Standish v. Federal Express Corporation Long-Term Disability Plan et al

Filing 57

DECISION AND ORDER granting in part and denying in part 50 Motion for Attorney Fees consistent with this Decision and Order. Signed by Hon. Michael A. Telesca on 3/6/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

CHARLES STANDISH,
Plaintiff,
DECISION and ORDER
No. 6:15-cv-6226(MAT)

-vsFEDERAL EXPRESS CORPORATION LONG
TERM DISABILITY PLAN and AETNA LIFE
INSURANCE COMPANY,
Defendants.

INTRODUCTION
Represented

by

counsel,

Charles

Standish

(“Standish”

or

“Plaintiff”), a former employee of Federal Express Corporation
(“FedEx”)

instituted

this

action

against

Federal

Express

Corporation Long Term Disability Plan (“LTD Plan” or “the Plan”)
and

Aetna

Life

Insurance

Company

(“Aetna”)

(collectively,

“Defendants”), pursuant to § 502 of the Employee Retirement Income
Security

Act

of

1974

(“ERISA”),

29

U.S.C.

§

1132(a)(1)(B),

challenging the denial of his claim for long term disability
(“LTD”) benefits. In a Decision and Order entered November 17,
2016, the Court denied Defendants’ Motion for Summary Judgment, and
granted Plaintiff’s Motion for Summary Judgment only to the extent
that the denial of LTD benefits was reversed, and the matter is
remanded to Aetna for further administrative proceedings consistent
with the Court’s instructions in its Decision and Order.

DISCUSSION
ERISA provides for an award of attorneys’ fees. See 29 U.S.C.
§ 1132(g)(1) (“In any action under this subchapter . . . , the
court in its discretion may allow a reasonable attorney’s fee and
costs . . . to either party.”). The Supreme Court has emphasized
that a district court’s discretion to award attorneys’ fees under
ERISA “is not unlimited,” inasmuch as it may only award attorneys’
fees to a beneficiary who has obtained “some degree of success on
the merits.” Hardt v. Reliance Standard Life Ins. Co., 560 U.S.
242, 254–55 (2010). “After Hardt, whether a plaintiff has obtained
some degree of success on the merits is the sole factor that a
court must consider in exercising its discretion.” Donachie v.
Liberty Life Assur. Co. of Boston, 745 F.3d 41, 46 (2d Cir. 2014)
(citing Hardt, 560 U.S. at 255 (stating that the traditional
five-factor

test

is

“not

required

for

channeling

a

court’s

discretion when awarding fees under [29 U.S.C. § 1132(g)(1)]”)).
The parties dispute whether Plaintiff obtained “some degree of
success on the merits” so as to meet the statutory threshold for an
award of attorney’s fees. In its Decision and Order, the Court
noted that violations of ERISA and its implementing regulations
have been held to constitute a significant error on a question of
law,

which

may

sufficiently

taint

the

fiduciary’s

denial

of

benefits so as to warrant a finding that decision was arbitrary and
capricious. The Court found that Aetna’s May 22, 2014, denial

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letter was procedurally defective and showed that Aetna’s decisionmaking was materially deficient due to its notice violation. The
Court declined to remand for payment of benefits, as requested by
Plaintiff, because the remedy for the type of fiduciary failures
that occurred in this case is not automatic entry of judgment in
favor of the insured but an opportunity for the insured to fully
and fairly present his claim to the insurer, here, Aetna. The Court
observed that
[w]hile the present record contains a fair amount of
evidence in Plaintiff’s favor, it is not uncontroverted.
Absent the Court’s finding of procedural violations, the
opinions by Aetna’s peer-review physicians (excepting Dr.
Swersie) likely would represent evidence sufficient to
uphold the determination on arbitrary and capricious
review. The various medical opinions also present
disputed genuine issues of material fact. Therefore, the
Court will not enter judgment in Plaintiff’s favor.
Instead, the Court reversed the decision denying LTD benefits and
remanded the case to Aetna, the Claims Paying Administrator, for
reconsideration.
In Hardt, the Supreme Court expressly declined to decide
“whether, a remand order, without more, constitutes ‘some success
on the merits.’” Id. The Second Circuit has not conclusively
answered this question, either. A number of district courts in this
Circuit

