Riley v. Sun Life and Health Insurance et al

Filing 85

MEMORANDUM AND ORDER - The Motion to Alter or Amend the Court's Judgment (Filing No. 74 ) filed by Plaintiff James Riley, is granted in part, and denied in part, as follows: Defendants Sun Life and Health Insurance Co., f/k/a Genworth Life and Health Insurance Co., and Group Long Term Disability Insurance shall pay Plaintiff $35,668.68 (inclusive of prejudgment interest), together with postjudgment interest on all unpaid amounts, from the date of today's Judgment until sa tisfaction, in accordance with 28 U.S.C. § 1961(a); and Defendants will continue to pay Plaintiff benefits under the Plan, with no offset for the amount of benefits he receives through the Veteran's Administration, so long as Plainti ff meets the Plan's terms and conditions for receipt of benefits. The Motion for Attorney Fees (Filing No. 70 ) filed by Plaintiff James Riley is granted, and Defendants shall pay Plaintiff $35,499.50 in attorneys' fees, togethe r with postjudgment interest on all unpaid amounts, from the date of today's Judgment until satisfaction, in accordance with 28 U.S.C. § 1961(a). Costs have previously been taxed against Defendants in the amount of $1,307.81, per the parties Stipulation (Filing No. 69 ) and the previous Order by the Clerk of the District Court (Filing No. 80 ). Ordered by Chief Judge Laurie Smith Camp. (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JAMES RILEY,
Plaintiff,
vs.
SUN LIFE AND HEALTH INSURANCE
CO., f/k/a GENWORTH
LIFE AND HEALTH INSURANCE
CO., and GROUP LONG TERM
DISABILITY INSURANCE,
Defendants.

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CASE NO. 8:09CV303

MEMORANDUM
AND ORDER

This matter is before the Court on Plaintiff James Riley’s Motion to Alter or Amend
the Court’s Judgment (Filing No. 74) and his Motion for Attorney’s Fees (Filing No. 70).
The Court has considered the parties’ briefs (Filing Nos. 71, 75, 76, 78, 81, and 83) and
the accompanying Indexes of Evidence (Filing Nos. 72, 76-1, 76-2, 79, 82, and 84). For
the reasons discussed below, Riley’s Motion to Alter or Amend the Court’s Judgment
(Filing No. 74) is granted in part and denied in part, and Riley’s Motion for Attorney’s Fees
(Filing No. 70) is granted.
PROCEDURAL HISTORY
Defendant Sun Life and Health Insurance Company (“Sun Life”) is the underwriter
of a group insurance policy that provides long-term disability benefits to the Group Long
Term Disability Insurance Plan (the “Plan”). On August 31, 2009, Riley filed suit in this
Court, alleging that Sun Life inappropriately reduced Riley’s long-term disability benefits
under the Plan by deducting the amount of benefits he received from the Veterans
Administration (“VA”). (Filing No. 1, Complaint, at ¶¶ 9–19.) On June 18, 2010, this Court
entered summary judgment in favor of Defendants and dismissed Riley’s Complaint with

prejudice. (Filing Nos. 46 and 47.) Riley appealed, and on October 7, 2011, the Eighth
Circuit entered its Opinion and Judgment reversing this Court’s decision and remanding
for proceedings consistent with its Opinion. (Filing Nos. 58 and 59.) The Eighth Circuit
also entered an Order granting, in part, Riley’s Motion for Appellate Attorney Fees and
Costs. (Filing No. 65.) On December 1, 2011, this Court entered its Judgment in favor of
Riley and ordered Defendants to pay those appellate fees and costs. (Filing No. 67.)
DISCUSSION
I.

