The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge
This suit arises out of the alleged failure of defendant Trina Beverly ("Beverly") to reimburse plaintiff Genworth Health and Life Insurance Company ("Genworth") for $17,119.05 in disability benefit overpayments. These payments were made under an ERISA governed employee welfare-benefit plan between March 2004 and October 2005.
On May 3, 2007, Genworth commenced this action seeking damages and various equitable relief. (See Dkt. No. 1.) Beverly was personally served with process on July 23, 2007. (See Dkt. No. 5.) To date Beverly has failed to appear in this action, and the time to do so has expired. See FED. R. CIV. P. 12(a). On September 21st, Genworth filed a Request for Entry of Default against Beverly pursuant to Federal Rule of Civil Procedure 55 and Local Rule 55.1. (See Dkt. No. 7.) The Clerk of the Court entered such default on September 24th. (See Dkt. No. 8.) Genworth now moves for a default judgment, awarding it: 1) $17,119.05 for the overpayment, 2) attorneys' fees in the amount of $5,118.00, 3) costs and disbursements of $350.00 and, 4) pre and post judgment interest at 9%. The court's jurisdiction is predicated solely on 28 U.S.C. § 1331.
A. Judgment, Costs and Disbursements
As Beverly has defaulted and Genworth's claim is for a sum certain, Genworth is entitled to judgment in the amount of $17,119.05, as well as costs and disbursements in the amount of $350.00. See FED. R. CIV. P. 55(b)(1).
"In an ERISA action, 'the court in its discretion may allow a reasonable attorney's fee and costs of action to either party.'" Pease v. Hartford Life Ins. Co., 449 F.3d 435, 450 (2d Cir. 2006) (quoting 29 U.S.C. § 1132(g)(1)). In determining whether to award attorney's fees, courts should consider:
(1) the degree of the offending party's culpability or bad faith, (2) the ability of the offending party to satisfy an award of attorney's fees, (3) whether an award of fees would deter other persons from acting similarly under like circumstances, (4) the relative merits of the parties' positions, and (5) whether the action conferred a common benefit on a group of pension plan participants.
In the present instance, the court is unable to determine the degree of bad faith or Beverly's ability to satisfy an award of attorney's fees, as she has not appeared in the action. However, the remaining three factors weigh in favor of awarding attorney's fees. Such award should, if nothing else, deter others from defaulting. Genworth's position certainly appears meritorious. Finally, the reimbursement of the overpayment should flow to the benefit of all plan participants. As such the court finds that an award of attorney's fees is appropriate here.
As to the amount of attorney's fees to award, courts within the Second Circuit apply the "presumptively reasonable fee analysis" in determining the appropriate remuneration. Porzig v. Dresdner, Kleinwort, Benson, North America LLC, 497 F.3d 133, 141 (2d Cir. 2007). This analysis "involves determining the reasonable hourly rate for each attorney and the reasonable number of hours expended, and multiplying the two figures together to obtain the presumptively reasonable fee award." Id. In determining what is reasonable the following factors are useful:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the ...