll as having been performed by Cement Masons.” Dkt. No. 27 at 6. However, this 22 information was obtained during discovery (see Dkt. No. 14 (motion to dismiss) at 3; Dkt. No. 23 15 (Dwarzski Decl.) at 49–55) and does not at all answer the question of whether Plaintiffs had a

24 1 “reasonable belief that they could prove an actionable ERISA claim” at the time they filed their 2 Complaint. Cline, 200 F.3d at 1236. 3 Plaintiffs’ Complaint was thin and relied upon information and belief for the crucial 4 allegation that Defendant’s employees performed covered work. See Dkt. No. 1 ¶¶ 3.8, 3.13.

5 However, a plaintiff may “plead[ ] facts alleged upon information and belief where the facts are 6 peculiarly within the possession and control of the defendant or where the belief is based on 7 factual information that makes the inference of culpability plausible.” Soo Park v. Thompson, 8 851 F.3d 910, 928 (9th Cir. 2017) (quoting Arista Recs., LLC v. Doe 3, 604 F.3d 110, 120 (2d 9 Cir. 2010)). Here, there was (and currently still is) a proceeding before the Washington State 10 Department of Labor and Industries involving the classification of flooring work vis-à-vis 11 Cement Masons and Laborers that could be relevant to this action. See Dkt. 27 at 2. The Parties’ 12 Joint Status Report states that “[i]t appears that this lawsuit was filed with advance knowledge of 13 the Department’s October 2023 determination.” Dkt. No. 10 at 4. Further, the Parties’ Stipulated 14 Motion to Bifurcate points out that

15 [u]nlike many ERISA cases where a subscription agreement or collective bargaining agreement bears the defendant’s written 16 contribution obligation to contribute to one specific trade, the asserted obligation here rests upon factual circumstances of the 17 work performed on the Seattle Aquarium Project, and the application of the Seattle Community Workforce Agreement, to 18 those facts. 19 Dkt. No. 12 at 2. Finally, Defendant makes much of the fact that it promptly sent a Rule 11 letter 20 to Plaintiffs highlighting the flaws in their case upon filing and reminded them of the Rule 11 21 issue throughout the litigation. See Dkt. No. 25-1 (Rule 11 letter); Dkt. No. 24 at 6. But the fact 22 remains that Defendant did not file a Rule 11 motion, or even a motion to dismiss. Instead, 23 Defendant chose to answer the complaint (Dkt. No. 8) and proceed through discovery, indicating 24 that perhaps the issue was not quite as clear-cut as it had made it out to be in its letter. Taking 1 these facts into consideration, while close, “the [r]ecord contains enough documentary material 2 to support the Court’s conclusion that a reasonable basis existed for [Plaintiffs] to make their 3 claims.” Cline, 200 F.3d at 1236. 4 Therefore, this factor weighs against an award of fees.

5 2. Factor Two: Ability to Satisfy an Award of Fees 6 The second Hummell factor examines the ability of Plaintiffs to satisfy an award of fees. 7 See Hummell, 634 F.2d at 453. Here, Plaintiffs concede that “the Trusts may have the resources 8 to satisfy an award of fees.” Dkt. No. 27 at 11. But Plaintiffs also argue that “the equities weigh 9 against an award.” Id. While this may be so, Plaintiffs do not provide any case law indicating 10 that it is appropriate for a Court, when applying the second Hummell factor, to weigh the equities 11 associated with a party’s ability to satisfy an award of fees. On its face, the second Hummell 12 factor is one-dimensional: either a party can, or cannot, afford to pay. The relative fairness of 13 assessing fees is beyond the scope of the inquiry, as the Ninth Circuit has defined it. 14 Plaintiffs try to illustrate the inequity of an award against them by pointing out that

15 paying fees here would contravene the purpose of ERISA. Plaintiffs argue that the statute itself 16 counsels against an award of fees, asserting that under the law, “the Trusts are to use their assets 17 to provide benefits to participants and their beneficiaries and defray reasonable expenses.” Id. 18 (citing 29 U.S.C. § 1103). But even this indirect approach fails, as court-ordered attorney fees 19 assessed against Plaintiffs after unsuccessful litigation would surely be considered “reasonable 20 expenses,” especially if, as Plaintiffs vehemently maintain, that litigation were pursued in good 21 faith, authorized by statute, and undertaken with an eye toward recovering money validly owed 22 to them under an allegedly breached labor agreement. See 29 U.S.C. § 1132(a)(1)(B). This is not 23

24 1 to say that the equities of an award are never relevant in analyzing a fee request, but Plaintiffs 2 have not presented such a situation here.5 3 Defendant does not weigh in on the issue, but in its reply brief highlights Plaintiffs’ 4 concession that they can satisfy an award of fees. Dkt. No. 29 at 6.

