Lowery v. Unum Life Insurance Company of America

Filing 37

ORDER granting in part and denying in part 28 & 36 Motion for Attorney's Fees & Costs. Plaintiff is awarded attorney's fees & costs in the total amount of $9,287.60. Signed by Judge William R. Wilson, Jr on 3/29/2010. (jct)

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION JOEAN LOWERY v. 3:09CV00013-WRW DEFENDANT ORDER Pending is Plaintiff's Motion for Attorney's Fees (Doc. Nos.28, 36). Defendant has responded.1 I consider Plaintiff's request in light of the five Westerhaus2 factors. I find that while Defendant did not act in bad faith, Defendant is able to pay attorney's fees and an award of attorney's fees might have a deterrent effect. Further, the merits of the case weigh in Plaintiff's favor. Accordingly, Plaintiff's Motion is GRANTED to the extent set out below. I will not award fees for the following services: February 19, 2009: February 19, 2009: June 18, 2009: July 30, 2009: August 7, 2009: February 12, 2010: Draft Application to Proceed IFP -- because the motion to proceed ifp was filed already on February 5, 2009. Review Notice of Appearance by Opposing Counsel -- because .2 hours to review a notice of appearance is excessive Review Motion to Extend Motion Deadline -- because .3 hours to review this unopposed, 6-sentence motion is excessive. Draft Order Draft Abstract of the Medical Record -- the Administrative Record filed contains medical records that speak for themselves. Draft Motion for Attorney's Fees PLAINTIFF

UNUM LIFE INSURANCE COMPANY OF AMERICA

1

Doc. No. 33. Lawrence v. Westerhaus, 794 F.2d 494, 496 (8th Cir. 1984). 1

2

February 12, 2010:

Draft Brief in support of Motion for Attorney's Fees

The above services account for $1,782.00 in attorney's fees and $45.00 in paralegal fees,3 for a sum of $1,872.00. Plaintiff's request also includes at least $850.00 in fees for services that were rendered in 2007 and 2008 -- well before this case was ever filed and apparently in connection with the exhaustion of Plaintiff's administrative remedies. I will allow only half of those fees, or $425. I will allow the total $1,036.60 in requested costs. Plaintiff's original request of $11,584.60 less $2,297 ($1,872.00 plus $425) results in an award of attorney's fees and costs in the total amount of $9,287.60. IT IS SO ORDERED this 29th day March, 2010.

/s/Wm. R. Wilson, Jr. UNITED STATES DISTRICT JUDGE

Because Plaintiff's attorney did not provide his hourly rate, to find an hourly rate I divided the amount of attorney's fees requested by the number of hours of service provided to reach the hourly rate of $165.00. Ditto for paralegal fees at $45 per hour. 2

3