Valentine v. Aetna Life Insurance Company
Filing
57
ORDER granting 40 Motion for Attorney Fees; terminating 55 Motion for Attorney Fees. For the reasons set forth herein, the Court awards plaintiff $19,591.00 in attorney's fees and $350 in costs. SO ORDERED. Ordered by Judge Joseph F. Bianco on 8/31/2016. (Akers, Medora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 14-CV-1752 (JFB)(GRB)
_____________________
CAROL VALENTINE,
Plaintiff,
VERSUS
AETNA LIFE INSURANCE COMPANY,
Defendant.
___________________
MEMORANDUM AND ORDER
August 31, 2016
___________________
JOSEPH F. BIANCO, District Judge:
Plaintiff, Carol Valentine (hereinafter,
“plaintiff”), brought this action under the
Employee Retirement Income Security Act
(“ERISA”) against defendant, Aetna Life
Insurance
Company
(hereinafter,
“defendant”), alleging that defendant
improperly denied her benefits to which she
claimed she was entitled pursuant to her
former employer’s Long Term Disability
Coverage, which was administered by
defendant. By Memorandum and Order
dated August 25, 2015, the Court concluded
that defendant’s decision to terminate
plaintiff’s long-term disability benefits was
arbitrary and capricious as a matter of law
and remanded plaintiff’s claim to defendant
for reconsideration. Now before the Court is
plaintiff’s motion for attorney’s fees and
costs. For the reasons set forth below, the
Court awards $19,591.00 in attorney’s fees
and $350 in costs.
I.
A.
BACKGROUND
Factual Background
A comprehensive recitation of plaintiff’s
efforts to obtain her long-term disability
benefits is detailed in the Court’s August 25,
2015 Memorandum and Order, see Valentine
v. Aetna Life Insurance Co., 125 F. Supp. 3d
425, 428 (E.D.N.Y. 2015), and is not
repeated here. As relevant for the instant
decision, on March 1, 2013, defendant
notified plaintiff that she would be awarded
benefits from her disability onset date
through June 30, 2012, but that defendant had
determined that she was not entitled to
benefits after that date. Plaintiff objected to
the decision to deny her benefits subsequent
to June 30 and filed her complaint,
challenging defendant’s decision, in this
Court on March 28, 2013.
The parties subsequently cross-moved for
summary judgment. Defendant argued that
sufficient evidence in the record supported its
decision to deny plaintiff benefits after June
30, 2012. Plaintiff asserted that she was
entitled to summary judgment because the
evidence in the record established that she
had an ongoing disability, and, in the
alternative, she moved to remand her claim to
the plan administrator for reconsideration.
B.
Procedural History
Plaintiff filed her motion for fees on
November 3, 2015, to which her counsel,
Ronald Epstein (“Epstein”), attached a
document titled “Schedule of Services”
(hereinafter, “Schedule of Services”). The
document contained a list of the various tasks
performed, the date on which they were
performed, and the time expended on each
task. In Epstein’s Declaration supporting the
Schedule of Services, he attested that the
summary “was completed based upon [his]
review of contemporaneous client notes,
documents prepared and received in the
course of th[e] proceeding, review of
emails[,] including ECF notices and the
Docket Entries in th[e] matter,” and that it
was “accurate to the best of [his] knowledge
and represent[ed] a fair and accurate
summary of the time spent in connection with
this litigation.” (Epstein Decl. ¶ 5, ECF No.
40-2.)
In connection with the motion for
summary judgment, plaintiff submitted to the
Court certain materials that were not before
defendant at the time it made its decision to
terminate her benefits, contending that these
materials should have been part of the
administrative record.1 Defendant moved to
strike these submissions, arguing that they
were not part of the administrative record
and, therefore, should not be considered by
the Court.
In its August 25, 2015 Memorandum and
Order, this Court concluded that defendant’s
decision to terminate plaintiff’s long-term
disability benefits as of July 1, 2012 failed to
address substantial evidence in the record,
and was thus arbitrary and capricious as a
matter of law. The decision also granted
defendant’s motion to strike the extra-record
submissions, after concluding that it would
apply an arbitrary and capricious standard of
review, and consequently, that its review
would be confined to the administrative
record. See Valentine, 125 F. Supp. 3d at 439
n.12.
In its opposition to plaintiff’s motion for
fees, defendant challenged the Schedule of
Services, noting that Epstein did not
represent that the entries were prepared at the
time the work was performed and argued
that, in this Circuit, fees should not be
awarded unless substantiated by time records
that were prepared contemporaneously with
the execution of the task.
In plaintiff’s reply, Epstein responded
that the Schedule of Services was sufficient
because it was prepared based on
“contemporaneous case notes, emails, and
review of documents[,] emails[,] and the
docket sheet.” (Pl.’s Reply 8, ECF No. 43.)
terminating plaintiff’s benefits as of July 1, 2012, in an
effort to convince defendant to reopen plaintiff’s claim
and reconsider its decision. Defendant did not
acquiesce, and plaintiff argued on summary judgment
that defendant’s refusal to consider this information
was arbitrary and capricious.
1
This material included an affidavit from plaintiff
dated November 16, 2014, as well as the parties’
responses to their respective discovery requests.
Additionally, it also included medical information and
documentation that plaintiff sent to defendant on
March 25, 2013, after defendant rendered its decision
2
However, in an effort to provide further
substantiation, Epstein attached a sixty-four
page document (Pl.’s Reply Ex. 1, ECF No.
43-1) that he described as the “underlying
contemporaneous client records from [his
firm’s] computer based system,” from which
he derived the Schedule of Services. (Pl.’s
Reply at 8.) This document contained a
separate page for each date work was
performed and listed the date the work was
performed, the type of work performed (e.g.
“file review” or “hearing”), and notes
regarding the work performed. (See id.)
However, this document did not indicate how
much time was spent on each task. Epstein
subsequently2 provided a declaration in
which he attempted to authenticate the sixtyfour page print-out, declaring that he
personally printed the notes from his firm’s
billing software, which was used in the
ordinary course of business. (See ECF No.
49.)
