Fairbaugh v. Life Ins Co of NA

Filing 69

ORDER ON EVIDENCE OF COSTS: See attached Order. If Plaintiff wishes to recover attorney's fees, she is directed to comply with the attached Order. Signed by Judge Charles S. Haight, Jr on March 30, 2012. (Caldwell, M.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
PAIGE FAIRBAUGH,
Plaintiff,
v.

3:09-cv-1434 (CSH)

LIFE INS. CO. OF NORTH AMERICA,
ET AL,,
Defendants.

ORDER REGARDING EVIDENCE OF COSTS

HAIGHT, Senior District Judge:
On August 16, 2010, this Court issued a ruling [Doc. 44] granting Plaintiff's Motion for
Judgment on the Administrative Record [Doc. 19]. The Court ruled, inter alia, that Plaintiff is
entitled to attorney's fees under the relevant provisions of the Employment Retirement Income
Security Act (ERISA). The Court stated that "Plaintiff is hereby directed to submit her motion for
attorney's fees, along with the necessary supporting documentation and a detailed proposed
calculation, on or before October 1, 2010, unless the parties are able to stipulate to the amount of
the award for Plaintiff's attorney's fees." The deadline was later extended to October 15, 2010. In
a footnote attached to the term "necessary supporting documentation" (footnote 12), the Court stated
that "Plaintiff's application for attorney's fees must contain contemporaneous time records that
comply with the Second Circuit's requirements articulated in N.Y. State Ass'n for Retarded Children,
Inc. v. Carey, 711 F.2d 1136, 1147-48 (2d Cir. 1983)." On October 15, 2010, Plaintiff filed a

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Motion for Attorney's Fees [Doc. 55] along with an affidavit and copies of itemized services bills.
The submission, however, does not comply with the requirements of Carey with respect to
a claim for attorney's fees. Further explanation of those requirements can be found in Cruz v. Local
Union No. 3 of the Int'l Brotherhood of Electrical Workers, 34 F.3d 1148, 1160 (2d Cir. 1994) and
Handschu v. Special Services Division, 727 F.Supp.2d 239, 249-51 (S.D.N.Y. 2010). In particular,
the Court draws counsel's attention to the requirement that movants provide records actually made
at the time the work was done or show that “they made contemporaneous entries as the work was
completed, and that their billing is based on those contemporaneous records.” Handshu at 251,
quoting Cruz at 1160 (emphasis in original). The present submission includes bills dated during the
month following the month when the work was done and affidavits [Docs. 55, 65-66] of which the
most complete states that the affiant is “familiar with the time entry system used by our Firm” and
calls the bills “contemporaneous and detailed summary records.” Obviously, a bill created a month
after the billed-for work was performed is not a “contemporaneous record” of that work. Counsel’s
affidavit does not state whether actual contemporaneous records or records created closer to the time
when the work was done exist, describe the practice by which contemporaneous records are made
and the itemized services bills are derived from those records, or describe the basis for the affiant’s
knowledge of such practice.
If Plaintiff wishes to recover attorney's fees in this matter, she is directed to file, on or before
April 20, 2012, affidavits and submissions that comply with the requirements of Carey, Cruz, and
Handschu.

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It is SO ORDERED.
Dated: New Haven, Connecticut
March 29, 2012

/s/ Charles S. Haight, Jr.
Charles S. Haight, Jr.
Senior United States District Judge

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