5 Therefore, this factor weighs in favor of an award of fees. 6 3. Factor Three: Deterrence 7 The third Hummell factor examines whether an award of fees against Plaintiffs would 8 deter others from acting under similar circumstances. See Hummell, 634 F.2d at 453. Defendant 9 does not discuss deterrence in its motion and only brings up the issue in one sentence in its reply 10 brief, asserting that “[a]n award of fees would deter other funds from using ERISA as a 11 ‘jurisdictional stalking horse.’” Dkt. No. 29 at 6 (quoting R.I. Carpenters Annuity Fund v. Trevi 12 Icos Corp., 533 F. Supp. 2d 246, 252 (D.R.I. 2008)). For their part, Plaintiffs do not address this 13 factor in their briefing. 14 Because the Court has found that Plaintiff had a reasonable basis for bringing this action,

15 see supra Section III.B.1, there is no conduct here that should be deterred. Therefore, this factor 16 weighs against an award of fees. 17 4. Factor Four: Beneficiaries of Litigation/Significant Legal Question 18 The fourth Hummell factor examines “whether the parties requesting fees sought to 19 benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal 20 question regarding ERISA.” Hummell, 634 F.2d at 453. This factor is “more appropriate to a 21 determination of whether to award fees to a plaintiff than a defendant.” Tingey, 958 F.2d at 910 22

5 While district courts must consider the Hummell factors before exercising their discretion to award fees under 23 Section 1132(g)(1), the Ninth Circuit has characterized the factors not as a dispositive test but as “a helpful guideline to both district courts and litigants.” Simonia, 608 F.3d at 1121. Therefore, while the factors are a mandatory list of 24 issues to be considered, they are not necessarily an exclusive list, depending on the circumstances of a case. 1 (quoting Marquardt v. N. Am. Car Corp., 652 F.2d 715, 719 (7th Cir. 1981)). Further, Defendant 2 does not address the issue in its motion, limiting its discussion to one conclusory sentence in its 3 reply brief: “[Defendant] was not only defending itself, it was defending its current employees 4 who earn their livelihood as members of the Laborers union.” Dkt. No. 29 at 6. While this may

5 be so, it demonstrates that ERISA was not Defendant’s per se motivation in defending itself. 6 That is, Defendant has consistently framed this case as a defense of its purported contractual 7 right to assign resinous flooring work to the trade of its choice, not a defense of the integrity of 8 workers’ right to bargained-for fringe benefits, the stated purpose of ERISA. See, e.g., Dkt. 9 No. 17 at 12–15; see also 29 U.S.C. § 1001. 10 As to whether Defendant sought to resolve a significant legal question, neither party 11 addresses the issue in their respective briefing. Given the Parties’ apparent disinterest in 12 identifying a significant legal question here, the Court will not seek to unearth one. 13 Therefore, this factor weighs against an award of fees. 14 5. Relative Merits

15 The fifth Hummell factor examines “the relative merits of the parties’ positions.” 16 Hummell, 634 F.2d at 453. To tip the balance here, it is not sufficient for a party’s position to 17 have been “incorrect”; it must have been “unmeritorious.” See Honolulu Joint Apprenticeship & 18 Training Comm. of United Ass’n Loc. Union No. 675 v. Foster, 332 F.3d 1234, 1239 (9th Cir. 19 2003) (quoting Hope v. Int’l Bhd. of Elec. Workers, 785 F.2d 826, 831 (9th Cir. 1986)). 20 There is documentary evidence in this case that, on its face, tends to show some merit to 21 Plaintiffs’ position (albeit not enough to have proceeded further with the litigation). Specifically, 22 Plaintiffs assert that Defendant “reclassified several weeks of payroll to Cement Masons 23 following the issuance of the prevailing wage determination articulating the type [of] work

24 performed on the Project is performed by a ‘mixed crew’ of laborer and cement masons.” Dkt. 1 No. 27 at 7. As a result of this alleged reclassification, the payroll records show that 2 “[Defendant] indicated Cement Masons performed the work for those weeks and became liable 3 for contributions to [Plaintiffs] for Cement Masons work.” Id. This assertion comports with the 4 record. Payroll records identified by Plaintiffs indicate that Defendant classified (or re-classified)

