                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 11-2885
                          ___________________________

     Treasurer, Trustees of Drury Industries, Inc. Health Care Plan and Trust

                         lllllllllllllllllllll Plaintiff - Appellant

                                             v.

                         Sean Goding; Casey & Devoti, P.C.

                       lllllllllllllllllllll Defendants - Appellees
                                        ____________

                     Appeal from United States District Court
               for the Eastern District of Missouri - Cape Girardeau
                                  ____________

                              Submitted: April 19, 2012
                              Filed: September 7, 2012
                                   ____________

Before MURPHY, MELLOY, and GRUENDER, Circuit Judges.
                          ____________

MELLOY, Circuit Judge.

       Sean Goding was a beneficiary of an ERISA (Employee Retirement Insurance
Security Act, 29 U.S.C. § 1001, et seq.) Plan administered by Treasurer, Trustees of
Drury Industries, Inc. Health Care Plan and Trust ("Drury"). Goding sustained
injuries in a slip and fall accident and received $11,423.79 in benefits from the Drury-
administered Plan. Goding also obtained compensation through the settlement of a
civil suit related to those injuries. Pursuant to a subrogation provision in the ERISA
Plan, Drury attempted to secure reimbursement from Goding for the benefits it paid,
but was unable to do so after Goding declared bankruptcy. Drury then attempted to
obtain that reimbursement from the firm that represented Goding, Casey & Devoti,
P.C. ("Casey"). The district court1 found that Drury could not obtain such
reimbursement because Casey had not agreed to the Plan's subrogation provision and
consequently was not contractually bound by it. It also found that Drury could not
maintain a suit against Casey in equity and could not bring a state cause of action for
conversion against Casey. Finally, after several more months of litigation, the district
court awarded Casey attorneys' fees for successful defense of a subsequent motion.
We now affirm the district court in all respects.

                                           I

      The Plan contains a subrogation provision that "appl[ies] when Plan benefits
are paid as a result of injuries or illness you sustained and you have a right to a
Recovery or have received a recovery." Under this provision:

      The Administrator, on behalf of the Employer, has the right to recover
      Plan payments made on your behalf from any party responsible for
      compensating your injuries. The following apply:

             -The Administrator, on behalf of the Employer, has first
             priority for the full amount of benefits they have paid from
             any Recovery regardless of whether you are fully
             compensated, and regardless of whether the payments you
             receive make you whole for your losses and injuries.




      1
       The Honorable Stephen N. Limbaugh, Junior, United States District Judge for
the Eastern District of Missouri.


                                          -2-
             -You and your legal representative must do whatever is
             necessary to enable the Administrator, on behalf of the
             Employer, to exercise their rights and do nothing to
             prejudice them.

             - The administrator, on behalf of the Employer, has the
             right to take whatever legal action they see fit against any
             party or entity to recover the benefits paid under the Plan.

             - To the extent that the total assets from which a Recovery
             is available are insufficient to satisfy in full the
             Administrator's subrogation claim and any claim still held
             by you, the Administrator's subrogation claim shall be first
             satisfied before any part of Recovery is applied to your
             claim, your attorney fees, other expenses or costs.

       In addition to receiving benefits from the ERISA Plan, Goding also brought a
civil suit for negligence. In that action, he was represented by the law firm Casey.

       During its representation of Goding, Casey twice acknowledged Drury's
subrogation agreement. First, on January 15, 2009, Casey wrote in correspondence
with Drury, "[t]his will confirm that we do acknowledge Drury Inns, Inc.'s, lien in this
matter." Second, on March 16, 2009, Casey wrote: "we are not challenging your right
to reimbursement/subrogation for payments made for the health care of Sean Goding
relating [to] the injuries caused by his fall at the Hilton." Goding, through Casey,
eventually settled the civil suit. When Casey received the settlement money, it kept
a portion for payment of its attorneys' fees, held $11,423.79 (the amount subject to
Drury's subrogation interest) in trust, and disbursed the remainder to Goding. After
about a month, however, Casey also disbursed the $11,423.79 to Goding. Despite
receiving this money, Goding eventually declared bankruptcy and has not reimbursed
Drury for the benefits it paid him.




