Avery Armani v. Northwestern Mutual Life Insurance Company et al

Filing 56

ORDER Re: PLAINTIFF'S MOTION FOR ATTORNEY'S FEES, TO DETERMINE COSTS AND INTEREST RATE 48 by Judge Ronald S.W. Lew: For the reasons set forth above, the Court GRANTS in part and DENIES in part Plaintiff's Motion for Attorneys Fees . Plaintiff is awarded a total of $101,947.50 in attorneys fees, $1,660.36 in costs, and prejudgment interest on the total amount of benefits owed to Plaintiff at the applicable rate as set forth by 29 U.S.C. § 1961(a) to be compounded annually. (jre)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 AVERY ARMANI, CV 13-07058 RSWL (RZx) 12 ORDER Re: PLAINTIFF’S MOTION FOR ATTORNEY’S FEES, TO DETERMINE COSTS AND INTEREST RATE [48] 13 14 15 16 17 ) ) ) Plaintiff, ) v. ) ) NORTHWESTERN MUTUAL LIFE ) ) INSURANCE COMPANY, a corporation; DOES 1 through ) ) 10, INCLUSIVE, ) ) ) Defendant. ) 18 19 20 I. INTRODUCTION Currently before the Court is Plaintiff Avery 21 Armani’s (“Plaintiff”) Motion for Attorney’s Fees, to 22 Determine Costs and Interest Rate (“Motion”) against 23 Defendant Northwestern Mutual Life Insurance Company 24 (“Defendant”). Pl.’s Mot. for Att’y’s Fees (“Mot.”), 25 ECF No. 48. The Court, having reviewed all papers and 26 arguments submitted pertaining to this Motion, NOW 27 FINDS AND RULES AS FOLLOWS: the Court GRANTS in part 28 and DENIES in part Plaintiff’s Motion for Attorney’s 1 1 Fees. 2 II. BACKGROUND 3 A. Factual Background 4 Plaintiff worked as a full-time controller for the 5 Renaissance Insurance Agency (“Renaissance”) from 6 November 3, 2008 to May 18, 2011. 7 Court Trial 2:1-5, ECF No. 27. Ruling and Order re On January 6, 2011, 8 Plaintiff injured his back lifting a backup power 9 supply while at work. Id. at 4:19-20. Plaintiff was 10 diagnosed with a lumbar region sprain, muscle spasms, 11 and sciatica. Id. at 4:22-5:6. 12 working on May 18, 2011. 13 Plaintiff stopped Id. at 6:14-15. As a Renaissance employee, Plaintiff was insured 14 under a group long-term disability policy (“the LTD 15 Plan”) issued by Defendant. Id. at 2:6-8. Plaintiff 16 completed a Group Disability Claim Employee Statement 17 for Defendant on July 15, 2011, reporting that his back 18 injury prevented him “from sitting, standing, walking, 19 driving, and concentrating for prolonged periods of 20 time without experiencing a lot of pain &/or 21 difficulty.” 22 Id. at 8:12-17. Between September 2011 and January 2012, Plaintiff 23 continued to visit chiropractors, pain specialists, and 24 physicians, all of whom confirmed that Plaintiff’s 25 disability precluded him from working. 26 14:26. Id. at 13:14- On January 16, 2012, another chiropractor 27 indicated that Plaintiff was limited to sitting for 28 four hours a day and to standing and walking for two 2 1 hours a day, but believed that Plaintiff’s condition 2 would improve and that he could return to work on July 3 6, 2012. Id. at 14:26-15:8. Based on these medical 4 records, Defendant’s reviewing physician, Dr. John 5 Hart, determined that Plaintiff was capable of working 6 in a sedentary position. 7 Id. at 15:9-19. By letter dated July 9, 2013, Defendant informed 8 Plaintiff that his LTD claim was being closed because 9 his records did not support a disability under the “own 10 occupation” or “any occupation” test. Id. at 18:24-28. 11 Plaintiff appealed the decision and asked for review by 12 a second doctor. Id. at 19:1-6. After being assigned 13 to review Plaintiff’s records, Dr. Hans Carlson also 14 found that the records “[did] not support that 15 [Plaintiff] would be precluded from sedentary-level 16 work.” Id. at 19:6-12. Defendant informed Plaintiff 17 that it was upholding its claim decision. Id. at 18 19:18-20. 