At oral argument, held on February 17,
2016, the Court questioned Epstein about his
time records. Though his description was
rather convoluted, Epstein seemed to explain
that, although his firm’s billing software
could produce a print-out that listed the tasks
performed, the time spent on the tasks, and
the dates on which the tasks were performed,
he did not produce this information to the
Court in this format because printing it this
way would have revealed confidential
information.3 The Court directed Epstein to
produce a print-out in this format, containing
the task performed, the date on which it was
performed, and the time spent on the task, but
directed him to redact any confidential
information.4
As directed, Epstein submitted a redacted
version of the print-out from his firm’s billing
software, which he referred to as his “client
track notes” (hereinafter, “Client Track
Notes”) on February 22, 2016. (ECF No. 53.)
Defendant responded to the submission on
March 11, 2016. (ECF No. 54.) Defendant
stated that there were a number of
discrepancies between the Schedule of
Services and the Client Track Notes. For
instance, defendant noted that, although the
Schedule of Services contained an entry for
work performed on January 16, 2015, there
was no such entry in the Client Track Notes.
Similarly, though the Schedule of Services
sought fees for 2.5 hours of work on August
15, 2014, the Client Track Notes indicated
that only 0.25 hours of work had been
Defendant thereafter submitted a surreply
on January 29, 2016 (ECF No. 51) in which
it again challenged plaintiff’s submissions. It
argued that plaintiff’s declaration did not
properly authenticate the sixty-four page
document,
that,
even
if
properly
authenticated, the document did not provide
the time spent on each task, and that plaintiff
had still failed to provide a document
reflecting a contemporaneous record of how
much time Epstein spent on each task.
2
3
Following the submission of the sixty-four page
document, defendant wrote to the Court, requesting to
strike this document as it was not properly
authenticated and because it was impermissibly
submitted for the first time with plaintiff’s reply. The
Court held a telephone conference with the parties
during which it refused to strike the document, but
directed Epstein to submit a declaration authenticating
the document and permitted defendant to submit a
surreply to respond to the declaration.
Instead, he had printed sixty-four individual time
entries from the billing software. He further explained
that printing the entries individually purportedly
caused the record of the time spent on each task to be
omitted.
4
The Court also asked Epstein a series of questions on
the record, and under penalty of perjury, to
authenticate the documents maintained by the firm’s
billing software.
3
performed for the same task.
Epstein
thereafter submitted a letter, responding to
these discrepancies. He explained that, in
some cases, an entry might appear in the
Schedule of Services, but not in the Client
Track Notes, because he prepared the
Schedule of Services by referencing other
contemporaneously-prepared materials, like
the docket sheet, in addition to the Client
Track Notes.
Council of Carpenters v. American Concrete
Solutions, Inc., No. 13-CV-4714 (RA), 2014
WL 7234596, at *5 (S.D.N.Y. Dec. 18, 2014)
(quoting 29 U.S.C. § 1132(g)(1)).
A district court’s discretion to award
attorney’s fees under ERISA “is not
unlimited.” Donachie v. Liberty Life Assur.
Co., 745 F.3d 41, 46 (2d Cir. 2014) (quoting
Hardt v. Reliance Standard Life Ins. Co., 560
U.S. 242, 254-55 (2010)). Rather, in Hardt
v. Reliance Standard Life Insurance Co., the
Supreme Court established that a court may
only award attorney’s fees to a beneficiary
who has obtained “some degree of success on
the merits.” 560 U.S. at 255. The district
court in Hardt remanded the plaintiff’s claim
to the plan administrator after concluding that
“the plan administrator ha[d] failed to
comply with the ERISA guidelines” and the
plaintiff “did not get the kind of review to
which she was entitled under applicable law.”
Id. at 255. Although the district court did not
grant the plaintiff’s motion for judgment on
the pleadings, it did opine that “it was
inclined to rule in her favor” on her benefits
claim. Id. at 256. On remand, the plaintiff
was awarded her benefits. Id. The Supreme
Court concluded that “[t]hese facts establish
that [the plaintiff] . . . achieved far more than
‘trivial success on the merits’ or a ‘purely
procedural victory’” and therefore that it was
appropriate to award attorney’s fees. Id.
However, the Court expressly declined to
decide “whether, a remand order, without
more, constitutes ‘some success on the
merits.’” Id.
The matter is now fully briefed, and the
Court has considered all of the parties’
submissions.
II.
DISCUSSION
Plaintiff’s Entitlement to Attorney’s
Fees and Costs
A.
Plaintiff requests attorney’s fees in the
amount of $32,581.255 for 100.25 hours
worked at a rate of $3256 an hour, as well as
$350 in costs. Defendant opposes this
request, arguing that plaintiff is not entitled
to fees because she did not succeed in the
underlying action, fees are not justified under
the circumstances of the case, and plaintiff
has failed to provide adequate documentation
to substantiate her request for fees.
1.
Some Success on the Merits
“The general rule in our legal system is
that each party must pay its own attorney’s
fees and expenses.” Perdue v. Kenny A. ex
rel. Winn, 559 U.S. 542, 550 (2010).
However, ERISA provides that “the court in
its discretion may allow a reasonable
attorney’s fee and costs of action to either
party.” Trustees of the N.Y. City Dist.
The Second Circuit has not answered this
question either, observing only that Hardt
“clearly held that a remand order opining
In plaintiff’s brief, she also states that the total sought
is $32,548.25; however, given the rate and hours
claimed, it appears that this amount reflects a
typographical error.
In plaintiff’s brief, she also states that she seeks a rate
of $320 an hour; however, given the rate and hours
claimed, it appears that this rate reflects a
typographical error.
5
6
4
positively on the merits of the plaintiff’s
claim was sufficient” to constitute ‘some
success on the merits.’” Scarangella v. Grp.
Health, Inc., 731 F.3d 146, 155 (2d Cir.
2013).
At the district court level, in
Demonchaux v. Unitedhealthcare Oxford,
the court concluded that attorney’s fees were
justified because the plaintiff had achieved
some success on the merits because the court
remanded her claim and also “opined
positively on [her] claim.” No. 10 CIV. 4491
DAB, 2014 WL 1273772, at *3 (S.D.N.Y.
Mar. 27, 2014). The court noted that, even
though the plaintiff had not proven that she
was entitled to benefits, that fact “[did] not
negate its favorable comments as to the
merits of Plaintiff’s claim.” Id.
merits to establish eligibility for
fees . . . .