Riley’s Motion to Alter or Amend the Court’s Judgment Under Fed. R. Civ. P.
59(e)
“Rule 59(e) permits a court to alter or amend a judgment, but it ‘may not be used

to relitigate old matters, or to raise arguments or present evidence that could have been
raised prior to the entry of judgment.’” Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5
(2008) (quoting 11 C. W RIGHT & A. MILLER , FEDERAL PRACTICE AND PROCEDURE § 2810.1,
pp. 127–28 (2d ed.1995) (footnotes omitted)). District courts have broad discretion in
determining whether to grant or deny Rule 59(e) motions. United States v. Metro. St. Louis
Sewer Dist., 440 F.3d 930, 933 (8th Cir.2006).
As an initial matter, Defendants ask the Court to stay its judgment so that they can
petition the United States Supreme Court for a writ of certiorari. (Filing No. 78, at 5–6.)
The Court declines to stay its judgment. As Defendants note, they may seek a stay of
judgment in the Supreme Court pursuant to 28 U.S.C. § 2101(f) and Sup. Ct. R. 23.

2

A.

The Amount of Plan Benefits Owed to Riley
Riley moves the Court to amend its previous Judgment of December 1, 2011 (Filing

No. 67) to require Defendants to pay Riley: (1) amounts due under the Plan, totaling
$45,872.00,1 along with prejudgment and postjudgment interest at the current legal rate;
(2) Riley’s attorney’s fees incurred in bringing his case before this Court; and (3) all other
further relief the Court deems just and equitable. (Filing No. 74, Plaintiff’s Motion to
Amend, at ¶ 13; Filing No. 83, Plaintiff’s Reply, at 3–4.) Riley’s Motion for Attorney Fees
is addressed below.
The following facts are not in dispute. Riley first became eligible for long term
disability benefits under the Plan on January 23, 2005. (Filing No. 19-1, Administrative
Record 1 (hereinafter, “AR”); Filing No. 19-4, AR 123.) For that partial month, he was paid
a gross benefit of $615.00. (Filing No. 19-4, AR 123.) Riley’s gross monthly benefit (for
an entire month) was (and continues to be) $2,050.00. (Id. at AR 123, 126.)
At some point, Riley began receiving Social Security Disability Income (SSDI)
benefits. Under the Plan, these SSDI payments qualified as “Other Income.” (Filing No.
19-3, AR 63.) As such, they were an offset that was subtracted from Riley’s gross monthly
benefit amount. (Id. at AR 61.) Sun Life determined that the net offset for Riley’s monthly
SSDI benefits was $1,299.00. (Filing No. 19-4, AR 123, 126.) Taking this offset into

1

Riley originally requested $78,572.00, but this failed to take into account the fact
that : (1) Sun Life had previously paid $30,066.00; (2) benefits for January 2005 were due
for only part of the month; and (3) Riley originally claimed that the offset for Social Security
Disability Insurance benefits should have started in January of 2006, but now claims it
should have started in December of 2005. (Compare Filing No. 75, at 2 with Filing No. 83,
at 3.)
3

account, Riley was (and continues to be) entitled to a net monthly benefit of $751.00
($2,050.00 – $1,299.00).
The parties dispute when Riley began to receive SSDI benefits, or, more precisely,
when the Plan entitled Defendants to begin offsetting those benefits. Although this is the
first time the issue has been raised in the proceedings before this Court, Riley and
Defendants have disputed the issue for years. Riley contends that he did not begin to
receive SSDI benefits until December of 2005. (Filing No. 83, at 2–3.) He points to a letter
from the Social Security Administration, dated March 21, 2006, which states: “Beginning
December 2005, the full monthly Social Security benefit before any deductions is . . .
$1352.00.” (Filing No. 19-1, AR 3.)
Defendants contend that Riley’s SSDI benefits were retroactively awarded in April
of 2005, or, in any event, that under the Plan, Sun Life was entitled to offset the SSDI
benefits beginning in April of 2005. (Filing No. 78, at 1–4.) Defendants cite a form,
apparently filled out by Riley,2 that states the following: under the header “SOCIAL
SECURITY,” a box marked “SSDI” is checked; under “Effective Date” is written “4/05;” and
under “Amount” is written “1299-.” (Filing No. 19-1, AR 1.) Defendants point out that,
under the Plan, claimants’ benefits may be subject to offset for “other income” that they are
yet to receive. Defendants direct the Court to the following provisions of the Plan:
Application for Other Income
If you, your spouse, child, or children are or become eligible for any Other
Income, you, your spouse, child, or children must:
1. Apply for such Other Income; and
2

