Dwinnell v. Federal Express Corporation Long Term Disability Plan et al

Filing 69

ORDER GRANTING PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND COSTS. For the reasons set forth in the attached ruling, plaintiff's motion for attorney's fees and costs (Doc. # 64 ) is GRANTED in the total amount of $40,657.75 in attorney's fees and $400 in costs. It is so ordered. Signed by Judge Jeffrey A. Meyer on 4/14/2017. (Levenson, C.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JENNIFER DWINNELL,
Plaintiff,
v.
FEDERAL EXPRESS LONG TERM
DISABILITY PLAN, et al.,
Defendants.

No. 3:14-cv-01439 (JAM)

RULING GRANTING PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND COSTS
Plaintiff Jennifer Dwinnell brought this ERISA action against her former employer
Federal Express Corporation and plan administrator Aetna Life Insurance Company. Following
my order remanding her claim for reconsideration, she now moves for an award of attorney’s
fees and costs. For the reasons explained below, I will grant plaintiff’s motion and will award of
$40,657.75 in attorney’s fees and $400 in costs.
BACKGROUND
Plaintiff brought this action under the Employee Retirement Income Security Act
(ERISA), challenging the denial of her claim for long term disability benefits under the terms of
a disability plan furnished by her former employer Federal Express Corporation and
administered by Aetna Life Insurance Company. On February 14, 2017, I heard oral argument on
the parties’ cross-motions for summary judgment. I concluded that Aetna acted arbitrarily and
capriciously by failing to conduct a vocational analysis, as clearly required under controlling
Second Circuit precedent. See Demirovic v. Bldg. Serv. 32 B-J Pension Fund, 467 F.3d 208 (2d
Cir. 2006). Accordingly, I granted in part plaintiff’s motion for summary judgment and
remanded the matter, instructing defendants to reconsider plaintiff’s claim after conducting a

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vocational review in compliance with Demirovic. Doc. #65 at 39–44. Plaintiff subsequently filed
a motion for attorney’s fees and costs. Doc. #64.
DISCUSSION
Under ERISA, “the court in its discretion may allow a reasonable attorney’s fee and costs
of action to either party.” 29 U.S.C. § 1132(g)(1). Still, this discretion is “not unlimited.”
Donachie v. Liberty Life Assur. Co. of Boston, 745 F.3d 41, 46 (2d Cir. 2014). The Supreme
Court has held that an award of attorney’s fees is appropriate only if the party seeking fees has
obtained “some degree of success on the merits.” Hardt v. Reliance Standard Life Ins. Co., 560
U.S. 242, 255 (2010). Indeed, “whether a plaintiff has obtained some degree of success on the
merits is the sole factor that a court must consider in exercising its discretion.” Donachie, 745
F.3d at 46. In deciding whether to award fees, courts may also—but are not required to—
consider the five “Chambless factors”:
(1) the degree of opposing parties’ culpability or bad faith; (2) ability of opposing parties
to satisfy an award of attorneys’ fees; (3) whether an award of attorneys’ fees against the
opposing parties would deter other persons acting under similar circumstances; (4)
whether the parties requesting attorneys’ fees sought to benefit all participants and
beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA
itself; and (5) the relative merits of the parties’ positions.
Id. at 46 (quoting Hardt, 560 U.S. at 249 n.1); see also Chambless v. Masters, Mates & Pilots
Pension Plan, 815 F.2d 869, 871 (2d Cir. 1987).
Plaintiff contends that this Court’s remand of her claim constitutes “some degree of
success on the merits.” Defendants argue that in the absence of a finding that plaintiff is entitled
to benefits, a remand does not constitute the requisite success on the merits. In Hardt, the
Supreme Court deemed a fee award appropriate where the district court had remanded the
plaintiff’s claim to the plan administrator and opined positively on the merits of her claim, and
where the plaintiff was ultimately awarded benefits. The Hardt Court explicitly declined to
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decide “whether a remand order, without more, constitutes ‘some success on the merits.’” 560
U.S. at 256. Nor has the Second Circuit decided this question. Many other courts, however, have
found “remand simpliciter” to constitute “some success on the merits.” See Valentine v. Aetna
Life Ins. Co., 2016 WL 4544036, at *4 (E.D.N.Y. 2016) (citing cases and concluding that
“‘remand simpliciter’ is sufficient to constitute ‘some success on the merits’ under Hardt and
that an endorsement from the Court on the merits of the claim is unnecessary”); see also Gross v.
Sun Life Assurance Co. of Canada, 763 F.3d 73, 77 (1st Cir. 2014); McKay v. Reliance Standard
Life Ins. Co., 428 F. App’x 537, 546–47 (6th Cir. 2011).
I am generally persuaded by the reasoning of the other courts that have addressed this
issue. That is not to say that I cannot imagine that some kinds of remands might be for highly
technical or clerical reasons, such that the act of remand might not qualify as “some degree of
success on the merits.” But that is not the nature of the remand here. The remand here for
vocational analysis is essential to a full and fair consideration of plaintiff’s claim. It is sufficient
to constitute “some success on the merits” for plaintiff.
I have also considered the five Chambless factors and find that they weigh in favor of an
award of attorney’s fees, despite defendants’ arguments to the contrary. With respect to the first
factor, I find that defendants’ position was not taken in good faith, in light of the clear Second
Circuit precedent in Demirovic. Instead of acknowledging at the outset of plaintiff’s filing of this
case that Demirovic required remand for reconsideration, defendants persisted in fighting
plaintiff’s challenge, unnecessarily prolonging these federal court proceedings. Moreover, at oral
argument, defendants’ counsel irresponsibly argued that the Court should not follow the Second
Circuit’s ruling in Demirovic. See Doc. #65 at 27–28. This is the first time (and I hope the last