763 F.3d 73, 77 (1st Cir. 2014)
(alterations in original).
As apparent from the Gross case, many
courts have concluded that remand—
including, as is the case here, because the
administrator’s decision was arbitrary and
capricious—without
more,
constitutes
success on the merits. See, e.g., McKay v.
Reliance Standard Life Ins. Co., 428 F.
App’x 537, 546-47 (6th Cir. 2011) (affirming
lower court’s conclusion that remand alone
was sufficient to constitute success on the
merits because it provided the plaintiff with
“another shot” at his claimed benefits);
Hilderbrand v. Nat’l Elec. Benefit Fund, No.
13-3170, 2016 WL 614352, at *3 (C.D. Ill.
Feb. 16, 2016) (“[N]umerous courts,
including district courts within the Seventh
Circuit, have found that a remand order alone
can constitute some success on the merits.
These courts generally reason that the
plaintiffs achieved some success on the
merits by establishing an ERISA violation
and obtaining a second review of their
claims.”); Cannon v. Aetna Life Ins. Co., No.
CIV.A. 12-10512-DJC, 2014 WL 5487703,
at *2 (D. Mass. May 28, 2014) (holding that
“many district courts, including other judges
in this district, have concluded that a remand
to the defendant to conduct further
administrative proceedings is not a merely
procedural victory” and collecting cases);
Cockrell v. Hartford Life & Acc. Ins. Co., No.
11-2149, 2013 WL 2147454, at *2 (W.D.
Tenn. May 15, 2013) (observing that the
plaintiff was entitled to fees because she
“‘achieved far more than trivial success on
the merits or purely a procedural victory’
when she persuaded this Court that [the
defendant’s] decision was arbitrary and
capricious and that it should not be upheld
under ERISA”); see also Delprado v.
However, in Wallace v. Group Long
Term Disability Plan For Employees of
TDAmertrade Holding Corp., the court
concluded that the plaintiff was entitled to
attorney’s fees without making reference to
any positive opinion offered regarding the
merits of the underlying claim. No. 13 CIV.
6759 LGS, 2015 WL 4750763, at *6
(S.D.N.Y. Aug. 11, 2015), appeal dismissed
(Oct. 30, 2015). Instead, the court observed
that “[b]y procuring a remand for further
consideration of whether her OCD is
disabling, Plaintiff has achieved an adequate
degree of success on the merits to warrant
attorneys’ fees,” id., and cited to a recent
decision from the First Circuit, Gross v. Sun
Life Assurance Co. of Canada, which held
that:
[After Hardt,] [m]ost courts
considering the question . . . have held
that a remand to the plan
administrator for review of a
claimant’s entitlement to benefits,
even without guidance favoring an
award of benefits or an actual grant of
benefits, is sufficient success on the
5
Sedgwick Claims Mgmt. Servs., Inc., No.
1:12-CV-00673 BKS, 2015 WL 1780883, at
*41 (N.D.N.Y. Apr. 20, 2015) (“[E]ven
though Plaintiff is not entitled to summary
judgment, she has obtained some degree of
success on the merits in showing Defendants’
decisions on her [disability benefits claim] to
be arbitrary and capricious and requiring
remand.”). As the court in Gross explained,
these courts conclude that “remand
simpliciter” is enough to constitute success
on the merits under Hardt based on “the two
positive outcomes inherent in such an order:
(1) a finding that the administrative
assessment of the claim was in some way
deficient, and (2) the plaintiff’s renewed
opportunity to
obtain
benefits
or
compensation.” Gross, 763 F.3d at 78.
plaintiff secured a remand of her claim for
further evaluation and, on remand, the
administrator awarded her the desired
benefits. Though this Court’s August 25,
2015 Opinion remanding the claim did not
express the same type of enthusiastic
endorsement of the merits of plaintiff’s claim
as the district court did in Hardt, this Court
did express reservations concerning the
handling of plaintiff’s claim by defendant.
See, e.g., Valentine, 125 F. Supp. 3d at 441
(describing
physician
consultant’s
conclusions, which defendant subsequently
adopted, as “utterly perplexing”). Given that
the Supreme Court in Hardt determined that
the combination of the three factors
delineated above amounted to “far more than
trivial success on the merits,” 560 U.S. at 256
(emphasis added) (internal quotation marks
omitted), this Court concludes that plaintiff’s
attainment of a remand and ultimate success
in obtaining her benefits, along with the
Court’s expressed reservations about the
administrator’s treatment of plaintiff’s claim
is at least enough to qualify as some success
on the merits under Hardt.
The Court finds this reasoning, though
not binding, persuasive, and agrees 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. Accordingly, here, even though
the Court did not “opine positively” on the
merits of her claim to the degree that the
district court did in Hardt, plaintiff
nevertheless achieved some success on the
merits by convincing the Court to remand her
claim, and is therefore entitled to attorney’s
fees.
2.
Chambless Factors
After Hardt, the question of success on
the merits is the only factor the court is
required to consider. See Donachie, 745
F.3d at 46. However, Hardt made clear that
a court may additionally, in its discretion,
consider the traditional five factors test, see
Hardt, 560 U.S. at 249, known in this Circuit
as the Chambless factors, which are: “(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
The Court is further persuaded that
attorney’s fees are justified here given that
the Supreme Court in Hardt concluded that
the plaintiff had achieved “far more” than
trivial success on the merits based on three
factors: “(1) a remand requiring a
reevaluation of her claim, (2) the district
court’s expressed favorable view of that
claim, . . . and (3) an eventual award of
benefits by the plan administrator,” Gross,
763 F.3d at 77 (citing Hardt, 560 U.S. at 256
(internal citations omitted)), and, here,
6
aff’d in part, 334 F. App’x 375 (2d Cir.
2009).
question regarding ERISA itself; and (5) the
relative merits of the parties’ positions.”
Chambless v. Masters, Mates & Pilots
Pension Plan, 815 F.2d 869, 872 (2d Cir.
1987).
As to the second factor, although
defendant does not contest its ability to pay,
“its ability to pay generally is neutral in
effect.” Alfano v. CIGNA Life Ins. Co. of
N.Y., No. 07 Civ. 9661, 2009 WL 890626, at
*2 (S.D.N.Y. Apr. 2, 2009) (citing Lauder v.