The form is not signed by Riley, but he does not dispute the authenticity of the
form or suggest it was filled out by anyone else. The form has no date except at the
bottom of the form, which states “Print Date: 03/07/2005.”
4

2. Cooperate with us in making reasonable efforts to reapply for or
appeal the denial of any application for such Other Income.
Until approval or denial is made we will, at your option, make payments
under either Method A or B below:
Method A: We will estimate the amount of Other Income you will receive and
reduce your Monthly Benefit by this amount. If Other Income benefits are
estimated, your Monthly Benefit will be adjusted when we receive Proof of
the amount awarded or that benefits have been denied. If your application
is denied, the amount estimated will be returned to you in a lump sum.
During subsequent appeals Method B will be used.
Method B: Subject to your written agreement, we will pay your Monthly
Benefit with no reduction for estimated Other Income until Social Security or
any other agency reaches a decision. When a decision is reached, you must
send us a copy of such decision and reimburse us in full for any
overpayment we have made as a result of that decision, regardless of
whether or not your coverage is still in force on the date you recover such
amount. Additionally, if an award is made, we will reduce your Monthly
Benefit by the amount of Other Income you receive, in accordance with the
terms of the policy. If you choose this Method B and have not applied for
Social Security or other benefits to which you may be entitled, you must
agree to apply for such benefits immediately. If you do not apply we will
automatically use Method A.
...
Lump Sum Payments
If any Other Income is paid in a lump sum, we will reduce the Monthly
Benefits paid or payable by the monthly equivalent of that sum as
determined below:
1. Over the period of time for which the sum is given, if a period of time is
stated; or
2. If such period of time cannot be determined we will prorate the lump sum
over a period of 60 months from the date of the lump sum award.
(Filing No. 19-3, AR 64.)
Sun Life notified Riley of these policy provisions in a letter of March, 2005, informing
him that his claim for long term disability benefits had been approved. (Filing No. 20-5, AR
354–55.) The letter advised that it was Sun Life's practice to estimate the amount of
5

participants’ SSDI benefits and reduce their monthly benefits by that amount, and
explained that if Riley wished to avoid this preemptive offset, he could provide Sun Life a
copy of his receipt of application for SSDI benefits. (Id. at 355.)
From August of 2005, to April of 2006, Sun Life and Riley’s attorney, Mark Peterson,
exchanged letters discussing what, if any, SSDI benefits Riley was receiving, and how they
should be handled under the plan. (Filing No. 20-3, AR 319; Filing No. 19-1, AR 5–8; Filing
No. 20-3, AR 315, 304; Filing No. 19-1, AR 2–4.) In April of 2006, Sun Life notified Riley
that it had determined that Riley had received a SSDI award beginning in April of 2005.
(Filing No. 20-3, AR 301.) Sun Life also notified him that it had failed to offset his SSDI
benefits from April 2005 to March of 2006, and requested that Riley pay Sun Life back the
surplus. (Id.) Finally, the letter stated that Sun Life was “pend[ing]” Riley’s benefits beyond
March 31, 2006. (Id.)
In a letter dated May 5, 2006, Peterson responded, requesting documentation of the
overpayment and stating that it was his view that Sun Life had waived its claim to recovery
or offset of the funds. (Id. at 294.) Sun Life responded in a letter dated July 10, 2006,
which quoted the provisions of the Plan set out above. (Id. at 291–93.) In November of
2006, Sun Life again requested repayment of the amounts claimed to be overpaid. (Id.
at 276–77.) The letter also stated: “We respect your right to dispute the offset against
SSDI benefits as indicated in your letter dated August 4, 2006.[3] However you have not
contacted our office to formally appeal or offer to discuss a repayment agreement.” (Id.

3

This letter did not dispute Sun Life’s decision to offset Riley’s SSDI benefits, but
merely stated that Peterson was out of the office and looked forward to discussing the
issue. (Filing No. 20-3, AR 290.)
6

at 276.) Defendants argue that Riley failed to exhaust his administrative remedies and is
therefore barred from challenging Sun Life’s determination of when to begin offsetting his
SSDI benefits.
Riley brings this action under § 502(a)(1)(B) of the Employee Retirement Income
Security Act of 1974 (ERISA), which allows a plan participant to bring civil actions “to
recover benefits due to him under the terms of his plan, to enforce his rights under the
terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29
U.S.C. § 1132(a)(1)(B).

