McFarlane v. First UNUM Life Insurance Company

Filing 169

OPINION & ORDER re: 160 LETTER MOTION for Conference re: 159 Order on Motion for Attorney Fees, addressed to Judge Ronnie Abrams from Jeffrey Delott dated 09/16/2019. filed by Cherylle McFarlane., Motions terminated: 160 LETTER MOTION for Conference re: 159 Order on Motion for Attorney Fees,, addressed to Judge Ronnie Abrams from Jeffrey Delott dated 09/16/2019. filed by Cherylle McFarlane. Plaintiff's motion for reconsideration is denied. The Clerk of Court is respectfully directed to terminate the motion pending at Dkt. 160. SO ORDERED. (Signed by Judge Ronnie Abrams on 3/27/20) (yv)

USDC-SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED: 3/27/2020

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CHERYLLE MCFARLANE,
Plaintiff,

No. 16-CV-7806 (RA)

v.

OPINION & ORDER

FIRST UNUM LIFE INSURANCE
COMPANY,
Defendant.
RONNIE ABRAMS, United States District Judge:

Plaintiff Cherylle McFarlane filed this action against Defendant First Unum Life Insurance
Company for claims related to its termination of her disability benefits. Dkt. 1. On December 18,
2018, 1 Defendant notified the Court that it had effectively settled with Plaintiff, Dkt. 131, and the
Court adjourned the scheduled trial sine die as a result, Dkt. 134. On January 11, 2019, Plaintiff
filed a motion for attorney’s fees, Dkt. 137, which the Court granted in part on September 5, 2019,
Dkt. 159; see also Dkt. 163 (Sept. 5, 2019 Tr. or “Tr.”). Specifically, the Court awarded Plaintiff
(1) $327,600 in attorney’s fees, (2) $2,340 in paralegal fees, (3) $4,481.47 in costs, and (4)
$7,120.58 in prejudgment interest. See Dkt 159. 2 In doing so, the Court concluded that $600 is a
reasonable hourly rate for Plaintiff’s attorney, Jeffrey Delott. Now before the Court is Plaintiff’s
motion for reconsideration as to the award of $327,600 in attorney’s fees, and in particular, as to

The letter filed by Defendant on December 18, 2018 seems to be inadvertently dated November 18, 2017. See Dkt.
131.
2
The calculations for these amounts are set forth in Dkt. 159.
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the reasonable hourly rate of $600. 3 For the reasons set forth below, Plaintiff’s motion for
reconsideration is denied.
DISCUSSION
The Court assumes the parties’ familiarity with the underlying facts and procedural history
of this action as set forth in its prior opinions. See, e.g., Dkt. 84.
Reconsideration of a court’s previous order is an “extraordinary remedy to be employed
sparingly in the interests of finality and conservation of scarce judicial resources.” In re Health
Mgmt. Sys., Inc. Sec. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000) (citation omitted). To
prevail on a motion for reconsideration, the movant must identify “an intervening change in
controlling law, the availability of new evidence, or the need to correct a clear error or prevent
manifest injustice.” Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.
1992) (citation omitted). The standard “is strict, and reconsideration will generally be denied
unless the moving party can point to controlling decisions or data that the court overlooked.”
Compunnel Software Grp., Inc. v. Gupta, No. 14-CV-4790 (RA), 2019 WL 2174085, at *2
(S.D.N.Y. May 20, 2019) (quoting Bldg. Serv. 32BJ Health Fund v. GCA Servs. Grp., Inc., No.
15-CV-6114 (PAE), 2017 WL 1283843, at *1 (S.D.N.Y. Apr. 5, 2017)); see also Shrader v.
CSXTransp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (“[A] motion to reconsider should not be granted
where the moving party seeks solely to relitigate an issue already decided.”). “The decision to
grant or deny a motion for reconsideration is within the sound discretion of the district court.”
Corines v. Am. Physicians Ins. Tr., 769 F. Supp. 2d 584, 594 (S.D.N.Y. 2011).