First UNUM Life Ins. Co., 284 F.3d 375, 383
(2d Cir. 2002)). However, “[a]t the very
least, the ability to pay factor does not weigh
in Defendant’s favor.” Demonchaux, 2014
WL 1273772, at *5.
The Court’s consideration of these factors
further reinforces its conclusion that plaintiff
is entitled to attorney’s fees. With respect to
the first factor, the opposing party’s
culpability, the Second Circuit has clarified
that a showing of bad faith is not required and
that a finding that the administrator’s review
of the claim was arbitrary and capricious is
sufficiently culpable to weigh in favor of
granting attorney’s fees. See, e.g., Donachie,
745 F.3d at 47 (noting that the Second Circuit
recognizes that an administrator may be
culpable under Chambless where his decision
was arbitrary and capricious); Demonchaux,
2014 WL 1273772, at *5 (“[T]he Court’s
holding that [the defendant’s] denial of [the
plaintiff’s] claim was arbitrary and capricious
suffices to show [the defendant’s]
culpability.”); Levitian v. Sun Life and Health
Ins. Co., No. 09 Civ. 2965, 2013 WL
4399026, at *2 (S.D.N.Y. Aug. 15, 2013)
(“[T]he culpability factor of Chambless is
satisfied by the findings by this Court and the
Second Circuit that Defendant’s denial of
plaintiff’s benefits was arbitrary and
capricious.”); Zurndorfer v. Unum Life Ins.
Co. of Am., 543 F. Supp. 2d 242, 264
(S.D.N.Y. 2008) (explaining that “the Second
Circuit has held that ‘a defendant is culpable
under Chambless where it violated ERISA,
thereby depriving plaintiffs of rights under a
pension plan and violating a Congressional
mandate.’” (quoting Paese v. Hartford Life &
Accident Ins. Co., 449 F.3d 435, 450 (2d Cir.
2006))); Cohen v. Metro. Life Ins. Co., No. 00
CIV 6112 LTS FM, 2007 WL 4208979, at *1
(S.D.N.Y. Nov. 21, 2007) (“An arbitrary and
capricious determination by an administrator
. . . in connection with a plaintiff’s claim for
benefits satisfies the culpability factor.”),
With respect to the third factor—
deterrence of “other persons acting under
similar circumstances”—courts in this circuit
have recognized that awarding attorney’s
fees where the administrator has failed to
consider important medical information can
serve to deter administrators from engaging
in such arbitrary and capricious behavior in
the future. See Demonchaux, 2014 WL
1273772, at *4 (S.D.N.Y. Mar. 27, 2014)
(observing that an award of attorney’s fees
would “serve to deter administrators from
making arbitrary and capricious benefits
denials”); Levitian, 2013 WL 4399026, at *2
(“[G]ranting plaintiff a fee award in this case
would deter insurers generally from denying
legitimate benefit claims.”).
Although plaintiff’s case does not satisfy
the fourth factor by producing some common
benefit or resolving a significant legal
question concerning ERISA, the Second
Circuit has made clear that the failure to
satisfy this element does not foreclose the
recovery of attorney’s fees. See, e.g., Locher
v. Unum Life Ins. Co. of Am., 389 F.3d 288,
299 (2d Cir. 2004) (explaining that “the
failure to satisfy the [common benefit]
Chambless factor does not preclude an award
of attorney’s fees”); see also Demonchaux,
2014 WL 1273772, at *5 (same); Winkler v.
7
Metro. Life Ins. Co., No. 03 CIV. 9656
(SAS), 2006 WL 2850247, at *3 (S.D.N.Y.
Sept. 28, 2006) (same).
all, of the relevant factors constituting a
‘reasonable’ attorney’s fee.’” Perdue, 559
U.S. at 553 (quoting Pennsylvania v. Del.
Valley Citizens’ Council for Clean Air, 478
U.S. 546, 565-66 (1986) (internal quotation
marks omitted)). Thus, the Supreme Court
has recognized that “the lodestar method
produces an award that roughly approximates
the fee that the prevailing attorney would
have received if he or she had been
representing a paying client who was billed
by the hour in a comparable case.” Id. at 551
(emphasis in original).
Finally, as to the relative merits of the
parties’ positions, by concluding that the
administrator’s denial of benefits was
arbitrary and capricious because of the failure
to address substantial evidence, the Court
recognized that plaintiff’s position was the
meritorious position on the issue of remand.
See Rappa v. Conn. Gen. Life Ins. Co., No.
CV-03-5286 CBA/JMA, 2005 WL 6244543,
at *2 (E.D.N.Y. June 28, 2005) (holding that
the finding that the “denial of benefits . . . was
arbitrary and capricious . . . is a determination
that plaintiff’s position had merit and
defendants’ did not”); see also Demonchaux,
2014 WL 1273772, at *5 (holding that “the
relative merits of the parties’ position is thus
“in little doubt” where “defendant’s denial of
plaintiff’s claim was arbitrary and capricious,
forcing her to bring the present lawsuit”).
1.
a.
Contemporaneous Records
The party seeking attorney’s fees also
bears the burden of establishing that the
number of hours for which compensation is
sought is reasonable.” Custodio v. Am. Chain
Link & Const., Inc., No. 06-CV-7148 (GBD),
2014 WL 116147, at *9 (S.D.N.Y. Jan. 13,
2014) (citing Cruz v. Local Union No. 3 of
Int’l Bd. of Elec. Workers, 34 F.3d 1148,
1160 (2d Cir. 1994)). Motions for attorney’s
fees in this Circuit must comply with New
York State Association for Retarded
Children, Inc. v. Carey, 711 F.2d 1136 (2d
Cir. 1983), which requires attorneys to
submit contemporaneous time records that
specify “the date, the hours expended, and the
nature of the work done.” Id. at 1148. The
contemporaneous time records requirement
is strictly enforced, and as a result the records
must be made “while the work is being done
or, more likely, immediately thereafter.
Descriptions of work recollected in
tranquility days or weeks later will not do.”
United States ex rel. Krause v. Eihab Human
Servs., No. 10-CV-898 (RJD), 2014 U.S.
Dist. LEXIS 136599, at *8 (E.D.N.Y. June 6,
2014) (quoting Handschu v. Special Servs.
Div., 727 F. Supp. 2d 239, 249 (S.D.N.Y.