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time) that counsel has ever argued to me that I should not abide by the law of the Second Circuit
on a question that is governed by federal law.
As to the second and third Chambless factors, defendants do not dispute their ability to
pay, and requiring them to do so may encourage them and others to conduct vocational reviews
in the future. As to the fourth factor, it is unclear whether plaintiff sought to benefit all
participants and beneficiaries of the plan, though the outcome of this case may benefit future
participants to the extent that it encourages defendants to conduct vocational reviews in other
cases.
Finally, the relative merits of the parties’ positions weigh in plaintiff’s favor; as I have
already explained, Demirovic clearly required a vocational analysis, and none was conducted in
this case. See Valentine, 2016 WL 4544036, at *6 (“[B]y concluding that the administrator’s
denial of benefits was arbitrary and capricious . . . the Court recognized that plaintiff’s position
was the meritorious position on the issue of remand.”). Accordingly, I conclude that an award of
attorney’s fees is appropriate not only under Hardt, but also under the Chambless factors.
Having concluded that an award is warranted, I must determine whether the requested fee
is reasonable. Defendants object to plaintiff’s request on several grounds. First, defendants argue
that Attorney Ramos’s hourly rate of $375 is unreasonable and should be reduced to $300. I find
that Attorney Ramos’s rate is reasonable, in light of his experience and the representations by
Attorney Snyder as to the hourly rates of other attorneys in the field with similar levels of
experience. See Doc. #64-18.
Defendants also argue that the Court should reduce the number of hours claimed. If the
hours claimed in a fee petition are “excessive, redundant, or otherwise unnecessary,” those hours
should be excluded from the fee award. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).

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Defendants object to the inclusion of 6.3 hours that paralegal Smith spent on clerical tasks. I
conclude that these tasks are within the fair ambit of a paralegal’s responsibilities and are
therefore properly included. Defendants further contend that Attorney Ramos spent an excessive
amount of time (17.64 hours) on the motion for attorney’s fees. Attorney Ramos’s records
indicate the amount of time he spent on each task associated with the motion for fees. Doc. #6419 at 3–4. Defendants do not argue that Attorney Ramos spent too much time on any one
particular task associated with the fee petition; rather, they argue generally that 17.64 hours is
excessive. After reviewing Attorney Ramos’s detailed fee records, I find that the amount of time
that Attorney Ramos spent on the fee petition falls within the range of what is reasonable. See,
e.g., Murray ex rel. Murray v. Mills, 354 F. Supp. 2d 231, 241 (E.D.N.Y. 2005) (finding that
reasonable time on “routine” motion for attorney’s fees was 15 hours).
Finally, it appears that plaintiff has made several mathematical errors. In her
memorandum, plaintiff asserts that Attorney Ramos spent 100.46 hours and paralegal Jessica
Smith spent 13.03 hours on this case. Doc. #64-1 at 16. When these hours are multiplied by the
claimed hourly rates, the total comes to $38,975.50, not $40,617.68 as plaintiff asserts. The
detailed time records submitted with plaintiff’s motion, however, indicate that Attorney Ramos
actually spent 106.57 hours and paralegal Smith spent 6.94 hours on the case. See Doc. #64-19.
Multiplying these corrected hours by Ramos’s and Smith’s hourly rates—$375 and $100,
respectively—and then adding the products yields a total of $40,657.75. The Court will rely on
this figure for the fee award, because it is based on the underlying time records. If either party
objects to the Court’s calculation, the objecting party shall file a motion for reconsideration
within seven days of this ruling.

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CONCLUSION
Plaintiff’s motion for attorney’s fees and costs is GRANTED in the total amount of
$40,657.75 in attorney’s fees and $400 in costs.
It is so ordered.
Dated at New Haven this 14th day of April 2017.
/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

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