concluded

that

an

ERISA

plaintiff

was

entitled

to

attorney's fees without making reference to any positive opinion
offered regarding the merits of the underlying claim. E.g., Wallace
v. Group Long Term Disability Plan For Employees of TDAmertrade
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Holding Corp., No. 13 CIV. 6759 LGS, 2015 WL 4750763, at *6
(S.D.N.Y. Aug. 11, 2015) (citing, inter alia, Gross v. Sun Life
Assur. Co. of Canada, 763 F.3d 73, 77 (1st Cir. 2014)); accord,
e.g., Valentine v. Aetna Life Ins. Co., No. 14CV1752JFBGRB, 2016 WL
4544036, at

*4

(E.D.N.Y.

Aug.

31,

2016) (The

district

court

“agree[d] that ‘remand simpliciter’ is sufficient to constitute
‘some success on the merits’ under Hardt and that an endorsement
from the [c]ourt on the merits of the claim is unnecessary.
Accordingly,

here,

even

though

the

[c]ourt

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 [c]ourt to remand her
claim, and is therefore entitled to attorney’s fees.”). The Court
agrees with the rationale of these courts and finds that Plaintiff
here achieved some degree of success by obtaining a remand order,
which “inherent[ly]” entails “two positive outcomes . . . (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.
Turning to the amount of attorney’s fees that should be
awarded, “[b]oth [the Second Circuit] and the Supreme Court have
held that the lodestar—the product of a reasonable hourly rate and
the reasonable number of hours required by the case—creates a
‘presumptively reasonable fee.’” Millea v. Metro-N. R. Co., 658

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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); citing Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552
(2010)). An attorney seeking fees bears the burden submitting
contemporaneous time records that describe with specificity the
nature of the work done, the hours expended, and the dates on which
the work was performed. New York State Ass’n for Retarded Children,
Inc. v. Carey, 711 F.2d 1136, 1147–48 (2d Cir. 1983). If a court
finds that claimed hours are “excessive, redundant, or otherwise
unnecessary,” it should exclude those hours in calculating a fee
award. Hensley, 461 U.S. at 434.
Plaintiff’s

attorney

has

requested

$350.00

per

hour;

Defendants contend this amount should be reduced by at least $50.
Plaintiff requests $200 per hour for an associate and $115 per hour
for

a

paralegal.

After

reviewing

Plaintiff’s

evidentiary

submissions and the caselaw, the Court finds that an appropriate
hourly rate is $300 for the lead attorney, $175 for the associate,
and $90 for the paralegal.
With regard to the number of hours, Plaintiff’s attorney
requests 141.4 hours for his work performed on the case to date,
including preparation of the instant motion for fees; 6.5 hours of
associate time at $200 per hour; and 41.7 hours of paralegal time
at $115 per hour.

The Court has excluded the hours spent by

Plaintiff’s attorney on ministerial tasks such as reviewing docket

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entries of scheduling orders and transfer orders (0.8 hour). Out of
the 140.6 hours that remains after subtracting the 0.8 hour,
Plaintiff’s attorney billed 116.2 hours for the summary judgment
motion alone. The associate billed 6.5 hours for “revisions,
editing and proofreading” of the summary judgment motion and
related

pleadings.

And,

the

paralegal

billed

40.5

hours

for

“typing, editing, proof reading and cite checking” the summary
judgment motion and related pleadings. This results in a total of
163.2 hours billed for the summary judgment motion. The Court finds
that this is excessive in light of what other district courts have
found reasonable for litigating a case through summary judgment.
See, e.g., Laser Lite Elec. Inc. v. United Welfare Fund-Welfare &
Sec. Divisions, No. 12-CV-3347 PKC, 2015 WL 459412, at *3 (E.D.N.Y.
Feb. 3, 2015) (“The Court reviewed the Union’s submissions and
finds that the time expended here, 80.60 hours, is reasonable for
a case that proceeded to summary judgment. See Trustees of Local
531 Pension Fund v. Flexwrap Corp., 818 F. Supp.2d 585, 591
(E.D.N.Y. 2011) (plaintiffs requested reimbursement for 82 hours of
work total to litigate an ERISA case through summary judgment,
billed at a rate of $250 an hour for partners and associates, and
$125 per hour for paralegals). [Attorney] Rocco’s billing records
provide adequately detailed explanations of the tasks he performed,
and the time spent on each task. The billing records disclose no
unnecessary duplication of effort, and the time spent on the tasks

