Jessen v. CIGNA Group Insurance

Filing 32

CORRECTED ORDER re 31 Order on Motion for Costs. Signed by District Judge David M. Lawson. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LISA JESSEN,
Plaintiff,
Case No. 09-12280
Honorable David M. Lawson

v.
CIGNA GROUP INSURANCE and LIFE
INSURANCE COMPANY OF NORTH
AMERICA,
Defendants.
___________________________________/

CORRECTED ORDER DENYING MOTION FOR COSTS AND ATTORNEY’S FEES
The Court enters this corrected order today to correct typographical errors in the previous
order entered July 1, 2011. No substantive changes have been made to the previous order.
This matter is before the Court on the plaintiff’s motion for costs and attorney’s fees. On
June 21, 2011, this Court entered an opinion and order granting plaintiff’s motion to reverse
administrative denial of insurance benefits and denying defendant’s motion to affirm the
administrator’s decision. The plaintiff now requests costs and attorney’s fees under Federal Rule
of Civil Procedure 54 and 29 U.S.C. § 1132(g).
Federal Rule of Civil Procedure 54 provides that “costs — other than attorney’s fees —
should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1). When attorney’s fees are
authorized by statute, Federal Rule of Civil Procedure 54 requires a party seeking attorney’s fees
to file a motion that must, among other things, “be filed no later than 14 days after the entry of
judgment” and “state the amount sought or provide a fair estimate of it.” Fed. R. Civ. P.
54(d)(2)(B)(i), (iii).

Section 1132 of Title 29 provides that a court, in its discretion, “may allow a reasonable
attorney’s fee and costs of action to either party” in an ERISA case. 29 U.S.C. § 1132(g)(1). When
awarding attorney’s fees under 29 U.S.C. § 1132(g), a court must consider the following five factors:
(1) the degree of the opposing party’s culpability or bad faith; (2) the opposing
party’s ability to satisfy an award of attorney’s fees; (3) the deterrent effect of an
award on other persons under similar circumstances; (4) whether the party requesting
fees sought to confer a common benefit on all participants and beneficiaries of an
ERISA plan or resolve significant legal questions regarding ERISA; and (5) the
relative merits of the parties’ positions.
Shelby Cnty. Health Care Corp. v. Majestic Star Casino, 581 F.3d 355, 376 (6th Cir. 2009) (internal
quotations omitted); see also Secretary of Dep’t of Labor v. King, 775 F.2d 666, 669 (6th Cir. 1985)
(establishing the five-factor test). “No single factor is determinative,” Moon Unum Provident Corp.,
461 F.3d 639, 642-43 (6th Cir. 2006) (per curiam), and a prevailing plaintiff is not necessarily
entitled to attorney’s fees, First Trust Corp. v. Bryant, 410 F.3d 842, 851 (6th Cir. 2005).
The court may only award a fee that is “reasonable.” 29 U.S.C. § 1132(g). To determine
a reasonable fee, the court must first determine the “lodestar” amount (the product of multiplying
the number of hours reasonably expended on the litigation by a reasonable hourly fee) and then
reduce or augment that amount by considering other case specific factors. Hensley v. Eckerhart, 461
U.S. 424, 433-37; Building Serv. Local 47 Cleaning Contractors Pension Plan v. Grandview
Raceway, 46 F.3d 1392, 1401 (6th Cir. 1995). The party seeking to recover fees bears the initial
burden of substantiating the hours worked and the rate claimed. Hensley, 461 U.S. at 433;
Wooldridge v. Marlene Indus. Corp., 898 F.2d 1169, 1176 (6th Cir. 1990).
The plaintiff argues that the first and fifth factor of the five-factor King test weigh in favor
of allowing the plaintiff attorney’s fees because the defendant acted in bad faith by disregarding
controlling federal law and concocting an unworkable definition of the term “accident”. The
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plaintiff also argues that the remaining three factors of the King test weigh in favor of allowing the
plaintiff attorney’s fees. The plaintiff’s motion does not state the amount of attorney’s fees
requested, nor does it provide the Court with an affidavit or other documentation the Court could
use to calculate the lodestar amount. The plaintiff contends that her motion “will be supplemented
to provide for the sum certain in costs and attorneys fees requested, along with all underlying
evidentiary corroboration.” The plaintiff’s promise, however, does not remedy the underlying
problem — the Court cannot allow for attorney’s fees before the party requesting them provides the
Court with a means to calculate a reasonable amount. Motions ought to be complete when filed.
The plaintiff may very well be entitled to attorney’s fees, but the Court cannot make a
determination until the plaintiff submits the information required by federal law. Therefore, the
plaintiff’s motion will be denied because it has not (a) requested a specific amount, (b) stated the
number of hours counsel worked on the matter, or (c) provided a method for determining a
reasonable hourly fee.
Accordingly, it is ORDERED that the plaintiff’s motion for costs and attorney’s fees [dkt.
#28] is DENIED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: July 25, 2011

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on July 25, 2011.
s/Deborah R. Tofil
DEBORAH R. TOFIL

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