However, before filing suit, claimants must exhaust the

administrative remedies required under their plan. Angevine v. Anheuser-Busch Cos.
Pension Plan, 646 F.3d 1034, 1037 (8th Cir. 2011). This exhaustion requirement is not
found in the text of ERISA, but is a judicially-created doctrine that serves important
purposes, including, “‘giving claims administrators an opportunity to correct errors,
promoting consistent treatment of claims, providing a non-adversarial dispute resolution
process, decreasing the cost and time of claims resolution, assembling a fact record that
will assist the court if judicial review is necessary, and minimizing the likelihood of frivolous
lawsuits.’” Id. (quoting Galman v. Prudential Ins. Co. of Am., 254 F.3d 768, 770 (8th
Cir.2001)). The exhaustion requirement will be excused only when the claimant can show
that “pursuing an administrative remedy would be futile or there is no administrative
remedy to pursue.” Id.
Riley asks this Court to determine the proper offset for his SSDI benefits under the
Plan. This amounts to a claim to “recover benefits due to him under the terms of his plan”
under 29 U.S.C. § 1132(a)(1)(B). Riley does not dispute this, or that the law requires
exhaustion of administrative remedies as required by the Plan. Instead, he argues simply
7

that he has “previously raised” the issue. (Filing No. 83, at 2, n.3.) Riley points to a letter
from February of 2005, in which Peterson requested information regarding Riley’s benefits
and offsets (Filing No. 19-1, AR 24), and the May 5, 2006, letter from Peterson requesting
documentation of the overpayment and stating that Sun Life had waived its claim to
recovery or offset of the funds. (Filing No. 20-3, AR 294.) However, these letters do not
change the fact that the administrative record contains no indication that Riley appealed
this determination or otherwise exhausted his administrative remedies.
The Plan contains provisions explaining that exhaustion of administrative remedies
is required before claimants may bring suit under ERISA. (Filing No. 19-4, AR 97–98.)
The Plan states that claims for benefits must be submitted to the insurer, and lays out the
procedure for appealing adverse determinations. (Id.) Riley followed these provisions
when he appealed Sun Life’s determination to offset his VA benefits. (Id. at AR 104–117.)
His appeal mentions, in passing, that Sun Life also offset Riley's SSDI benefits, but then
states that “[t]he issue on appeal is simply whether Sun Life is entitled to offset Mr. Riley's
long-term disability benefits against the VA benefits he earned . . . .” (Id. at 104–105.)
The offset for SSDI benefits is not mentioned again.
Riley has failed to exhaust his administrative remedies with regard to offsets for his
SSDI benefits. Accordingly, he may not use this suit to challenge Sun Life’s determination
of the proper offset for SSDI benefits. Riley’s damages will be computed with the SSDI
offset beginning in April of 2005, per Sun Life’s determination.

8

The following table sets forth the amounts at issue. The first column of figures
shows the payments Defendants have actually made to Riley.4 The second column of
figures shows the amounts that Defendants were obligated to pay Riley, without any offset
for VA benefits, but including the offset for SSDI benefits that Sun Life determined was
appropriate under the Plan.
Date

Actual Payments Made to
Riley

Amount Sun Life Owed
Riley

Jan. 2005

$615

$615

Feb. 2005

$2,050

$2,050

Mar. 2005

$2,050

$2,050

April 2005

$2,050

$751

May 2005

$2,050

$751

June 2005

$2,050

$751

July 2005

$2,050

$751

Aug. 2005

$2,050

$751

Sep. 2005

$2,050

$751

Oct. 2005

$2,050

$751

Nov. 2005

$2,050

$751

Dec. 2005

$2,050

$751

Jan. 2006

$2,050

$751

Feb. 2006

$2,050

$751

4

The payments made to Riley are based on figures contained in a worksheet of
benefits produced by Defendants. (Filing No. 79-1, Benefits Worksheet at 2.) Riley
properly points out that this worksheet is not authenticated by a supporting affidavit, as
required by NeCivR 7.0.1(b)(2)(C). Due to Riley’s present illness, he was unable to assist
his counsel in determining what payments were actually made to him. (Filing No. 83, at
2 n.4.) However, Riley’s counsel have based their calculations upon the amounts shown
in this worksheet, and the Court will do the same. (Id.)
9

Mar. 20065

$2,050

$751

$0

$751

Apr. 2006
...