                                          -3-
       Drury then attempted to recover those benefits from Casey, bringing this suit
and asserting theories of equitable lien by agreement, restitution, imposition of a
constructive trust, tortious interference with contractual relations, and conversion.
Upon cross-motions for summary judgment, the district court, on March 1, 2010,
granted Casey's motion and denied Drury's.2 Over a year later on March 15, 2011,
Drury filed a second motion for summary judgment, claiming it was based on new
authority. This claimed new authority was Boeing Co. v. Thurmon, No. 4:9-cv-1456,
2009 WL 4782085 (E.D. Mo. Dec. 7, 2009), which was actually decided months
before the court ruled on the first motion for summary judgment. The district court
denied this second motion on May 19, 2011. A month later, Drury filed a third
motion, this time for reconsideration, which the district court also denied. After
entering final judgment, the district court awarded Casey attorneys' fees incurred after
Casey received Drury's motion for reconsideration. In the order awarding fees, the
district court noted that Drury had stretched out the litigation more than a year after
the initial decision for no legitimate reason.

       Drury appeals from that series of orders, arguing that the district court erred in
denying the claims for enforcement of an equitable lien and conversion, and in
awarding attorneys' fees to Casey. We find no error and consequently affirm the
district court on all issues.

                                           II

        We must first consider whether the district court erred in granting Drury leave
to file an untimely notice of appeal under Federal Rule of Appellate Procedure 4(a).
"[T]he time limits set forth in [Rule] 4(a) are jurisdictional because the limits are


      2
      The case remained open and no judgment entered under Fed. R. Civ. P. 58
because the portion of the case against Sean Goding had been stayed by the
bankruptcy filing.

                                          -4-
derived from statute, 28 U.S.C. § 2107(a)." United States v. Watson, 623 F.3d 542,
545 (8th Cir. 2010) (citing Bowles v. Russell, 551 U.S. 205, 212–13 (2007)). We
review a district court's grant of a motion for extension of time to file a notice of
appeal for abuse of discretion. Metro. Fed. Bank, F.S.B. v. W.R. Grace & Co., 999
F.2d 1257, 1259 (8th Cir. 1993).

        Under Rule 4(a)(1), the time for filing a notice of appeal is thirty days "after
entry of judgment or order appealed from." The district court may extend the time to
file a notice of appeal if the party seeking an extension "shows excusable neglect or
good cause." Fed. R. App. P. 4(a)(5)(A)(ii). We consider four factors in determining
whether excusable neglect or good cause for an extension exists: (1) the danger of
prejudice to the non-moving party; (2) the length of delay and its potential impact on
judicial proceedings; (3) the reason for the delay, including whether it was within the
reasonable control of the movant; and (4) whether the movant acted in good faith.
Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 462 (2000) (citing Pioneer Inv.
Servs. Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380, 395 (1993)). These four
factors are not equally important; "the excuse given for the late filing must have the
greatest import" and "will always be critical to the inquiry." Lowry, 211 F.3d at 463.
We have recognized that "excusable neglect includes late filings caused by
inadvertence, mistake or carelessness." Sugarbaker v. SSM Health Care, 187 F.3d
853, 856 (8th Cir. 1999) (internal quotation marks omitted). To be reasonable, it is
not necessary that the neglect be "caused by circumstances beyond the control of the
movant." Lowry, 211 F.3d at 463 (internal quotation marks omitted).

        The reason for Drury's untimely filing here is a computer error. Drury's
counsel used a calendaring application to calculate the date thirty days from the entry
of final judgment, but that application produced an output that was one day later than
the actual deadline. Because the date the program produced was a Saturday, Drury
filed its notice of appeal on the following Monday.