19 B. Procedural Background 20 Pursuant to the Employee Retirement Income Security 21 Act of 1974 (“ERISA”), Plaintiff filed his Complaint 22 against Defendant on September 23, 2013 [1]. Following 23 a bench trial, on November 25, 2014, this Court awarded 24 Plaintiff benefits for the remainder of the first 24 25 months of his disability under the LTD Plan (nine days 26 total), but also found that Plaintiff failed to show by 27 a preponderance of the evidence that he was disabled 28 from “all occupations” after July 18, 2013 [27]. 3 1 On December 1, 2014, Plaintiff appealed this 2 Court’s Judgment [29], and on November 4, 2016, the 3 Ninth Circuit Court of Appeals vacated the part of this 4 Court’s Judgment denying Plaintiff his long-term 5 disability benefits and remanded the case for further 6 proceedings [31]. After Plaintiff’s Writ of Mandamus 7 was granted reversing this Court’s remand of the matter 8 to Defendant, this Court entered Judgment for Plaintiff 9 on May 18, 2017 [47]. On May 30, 2017, Plaintiff filed 10 the instant Motion for Attorney’s Fees [48]. On June 11 26, 2017, Defendant filed its Opposition [51], and 12 Plaintiff’s Reply followed on June 28, 2017 [54]. 13 III. DISCUSSION 14 A. Legal Standard 15 1. 16 29 U.S.C. § 1132(g)(1) states that “the court in Attorney’s Fees 17 its discretion may allow a reasonable attorney’s fee 18 and costs of action to either party.” Under the 19 “American Rule,” each party to a lawsuit is generally 20 responsible for its own attorney’s fees. 21 Eckerhart, 461 U.S. 424, 429 (1983). Hensley v. The general rule 22 in federal courts is that attorney’s fees will not be 23 awarded in civil cases absent an express statutory 24 command. Id. When attorney’s fees are awarded, the 25 amount of the fee award is subject to the court’s 26 discretion. Rodriguez v. Disner, 688 F.3d 645, 653 27 (9th Cir. 2012). If a plaintiff is entitled to an 28 award of attorney’s fees, then the district court 4 1 should be guided by the considerations identified in 2 Hensley. In Hensley, the Supreme Court approved the 3 lodestar method for calculating fees by multiplying the 4 number of hours reasonably expended on the litigation 5 by the reasonable hourly rate. 6 461 U.S. at 429. In determining the appropriate hourly rate to be 7 included in a lodestar calculation, the district court 8 must look to the rate prevailing in the community for 9 similar work performed by attorneys of comparable 10 skill, experience, and reputation. Chalmers v. City of 11 Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986), reh’g 12 denied amended on other grounds, 808 F.2d 1373 (9th 13 Cir. 1987). In determining the appropriate number of 14 hours to be included in a lodestar calculation, the 15 district court should exclude hours “that are 16 excessive, redundant, or otherwise unnecessary.” 17 Hensley, 461 U.S. at 434. “The party seeking the award 18 should provide documentary evidence to the court 19 concerning the number of hours spent[.]” McCown v. 20 City of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009) 21 (internal citation omitted). Counsel must demonstrate 22 that the time actually spent was reasonably necessary 23 to effectively litigate the claims. Sealy, Inc. v. 24 Easy Living, Inc., 743 F.2d 1378, 1385 n.4 (9th Cir. 25 1984). 26 In exercising its discretion in determining whether 27 a party should be awarded attorney’s fees, courts 28 should consider the following factors: (1) the degree 5 1 of the opposing parties’ culpability or bad faith; (2) 2 the ability of the opposing parties to satisfy an award 3 of fees; (3) whether an award of fees against the 4 opposing parties would deter others from acting under 5 similar circumstances; (4) whether the parties 6 requesting fees sought to benefit all participants and 7 beneficiaries of an ERISA plan or to resolve a 8 significant legal question regarding ERISA; and (5) the 9 relative merits of the parties’ positions. Hummell v. 10 S.E. Rykoff & Co., 634 F.2d 446, 453 (9th Cir. 1980). 