...

...

Dec. 2011

$0

$751

According to Sun Life’s determination of the SSDI offset, Riley was overpaid by
$1,299 a month, from April of 2005, to March of 2006, for a total overpayment of $15,588.
From April of 2006, to December of 2011, the parties agree that Riley should have been
paid $751 a month until the present. For some reason, Riley did receive one payment of
$751, in December of 2006, which will be deducted from the amounts owed to him. The
Court will discuss the total amounts owed below, after taking prejudgment interest into
account.
B.

Prejudgment Interest
The Court will grant Riley’s request for prejudgment interest on the amounts due to

him under the plan at the current legal rate. (Filing No. 83, at 3.) Prejudgment interest
serves to make claimants whole where they have been denied the use of money they were
legally due, and “should ordinarily be granted unless exceptional or unusual circumstances
exist making the award of interest inequitable.” Stroh Container Co. v. Delphi Indus., Inc.,
783 F.2d 743, 752 (8th Cir. 1986).
The Eighth Circuit has held that 28 U.S.C. § 1961, which governs postjudgment
interest, also “provides the proper measure for determining” the rate of prejudgment
interest on claims for past benefits under ERISA. Mansker v. TMG Life Ins. Co., 54 F.3d

5

The payment for March apparently was made in April.
10

1322, 1331 (8th Cir.1995); accord Sheehan v. Guardian Life Ins. Co., 372 F.3d 962, 969
(8th Cir. 2004) (using method set forth in § 1961 to calculate prejudgment interest for
ERISA benefits).
28 U.S.C. § 1961(a) provides that “interest shall be calculated from the date of the
entry of the judgment, at a rate equal to the weekly average 1-year constant maturity
Treasury yield, as published by the Board of Governors of the Federal Reserve System,
for the calendar week preceding. [sic] the date of the judgment.” This method yields a rate
of 0.11% in the present case. The parties have not expressed a preference for how the
interest is to be applied, so the Court will apply annual compounding to the benefits due
to Riley, as they became due, from April of 2006 to December of 2011. Defendants have
already paid the benefits for the partial month of January 2005 through March 2006. This
yields a total of $51,256.68.
This leaves the question of how the $15,588 overpayment should be handled. Riley
has asked the Court to determine his entitlement to benefits under the Plan. Riley has
failed, however, to exhaust his administrative remedies with regards to Sun Life’s
determinations of an appropriate SSDI offset. The Court will deduct the $15,588 from the
total amount Defendants owe Riley, for a total of $35,668.68.
II.

Riley’s Motion for Attorney’s Fees
Riley seeks an award of attorneys’ fees, pursuant to Fed. R. Civ. P. 54(d)(2) and 29

U.S.C. § 1132(g)(1). Riley requests $34,209.50 for litigating this matter before this Court,6
and $1,290.00 for preparing his Motion for Attorneys’ Fees, for a total of $35,499.50.
6

This amount takes into consideration $2,627.00 voluntarily deducted by Riley for
time spent by an associate-in-training who prepared an initial planning report.
11