                                          -5-
       The district court's determination that this inadvertent mistake or carelessness
was excusable neglect was not an abuse of discretion. Drury missed the deadline not
because it ignored the deadline or procrastinated but because it made an error in
attempting to comply. Compare Sugarbaker, 187 F.3d at 856 (finding excusable
neglect when an attorney attempted to comply with a deadline but miscalculated it
and filed the request one day late), with Lowry, 211 F.3d at 463–64 (finding neglect
was not excusable when the delay was due to "garden-variety attorney inattention,"
and the attorney's excuses for it were "thin" and confused). But see Symbionics Inc.
v. Ortlieb, 432 F. App'x 216, 220 (4th Cir. 2011) (unpublished) ("Counsel's total
dependence on a computer application . . . to determine the filing deadline for a notice
of appeal is neither extraneous to nor independent of counsel's negligence. . . . [T]his
neglect is precisely the sort of run-of-the-mill inattentiveness by counsel that we have
consistently declined to excuse in the past." (internal quotation marks omitted)).

       The other factors also support the district court's finding of excusable neglect.
The first two factors weigh in favor of Drury: because the filing was only one day
late, both the danger to the non-moving party and the length of delay were minimal.
There was also no indication that Drury's tardy filing was in any way motivated by
bad faith.3 Accordingly, the district court did not abuse its discretion in granting
Drury leave to file an untimely notice of appeal.




      3
       Casey asks us to consider these last three factors more broadly, arguing we
should consider Drury's conduct throughout this lawsuit cumulatively along with the
danger to Casey, the delay, and the bad faith stemming from this particular motion.
However, our cases do not indicate that such a broad, cumulative approach is
appropriate, and we decline to embrace it here. See, e.g., Lowry, 211 F.3d at 463–64
(discussing only the immediate circumstances surrounding the tardy filing);
Sugarbaker, 187 F.3d at 856 (same).


                                          -6-
                                          III

      Drury attempts to recover its subrogation lien via two avenues. First, it argues
it may enforce the terms of the ERISA Plan against Casey because Casey agreed to
those terms. Second, Drury argues that even if Casey did not agree to those terms,
Drury may sue Casey in equity. Although we agree that recovery is generally
possible under either of those theories, see CGI Tech. & Solutions, Inc. v. Rose, 683
F.3d 1113, 1117 (9th Cir. 2012) (noting that ERISA § 502(a)(3) does not limit the
universe of possible defendants to only signatories of ERISA plans, and that equitable
actions against trustees or fiduciaries may also be possible), in this case, neither
allows Drury to recover.

                                          A

       We now turn to the merits of the case and consider whether Casey's
acknowledgment of the Plan's subrogation provision created an implied contract
between Casey and Drury. "We review the decision to grant summary judgment de
novo and will affirm if, viewing the evidence in the light most favorable to the
nonmoving party, we conclude there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law." Halbach v. Great-West Life
& Annuity Ins. Co., 561 F.3d 872, 875 (8th Cir. 2009). A subrogation agreement
between a client and an ERISA plan is only enforceable against a client's attorney if
the attorney "agrees with a client and a plan to honor the plan's subrogation right."
S. Council of Indus. Workers v. Ford, 83 F.3d 966, 969 (8th Cir. 1996); see also
Hotel Emps. & Rest. Emps. Int'l Union Welfare Fund v. Gentner, 50 F.3d 719, 721
(9th Cir. 1995) (Lay, J., sitting by designation) ("A subrogation agreement or lien can




                                         -7-
be enforced against the attorney only if the attorney agrees with the client and creditor
to protect the lien.").4

      In Gentner, the Ninth Circuit reasoned that "[m]ere notice or knowledge of the
subrogation agreement or lien does not constitute an implied contract" between the
attorney and the plan. Gentner, 50 F.3d at 721. In that case, the client, Joseph
Newell, received benefits from an ERISA fund for injuries he suffered when he was
struck by a car. In connection with those benefits, Newell executed a subrogation
agreement with the fund in which he agreed to reimburse the fund for all payments
it made to him to the extent that he received money from any other insurer. Id. at 720.
Newell's attorney was aware of the subrogation agreement but did not sign or
otherwise agree to it. Id. The Ninth Circuit held that under these facts, the fund
could not enforce the lien as an implied contract against the attorney. Id.