11 B. Analysis 12 1. 13 Defendant requests the Court take judicial notice Defendant’s Request for Judicial Notice 14 of the weekly average 1-year constant maturity Treasury 15 yield rates from July 2013 to May 12, 2017, as 16 published by the Board of Governors of the Federal 17 Reserve System. Def.’s Req. for Jud. Ntc. 2:1-7. This 18 was downloaded from the Federal Reserve Bank of St. 19 Louis’ website. 20 Id. at 2:14-17. A court may take judicial notice of a fact that is 21 not subject to reasonable dispute because it “can be 22 accurately and readily determined from sources whose 23 accuracy cannot reasonably be questioned.” 24 Evid. 201(b)(2). Fed. R. Plaintiff does not object to 25 Defendant’s Request for Judicial Notice. VMR Products, 26 LLC v. V2H ApS, No. 2:13-CV-7719-CBM-JEMX, 2016 WL 27 1177834, at *1 (C.D. Cal. Mar. 18, 2016). Courts may 28 also take judicial notice of “records and reports of 6 1 administrative bodies.” Balance Studio, Inc. v. 2 Cybernet Entm’t, LLC, No. 15-CV-04038-DMR, 2016 WL 3 1559745, at *1 n.2 (N.D. Cal. Apr. 18, 2016)(quoting 4 Mack v. South Bay Beer Distributors, Inc., 798 F.2d 5 1279, 1282 (9th Cir. 1986)). As this document was 6 downloaded from the Federal Reserve Bank of St. Louis’ 7 website and its accuracy cannot reasonably be 8 questioned, the Court GRANTS Defendant’s request for 9 judicial notice. 10 11 12 2. The Hummell Factors Weigh in Favor of Awarding Attorney’s Fees As an initial matter, Defendant spends the majority 13 of its Opposition raising issues that are irrelevant to 14 the instant Motion. See generally Def.’s Opp’n to 15 Pl.’s Mot. for Att’y’s Fees (“Opp’n”). Defendant 16 spends a significant amount of time discussing 17 Plaintiff’s lack of cooperation in providing requested 18 documents to Defendant to process his claim. 19 at 7-10:10. See id. However, the Opposition to this Motion is 20 not the appropriate avenue to raise issues Defendant is 21 having in paying Plaintiff’s benefits and these 22 arguments do nothing to assist the Court in determining 23 the appropriate attorney’s fees. Moreover, in its 24 March 2015 Order granting Plaintiff’s Writ of Mandamus, 25 the Ninth Circuit awarded Plaintiff attorney’s fees. 26 While this Court still needs to determine the 27 appropriate hourly rate and reasonable amount of hours 28 expended, Defendant attempts to argue that despite the 7 1 Ninth Circuit’s ruling, this Court should deny 2 Plaintiff’s Motion because of irrelevant issues. 3 Nevertheless, the Court will still go into an analysis 4 of the factors courts look to when determining if 5 attorney’s fees are appropriate in ERISA cases. 6 In any action brought by a plan participant, 7 beneficiary, or fiduciary under ERISA, “the court in 8 its discretion may allow a reasonable attorney’s fee 9 and costs of action to either party.” 10 1132(g). 29 U.S.C. § The Ninth Circuit has held that a successful 11 ERISA participant who “prevails in his suit . . . to 12 enforce his rights under his plan should ordinarily 13 recover an attorney’s fee unless special circumstances 14 would render such an award unjust.” Smith v. CMTA-IAM 15 Pension Trust, 746 F.2d 587, 589 (9th Cir. 1984) 16 (internal quotation marks and citation omitted). 17 The Court finds Plaintiff is entitled to attorney’s 18 fees because the Hummell factors courts consider in 19 deciding whether to grant attorney’s fees weigh in 20 Plaintiff’s favor. 