2010), report and recommendation adopted,
Accordingly, the Court concludes that an
award of attorney’s fees is also appropriate
under a weighing of the Chambless factors.
B.
Reasonable Hours
The Fee Award
Generally, to determine a reasonable
attorney’s fee, a court must calculate a
“lodestar figure,” which is determined by
multiplying the number of hours reasonably
expended on a case by a reasonable hourly
rate. See Hensley v. Eckerhart, 461 U.S. 424,
433 (1983); see also Luciano v. Olsten Corp.,
109 F.3d 111, 115 (2d Cir. 1997). “Both [the
Second Circuit] and the Supreme Court have
held that the lodestar . . . creates a
‘presumptively reasonable fee.’” Millea v.
Metro-N. R.R. Co., 658 F.3d 154, 166 (2d Cir.
2011) (quoting Arbor Hill Concerned
Citizens Neighborhood Assoc. v. Cnty. of
Albany, 522 F.3d 182, 183 (2d Cir. 2008)).
“[T]he lodestar figure includes most, if not
8
she subsequently submitted “copies of the
contemporaneous time records which were
used to create the list of services performed”).
2014 U.S. Dist. LEXIS 136599 (E.D.N.Y.
Sept. 25, 2014)). When an attorney fails to
keep contemporaneous records, a motion for
fees must ordinarily be denied in its entirety.
See Scott v. City of New York, 626 F.3d 130,
133 (2d Cir. 2010).
However, as described above, and
detailed in defendant’s letter of March 11,
2016 (ECF No. 54), a number of the entries
contained in the Schedule of Services are
inconsistent with the Client Track Notes, in
which Epstein made the contemporaneous
record of his work. These entries, amounting
to a total of 21.1 hours,7 must be excluded.
Epstein is not entitled to attorney’s fees for
time for which he cannot produce a
corresponding contemporaneous record. See
Carey, 711 F.2d at 1147.
As detailed above, Epstein was
eventually able to submit his Client Track
Notes, which contained a description of the
work performed, the date on which it was
performed, and the time devoted to each task.
He has further represented to the Court, under
penalty of perjury, that this information was
created contemporaneously with the
performance of the work and recorded in the
regular course of his business, and the Court
credits that representation. Specifically,
although it took several attempts to secure
this information from Epstein, the Court
concludes that the materials submitted by
plaintiff
in
conjunction
with
his
representations to the Court, are sufficient to
prevent the Court from dismissing his fee
application for failure to provide
contemporaneous records. See New York
Youth Club v. Town of Harrison, No. 12-CV7534 (CS), 2016 WL 3676690, at *4-5
(S.D.N.Y. July 6, 2016) (holding that,
although attorney’s initial submission that
was merely a “re-created summary of her
billable time” based on “contemporary
records” was insufficient under Carey,
attorney would not be denied fees because
Nevertheless, Epstein claims that, even if
there was no record in the Client Track Notes,
he based his entry in the “Schedule of
Services” on other contemporaneouslyprepared documents, like the docket sheet.
For instance, he claims that he included a
request in his “Schedule of Services” for one
hour of work to perform a file review and
participate in a pre-motion conference on
October 31, 2014 based on an entry on the
docket from the same date, even though there
is no corresponding entry in the Client Track
Notes. Even if the docket refreshed Epstein’s
recollection of what tasks he performed on a
given date, it cannot accurately establish how
long he worked on that task; rather, it is
apparent that, when relying on documents
7
This sum was calculated by tallying the amounts
identified in defendant’s March 11, 2016 letter for
which there is an entry in the Schedule of Services, but
no corresponding entry in the Client Track Notes.
However, in several instances, the Client Track Notes
merely reflected that Epstein performed less work than
requested in the Schedule of Services (e.g., on August
15, 2014, the Schedule of Services states that Epstein
performed 2.5 hours of work for “receipt and review
of Defendant’s Responses (and objections) to
Plaintiff[’]s Request (74 pages)”; however, the Client
Track Notes indicate that Epstein performed only .25
hours of work). In these cases, Epstein can only be
compensated for the amount of time reflected in the
Client Track Notes, not for any additional time sought
in the Schedule of Services (i.e., in the August 15
example provided above, Epstein may only recover for
the .25 hours listed in the Client Track Notes, not the
entire 2.5 hours sought in the Schedule of Services).
Relatedly, on November 17, 2014, the Client Track
Notes indicate that Epstein spent 30 hours preparing
for oral argument. This entry is impossible and plainly
incorrect. Though the “Schedule of Services” requests
only 3.5 hours for this preparation, the accuracy of this
figure is not confirmed by a contemporaneous record,
and plaintiff therefore cannot recover for this time.
9
other than the Client Track Notes to create the
Schedule of Services, Epstein was forced to
make estimates about how much time he
spent on each task. Such speculation cannot
support a fee award. Youth Club, 2016 WL
3676690, at *5 (noting that a “reconstructed
summary of billable work” cannot satisfy the
contemporaneous records requirement (citing
Broadcast Music, Inc. v. R Bar of Manhattan,
Inc., 919 F. Supp. 656, 661 (S.D.N.Y. 1996)
(hindsight review inadequate substitute for
contemporaneous time records))).
b.
Court further explained that, in cases where a
plaintiff pursues “distinctly different claims
for relief that are based on different facts and
legal theories” (even though brought against
the same defendants), “counsel’s work on
one claim will be unrelated to his work on
another claim” and thus, “work on an
unsuccessful claim cannot be deemed to have
been expended in pursuit of the ultimate
result achieved.” Hensley, 461 U.S. at 43435. However, “[a] plaintiff’s lack of success
on some of his claims does not require the
court to reduce the lodestar amount where the
successful and the unsuccessful claims were
interrelated and required essentially the same
proof.” Murphy v. Lynn, 118 F.3d 938, 952
(2d Cir. 1997); see also Kerin v. U.S. Postal
Serv., 218 F.3d 185, 194 (2d Cir. 2000) (“The
district court therefore has the discretion to
award fees for the entire litigation where the
claims are inextricably intertwined and
involve a common core of facts or are based
on related legal theories.” (internal quotation
marks and citation omitted)).