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described do not appear to be excessive.”). In addition, the
billing records submitted here regarding the summary judgment
motion

reveal

a

fair

amount

of

duplication

of

effort;

the

activities of proofreading, editing and/or revising documents were
billed by each individual. The paralegal’s time spent on the
summary judgment motion–40.5 hours—is not only excessive, but is
block-billed such that her time lumps together secretarial tasks
(typing), which are compensable at a significantly lower rate, with
paralegal work (editing and cite checking). The Court will allow
85 hours for the lead attorney’s time spent on the summary judgment
motion, will exclude the time spent by the associate and the
paralegal on the summary judgment motion as duplicative. Adding
that

to

the

compensable

hours

billed

by

the

lead

attorney

(24.4 hours) results in 109.4 hours for the lead attorney. The
associate spent no time on any other tasks apart from the summary
judgment motion, although paralegal did. The paralegal’s time spent
filing documents (0.5 hour) will be subtracted, as this represents
clerical services which are “generally not charged to clients.”
E.g., LV v. N.Y. City Dep’t of Educ., 700 F. Supp. 2d 510, 523
(S.D.N.Y. 2010) (“[T]asks like serving, filing, and docketing
papers . . . are ‘normally subsumed into an attorney’s overhead
expenses’ and ‘not generally considered recoverable.’”) (quoting
Bridges v. Eastman Kodak Co., No. 91–7985, 1996 WL 47304, at *7
(S.D.N.Y. Feb. 6, 1996); citing Marisol A. ex rel. Forbes v.

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Giuliani, 111 F. Supp.2d 381, 390–91 (S.D.N.Y. 2000) (“[T]ime spent
serving

and

filing

papers

.

.

.

is

not

usually

considered

recoverable.”)). The Court will allow the remaining, non-motionrelated time billed by the paralegal (0.7 hour).
With regard to the time spent on the fee motion, courts in
this Circuit have recognized a prevailing party’s attorney’s right
to bill for time spent applying for fees and costs. E.g., Murray ex
rel. Murray v. Mills, 354 F. Supp.2d 231, 241 (E.D.N.Y. 2005)
(citing Fink v. City of N.Y., 154 F. Supp.2d 403, 412 (E.D.N.Y.
2001)). Cases in this district have found that a reasonable amount
of hours to award for compiling a motion for attorneys fees in a
routine case to be 5 to 15 hours. E.g., White v. White Rose Food,
86 F. Supp.2d 77 (E.D.N.Y. 2000); Savino v. Computer Credit, Inc.,
71

F.

Supp.2d

173

(E.D.N.Y.1999)

(reducing

the

number

of

compensable hours from the claimed amount of forty to a total of
five).

Here,

Plaintiff’s

attorney

has

claimed

4.4

hours

for

preparing the motion for fees, which the Court finds is reasonable.
See id.
To summarize the total fee award, the Court is allowing
recovery of 113.8 (109.4 plus 4.4) hours by the lead attorney at
$300 per hour ($34,140), and 0.7 hour by the paralegal at $90 per
hour ($63), for a total fee award of $34,203.
Reasonable
clients are

out-of-pocket

recoverable

as

expenses

part

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of

an

ordinarily
attorney’s

charged
fee

to

award.

LeBlanc–Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998)
(citations omitted). “Court filing fees are recoverable litigation
costs.” Labarbera v. ASTC Labs. Inc., 752 F. Supp. 2d 263, 279
(E.D.N.Y. 2010) (citing New Leadership Comm. v. Davidson, 23 F.
Supp.2d

301,

305

(E.D.N.Y.

1998)

(awarding

filing

fee)).

Plaintiff’s request for reimbursement of $400 in costs, which
represents the filing fee in this Court, will be granted.
CONCLUSION
For

the

reasons

discussed

above,

Plaintiff’s

Motion

for

Attorney’s Fees and Costs is granted in part and denied in part.
Defendants are hereby ordered to reimburse Plaintiff in the amount
of $34,603, which represents $34,203 in attorney’s fees and $400 in
costs.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
DATED:

March 6, 2017
Rochester, New York

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