Defendants dispute that Riley is entitled to attorneys’ fees and argue that the amount
requested is unreasonable.
29 U.S.C. § 1132(g)(1) provides that “[i]n any action under this subchapter . . . by
a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable
attorney's fee and costs of action to either party.” A party claiming fees under § 1132(g)(1)
must achieve “‘some degree of success on the merits.’” Hardt v. Reliance Standard Life
Ins. Co., 130 S. Ct. 2149, 2158 (2010) (quoting Ruckelshaus v. Sierra Club, 463 U.S. 680,
694 (1983)). Riley has satisfied this requirement.
In determining whether to award attorney’s fees, district courts should consider the
following factors:
(1) the degree of culpability or bad faith of the opposing party; (2) the ability
of the opposing party to pay attorney fees; (3) whether an award of attorney
fees against the opposing party might have a future deterrent effect under
similar circumstances; (4) whether the parties requesting attorney fees
sought to benefit all participants and beneficiaries of a plan or to resolve a
significant legal question regarding ERISA itself; and (5) the relative merits
of the parties' positions.
Martin v. Ark. Blue Cross and Blue Shield, 299 F.3d 966, 969 n.4 (8th Cir. 2002) (citing
Lawrence v. Westerhaus, 749 F.2d 494, 496 (8th Cir. 1984)). These factors are not
exclusive and are only “general guidelines” that are to be considered along with other
relevant factors. Id. at 972.
First, Riley argues, and Defendants do not dispute, that Riley sought to “resolve a
significant legal question regarding ERISA,” i.e., determining whether the Veterans’
Benefits Act is similar to the Social Security Act or the Railroad Retirement Act for
purposes of a plan subject to ERISA. Second, Riley offers evidence that Sun Life’s parent

12

company is well-positioned to pay attorney fees. (Filing No. 71, at 5–6.) While this is not
necessarily evidence that Sun Life is well-positioned to pay, Defendants do not dispute
their ability to pay. (Filing No. 76, at 5.) With respect to the other factors, the Court finds
that they weigh neither in favor of, nor against, the award of attorney fees.7
Having considered the above factors, the Court finds that an award of attorneys’
fees is appropriate. The Court must next determine what constitutes an appropriate
amount.

“‘The starting point in determining attorney fees is the lodestar, which is

calculated by multiplying the number of hours reasonably expended by the reasonable
hourly rates.’” Hanig v. Lee, 415 F.3d 822, 825 (8th Cir.2005) (quoting Fish v. St. Cloud
State Univ., 295 F.3d 849, 851 (8th Cir.2002)). “When determining reasonable hourly
rates, district courts may rely on their own experience and knowledge of prevailing market
rates.” Id.
Riley was represented by four attorneys, whose average hourly rates are as follows:
Ms. Kane: $290; Mr. Peterson: $345; Mr. Padios: $212; and Ms. Boswell: $185. (Filing No.
72-1, Declaration of Nora Kane (“Kane Decl.”) at ¶ 18.) In support of the requested rates,
Riley has submitted a sworn declaration of his attorney, Nora Kane, which details her
education and litigation experience, as well as that of the other attorneys, whose education,
background, and expertise are known to her. (Id. at ¶¶ 1–5, 7–11.) Ms. Kane also states
she is familiar with the local and national legal markets, as well as the prevailing rates for
attorneys primarily engaged in ERISA litigation, and that the rates requested by her and

7

With respect to the “relative merits” of the parties’ positions, Sun Life’s position
had substantial merit, as explained in this Court’s initial ruling, and the dissenting opinion
of Circuit Judge Colloton.
13

Riley’s other attorneys are reasonable. (Id. at ¶¶ 6, 13–18.) Riley also offers declarations
from Mark. D. DeBofsky, a Chicago-based attorney with national experience litigating
ERISA cases, (Filing No. 72-3, Declaration of Mark D. DeBofsky, at ¶¶ 1–3 ), and Marcia
Washkuhn, an Omaha-based attorney with experience litigating ERISA cases (Filing No.
72-5, Declaration of Marcia Washkuhn, at ¶¶ 1–6). Both attorneys state they are familiar
with the prevailing rates charged by attorneys in comparable cases, and that Riley’s
requested rates are fair, reasonable, and consistent with rates charged by other attorneys
of comparable experience. (DeBofsky Decl., at ¶¶ 6–7; Washkuhn Decl., at ¶¶ 8–10.) Ms.
Washkuhn’s experience in the Omaha legal community provides a basis for her knowledge
of prevailing rates therein. The Court finds that the requested rates are reasonable.
Defendants reserve most of their challenges for the number of hours billed by
Riley’s attorneys. Defendants claim that because many the entries for Ms. Kane and Mr.
Peterson are billed in half-hour increments, the hours requested are likely inflated. (Filing
No. 76, at 8–9.) The Court acknowledges that even billing in quarter-hour increments has
been looked upon with disfavor, as it risks bill inflation. Republican Party of Minn. v. White,
456 F.3d 912, 920 (8th Cir. 2006). Defendants also allege that Riley’s counsel have “block
billed” their entries, but, as with their complaints regarding billing increments, Defendants
fail to cite any specific examples. (Filing No. 76, at 9.) Finally, Defendants point to a
handful of incidents they claim show over-staffing and excessive or redundant hours. (Id.
at 9–10.) The Court finds that the incidents cited do not constitute excessive or redundant
hours.8
8