Unsuccessful Claims
Defendant also contends that plaintiff is
not entitled to fees for time spent on
unsuccessful arguments. The Supreme Court
has recognized that “plaintiff’s success is a
crucial factor in determining the proper
amount of an award of attorney’s fees under
42 U.S.C. § 1988.” Hensley, 461 U.S. at 440;
Stanczyk v. City of New York, 752 F.3d 273,
284-85 (2d Cir. 2014). In Hensley v.
Eckerhart, the Supreme Court held that:
Defendant contends that plaintiff did not
succeed on a number of the arguments that
she asserted in support of her claim that the
administrator’s decision was arbitrary and
capricious, such as her argument that
defendant acted in an arbitrary and capricious
manner by failing to refer her for an
independent medical examination and by
failing to consider the additional information
plaintiff submitted in March 2013. (See
Def.’s Opp’n (“Opp’n”) 6-7, 16-17, ECF No.
42.)
However, plaintiff succeeded in
convincing the Court that defendant’s
decision was arbitrary and capricious. To the
extent that this determination rested on an
argument other than those defendant seeks to
exclude, the Supreme Court recognized,
“[l]itigants in good faith may raise alternative
legal grounds for a desired outcome, and the
court’s rejection of or failure to reach certain
grounds is not a sufficient reason for reducing
Where the plaintiff has failed to
prevail on a claim that is distinct in all
respects from his successful claims,
the hours spent on the unsuccessful
claim should be excluded in
considering the amount of a
reasonable fee. Where a lawsuit
consists of related claims, a plaintiff
who has won substantial relief should
not have his attorney’s fee reduced
simply because the district court did
not adopt each contention raised. But
where the plaintiff achieved only
limited success, the district court
should award only that amount of fees
that is reasonable in relation to the
results obtained.
461 U.S. at 440; see also Green v. Torres,
361 F.3d 96, 99 (2d Cir. 2004). The Supreme
10
a fee.” Hensley, 461 U.S. at 435. “[T]he fee
award should not be reduced simply because
the plaintiff failed to prevail on every
contention raised in the lawsuit[;] . . . [t]he
result is what matters.” Id. Furthermore,
these arguments were based on a “common
core of facts” and “related legal theories,”
and, under such circumstances, the Supreme
Court has found that it is not appropriate to
adjust downward to account for the related
unsuccessful claims because all of the claims
are sufficiently intertwined.
LeBlancSternberg v. Fletcher, et al., 143 F.3d 748,
762 (2d Cir. 1998) (quoting Hensley, 461
U.S. at 434-5); see also Zervos v. Verizon
New
York,
Inc.,
No.
01-CIV0685(GBD)(RLE), 2002 WL 31553484, at
*5 (S.D.N.Y. Nov. 13, 2002) (concluding
that “because of the common factual matters,
this is not the kind of case where some hours
may be factored out as unreasonable”); King
v. JCS Enterprises, Inc., 325 F. Supp. 2d 162,
167 (E.D.N.Y. 2004) (“Where it is
impractical to separate out the hours, for
example because the successful and
unsuccessful claims are interwoven by a
common core of facts so that much of the
time was spent in developing the case as a
whole, the hours are included in toto in the
lodestar calculation.”).8
Fairbaugh v. Life Insurance Co. of North
America, dispensed with a similar argument,
describing it as “silly,” and explained:
It is true that Plaintiff contended
initially for a de novo review by the
Court rather than the arbitrary and
capricious standard the Court applied,
but Plaintiffs’ attorneys then
demonstrated
that
Defendant’s
termination of benefits was indeed
arbitrary and capricious, thereby
achieving for Plaintiff complete
success on her core claim that
payment of her benefits should
resume. To downgrade Plaintiff’s
success on that core claim because of
her counsel’s initial embrace of the
wrong standard of review would be .
. . inequitable.
872 F. Supp. 2d 174, 190-91 (D. Conn.
2012), supplemented (Aug. 20, 2012); contra
Anderson v. Sotheby’s, Inc., No. 04 CIV.
8180 (SAS), 2006 WL 2637535, at *4
(S.D.N.Y. Sept. 11, 2006) (excluding fees
pertaining to unsuccessful motion requesting
application of a de novo standard of review).
This Court agrees that it is unnecessary to
reduce plaintiff’s fee award in light of her
failure to successfully argue for a de novo
standard of review, given that she still
succeeded in convincing the Court that her
claim should be remanded because
defendant’s decision to terminate her long-
Defendant also argues that plaintiff’s fees
should be reduced because she was
unsuccessful on her argument concerning the
appropriate standard of review. (Opp’n at 7.)
The Court disagrees.
The Court in
8
Defendant points out that plaintiff did not
successfully defend against defendant’s motion to
strike the extra-record evidence provided to defendant
in March 2013 and submitted as an exhibit to
plaintiff’s cross-motion for summary judgment.
However, plaintiff’s primary contention with respect
to this material was that defendant’s refusal to
consider it was arbitrary and capricious and, as noted
above, plaintiff successfully established that
defendant’s treatment of her claim was arbitrary and
capricious.
Furthermore, as explained infra, the Court
concludes that plaintiff’s fee award should not be
reduced based on her failure to convince the court to
apply de novo review. By extension, the Court
concludes that it would not be appropriate to reduce
plaintiff’s hours based on her failure to defend against
plaintiff’s motion to strike, given that the Court’s
decision to exclude the evidence was dictated by its
decision to apply the arbitrary and capricious standard
of review.
11
term disability benefits was arbitrary and
capricious.
c.
No. 11 CV 4466 ENV, 2014 WL 1237448, at
*11 (E.D.N.Y. Feb. 4, 2014) (“[C]ourts
routinely apply across-the-board reductions
for
vague
entries.”),
report
and
recommendation adopted, No. 11-CV-4466
ENV CLP, 2014 WL 1237127 (E.D.N.Y.
Mar. 25, 2014); Francois v. Mazer, 523 F.
App’x 28, 29 (2d Cir. 2013) (upholding forty
percent across-the-board reduction in hours);
Green v. City of New York, 403 F. App’x 626,
630 (2d Cir. 2010) (upholding fifteen percent
across-the-board reduction). Accordingly,
the Court here will apply a ten percent
reduction to plaintiff’s requested hours in
order to account for the time to be excluded
based on plaintiff’s vague billing entries. See
Terra Energy & Res. Techs., Inc. v.