       Unlike in Gentner, the attorney in Ford not only knew about the subrogation
agreement but also "himself signed the subrogation agreement." Ford, 83 F.3d at 969.
In that case, before the client settled her personal injury claim with the plan
administrator, both she and her attorney "signed a subrogation agreement providing
that they would reimburse the fund from the proceeds of any recovery received for
[the client's] injuries." Id. at 968. This was the key fact for our holding in that case.


      4
         In CGI Technologies, the Ninth Circuit recognized the abrogation of Gentner's
holding that the universe of possible defendants under § 502(a)(3) only includes
attorneys when they were signatories of ERISA plans. 683 F.3d at 1117 (citing
Harris Trust & Savings Bank v. Salomon Smith Barney, 530 U.S. 238 (2000)). As
discussed above, we agree with the Ninth Circuit that attorneys may be liable in
equity even if they are not signatories to ERISA plans. However, we believe Gentner
is still valid and instructive with regard to its analysis of the circumstances under
which attorneys may become signatories to ERISA plans. Accordingly, our
references to Gentner should be understood to rely only on that case's analysis of that
narrow issue.


                                          -8-
Id. at 969. Citing Gentner, we determined that "[b]ecause [the attorney] himself
signed the subrogation agreement, . . . the complaint also stated an ERISA claim
against him for violation of the subrogation clause." Id.

       Here, Drury argues that Casey should be bound by the subrogation agreement
on the basis of two letters Casey sent to Drury. First, in a January 15, 2009 letter,
Casey wrote: "This will confirm that we do acknowledge Drury Inns, Inc.'s lien in this
matter." And second, in a March 16, 2009 letter: "we are not challenging your right
to reimbursement/subrogation for payments made for the health care of Sean Goding
relating [sic] the injuries caused by his fall at the Hilton." These statements clearly
acknowledge the validity and existence of a subrogation agreement between Goding
and Drury. However, absent from these statements or any other communication
identified by Drury is a promise by Casey to take any action to himself enforce the
subrogation agreement or even to ensure that Goding abide by it.

      Without such a promise, the acknowledgment alone is insufficient to establish
an implied contract. As the district court noted,

      this is not a case like Ford, in which the lawyer actually signed the
      subrogation agreement. Nor is it a case in which the lawyer
      unequivocally agreed to transmit a specified amount of money to the
      plaintiff upon the settlement of the underlying case. Instead, the
      correspondence consists of nothing more than a simple acknowledgment
      that the plaintiff held a lien against the settlement proceeds by virtue of
      its subrogation agreement with Goding. Again, Casey was not a party
      to that subrogation agreement, and there is no other evidence of a
      professional or contractual relationship between plaintiff and Casey that
      would support a duty to plaintiff. And, as held in Gentner, mere notice
      or knowledge of the subrogation agreement or lien does not constitute
      an implied contract. Ultimately, although Casey acknowledged the lien,
      it did not agree to honor or protect the lien.



                                         -9-
Treasurer, Trustees of Drury Indus., Inc. v. Sean Goding and Casey & Devoti, P.C.,
No. 09-00121, slip op. at 4 (E.D. Mo. March 1, 2010) (memorandum and order). We
agree with the district court's well-reasoned conclusion on this issue. Although Casey
acknowledged the existence of the lien against the settlement proceedings, it never
agreed with Drury and Goding to honor the Plan's subrogation right. Because Casey
was not a party to the subrogation agreement, Drury cannot enforce that agreement
against Casey.

