United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA United States District Judge.
by counsel, Charles Standish (“Standish” or
“Plaintiff”), a former employee of Federal
Express Corporation (“FedEx”) instituted this
action against Federal Express Corporation Long Term
Disability Plan (“LTD Plan” or “the
Plan”) and Aetna Life Insurance Company
“Defendants”), pursuant to § 502 of the
Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. § 1132(a)(1)(B),
challenging the denial of his claim for long term disability
(“LTD”) benefits. In a Decision and Order entered
November 17, 2016, the Court denied Defendants' Motion
for Summary Judgment, and granted Plaintiff's Motion for
Summary Judgment only to the extent that the denial of LTD
benefits was reversed, and the matter is remanded to Aetna
for further administrative proceedings consistent with the
Court's instructions in its Decision and Order.
provides for an award of attorneys' fees. See 29
U.S.C. § 1132(g)(1) (“In any action under this
subchapter . . ., the court in its discretion may allow a
reasonable attorney's fee and costs . . . to either
party.”). The Supreme Court has emphasized that a
district court's discretion to award attorneys' fees
under ERISA “is not unlimited, ” inasmuch as it
may only award attorneys' fees to a beneficiary who has
obtained “some degree of success on the merits.”
Hardt v. Reliance Standard Life Ins. Co., 560 U.S.
242, 254-55 (2010). “After Hardt, whether a
plaintiff has obtained some degree of success on the merits
is the sole factor that a court must consider in exercising
its discretion.” Donachie v. Liberty Life Assur.
Co. of Boston, 745 F.3d 41, 46 (2d Cir. 2014) (citing
Hardt, 560 U.S. at 255 (stating that the traditional
five-factor test is “not required for channeling a
court's discretion when awarding fees under [29 U.S.C.
parties dispute whether Plaintiff obtained “some degree
of success on the merits” so as to meet the statutory
threshold for an award of attorney's fees. In its
Decision and Order, the Court noted that violations of ERISA
and its implementing regulations have been held to constitute
a significant error on a question of law, which may
sufficiently taint the fiduciary's denial of benefits so
as to warrant a finding that decision was arbitrary and
capricious. The Court found that Aetna's May 22, 2014,
denial letter was procedurally defective and showed that
Aetna's decision-making was materially deficient due to
its notice violation. The Court declined to remand for
payment of benefits, as requested by Plaintiff, because the
remedy for the type of fiduciary failures that occurred in
this case is not automatic entry of judgment in favor of the
insured but an opportunity for the insured to fully and
fairly present his claim to the insurer, here, Aetna. The
Court observed that
[w]hile the present record contains a fair amount of evidence
in Plaintiff's favor, it is not uncontroverted. Absent
the Court's finding of procedural violations, the
opinions by Aetna's peer-review physicians (excepting Dr.
Swersie) likely would represent evidence sufficient to uphold
the determination on arbitrary and capricious review. The
various medical opinions also present disputed genuine issues
of material fact. Therefore, the Court will not enter
judgment in Plaintiff's favor.
the Court reversed the decision denying LTD benefits and
remanded the case to Aetna, the Claims Paying Administrator,
Hardt, the Supreme Court expressly declined to
decide “whether, a remand order, without more,
constitutes ‘some success on the merits.'”
Id. The Second Circuit has not conclusively answered
this question, either. A number of district courts in this
Circuit concluded that an ERISA plaintiff was entitled to
attorney's fees without making reference to any positive
opinion offered regarding the merits of the underlying claim.
E.g., Wallace v. Group Long Term Disability Plan
For Employees of TDAmertrade Holding Corp., No.
13 CIV. 6759 LGS, 2015 WL 4750763, at *6 (S.D.N.Y. Aug. 11,
2015) (citing, inter alia, Gross v. Sun Life
Assur. Co. of Canada, 763 F.3d 73, 77 (1st Cir. 2014));
accord, e.g., Valentine v. Aetna Life
Ins. Co., No. 14CV1752JFBGRB, 2016 WL 4544036, at *4
(E.D.N.Y. Aug. 31, 2016) (The district court “agree[d]
that ‘remand simpliciter' is sufficient to
constitute ‘some success on the merits' under
Hardt and that an endorsement from the [c]ourt on
the merits of the claim is unnecessary. Accordingly, here,
even though the [c]ourt did not ‘opine positively'
on the merits of her claim to the degree that the district
court did in Hardt, plaintiff nevertheless achieved
some success on the merits by convincing the [c]ourt to
remand her claim, and is therefore entitled to attorney's
fees.”). The Court agrees with the rationale of these
courts and finds that Plaintiff here achieved some degree of
success by obtaining a remand order, which
“inherent[ly]” entails “two positive
outcomes . . . (1) a finding that the administrative
assessment of the claim was in some way deficient, and (2)
the plaintiff's renewed opportunity to obtain benefits or
compensation.” Gross, 763 F.3d at 78.
to the amount of attorney's fees that should be awarded,
“[b]oth [the Second Circuit] and the Supreme Court have
held that the lodestar-the product of a reasonable hourly
rate and the reasonable number of hours required by the
case-creates a ‘presumptively reasonable
fee.'” Millea v. Metro-N. R. Co., 658 F.3d
154, 166 (2d Cir. 2011) (quoting Arbor Hill Concerned
Citizens Neighborhood Assoc. v. Cnty. of Albany, 522
F.3d 182, 183 (2d Cir. 2008); citing Perdue v. Kenny A.
ex rel. Winn, 559 U.S. 542, 552 (2010)). An attorney
seeking fees bears the burden submitting contemporaneous time
records that describe with specificity the nature of the work
done, the hours expended, and the dates on which the work was
performed. New York State Ass'n for Retarded
Children, Inc. v. Carey, 711 F.2d 1136, 1147-48 (2d Cir.