Terralinna Pty. Ltd., No. 12-CV-1337 KNF,
2014 WL 6632937, at *6 (S.D.N.Y. Nov. 24,
2014) (twenty-five percent reduction in fees
was warranted based on deficiencies in
records, including vagueness of billing
entries); see also Sheet Metal Workers Nat’l
Pension Fund v. Evans, No. 12-CV-3049 JFB
GRB, 2014 WL 2600095, at *11 (E.D.N.Y.
June 11, 2014) (applying a twenty percent
reduction for “vagueness, inconsistencies,
and other deficiencies in the billing
records”); Grievson v. Rochester Psychiatric
Ctr., 746 F. Supp. 2d 454, 466-469
(W.D.N.Y. 2010) (applying twenty percent
reduction for excessive, redundant, and
vague time entries); LaBarbera v. Empire
State Trucking, Inc., No. 07 CV 669, 2008
WL 746490, at *5 (E.D.N.Y. Feb. 26, 2007)
(reducing attorney’s fees by twenty-five
percent in an ERISA default action because
of errors, vague billing records, and
duplicative and excessive billing); Klimbach
v. Spherion Corp., 467 F. Supp. 2d 323, 332
(W.D.N.Y. 2006) (ten percent reduction
across-the-board for vague entries).
Vague Entries
“If ‘the time records submitted in support
of a fee application lack sufficient specificity
for the Court to assess the reasonableness of
the amount charged in relation to the work
performed, the Court is justified in reducing
the hours claimed for those entries.’”
Osterweil v. Bartlett, 92 F. Supp. 3d 14, 30
(N.D.N.Y. 2015) (quoting Williamsburg Fair
Hous. Comm. v. New York City Hous. Auth.,
No. 76 CIV. 2125 (RWS), 2005 WL 736146,
at *9 (S.D.N.Y. Mar. 31, 2005), opinion
amended on reconsideration, No. 76
CIV.2125 RWS, 2005 WL 2175998
(S.D.N.Y. Sept. 9, 2005)). A number of
plaintiff’s entries on his “Schedule of
Services” refer only to “legal research” or
“file review,” and are therefore too vague to
support a fee award. See, e.g., Berkshire
Bank v. Tedeschi, No. 1:11-CV-0767 LEK,
2015 WL 235848, at *5 (N.D.N.Y. Jan. 16,
2015) (holding that the plaintiff could not
recover for time claimed in connection with
vague entries that mentioned only “review
file” or “telephone call”), aff’d, No. 15-471,
2016 WL 1459681 (2d Cir. Apr. 14, 2016);
Mary Jo C. v. Dinapoli, No. 09-CV-5635 SJF
ARL, 2014 WL 7334863, at *10 (E.D.N.Y.
Dec. 18, 2014) (billing entry for unspecified
legal research was too vague to support fee
award).
Although the Court must reduce
plaintiff’s requested hours in order to account
for such inadequate entries, the Court need
not “comb through” plaintiff’s bills to find
each entry that should be excluded; rather, it
may apply an “across-the-board reduction in
the amount of hours.” Knoll v. Equinox
Fitness Clubs, No. 02CIV.9120(SAS)(DFE),
2006 WL 2998754, at *1 (S.D.N.Y. Oct. 20,
2006); Brown v. Green 317 Madison, LLC,
12
d.
Adjusted Hours
the client or the circumstances; (8) the
amount involved in the case and the
results obtained; (9) the experience,
reputation, and ability of the
attorneys; (10) the “undesirability” of
the case; (11) the nature and length of
the professional relationship with the
client; and (12) awards in similar
cases.
To summarize, plaintiff’s request for
100.25 hours of work shall be adjusted as
follows: First, the 21.1 hours for which
plaintiff has failed to provide sufficient
contemporaneous documentation shall be
excluded, leaving a total of 79.15 hours.
Next, the Court will apply a ten percent
reduction to this amount, leaving a total of
71.24 hours.
2.
522 F.3d at 186 n.3, 190 (quoting Johnson,
488 F.2d at 717-19). Finally, a district court
should also consider “that a reasonable,
paying client wishes to spend the minimum
necessary to litigate the case effectively,” and
“that such an individual might be able to
negotiate with his or her attorneys, using their
desire to obtain the reputational benefits that
might accrue from being associated with the
case.” Id. at 190. “The burden rests with the
prevailing party to justify the reasonableness
of the requested rate,” and plaintiff’s attorney
“should establish his hourly rate with
satisfactory evidence—in addition to the
attorney’s own affidavits.” Hugee, 852 F.
Supp. 2d at 298 (internal quotation marks and
citations omitted).
Hourly Rate
“The reasonable hourly rate is the rate a
paying client would be willing to pay.”
Arbor Hill, 522 F.3d at 190. The Second
Circuit’s “‘forum rule’ generally requires use
of ‘the hourly rates employed in the district
in which the reviewing court sits in
calculating the presumptively reasonable
fee.’” Bergerson v. N.Y. State Office of
Mental Health, Cent. N.Y. Psychiatric Ctr.,
652 F.3d 277, 290 (2d Cir. 2011) (quoting
Simmons v. N.Y.C. Transit Auth., 575 F.3d
170, 174 (2d Cir. 2009)). In Arbor Hill
Concerned
Citizens
Neighborhood
Association v. County of Albany, the Second
Circuit also instructed district courts to
consider the factors set forth in Johnson v.
Georgia Highway Express, Inc., 488 F.2d
714 (5th Cir. 1974), abrogated on other
grounds by Blanchard v. Bergeron, 489 U.S.
87, 92-93, 96 (1989):
“Courts in the Eastern District of New
York award hourly rates ranging from $200
to $450 per hour for partners, $100 to $300
per hour for associates, and $70 to $100 per
hour for paralegals.” D’Annunzio v. Ayken,
Inc., No. 11-CV-3303 (WFK) (WDW), 2015
WL 5308094, at *4 (E.D.N.Y. Sept. 10,
2015); see also Sass v. MTA Bus Co., 6 F.
Supp. 3d 238, 261 (E.D.N.Y. 2014) (“Recent
opinions issued by courts within the Eastern
District of New York have found reasonable
hourly rates to be approximately $300-$450
for partners, $200-$325 for senior associates,
and $100-$200 for junior associates.”