Plaintiff filed a letter motion on September 16, 2019, “ask[ing] the Court to reconsider that part of the order, entered
on September 5, 2019, which reduced the requested hourly rate for attorney fees . . . to $600,” Dkt. 160, which the
Court construed as a motion for reconsideration, see Dkt. 165. Defendant filed a response to Plaintiff’s letter motion
on October 2, 2019, Dkt. 166, and Plaintiff filed a reply that same day, Dkt. 167.

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Here, Plaintiff does not actually assert any “intervening change in controlling law,” new
evidence, or “need to correct a clear error or prevent manifest injustice.” Virgin Atl. Airways, 956
F.2d at 1255. Rather, Plaintiff contends that the Court “overlooked controlling law and material
facts when it rejected $700 an hour as the prevailing rate for an attorney in this District prosecuting
a disability benefit appeal under ERISA.” Pl. Ltr., Dkt. 160, at 1. Specifically, Plaintiff asserts
that the Court “overlooked” certain cases, such as Blum v. Stenson, 465 U.S. 886 (1984), as well
as certain facts from other cases cited in the Court’s ruling, such as Dimopoulou v. First Unum
Life Ins. Co., No. 13-cv-7159 (ALC), 2017 WL 464430 (S.D.N.Y. Feb. 3, 2017) and Sheet Metal
Workers’ Nat’l Pension Fund v. Maximum Metal Mfrs. Inc., No. 13 Civ. 7741 (PAE), 2015 WL
4935116 (S.D.N.Y. Aug. 18, 2015). See id. Plaintiff also argues that the Court improperly
“equated 35 years of experience with that of 20-25 years,” “overlooked” case law that approved
higher fees for attorneys with 20-25 years of experience, and “overlooked” the fact that “prevailing
rates have increased” over the past 3.5 years. Id. at 3. Plaintiff thus urges the Court to revisit its
finding that $600 is a reasonable hourly rate, and to instead conclude that $700 is the proper hourly
rate for this case. 4
As an initial matter, the Court expressly referenced Blum in its bench ruling, see Tr. at 12,
and in no way “overlooked” that case. 5 Similarly, the Court did not “overlook[] the rate that was
approved [in Dimopoulou] for attorneys with 20-25 years experience, and the amount of time that
elapsed since that rate was approved.” Pl. Ltr. at 1. Nor did the Court “overlook[] the passage of
time” or “that Mr. Delott has been practicing law for 35 years.” Id. at 2. To the contrary, the

Although Plaintiff argues that $700 is the reasonable hourly rate, the Court notes that as of December 2018, Mr.
Delott’s hourly rate was $600, see Dkt. 132, and that when Plaintiff first filed her motion for attorney’s fees in January
2019, his hourly rate was $675, see Dkt. 138 at 6, 19, 21.
5
Blum held that the reasonable rate is to be “calculated according to the prevailing market rates in the relevant
community,” 465 U.S. at 895, which is precisely what the Court did in its initial ruling, see Tr. at 12.
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Court specifically noted that “Mr. Delott graduated law school in 1984 and has 35 years of
litigation experience,” Tr. at 12, and that he “has over 30 years of experience,” id. at 13. Despite
these facts, however, the Court concluded that $600 was a reasonable hourly rate given that “other
courts in this district have awarded rates lower than $600 per hour in ERISA actions to partners
with comparable experience” and “Mr. Delott was awarded an hourly rate of $450 in this district
a decade ago,” and in light of “the additional factors from Arbor Hill.” 6 Tr. at 13. Indeed, as
Defendant points out, the number of years that an attorney has been practicing is only one of the
twelve factors that courts consider when determining the reasonable hourly rate. See Arbor Hill,
522 F.3d at 186 n.3.
As to Sheet Metal Workers, Plaintiff’s suggestion that the Court somehow “overlooked”
the law because that case “had nothing to do with an individual seeking disability benefits” and
therefore “did not involve similar legal services,” Pl. Ltr. at 1, is unavailing. Plaintiff maintains
that because Sheet Metal Workers “was decided over four years ago, it has absolutely nothing to
do with an appeal of disability benefits under ERISA, and as a result, the Order overlook[ed]
controlling law and material facts.” Id. at 3. The Court disagrees, particularly since Sheet Metal
Workers––a case brought under ERISA like the present one––is but one example of “similar cases”
that the Court properly considered. See Arbor Hill, 522 F.3d at 186 n.3 (noting that “awards in

