Mazet v. Halliburton Co Long-, et al

Filing 131

ORDER GRANTING plaintiff's motion for attorney's fees and non-taxable costs for a total award of $183,007.39 (doc. 115). Signed by Judge Frederick J Martone on 8/1/2011.(KMG)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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David L. Mazet,
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Plaintiff,
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vs.
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Halliburton Company
Disability Plan, et al.,

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Defendants.
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No. CV-04-0493-PHX-FJM
ORDER

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The court has before it plaintiff’s motion for attorney’s fees pursuant to 29 U.S.C. §

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1132(g) (doc. 115) and memorandum in support (doc. 121), defendants’ response (doc. 124),

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and plaintiff’s reply (doc. 126).

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Plaintiff seeks an award of fees in the amount of $190,352.50 and non-taxable costs

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in the amount of $942.39, for fees spanning the 7-year life of this case. Defendants do not

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dispute that plaintiff is the prevailing party, but they argue that plaintiff is not entitled to fees

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under the factors set forth in Hummell v. S.E. Rykoff & Co., 634 F.2d 446, 453 (9th Cir.

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1980), and because the requested fees are not reasonable.

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We consider the five Hummell factors in evaluating a motion for attorney’s fees under

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29 U.S.C. § 1132(g): (1) the degree of the opposing party’s culpability or bad faith; (2) the

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ability of the opposing party to satisfy an award of fees; (3) whether an award of fees would

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deter others from acting under similar circumstances; (4) whether the party requesting fees

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sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a

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significant legal question regarding ERISA; and (5) the relative merits of the parties’

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positions. Id. at 453.

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With respect to the first Hummell factor, we concluded in a previous order that

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“[t]here is no showing . . . that Hartford acted in bad faith in denying plaintiff’s LTD

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benefits. The ongoing and alternating history of this litigation demonstrates Hartford’s

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reasonably debatable benefits eligibility decision.” Order (doc. 127) at 2. We reaffirm that

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conclusion here. This factor weighs against an award of fees.

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The remaining factors weigh in favor of fees. It is not disputed that defendants have

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the ability to satisfy an award of fees. An award of fees against defendants would not deter

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others from filing meritorious claims, in fact it would likely encourage such claims.

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Although this litigation was filed for the benefit of plaintiff only, it nevertheless resolved

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significant legal questions that would benefit other Plan beneficiaries, in particular the

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appropriateness of including deferred compensation in the “basic earnings” calculation.

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Finally, the relative merits of the parties’ positions fall strongly in favor of plaintiff, who

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prevailed on every claim for relief. We conclude that plaintiff has sufficiently satisfied the

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Hummell factors and therefore is entitled to an award of fees.

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We thus turn to the reasonableness of the fees requested. Defendants argue that the

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fees are not reasonable in four respects: (1) plaintiff is not entitled to a “payment delay

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enhancement,” (2) plaintiff improperly billed non-legal work at attorney hourly rates, (3)

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plaintiff billed for duplicate services, and (4) plaintiff failed to adequately describe the

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services rendered.

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Plaintiff has requested that instead of applying counsel’s historical hourly rates to his

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billing statements over the past 7 years, that all time entries be multiplied by his current

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hourly rate of $325 per hour. Defendants do not dispute that plaintiff’s counsel’s hourly

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rates, which increased from $275 an hour in 2004 to $325 hour currently, are within the

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relevant market rates. Defendants only complain that plaintiff is not entitled to a payment

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delay enhancement. “District courts have the discretion to compensate plaintiff’s attorneys

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for a delay in payment by either applying the attorneys’ current rates to all hours billed

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during the course of the litigation or using the attorneys’ historical rates and adding a prime
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rate enhancement.” Welch v. Metropolitan Life Ins. Co., 480 F.3d 942, 947 (9th Cir. 2007).

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Because counsel has worked this case since 2003 without payment, a payment delay

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enhancement is appropriate. Therefore we will apply counsel’s current hourly rate of $325

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to all reasonable hours.

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We agree with defendants that the billing statement show that plaintiff’s counsel has

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improperly billed attorney rates for non-legal work. For example, counsel billed for

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“serv[ing] Hartford,” “copy[ing], bind[ing], & submit[ting] excepts of record,” “travel[ing]

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to UPS store,” “format[ting] file documents,” “e-fil[ing] brief,” and “prepar[ing] list of

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Abbreviations.” Memorandum, ex. 3. Much of this non-legal work is secretarial in nature

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and not eligible for any fee reimbursement. Defendants challenge a total of 43.3 hours billed.

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But some of the non-legal activities are bundled in entries with reimbursable legal activities,

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making it is impossible to determine the number of non-reimbursable hours with precision.

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Nevertheless, because it is clear that some non-legal activities were included in the billable

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hours, we reduce the number of compensable hours by 25 hours.

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Defendants also complain that plaintiff failed to eliminate duplicate time entries.

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Defendants list 5 examples of what they consider to be duplicate entries. Response, ex. B.

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The first 4 items involved document review in May 2003. Identical entries were also made

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in March 2004. Plaintiff’s counsel explains that he reviewed the same documents a year later

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in preparation for the filing of the lawsuit. Given the length of elapsed time, these hours are

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reasonable.

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Defendants also list one entry for .5 hours, associated with a clerk’s docketing entry.

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It appears that there should be no billable amount associated with this entry, therefore we

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reduce the number of reimbursable hours by .5.

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Defendants next contend that plaintiff failed to provide sufficient detail regarding

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telephone calls, email communications, legal research, and preparation of pleadings. LRCiv

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54.2(e)(2) requires that a memorandum in support of fees must “adequately describe the

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services rendered so that the reasonableness of the charge can be evaluated.”

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Defendants claim that it is unclear who counsel communicated with via phone calls and
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email, but the majority of entries show that the communications were between plaintiff’s and

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defendants’ counsel, thereby minimizing the need for additional detail.

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Defendants also argue that plaintiff’s counsel billed at least 22 hours for legal research,

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listing only the case name or legal authority researched, but not specifying the legal issue, as

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required by LRCiv 54.2(e)(2)(B). Although perhaps not in strict compliance with the Rules,

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identifying the legal authority searched provides enough detail to describe the research “so

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that the reasonableness of the charge can be evaluated.” Id. at 54.2(e)(2). We conclude that

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these hours are reasonable.

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Defendants also challenge time entries for document preparation because the entries

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do not identify “the activities associated with its preparation.” LRCiv 54.2(e)(2)(C). Each

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of the challenged entries states “Document Preparation” and the name of the document.

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Defendants do not challenge the total number of hours devoted to the preparation of each

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document, but instead argue that the itemized entry is insufficiently descriptive. Because we

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conclude that the overall hours devoted to the preparation of each document are reasonable,

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we decline to reduce the hours because of insufficient detail.

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Finally, defendants argue that plaintiff failed to separately itemize his non-taxable

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expenses. Plaintiff has since filed an itemization explaining that it was inadvertently omitted

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from his motion.

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reimbursement.

The claimed costs are reasonable and are therefore subject to

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Based on the foregoing, we reduce the number of compensable hours by 25.5 hours,

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to 560.2 total hours, and apply a rate of $325 an hour, for an award of $182,065 in attorney’s

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fees. We also grant plaintiff’s motion for an award of non-taxable costs in the amount of

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$942.39.

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IT IS ORDERED GRANTING plaintiff’s motion for attorney’s fees and non-taxable
costs for a total award of $183,007.39 (doc. 115).
DATED this 1st day of August, 2011.

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