(internal quotation marks and citations
omitted)). Of course, in light of the numerous
factors that courts in this circuit consider to
determine a reasonable hourly rate, “the
The twelve Johnson factors are: (1)
the time and labor required; (2) the
novelty and difficulty of the
questions; (3) the level of skill
required to perform the legal service
properly; (4) the preclusion of
employment by the attorney due to
acceptance of the case; (5) the
attorney’s customary hourly rate; (6)
whether the fee is fixed or contingent;
(7) the time limitations imposed by
13
range of ‘reasonable’ attorney fee rates in this
district varies depending on the type of case,
the nature of the litigation, the size of the
firm, and the expertise of its attorneys.”
Siracuse v. Program for the Dev. of Human
Potential, No. 07-CV-2205 (CLP), 2012 WL
1624291, at *30 (E.D.N.Y. Apr. 30, 2012).
traveling, even though, “[c]ourts in this
Circuit regularly reduce attorneys’ fees by 50
percent for travel time.” LV v. New York City
Dep’t of Educ., 700 F. Supp. 2d 510, 526
(S.D.N.Y. 2010). For these reasons, the
Court finds, in its discretion, that a reduced
rate is appropriate.
In his declaration, Epstein attests that he
has been admitted to practice in New York
since 1983 (Epstein Decl. ¶ 7, ECF No. 402), and asserts that he has “extensive
experience in administrative and legal
proceedings involving the determination of
disability claims . . . and [has] appeared as
Attorney of Record in Federal District Court
with regard to ERISA Actions” (id. ¶ 8). He
also declares that he was previously
employed by the Workers’ Compensation
Board as Council (sic) and as a Workers’
Compensation Law Judge.” (Id. ¶ 9.) He
states that he has been employed at his
current firm since 2004 and is the
“supervising attorney for the Social Security,
Long Term Disability and Disability Pension
department.” (Id. ¶ 11.)
*
*
*
*
Accordingly, the Court calculates the
lodestar figure to be $19,591.00, which
represents 71.24 hours of Epstein’s time at a
rate of $275 an hour. The Court sees no
reason to depart from the lodestar figure in
this case, see, e.g., Perdue, 559 U.S. at 553
(noting that lodestar figure includes “most, if
not all,” relevant factors in setting reasonable
attorney’s fee), and thus awards plaintiff
$19,591.00 in attorney’s fees.
C.
Costs
The declarations of trust and ERISA
Section 502 also entitle plaintiffs to
reasonable costs. “As for costs, a court will
generally award ‘those reasonable out-ofpocket expenses incurred by attorneys and
ordinarily charged to their clients.’”
Pennacchio v. Powers, No. 05-CV-985
(RRM) (RML), 2011 WL 2945825, at *2
(E.D.N.Y. July 21, 2011) (quoting
LeBlancSternberg v. Fletcher, 143 F.3d 748,
763 (2d Cir. 1998)). “The fee applicant bears
the burden of adequately documenting and
itemizing the costs requested.” Id.; see also
First Keystone Consultants, Inc. v.
Schlesinger Elec. Contractors, Inc., No. 10CV-696 (KAM)(SMG), 2013 WL 950573, at
*10 (E.D.N.Y. Mar. 12, 2013). In particular,
under Local Civil Rule 54.1, “the party must
include as part of the request an affidavit that
Epstein seeks a rate of $325 an hour. The
Court concludes that a rate of $275 an hour is
more appropriate. Although Epstein has
considerable experience in the area of
disability claims and is the supervising
attorney of his firm’s Long Term Disability
practice, this particular case was not
especially complex,9 nor did its handling
require special skill. See Alveranga v.
Winston, No. 04-CV-4356 (ARR)(CLP),
2007 WL 595069, at *7 (E.D.N.Y. Feb. 22,
2007) (noting that “[r]ates awarded . . . in
cases not involving complex issues tend, on
average, to be lower”). Furthermore, Epstein
has billed his full rate for time spent
9
Epstein acknowledges this fact in his reply
memorandum in support of his motion for fees. (See
Pl.’s Reply Mem. at 8 (“[T]his action was not overly
complex, was of a rather brief time frame and was
based mostly upon a (sic) the submission of one large
document . . . .”).)
14
the costs claimed are allowable by law, are
correctly stated and were necessarily
incurred, and [b]ills for the costs claimed
must be attached as exhibits.” D.J. ex rel.
Roberts v. City of New York, No. 11-CV5458 (JGK)(DF), 2012 WL 5431034, at *9
(S.D.N.Y. Oct. 16, 2012) (internal quotation
marks and citations omitted), report &
recommendation adopted sub nom. Roberts
v. City of New York, 2012 WL 5429521
(S.D.N.Y. Nov. 7, 2012).
III.
CONCLUSION
For the reasons set forth herein, the Court
awards plaintiff $19,591.00 in attorney’s fees
and $350 in costs.
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
Here, plaintiff seeks $350 in costs for the
filing fee in this case.10 This cost is
appropriate for reimbursement, and the Court
awards plaintiff $350 in costs.
See
LaBarbera v. Almar Plumbing & Heating
Corp., No. 07CV4697DLIJMA, 2008 WL
3887601, at *9 (E.D.N.Y. Aug. 20, 2008)
(plaintiff was entitled to recover filing fee).
Dated: August 31, 2016
Central Islip, New York
*
*
*
Plaintiff is represented by Ronald L.
Epstein, Grey & Grey L.L.P., 360 Main
Street, Farmingdale, NY 11735. Defendant
is represented by Michael H. Bernstein,
Sedgwick LLP, 225 Liberty Street, 28th
Floor, New York, NY 10281.
10
Plaintiff has failed to provide any documentation
verifying her payment of the filing fee. However, the
docket reflects that a $400 filing fee was paid on
March 18, 2014; thus, the Court will not deny
reimbursement of this expense. See Trustees of
Mosaic & Terrazzo Welfare, Pension, Annuity &
Vacation Funds v. Suffolk Tile & Terrazzo, Inc., No.
10-CV-5804 CBA, 2011 WL 5025318, at *2
(E.D.N.Y. Sept. 9, 2011), report and recommendation
adopted, No. 10-CV-5804 CBA SMG, 2011 WL
5027065 (E.D.N.Y. Oct. 21, 2011).
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?