634 F.2d at 453; see also 21 Mardirossian v. Guardian Life Ins. Co. of America, 457 22 F. Supp. 2d 1038, 1044 (C.D. Cal. 2006)(awarding 23 plaintiff attorney’s fees because four of the five 24 Hummell factors weighed in his favor). When applying 25 these factors, ERISA’s goal of providing remedies to 26 individuals “should be liberally construed in favor of 27 protecting participants in employee benefit plans.” 28 McElwaine v. US West, Inc., 176 F.3d 1167, 1172 (9th 8 1 Cir. 1999). 2 a. 3 4 Degree of Defendant’s Culpability or Bad Faith When there is no evidence of bad faith, the first 5 Hummell factor weighs neither for a plaintiff nor a 6 defendant and is therefore not decisive. Frei v. 7 Hartford Life Ins. Co., No. C-05-01191 EDL, 2006 WL 8 1409360, at *3 (N.D. Cal. May 23, 2006)(holding the 9 first factor in the plaintiff’s request for attorney’s 10 fees was neutral because there was no evidence of bad 11 faith on the plaintiff or the defendant’s part); see 12 also Smith, 746 F.2d at 590 (“[a]s there was no bad 13 faith on either side, this factor should not have been 14 considered decisive”). Here, Defendant alleges that 15 Plaintiff has acted in bad faith by refusing to turn 16 over tax returns along with other earning documents, 17 preventing Defendant from calculating the amount of 18 benefits owed to Plaintiff. Opp’n 14:7-13. However, 19 Plaintiff argues that he has sixty days to respond to 20 Defendant’s request, and at the time the parties 21 briefed this Motion the sixty-day window had not yet 22 elapsed. Pl.’s Reply to Mot. for Att’y’s Fees 23 (“Reply”) 4:2-10. Because Plaintiff still had time to 24 respond to Defendant’s requests, it is not evident to 25 the Court that he has acted in bad faith. Since 26 neither Plaintiff nor Defendant acted in bad faith, 27 this first factor is neutral. 28 /// 9 1 b. 2 3 Ability of the Opposing Party to Satisfy an Award of Fees The second Hummell factor weighs in Plaintiff’s 4 favor because Defendant can satisfy an award of fees. 5 Defendant itself admits that it is capable of 6 satisfying an award of fees. Opp’n 14:16-18; 7 Mardirossian, 457 F. Supp. 2d at 1045. The ability of 8 a party to satisfy an award of fees is relevant to a 9 court’s inquiry. 10 1984). Smith, 746 F.2d at 589 (9th Cir. While the Court agrees with Defendant that this 11 factor alone is not determinative, it nevertheless 12 weighs in Plaintiff’s favor. 13 14 c. Whether an Award Would Deter Others Defendant argues an award would not deter others 15 from acting in similar circumstances because Defendant 16 was simply defending its position and it should not be 17 penalized for doing so. Opp’n 14:20-28. The Court 18 finds that the third Hummell factor weighs in 19 Plaintiff’s favor because an award of attorney’s fees 20 could deter insurance companies from denying benefits 21 to those with work-related injuries or to investigate a 22 claim more thoroughly when there is a dispute. When 23 the position of both parties has some merit, “a 24 decision clarifying the terms of a plan after 25 litigation benefits all participants and beneficiaries 26 by settling a disputed provision or ambiguity.” Smith, 27 746 F.2d at 590 (holding the third Hummell factor 28 weighed in the plaintiff’s favor because litigation 10 1 removed ambiguity from the terms of his plan and was a 2 deterrent to trustees to deny such claims in the 3 future). 4 Here, awarding attorney’s fees to Plaintiff could 5 deter Defendant from denying similar claims to future 6 claimants since this litigation clarified the term 7 “sedentary” with regards to ERISA. Awarding Plaintiff 8 attorney’s fees would deter insurance companies from 9 denying appropriate benefits to those with conditions 10 that do not allow them to perform sedentary work. 11 Thus, the third factor marginally weighs in Plaintiff’s 12 favor. 