                                          B

       Drury argues that even if Casey did not itself agree to the subrogation
agreement in the Plan, it still has an equitable remedy against Casey because "Drury's
lien attached at the moment Casey received the disputed settlement funds on behalf
of Goding." However, this argument is unavailing. Section 502(a)(3) of ERISA
authorizes persons to bring a civil action for violation of a plan, but only to obtain
equitable, not legal, relief. 29 U.S.C. § 1132(a)(3); see also Great-West Life &
Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210 (2002) (limiting equitable relief in
§ 502(a)(3) to "those categories of relief that were typically available in equity."
(internal quotation marks omitted)).

       In equity, there was no cause for restitution where the trustee of property
wrongfully disposed of another's property, but no longer held that property or its
product. Knudson 524 U.S. at 213–14 (quoting Restatement (First) of Restitution
§ 215 (1937)). A party who has been wrongfully divested of its property was not
entitled to equitable relief "merely because of the character of the wrong done to
him." Restatement Restitution, at § 215(1) cmt. a (1937). Instead, it could only
recover if it proved not only that the other party "once had property legally or
equitably belonging to [it]," but also "that he still holds the property or properties
which is in whole or part its product." Id. The Restatement describes this distinction
between legal and equitable remedies as follows:

                                        -10-
      if it is shown that the property or proceeds have been dissipated so that
      no product remains, [the party's] claim is only that of a general creditor
      of the wrongdoer. Thus, if the wrongdoer has used the money of the
      claimant in speculation and has lost it all, the claimant cannot enforce
      a constructive trust of or an equitable lien upon other property of the
      wrongdoer, and has only a personal claim against the wrongdoer, and is
      not entitled to priority over other creditors of the wrongdoer.

Id. In other words, where the wrongdoer no longer has the property at issue in its
possession, the claim against that party is legal, not equitable. Knudson, 534 U.S. at
210.

       Because the recipients of ERISA benefits in Great West Life & Annuity
Insurance Co. v. Knudson no longer possessed the settlement funds to which the plan
claimed entitlement, Great West had no equitable claim and could not recover those
benefits. Knudson, 534 U.S. at 214. The claim in that case was similar to the one
here. The Knudsons had received benefits under an ERISA plan and had also
collected money in a civil settlement. The ERISA plan contained a subrogation
clause, under which the covered employees were obligated to return benefits to Great
West to the extent they received compensation for the same injuries from another
source. Id. at 207. The settlement funds in that case were not paid directly to the
Knudsons but were disbursed by two checks, one to respondents' attorney and the
other to a Special Needs Trust (as required by California law). Id. at 214. Thus,
"[t]he basis for petitioners' claim [was] not that respondents [held] particular funds
that, in good conscience, belong[ed] to petitioners, but that petitioners [were]
contractually entitled to some funds for benefits that they conferred." Id. The kind
of restitution Great West sought, "therefore, [was] not equitable—the imposition of
a constructive trust or equitable lien on particular property—but legal—the
imposition of personal liability for the benefits that they conferred on respondents."
Id.



                                        -11-
       On the other hand, in Sereboff v. Mid Atlantic Medical Services Inc., 547 U.S.
356 (2006), the Sereboffs, recipients of ERISA benefits, actually received and held
the benefits from their settlement, and thus Mid Atlantic could maintain an equitable
action against them. Id. at 362–63. This was because Mid Atlantic "sought
specifically identifiable funds that were within the possession and control of the
Sereboffs—that portion of the tort settlement due Mid Atlantic under the terms of the
ERISA plan, set aside and preserved in the Sereboff's investment accounts." Id.; see
also Longaberger Co. v. Kolt, 586 F.3d 459, 469 (6th Cir. 2009) (holding that
equitable relief under § 502(a)(3) was proper because Longaberger "properly
identified a specific fund . . . that was in the possession and legal control of [the
defendant], but belonged in good conscience to the Plan.").

