Sand-Smith v. Liberty Life Assurance Company of Boston

Filing 51

ORDER granting 48 Motion for Attorney Fees. IT IS HEREBY ORDERED that Sand- Smith's motion for attorney fees and costs (Doc. 48) is GRANTED. Sand-Smith is entitled to $28,340.00 in attorney fees and $293.47 in costs. Signed by Judge Susan P. Watters on 10/23/2017. (EMH)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION

OCi 2 3 2017
Clerk, U.S. District Court
District Of Montana
Billings

THERESA SAND-SMITH,
CV 17-0004-BLG-SPW
Plaintiff,
ORDER

vs.
LIBERTY LIFE ASSURANCE
COMPANY OF BOSTON,
Defendant.

Before the Court is Plaintiff Theresa Sand-Smith's motion for attorney fees.
(Doc. 48).
On December 1, 2016, Sand-Smith filed a complaint seeking clarification of
future benefits under her BRISA plan. (Doc. 6). On September 20, 2017, the
Court granted summary judgment to Sand-Smith. (Doc. 47). On September 29,
2017, Sand-Smith moved for attorney fees. (Doc. 48). Attached to Sand-Smith's
motion was the affidavit of her attorney, which detailed the time spent on SandSmith's case. (Doc. 49-1 ). Despite initially indicating it opposed the motion,
Defendant Liberty Life never filed a response.
Generally, a motion for attorney fees must specify the judgment and the
statute, rule, or other grounds entitling the movant to the award and state the
amount sought or provide a fair estimate of it. Fed. R. Civ. P. 54(d)(2). The Court
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must give an opportunity for adversary submissions. Fed. R. Civ. P. 54(d)(2)(C).
Per local rule, the failure to file a response brief may be deemed an admission that
the motion is well-taken. D. Mont. L.R. 7.l(d)(l)(B)(ii).
ERISA provides that "the court in its discretion may allow a reasonable
attorney's fee and costs of action to either party." 28 U.S.C. § 1132(g)(l).
"Successful plaintiffs in ERISA suits should ordinarily recover fees unless special
circumstances would render such an award unjust." Elliot v. Fortis Benefits Ins.

Co., 337 F.3d 1138, 1148 (9th Cir. 2003). The court considers five factors to
determine whether an award of fees is appropriate: ( 1) the degree of the opposing
parties' culpability or bad faith; (2) the ability of the opposing party to satisfy an
award of fees; (3) whether an award of fees ... would deter others from acting
under similar circumstances; (4) whether parties requesting fees sought to benefit
all participants and beneficiaries of an ERISA plan or to resolve a significant legal
question regarding ERISA; and (5) the relative merits of the parties' positions.

Elliot, 337 F.3d at 1148 (citing Hummel v. S.E. Rykoff & Co., 634 F.2d 446,453
(9th Cir. 1980)).
Sand-Smith's motion satisfies Rule 54(d)(2)'s requirements because it
appropriately cites the Court's order granting her summary judgment, 28 U.S.C. §
1132(g)(l), and Elliot, as the grounds entitling her to an award of attorney fees.
Sand-Smith's motion is supported by an attached affidavit which details the time

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her attorney spent on her case. (Doc. 49-1 ). The Court has given Liberty Life
twenty-four days to respond to Sand-Smith's motion, which is ten more than it is
entitled to. D. Mont. L.R. 7.l(d)(l)(B)(ii). Liberty Life has filed no response in
that time, nor any motion for extension of time to respond. The Court finds
Liberty Life's failure to respond to Sand-Smith's motion for attorney fees an
admission that the motion is well taken. D. Mont. L.R. 7.l(d)(l)(B)(ii); Brydges v.

Lewis, 18 F.3d 651, 652 (1994) ("when local rule does not require, but merely
permits the court to grant a motion for summary judgment, the district court has
discretion to determine whether noncompliance should be deemed consent to the
motion.").
IT IS HEREBY ORDERED that Sand-Smith's motion for attorney fees and
costs (Doc. 48) is GRANTED. Sand-Smith is entitled to $28,340.00 in attorney
fees and $293 .4 7 in costs.
DATED this

rc:L
o?.$ day of October, 2~

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SUSAN WATTERS
United States District Judge

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