13 d. Party Requesting Fees Sought to Benefit 14 All Participants and Beneficiaries of an 15 ERISA Plan or to Resolve a Significant 16 Legal Question Regarding ERISA 17 As an initial matter, Plaintiff did not seek to 18 benefit all plan participants and beneficiaries of an 19 ERISA plan because this was an individual claim. 20 Mardirossian, 457 F. Supp. 2d at 1045. However, 21 arguably, this litigation has assisted in resolving the 22 meaning of the word “sedentary” as it relates to 23 insurance claims. If the litigation will assist plan 24 fiduciaries to some degree in their future 25 administration of plan benefits, then this factor 26 weighs in Plaintiff’s favor. See Arnett v. Hartford 27 Life & Acc. Ins. Co., 558 F. Supp. 2d 975, 980 (C.D. 28 Cal. 2007)(finding that a court’s analysis in 11 1 determining disability also benefits additional plan 2 participants). Similarly, other employees with the 3 same job description as Plaintiff covered under a 4 similar plan will benefit from clarification of the 5 word “sedentary” as set forth by the Ninth Circuit 6 because clarifications are useful in resolving 7 ambiguities. Smith, 746 F.2d at 590. Therefore, the 8 fourth factor weighs in Plaintiff’s favor. 9 10 e. Relative Merits of the Parties’ Positions The fifth Hummell factor weighs in Plaintiff’s 11 favor because Plaintiff received a favorable judgment 12 in this case. When a party obtains a judgment in their 13 favor, the court should weigh this factor accordingly. 14 See Arnett, 558 F. Supp. 2d at 980; Mardirossian, 457 15 F. Supp. 2d at 1045. While this Court initially 16 partially ruled in Defendant’s favor after the bench 17 trial, Plaintiff received a judgment from this Court on 18 the merits of his case on May 18, 2017, after the 19 appeal to the Ninth Circuit. Defendant’s argument that 20 Plaintiff is now working has no basis in determining 21 whether the parties’ positions have merit. 22 15:26-16:6. Opp’n Accordingly, the fifth factor weighs in 23 Plaintiff’s favor. 24 As the majority of the Hummell factors weigh in 25 Plaintiff’s favor, there are no special circumstances 26 that would render an award unjust, and considering the 27 Ninth Circuit’s Order on May 8, 2017, Plaintiff is 28 entitled to attorney’s fees. 12 1 3. The Lodestar Calculation 2 Next, the Court must determine the lodestar figure, 3 which is the reasonable hourly rate multiplied by the 4 reasonable hours expended as set forth in Hensley. 5 Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1110 6 (9th Cir. 2014). Then, the Court must determine if for 7 any reason the lodestar figure should be adjusted. 8 Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th 9 Cir. 1975), abrogated on other grounds by City of 10 Burlington v. Dague, 505 U.S. 557 (1992).1 There is a 11 presumption that the lodestar calculation represents a 12 reasonable fee. Morales v. City of San Rafael, 96 F.3d 13 359, 363 (9th Cir. 1996). 14 Plaintiff requests $104,647.50 in attorney’s fees 15 for 152.3 hours spent on the litigation for this case. 16 Mot. 8:1-4. Plaintiff’s lead counsel, Charles 17 Fleishman, requests an hourly rate of $675 for 144.5 18 hours he spent on the case. Declaration of Charles 19 Fleishman (“Charles Fleishman Decl.”) ¶¶ 4, 6, ECF No. 20 48. He requests an additional four hours for reviewing 21 1 In Kerr, the Ninth Circuit found the following factors 22 important in determining whether attorney’s fees are reasonable: the time and 23 (1)the questions labor required; (2) the