       Here, like in Knudson, Drury is essentially attempting to impose personal, or
legal, liability on Casey for the benefits it conferred on Goding. After receiving the
settlement funds from Goding's personal injury law suit, Casey initially held in trust
the $11,423.79 to which Drury claims an interest, but he eventually disbursed the
entirety of that sum to Goding. Casey thus no longer has any money to which Drury
claims an interest. Accordingly, any action by Drury to recover from Casey is legal,
not equitable. Because § 502(a)(3) allows only equitable relief, the district court was
correct in denying Drury's motion for summary judgment on this issue.

                                          C

       Drury also attempts to bring a state cause of action against Casey for
conversion of the settlement funds over which Drury asserts an interest. However,
we may not consider this cause of action because it is preempted by ERISA. ERISA's
preemption provision states its enforcement provisions "shall supersede any and all
State laws insofar as they may now or hereafter relate to any employee benefit plan
described in section 1003(a) of this title." 29 U.S.C. § 1144(a); Aetna Health Inc. v.
Davila, 542 U.S. 200, 209 (2004). Congress intended courts to read this provision

                                         -12-
broadly, in order to protect ERISA's "uniform regulatory regime over employee
benefit plans." Davila, 542 U.S. at 208. In particular, the Court has sought to protect
ERISA's "integrated enforcement mechanism," § 502(a), which "is a distinctive
feature of ERISA, and essential to accomplish Congress' purpose of creating a
comprehensive statute for the regulation of employee benefit plans." Id. at 208; see
also Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54 (1987) ("The six carefully
integrated civil enforcement provisions found in § 502(a) of the statute as finally
enacted . . . provide strong evidence that Congress did not intend to authorize other
remedies that it simply forgot to incorporate expressly." (internal quotation marks
omitted)).

       ERISA preempts state causes of action whenever "the individual is entitled to
such coverage only because of the terms of an ERISA-regulated employee benefit
plan, and where no legal duty (state or federal) independent of ERISA or the plan
terms is violated." Davila, 542 U.S. 200, 210 (2004). "In other words, if an
individual, at some point in time, could have brought his claim under ERISA
§ 502(a)(1)(B), and where there is no other independent legal duty that is implicated
by a defendant's actions, then the individual's cause of action is completely pre-
empted by ERISA § 502(a)(1)(B)." Id.

      Drury alleges that the ERISA Plan required Casey to hold in trust and
eventually to return to Drury any settlement money Goding received for his injuries.
Any right that Drury has to the settlement money obtained by Casey and Goding was
created by and emanates solely from the Plan. Therefore, Drury's only avenue for
enforcing the subrogation agreement in the Plan is ERISA; it may not resort to state
law causes of action.




                                         -13-
                                          IV

       Drury finally argues that the district court should not have awarded attorneys'
fees in this case. It asserts that ERISA § 502(a)(1) does not permit the award of
attorneys' fees to attorneys that act as counsel to their own firms, as Casey did here.
Section 502(g)(1) provides that for "any action under this subchapter . . . by a
participant, beneficiary, or fiduciary, the court in its discretion may allow a
reasonable attorneys' fee and costs of action to either party." 29 U.S.C. § 1132(g)(1).

       For support, Drury cites Kay v. Ehrler, 499 U.S. 432 (1991), in which the
Supreme Court held that 42 U.S.C. § 1988 does not permit attorneys' fees for an
attorney who represents himself personally. Id. at 438. In that case, the Court noted
that "the word 'attorney' assumes an agency relationship, and it seems likely that
Congress contemplated an attorney-client relationship as the predicate for an award
under § 1988." Id. at 435–36. Thus, where an attorney represents himself personally,
an award of attorneys' fees is not appropriate. Importantly, however, the Court also
noted in dicta that where an organization engages an in-house attorney, that
"organization is not comparable to a pro se litigant because the organization is always
represented by counsel, whether in-house or pro bono, and thus, there is always an
attorney-client relationship." Id. at 436 n.7.