“In evaluating the reasonableness of the hourly rate, the Second Circuit has urged district courts to keep in mind the
twelve Johnson factors.” Williams v. City of New York, No. 16-CV-233 (JPO), 2017 WL 1906899, at *1 (S.D.N.Y.
May 9, 2017) (citing Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cty. of Albany, 522 F.3d 182, 190 (2d
Cir. 2008)). These factors, set forth in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974),
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 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.” Arbor Hill, 522 F.3d at 186 n.3 (quoting
Johnson, 488 F.2d at 717-19). The Court’s express reference to the “factors from Arbor Hill,” Tr. at 13, was a
reference to these factors, initially set forth in Johnson.
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similar cases” is one of the twelve Johnson factors). The Court’s citation to Sheet Metal Workers
simply does not support Plaintiff’s contention that the Court “overlooked controlling law and
material facts.” Moreover, “attempts to distinguish the cases relied on in the Court’s Order, or
claims that those cases are ‘wrongly decided’ or ‘of recent vintage[]’. . . may be the basis for an
appeal, but . . . are an entirely inappropriate basis for a motion to reconsider.” Allied Mar., Inc. v.
Rice Corp., 361 F. Supp. 2d 148, 150 (S.D.N.Y. 2004).
For the reasons explained at the September 5, 2019 conference, an hourly rate of $600 is
reasonable here. Indeed, courts in this district often award hourly rates around $600, or less, in
ERISA cases for attorneys with comparable levels of experience. See, e.g., Montefiore Med. Ctr.
v. Local 272 Welfare Fund, Nos. 09-CV-3096, 14-CV-10229 (RA) (SN), 2019 WL 4565099, at
*6 (S.D.N.Y. Sept. 19, 2019) (approving discounted hourly rate between $383 and $505 for lead
partner with 34 years of experience; discounted rate between $425 and $518 for partner with 31
years of experience and the firm’s Co-Chair of the Litigation and Arbitration Group; and
discounted rate of between $374 and $484 for partner with 33 years of experience); Doe v. Unum
Life Ins. Co. of Am., No. 12 Civ. 9327 (LAK) (AJP), 2016 WL 335867, at *5 (S.D.N.Y. Jan. 28,
2016), report and recommendation adopted, 2016 WL 749886 (S.D.N.Y. Feb. 23, 2016)
(awarding hourly rate of $600 to partner with 33 years of experience, 20 of which were focused
on ERISA); Wallace v. Grp. Long Term Disability Plan for Emps. of TDAmeritrade Holding
Corp., No. 13 Civ. 6759 (LGS), 2015 WL 4750763, at *6 (S.D.N.Y. Aug. 11, 2015) (awarding
hourly rate of $450 to partner with 34 years of experience); Rhodes v. Davis, No. 08 Civ. 9681
(GBD), 2015 WL 1413413, at *3 (S.D.N.Y. Mar. 23, 2015) (approving hourly rate of $450 for
founding partner with 40 years of experience). It appears that, rather than raise any change in
controlling law, new evidence, or clear error, Plaintiff merely “does not like the way the original

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motion was resolved.” Allied Mar., 361 F. Supp. 2d at 149. Such a view, however, does not
constitute grounds for reconsideration. See Analytical Surveys, Inc. v. Tonga Partners, L.P., 684
F.3d 36, 52 (2d Cir. 2012) (a motion for reconsideration is “not a vehicle for relitigating old issues,
presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a
‘second bite at the apple’”) (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998));
Bldg. Serv. 32BJ, 2017 WL 1283843, at *1 (a motion for reconsideration “is neither an occasion
for repeating old arguments previously rejected nor an opportunity for making new arguments that
could have been previously advanced.”) (citation omitted). Accordingly, Plaintiff’s motion for
reconsideration is denied.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for reconsideration is denied. The Clerk of
Court is respectfully directed to terminate the motion pending at Dkt. 160.
SO ORDERED
Dated:

March 27, 2020
New York, New York
Ronnie Abrams
United States District Judge

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