novelty and difficulty of involved; (3) the skill requisite to perform the 24 legal service properly; (4) the preclusion of other employment by 25 26 27 28 the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Id. 13 1 and responding to Defendant’s Opposition to the instant 2 Motion and four hours for appearing at the hearing for 3 this Motion. Id. He believes $675 per hour is a 4 reasonable rate because of his extensive experience 5 with ERISA claims and the complex nature of ERISA law. 6 Id. at ¶¶ 7-8. His experience includes approximately 7 200 ERISA claims and he is currently working on ten 8 ERISA matters. Id. at ¶ 7. Attorney Paul Fleishman 9 requests an hourly rate of $450 per hour for 3.8 hours 10 spent on the case. 11 12 a. Id. Hourly Rate “Fee applicants have the burden of producing 13 evidence that their requested fees are ‘in line with 14 those prevailing in the community for similar services 15 by lawyers of reasonably comparable skill, experience, 16 and reputation.’” Chaudhry, 751 F.3d at 1110 (quoting 17 Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 18 (9th Cir. 2008)). The relevant community is the forum 19 in which the district court sits. Id. The district 20 court has discretion in determining which fees are 21 reasonable. 22 Id. Attorney Charles Fleishman has been practicing 23 since 1970 and he states that his practice is devoted 24 to ERISA claims. Charles Fleishman Decl. ¶¶ 1, 4. He 25 has tried approximately 225 jury trials and 1500 court 26 trials, including 200 ERISA cases. Id. at ¶¶ 3, 7. 27 Additionally, Charles Fleishman was previously awarded 28 $600 per hour and Paul Fleishman was awarded $350 per 14 1 hour in a 2012 Eastern District of California case. 2 Mot. 7:1-3. Paul Fleishman has been practicing since 3 2007 exclusively in the area of ERISA and has been 4 recognized as a Southern California Rising Star in the 5 field of ERISA every year since 2013. Declaration of 6 Paul Fleishman (“Paul Fleishman Decl.”) ¶¶ 2, 4, ECF 7 No. 48-3. Paul Fleishman has also previously been 8 awarded $350 by this Court in a different case in 2011 9 and $400 in an ERISA case in this District in 2015. 10 Id. at ¶ 5. 11 Charles Fleishman and Paul Fleishman’s rates of 12 $675 and $450 are reasonable, because they reflect the 13 prevailing market rate in this community for their 14 levels of experience. “Affidavits of the plaintiffs’ 15 attorney and other attorneys regarding prevailing fees 16 in the community, and rate determinations in other 17 cases, particularly those setting a rate for the 18 plaintiffs’ attorney, are satisfactory evidence of the 19 prevailing market rate.” United Steelworkers of Am. v. 20 Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 21 1990)(citing Chalmers, 796 F.2d at 1214). 22 Additionally, it is appropriate to adjust an hourly 23 rate for delay in payment, as was the case here since 24 the case was taken on a contingency basis. Missouri v. 25 Jenkins by Agyei, 491 U.S. 274, 283-84 (1989). 26 Plaintiff submits affidavits from attorneys in this 27 District supporting their requested rates. Michael 28 McKuin’s declaration states that $700 and $500 would be 15 1 more appropriate hourly rates for Charles Fleishman and 2 Paul Fleishman; however, he concedes that in his 233 year practice in ERISA litigation, he has been awarded 4 $550 per hour. Declaration of Michael McKuin (“McKuin 5 Decl.”) ¶¶ 6, 8, ECF No. 48-4. The Declaration of 6 Susan Horner points to a case where an attorney was 7 awarded $700 in an ERISA litigation. Declaration of 8 Susan Horner (“Horner Decl.”) ¶ 10, ECF No. 48-5. The 9 remaining cases Ms. Horner cites to shows that 10 attorneys have also been awarded hourly rates of $57511 $650. Id. at ¶¶ 11-16. Moreover, Paul Fleishman was 12 awarded $400 in an ERISA case in 2015. 