Sun Life objects to the amount of time spent preparing a motion to conduct
discovery. The motion and brief in question (Filing Nos. 21 and 22) related to the
14

There are a number of factors district courts examine to determine if a request for
attorneys’ fees is reasonable and whether an upward or downward adjustment from the
lodestar amount is warranted. Easley v. Anheuser-Busch, Inc., 758 F.2d 251, 264 n.25
(8th Cir. 1985) (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19
(5th Cir. 1974)) (setting forth the twelve Johnson factors). Of these twelve factors, the
Court considers the following to be the most pertinent, under the circumstances of this
case: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the
skill requisite to perform the legal service properly; (4) the customary fee; (5) the amounts
involved and the results obtained; (6) the experience, reputation, and ability of the
attorneys; and (6) the “undesirability” of the case.
Having considered these factors, the Court finds that Riley’s requested fees are
reasonable, and no departure from the lodestar amount is warranted. The Court will award
Riley $35,499.50 in attorneys’ fees. Post-judgment interest on attorneys' fees is mandatory
under 28 U.S.C. § 1961. Jenkins by Agyei v. Missouri, 931 F.2d 1273, 1275-77 (8th Cir.
1991). This interest begins to accrue "from the date the court recognizes the right to such
fees in a judgment." Id. at 1277 (quotation omitted). In this case, postjudgment interest
shall accrue from the date of this Order and the accompanying Judgment. Accordingly,

completeness of the administrative record and what basis existed for Sun Life’s offset
determinations. (Filing No. 22, at 4.) Given the central nature of these issues to this case,
the Court finds that the hours claimed were not excessive. Similarly, Sun Life objects to
the amount of time Riley’s counsel spent preparing his Reply Brief in support of his Motion
for Summary Judgment (Filing No. 45). However, this Court took the step of requesting
the parties to provide additional information in their reply briefs (Filing No. 43, Order of May
28, 2010, at 1–2), and does not find the hours claimed to be excessive. Finally, Sun Life
claims that Riley’s counsel billed an excessive number of hours preparing an initial
planning report. Riley, however, has voluntarily deducted the bulk of these hours. (Filing
No. 81, at 8.)
15

IT IS ORDERED:
1.

The Motion to Alter or Amend the Court’s Judgment (Filing No. 74) filed by
Plaintiff James Riley, is granted in part, and denied in part, as follows:
a.

Defendants Sun Life and Health Insurance Co., f/k/a Genworth Life
and Health Insurance Co., and Group Long Term Disability Insurance
shall pay Plaintiff $35,668.68 (inclusive of prejudgment interest),
together with postjudgment interest on all unpaid amounts, from the
date of today’s Judgment until satisfaction, in accordance with 28
U.S.C. § 1961(a); and

b.

Defendants will continue to pay Plaintiff benefits under the Plan, with
no offset for the amount of benefits he receives through the Veteran’s
Administration, so long as Plaintiff meets the Plan’s terms and
conditions for receipt of benefits; and

2.

The Motion for Attorney Fees (Filing No. 70) filed by Plaintiff James Riley is
granted, and Defendants shall pay Plaintiff $35,499.50 in attorneys’ fees,
together with postjudgment interest on all unpaid amounts, from the date of
today’s Judgment until satisfaction, in accordance with 28 U.S.C. § 1961(a);
and

3.

Costs have previously been taxed against Defendants in the amount of
$1,307.81, per the parties’ Stipulation (Filing No. 69) and the previous Order
by the Clerk of the District Court (Filing No. 80).

DATED this 19th day of January, 2012.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
16