5 at least 157 hours of work on the Seattle Aquarium Ocean Pavilion project as “Cement Masons.” 6 Dkt. No. 15 at 49–55. 7 Defendant’s rebuttal is that the payroll records are not all that they appear to be. 8 Notwithstanding the entries on the payroll reporting forms that clearly classify 157 hours of work 9 as “CEMENT MASONS / Journey Level / Type: Heavy,” Defendant asserts that “[t]he hours 10 were never reclassified as Cement Masons’ work.” Dkt. No. 29 at 3. Defendant argues: 11 [Defendant] objects to the persistent allegation that [Defendant] ever assigned or classified any work to Cement Masons. As Patrick 12 Leewens described in his deposition, [Defendant’s] customer who had a contract with the Cement Masons (unlike [Defendant]) 13 wanted to placate the Cement Masons. It asked [Defendant] to pay the difference for the last few hours of the project to keep the 14 peace. Payment of a higher wage, to a Laborer for Laborer work, is not any type of admission, and does not create any obligation to 15 contribute.

16 Id. Irrespective of which Party would prevail on this issue—a question made moot by Plaintiffs’ 17 voluntary dismissal of the case—the salient point for the Court here is that Defendant feels 18 obliged to make this argument in the first place. The fact that Defendant is even in the position of 19 refuting documentary evidence is demonstrative that Plaintiffs’ case had some merit. Defendant 20 is effectively telling the Court that its own payroll reports are unreliable on their face, and that 21 they cannot be properly understood without also considering the deposition testimony of 22 Defendant’s company president. This is not a strong position from which to argue, as Defendant 23 does, that Plaintiffs’ case was entirely baseless. See Dkt. No. 24 at 7. 24 1 Further, Defendant’s argument on the reclassification issue is so oblique that its relevance 2 escapes the Court. Defendant presents the Court with four ideas: “Defendant’s customer who had 3 a contract with the Cement Masons,” “placat[ing] the Cement Masons,” “paying the 4 difference”—between what is not clear—“for the last few hours of the project,” and “keep[ing]

5 the peace.” Id. But it is not clear what these things have to do with one another. And it is equally 6 unclear why that purported relationship should compel the Court to interpret the words 7 “CEMENT MASONS,” as they appear in the “work classification” column on the payroll 8 records, to mean something other than, well, “cement masons.” See Dkt. No. 15 at 49–55. The 9 Court does not here imply or suggest that Defendant’s conduct was suspicious or untoward. It 10 was, however, sufficiently unexplained as to be an appropriate subject for litigation. Plaintiffs’ 11 case was neither frivolous nor unmeritorious. And given the unexplained payroll records that 12 Defendant has tried—and failed—to explain, it was not, on this record, at this procedural 13 posture, substantially weaker than Defendant’s. 14 Therefore, this factor weighs against an award of fees.

15 * * * 16 Having considered the five Hummell factors, the Court finds that Defendant is not 17 entitled to an award of fees or costs under 29 U.S.C. § 1132(g)(1). 18 C. Attorney Fees Under 28 U.S.C. § 1927 19 Defendant also argues that Title 28’s “catch-all” attorney-fees statute should apply here. 20 Dkt. No. 24 at 17. Section 1927 authorizes a court to order an attorney “who so multiplies the 21 proceedings in any case unreasonably and vexatiously . . . to satisfy personally the excess costs, 22 expenses, and attorneys’ fees reasonably incurred because of such conduct.” 28 U.S.C. § 1927. 23 Defendant does not provide any case law where a court ordered an attorney to make such

24 payment. ] Under Ninth Circuit precedent, it is inappropriate to apply Section 1927 here. “Because 2 || [Section 1927] authorizes sanctions only for the ‘multiplication of proceedings,’ it applies only 3 || to unnecessary filings and tactics once a lawsuit has begun.” Jn re Keegan Mgmt. Co., Secs. 4 || Litig., 78 F.3d 431, 435 (9th Cir. 1996). “[Section 1927] cannot be applied to an initial 5 || pleading.” /d. Defendant here does not identify how Plaintiffs multiplied proceedings, let alone 6 || did so vexatiously. A review of the docket reveals a relatively straightforward procession from 7 || pleading, to discovery, to voluntary dismissal. Plaintiffs did not amend their pleading, nor did 8 || they file any discovery motions. Indeed, Plaintiffs agreed to bifurcate this action “to avoid 9 || unnecessary expenditures by all parties.” Dkt. No. 12 at 2. Not long after discovery ended, 10 || Plaintiffs moved to voluntarily dismiss their case. Section 1927 sanctions are thus not warranted. 1] IV. CONCLUSION 12 Accordingly, Defendant’s Motion for Fees and Costs (Dkt. No. 24) is DENIED. Dated this 12th day of May 2025. 14 15 An Be Tana Lin 16 United States District Judge 17 18 19 20 21 22 23 24