13 Therefore, the Court finds $675 per hour for 14 Charles Fleishman and $450 per hour for Paul Fleishman 15 are reasonable hourly rates based on counsels’ levels 16 of experience and prior awards. 17 18 b. Reasonable Hours A district court has “wide latitude in determining 19 the number of hours that were reasonably expended by 20 the prevailing lawyers.” Sorenson v. Mink, 239 F.3d 21 1140, 1147 (9th Cir. 2001). The fee applicant “bears 22 the burden of documenting the appropriate hours 23 expended in litigation and must submit evidence in 24 support of hours worked.” Gates v. Deukmejian, 987 25 F.2d 1392, 1398 (9th Cir. 1992). 26 Charles Fleishman spent 144.5 hours and Paul 27 Fleishman spent 3.8 hours preparing for and litigating 28 this case. “A court may award attorneys’ fees only for 16 1 the number of hours it concludes were reasonably 2 expended litigating the case” and should exclude hours 3 that are excessive, redundant, or otherwise 4 unnecessary. 5 Mardirossian, 457 F. Supp. 2d at 1049. Plaintiff’s time sheets do not appear to be 6 excessive, redundant, nor otherwise unnecessary because 7 they are not duplicative. Charles Fleishman appears to 8 have tracked his time meticulously, as has Paul 9 Fleishman. Paul Fleishman spent the majority of his 10 hours reviewing Charles Fleishman’s work, which is not 11 uncommon for attorneys and thus not duplicative. After 12 a review of the time sheets, the Court finds the 13 requested number of hours are reasonable. 14 Charles Fleishman also anticipated and requested 15 four hours for reviewing and responding to Defendant’s 16 Opposition for the instant Motion and four hours for 17 appearing at the hearing for this Motion. This matter 18 was taken under submission and the parties did not 19 appear at a hearing, therefore Charles Fleishman is not 20 entitled to the four hours requested for an appearance. 21 The Court finds that four hours is reasonable for 22 reviewing Defendant’s Opposition and preparing the 23 Reply. Therefore, Charles Fleishman shall be 24 compensated for a total of 148.5 hours and Paul 25 Fleishman shall be compensated for a total of 3.8 26 hours. 27 Using the hourly rate of $675 per hour for Charles 28 Fleishman, multiplied by the 148.5 hours he spent 17 1 working on this case, his total fee comes to 2 $100,237.50. For Paul Fleishman, at an hourly rate of 3 $450 per hour and 3.8 hours spent on this litigation, 4 the fee amounts to $1,710. When totaled, the sum is 5 $9101,947.50. 6 Finally, the Court must look to the Kerr factors in 7 determining whether the lodestar figure is reasonable 8 and if it should be adjusted. 526 F.2d at 70. When 9 looking at the totality of the circumstances, none of 10 the Kerr factors necessitate that the Court adjust the 11 lodestar figure. This matter was litigated for the 12 past four years and required time and labor, including 13 an appeal to the Ninth Circuit and a Writ of Mandamus. 14 ERISA litigation is a particularized field that 15 requires specialized skills to perform the legal 16 services. Charles Fleishman and Paul Fleishman did 17 take this matter on a contingency basis and Plaintiff 18 did achieve positive results, as he was awarded all of 19 the past benefits he sought. Additionally, both 20 attorneys have dedicated a significant number of years 21 to the practice of ERISA litigation. Therefore, the 22 lodestar figure is appropriate and reasonable and does 23 not require an adjustment. 24 4. 