       Since Kay, three of our sister circuits have relied on footnote 7 to hold that,
unlike attorneys who represent themselves personally, in-house attorneys for law
firms (and for organizations in general) may be entitled to awards of attorneys' fees.
In Baker & Hostetler v. United States Department of Commerce, the D.C. Circuit
reasoned that

      [i]n explaining that organizations may recover fees when represented by
      in-house counsel, the Supreme Court did not distinguish between law
      firms and other types of organizations. Nor can we see any principled
      basis for making such a distinction. Footnote 7 suggests that an in-

                                         -14-
      house counsel for a corporation is sufficiently independent to ensure
      effective prosecution of claims, thus justifying fees. An attorney who
      works for a law firm certainly is no less independent than an attorney
      who works for a corporation. Therefore, it would make little sense to
      slice and dice Kay's conclusion regarding "organizations" and apply
      footnote 7 to some organizations but not others.

473 F.3d 312, 325 (C.A.D.C. 2006); see also Bond v. Blum, 317 F.3d 385, 400 (4th
Cir. 2003) ("Though representation of a law firm by one of its members presents an
increased risk of emotional involvement and loss of independence, the law firm still
remains a business and professional entity distinct from its members, and the member
representing the firm as an entity represents the firm's distinct interests in the agency
relationship inherent in the attorney-client relationship."); Gold, Weems, Bruser, Sues
& Rundell v. Metal Sales Mfg. Corp., 236 F.3d 214, 218–19 (5th Cir. 2000) ("[W]hen
an organization is represented by an attorney employed by the organization, the
attorney has a status separate from the client.").

      We join the Fourth, Fifth, and D.C. Circuits to hold that, where an attorney
represents his or her own firm, Katz does not forbid the award of attorneys' fees. We
agree that there is no meaningful distinction between a law firm and any other
organization on the issue of whether there exists an attorney-client relationship
between the organization and its attorney.

      Moreover, we hold that the district court did not abuse its discretion in
awarding attorneys' fees in this case. See Newberry v. Burlington Basket Co., 622
F.3d 979, 982 (8th Cir. 2010) (standard of review). In deciding whether to award
attorneys' fees, the district court should consider the following factors:

      (1) the degree of the opposing parties' culpability or bad faith; (2) the
      ability of the opposing parties to satisfy an award of attorneys' fees;
      (3) whether an award of attorneys' fees against the opposing parties
      could deter other persons acting under similar circumstances;

                                          -15-
      (4) whether the parties requesting attorneys' fees sought to benefit all
      participants and beneficiaries of an ERISA plan or to resolve a
      significant legal qeustion [sic] regarding ERISA itself; and (5) the
      relative merits of the parties positions.

Lawrence v. Westerhaus, 749 F.2d 494, 496 (8th Cir. 1984) (internal quotation
marks omitted).

      Here, the district awarded Casey attorneys' fees not for the entire case,
but only for the expenses associated with the motion for reconsideration:

      Although the Court is not convinced that Casey is entitled to the entirety
      of its attorney's fees, the Court believes that plaintiff caused defendant
      Casey to unnecessarily incur additional litigation expenses subsequent
      to plaintiff's filing its Motion for Reconsideration. By that time, Casey
      had prevailed not once, but twice, and the Motion for Reconsideration
      was by then entirely reargument and without merit.

The court also discussed the second through fifth factors from Lawrence,
finding that Drury could satisfy a fee award, the award would deter others from
engaging in dilatory tactics, Casey sought to help other Plan beneficiaries and
participants to obtain representation in tort actions, and the relative merits were
apparent because Drury "lost its case, on the merits, as a matter of law, three
times." Although Drury argues that these factors do not necessitate an award
of attorneys' fees in this case, the district court was well within its discretion
in awarding them.

      Accordingly, we affirm the decision of the district court.
                  ______________________________




                                       -16-
