Dimry v. The Bert Bell/Pete Rozelle NFL Player Retirement Plan et al

Filing 99

ORDER RE ATTORNEY'S FEES AND COSTS. Signed by Judge James Donato on 12/22/2018. (jdlc2S, COURT STAFF) (Filed on 12/22/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHARLES DIMRY,
Plaintiff,

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ORDER RE ATTORNEY’S FEES AND
COSTS

v.

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THE BERT BELL/PETE ROZELLE NFL
PLAYER RETIREMENT PLAN, et al.,

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United States District Court
Northern District of California

Case No. 3:16-cv-01413-JD

Re: Dkt. No. 86

Defendants.

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In this benefits dispute under ERISA, plaintiff Dimry, a former NFL player, requests

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reasonable attorney’s fees and costs incurred in winning a remand of his disability claim against

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defendants. The Court overturned defendants’ denial of total and permanent disability benefits to

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Dimry because the administrative record indicated that defendants gave no consideration to

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Dimry’s substantial body of medical opinions documenting a possible total disability, and instead

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relied exclusively on a doctor who was regularly paid substantial sums by defendants and

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consequently had a financial incentive to give opinions favorable to them. In addition, defendants

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did not take into account a determination by an administrative law judge at the Social Security

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Administration that there were no jobs in the national economy that Dimry could perform. For

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these and other reasons, the Court concluded that defendants had abused their discretion in

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denying Dimry’s benefits claim, and remanded the matter for further proceedings consistent with

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its findings. See generally Dkt. No. 80. Dimry now requests an award of $279,300 in attorney’s

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fees and $2,635.62 in costs. Dkt. No. 86.

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The threshold question is whether Dimry is entitled to fees. ERISA provides that

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“reasonable attorney’s fees and costs” are available “to either party” in the Court’s discretion. 29

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U.S.C. § 1132(g)(1). In contrast to other statutes, Section 1132(g)(1) does not limit awards to

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“prevailing parties.” Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251-52 (2010). All

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that is required is that the party seeking fees must show “some degree of success on the merits.”

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Id. at 255 (internal quotation omitted). The discretion to award fees is guided by the “general

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rule” that a successful ERISA plaintiff should, in the ordinary course, receive fees from the

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defendant. Smith v. CMTA-IAM Pension Trust, 746 F.2d 587, 589 (9th Cir. 1984).
There is no question that Dimry achieved considerable success on the merits of his claim.

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The Court set aside the denial of his disability claim for abuse of discretion, which in any

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reckoning is a substantial and positive result. That the matter was remanded for further

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consideration is no bar to a fee award. Hardt expressly contemplated that a remand “without
more” could constitute “some success on the merits,” Hardt, 560 U.S. at 256, and the

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United States District Court
Northern District of California

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circumstances here amply establish that the remand was made to correct defendants’ abuse of

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discretion in denying Dimry’s claims, which effectively denied him the kind of fair review he was

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entitled to under ERISA. A fee award is perfectly appropriate on this record, and our circuit has

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held as much in two unpublished opinions. See Flom v. Holly Corp., 276 Fed App’x 615, 616-17

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(9th Cir. 2008); Mizzell v. Provident Life & Accident Ins. Co., 32 Fed App’x 352, 353-54 (9th Cir.

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2002).

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The next question is whether the requested fees are reasonable. Dimry’s lawyers seek

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hourly rates of $450 for the associate on the case, and $900 for the partner. They support these

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hourly rates with evidence of prevailing rates in the market in the form of declarations from

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ERISA attorneys not involved in this dispute, and citations to fee awards in other cases that

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approved similar, albeit somewhat lower, hourly rates. See, e.g., Dkt. No. 86 at 8-9; Dkt. No. 91

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at 7-9; Dkt. No. 92-1. The attorneys also provided their time records, which present in a lodestar

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approach the time spent on specific tasks by each lawyer, and the amount billed for these tasks.

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Dkt. No. 86-3.

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These materials discharged the fee claimant’s burden of submitting evidence supporting

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the reasonableness of their rates, time use and overall bills. Hensley v. Eckerhart, 461 U.S. 424,

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433 (1983); Welch v. Metropolitan Life Ins. Co., 480 F.3d 942, 945 (9th Cir. 2007). Defendants

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do not present any facts to rebut or discount these showings. See Dkt. No. 90 at 7-9. They offer
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only generic complaints that the rates and fees were excessive, unsupported by counter-

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declarations or other meaningful evidence to prove their point. Their criticism of the billing

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entries is equally general and unhelpful to their argument. See Dkt. No. 90-1. Moreover, the

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Court’s review of the attorney time entries shows that they were consistent with good practices in

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terms of detail and specificity. Overall, defendants have not tendered any evidence that might call

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into question the reasonableness and fairness of the hourly rates and total fees plaintiff’s counsel

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seek. See United Steelworkers of America v. Retirement Income Plan for Hourly-Rated

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Employees of Asarco, Inc., 512 F.3d 555, 565 (9th Cir. 2008).

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Defendants’ objection that Dimry should not get full fees because a few claims were
dismissed early in the case is also unpersuasive. All of Dimry’s claims arose from the same core

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United States District Court
Northern District of California

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of facts such that the work done on the dismissed claims was likely to have aided and overlapped

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with the successful abuse of discretion claim. Defendants have not shown otherwise, or that the

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dismissed claims were entirely distinct from the successful one. That is enough to find that all of

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Dimry’s claims were related for fee award purposes. See Hensley, 461 U.S. at 440; Schwarz v.

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Sec’y of Health & Human Servs., 73 F3d 895, 903 (9th Cir. 1995); see also Younkin v. Prudential

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Ins. Co. of America, 288 Fed App’x 344, 346 (9th Cir. 2008).

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An award of fees and costs is also warranted under the guidelines in Hummell v. S.E.

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Rykoff & Co., 634 F.2d 446, 453 (9th Cir. 1980). Strictly speaking, these factors are not contained

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in Section 1132(g)(1) and are not required by the statute to be taken into account. See Hardt, 560

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U.S. at 254-55. However, our circuit has “traditionally” looked to the Hummell guidelines and

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requires that they be considered, which Hardt did not foreclose. Simonia v. Glendale

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Nissan/Infiniti Disability Plan, 608 F.3d 1118, 1121 (2010) (citing Hardt, 560 U.S. at 255 n.8).

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An award here amply satisfies the five Hummell factors. First, defendants manifested a

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degree of culpability and bad faith in denying Dimry’s claim in the manner discussed in the merits

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order, Dkt. No. 80. Second, there is no dispute that defendants have the ability to pay the claimed

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fees and costs. Third, the award should have a deterrent effect on defendants from engaging in a

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similar abuse of discretion in handling other claims. Fourth, other claimants will be able to rely on

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the Court’s merits decision to prosecute other benefits claims with defendants. And fifth, the

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relative merits tilted substantially in Dimry’s favor, as the remand order concluded.

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Nothing in the record indicates that this case should depart from the general rule of

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awarding fees and costs to successful ERISA litigants. Consequently, fees and costs are awarded

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as follows: (1) $279,370 in fees up to this motion; (2) $13,230 in fees for this motion (Dkt.

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No. 91-2); (3) $2,635.62 in costs; and (4) post-judgment interest at a rate and in an amount to be

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stipulated to by the parties as guided by statute. The stipulation should be filed by January 14,

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2019. Pre-judgment interest was not requested and the Court declines to award it. Blankenship v.

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Liberty Life Assurance Co. of Boston, 486 F.3d 620, 627-28 (9th Cir. 2007).

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: December 22, 2018

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JAMES DONATO
United States District Judge

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