25 Plaintiff also requests $1,660.36 for costs Plaintiff is Entitled to Costs 26 associated with the litigation, including $400 for 27 filing the Complaint, $505 for filing an appeal to the 28 Ninth Circuit, $255.36 for printing briefs to the Ninth 18 1 Circuit, and $500 for filing a petition for a Writ of 2 Mandamus. Charles Fleishman Decl. ¶ 11. Defendant 3 argues that Plaintiff should be denied his costs 4 because he failed to make an application to the Clerk 5 of Court for costs. Opp’n 2:12. While Local Rule 54- 6 2.1 does state that a party shall file with the Clerk 7 of Court and serve an application for costs, in ERISA 8 cases such as the instant case, it is the Court, not 9 the Clerk of Court, who awards fees and costs in its 10 discretion. Mogck v. UNUM Life Ins. Co. of America, 11 No. Civ. 99-CV-201-CGA, 2001 WL 34084379, at *1-2 (S.D. 12 Cal. Jan. 8, 2001); 29 U.S.C. § 1132(g). Therefore, 13 Plaintiff is awarded $1,660.36 in costs. 14 5. 15 Plaintiff also requests prejudgment interest on the Prejudgment Interest on Award 16 benefits owed him at a rate of ten percent. 17 18. Mot. 7:15- Plaintiff argues that ERISA statutes do not 18 mention interest and therefore there is no set rate; 19 thus, the Court should use California Insurance Code § 20 10111.2 to set the interest rate. Id. at 7:19-23. 21 Defendant argues that if interest is awarded, it should 22 be at the same rate as post-judgment interest as set 23 forth by 28 U.S.C. § 1961(a) and not as set by the 24 California Insurance Code, which is preempted by ERISA. 25 Opp’n 10:20-11:12. 26 The Ninth Circuit has held that the decision to 27 award interest in an ERISA case “is a question of 28 fairness, lying within the court’s sound discretion, to 19 1 be answered by balancing the equities.” Day v. AT&T 2 Disability Income Plan, 608 F. App’x 454, 458 (9th Cir. 3 Apr. 9, 2015)(unpublished)(quoting Shaw v. Int’l Ass’n 4 of Machinists & Aerospace Workers Pension Plan, 750 5 F.2d 1458, 1465 (9th Cir. 1985)). Additionally, 6 awarding interest as set forth in 28 U.S.C. § 1961(a) 7 is reasonable, unless there is substantial evidence or 8 the equities of a specific case require a different 9 interest rate. Id. (citing Blankenship v. Liberty Life 10 Assur. Co. of Bos., 486 F.3d 620, 628 (9th Cir. 2007)). 11 Plaintiff’s argument that the interest rate should 12 be set based on California Insurance Code § 10111.2 is 13 unconvincing. As stated above, it is within the 14 Court’s discretion to award interest and to determine 15 the rate. Using the rate as set forth by 28 U.S.C. § 16 1961(a) has not only been found to be reasonable, but 17 it is also fair and just to all parties. The Court 18 need not go into a discussion of whether the California 19 Insurance Code is preempted by ERISA because the Court 20 exercises its discretion to award prejudgment interest 21 as set forth in 28 U.S.C. § 1961(a). 22 Plaintiff shall be awarded prejudgment interest at 23 a rate equal to the average 1-year constant maturity 24 Treasury yield, as published by the Board of Governors 25 of the Federal Reserve System for the calendar week 26 preceding the due date of any past due benefit payment. 27 28 U.S.C. § 1961(a). The interest is to be compounded 28 annually. 20 1 2 IV. CONCLUSION For the reasons set forth above, the Court GRANTS 3 in part and DENIES in part Plaintiff’s Motion for 4 Attorney’s Fees. Plaintiff is awarded a total of 5 $101,947.50 in attorney’s fees, $1,660.36 in costs, and 6 prejudgment interest on the total amount of benefits 7 owed to Plaintiff at the applicable rate as set forth 8 by 29 U.S.C. § 1961(a) to be compounded annually. 9 IT IS SO ORDERED. 10 DATED: July 24, 2017 s/ 11 HONORABLE RONALD S.W. LEW Senior U.S. District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21

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