1983). If a court finds that claimed hours are
“excessive, redundant, or otherwise unnecessary,
” it should exclude those hours in calculating a fee
award. Hensley, 461 U.S. at 434.
attorney has requested $350.00 per hour; Defendants contend
this amount should be reduced by at least $50. Plaintiff
requests $200 per hour for an associate and $115 per hour for
a paralegal. After reviewing Plaintiff's evidentiary
submissions and the caselaw, the Court finds that an
appropriate hourly rate is $300 for the lead attorney, $175
for the associate, and $90 for the paralegal.
regard to the number of hours, Plaintiff's attorney
requests 141.4 hours for his work performed on the case to
date, including preparation of the instant motion for fees;
6.5 hours of associate time at $200 per hour; and 41.7 hours
of paralegal time at $115 per hour. The Court has excluded
the hours spent by Plaintiff's attorney on ministerial
tasks such as reviewing docket entries of scheduling orders
and transfer orders (0.8 hour). Out of the 140.6 hours that
remains after subtracting the 0.8 hour, Plaintiff's
attorney billed 116.2 hours for the summary judgment motion
alone. The associate billed 6.5 hours for “revisions,
editing and proofreading” of the summary judgment
motion and related pleadings. And, the paralegal billed 40.5
hours for “typing, editing, proof reading and cite
checking” the summary judgment motion and related
pleadings. This results in a total of 163.2 hours billed for
the summary judgment motion. The Court finds that this is
excessive in light of what other district courts have found
reasonable for litigating a case through summary judgment.
See, e.g., Laser Lite Elec. Inc. v.
United Welfare Fund-Welfare & Sec. Divisions, No.
12-CV-3347 PKC, 2015 WL 459412, at *3 (E.D.N.Y. Feb. 3, 2015)
(“The Court reviewed the Union's submissions and
finds that the time expended here, 80.60 hours, is reasonable
for a case that proceeded to summary judgment. See
Trustees of Local 531 Pension Fund v. Flexwrap Corp.,
818 F.Supp.2d 585, 591 (E.D.N.Y. 2011) (plaintiffs requested
reimbursement for 82 hours of work total to litigate an ERISA
case through summary judgment, billed at a rate of $250 an
hour for partners and associates, and $125 per hour for
paralegals). [Attorney] Rocco's billing records provide
adequately detailed explanations of the tasks he performed,
and the time spent on each task. The billing records disclose
no unnecessary duplication of effort, and the time spent on
the tasks described do not appear to be excessive.”).
In addition, the billing records submitted here regarding the
summary judgment motion reveal a fair amount of duplication
of effort; the activities of proofreading, editing and/or
revising documents were billed by each individual. The
paralegal's time spent on the summary judgment
motion-40.5 hours-is not only excessive, but is block-billed
such that her time lumps together secretarial tasks (typing),
which are compensable at a significantly lower rate, with
paralegal work (editing and cite checking). The Court will
allow 85 hours for the lead attorney's time spent on the
summary judgment motion, will exclude the time spent by the
associate and the paralegal on the summary judgment motion as
duplicative. Adding that to the compensable hours billed by
the lead attorney (24.4 hours) results in 109.4 hours for the
lead attorney. The associate spent no time on any other tasks
apart from the summary judgment motion, although paralegal
did. The paralegal's time spent filing documents (0.5
hour) will be subtracted, as this represents clerical
services which are “generally not charged to
clients.” E.g., LV v. N.Y. City Dep't
of Educ., 700 F.Supp.2d 510, 523 (S.D.N.Y. 2010)
(“[T]asks like serving, filing, and docketing papers .
. . are ‘normally subsumed into an attorney's
overhead expenses' and ‘not generally considered
recoverable.'”) (quoting Bridges v. Eastman
Kodak Co., No. 91-7985, 1996 WL 47304, at *7 (S.D.N.Y.
Feb. 6, 1996); citing Marisol A. ex rel. Forbes v.
Giuliani, 111 F.Supp.2d 381, 390-91 (S.D.N.Y. 2000)
(“[T]ime spent serving and filing papers . . . is not
usually considered recoverable.”)). The Court will
allow the remaining, non-motion-related time billed by the
paralegal (0.7 hour).
regard to the time spent on the fee motion, courts in this
Circuit have recognized a prevailing party's
attorney's right to bill for time spent applying for fees
and costs. E.g., Murray ex rel. Murray v.
Mills, 354 F.Supp.2d 231, 241 (E.D.N.Y. 2005) (citing
Fink v. City of N.Y., 154 F.Supp.2d 403, 412
(E.D.N.Y. 2001)). Cases in this district have found that a
reasonable amount of hours to award for compiling a motion
for attorneys fees in a routine case to be 5 to 15 hours.
E.g., White v. White Rose Food, 86
F.Supp.2d 77 (E.D.N.Y. 2000); Savino v. Computer Credit,
Inc., 71 F.Supp.2d 173 (E.D.N.Y.1999) (reducing the
number of compensable hours from the claimed amount of forty
to a total of five). Here, Plaintiff's attorney has
claimed 4.4 hours for preparing the motion for fees, which
the Court finds is reasonable. See id.
summarize the total fee award, the Court is allowing recovery
of 113.8 (109.4 plus 4.4) hours by the lead attorney at $300
per hour ($34, 140), and 0.7 hour by the paralegal at ...