Dunda v. Aetna Life Insurance Company

Filing 39

DECISION AND ORDER granting 32 Plaintiff's First Motion for Attorney Fees to the extent that Plaintiff is awarded $55,008.00 in attorneys fees; $1,171.35 in pre-judgment interest; and $977.67 in costs, for a total award of $57,157.02, payable by Defendant. Signed by Hon. Michael A. Telesca on 9/15/2016. (AFB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

RANDI DUNDA,

No. 6:15-cv-6232-MAT
Plaintiff,

DECISION AND ORDER

-vsAETNA LIFE INSURANCE COMPANY,
Defendant.

INTRODUCTION
Represented by counsel, Randi Dunda (“Dunda” or “Plaintiff”)
instituted

this

action

against

Aetna

Life

Insurance

Company

(“Aetna” or “Defendant”) pursuant to the Employee Retirement Income
Security Act of 1974, as amended, 29 U.S.C. § 1001, et seq.
(“ERISA”), challenging the termination of her long-term disability
(“LTD”) benefits by Aetna. On June 30, 2016, the Court denied
Defendant’s Motion for Summary Judgment, and granted in part and
denied

in

part

Specifically,

Plaintiff’s

Defendant

was

Motion
ordered

for
to

Summary

reinstate

Judgment.
Plaintiff’s

monthly benefits and pay past due benefits. Plaintiff’s request for
interest under New York Civil Practice Law and Rules (“C.P.L.R.”)
§§ 5001-5004 and for attorneys’ fees and costs was denied without
prejudice.
Presently pending before the Court is Plaintiff’s First Motion
for Attorneys’ Fees, Interest, and Costs (Dkt #32). In a Memorandum
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in Opposition (Dkt #35), Defendant disputes the amount of fees,
interest, and costs requested by Plaintiff as excessive. Plaintiff
has filed a Reply (Dkt #36). For the reasons discussed below, the
Court grants in part and denies in part the Motion for Attorneys’
Fees and Costs.
DISCUSSION
I.

Pre-Judgment Interest
Plaintiff seeks an award of pre-judgment interest on her back

benefits in the amount of $4,563.30. Defendant argues that this is
excessive, and that if the Court exercises its discretion to award
pre-judgment interest, it should be at the post-judgment rate set
forth in 29 U.S.C. § 1961(a).
In an ERISA enforcement action such as this, “the question of
whether or not to award prejudgment interest is ordinarily left to
the discretion of the district court.” Jones v. UNUM Life Ins. Co.
of Am., 223 F.3d 130, 139 (2d Cir. 2000) (citations omitted). Prejudgment

interest

constitutes

part

of

a

plaintiff’s

complete

recovery, and therefore “the same considerations that inform the
court’s decision whether or not to award interest at all should
inform the court’s choice of interest rate[.]” Id. (quotation and
citations omitted).

The aim of such an award is to make the

plaintiff whole, not to give him or her a windfall. Algie v. RCA
Glob. Communications, Inc., 891 F. Supp. 875, 899 (S.D.N.Y. 1994)
(citations omitted), aff’d, 60 F.3d 956 (2d Cir. 1995) (cited with

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approval in Jones, 223 F.3d at 139).
Plaintiff proposes three potential measures for pre-judgment
interest on her back benefits, as follows: (1) Defendant’s alleged
“rate of return on equity” for the period that she was not paid
benefits, which she

calculates as 14.83 percent, and which yields

interest in the amount of $4,563.30; (2) New York’s statutory
pre-judgment interest rate, which is 9 percent, see C.P.L.R. §
5004, yielding $2,767.80 in interest; or (3) the rate of 4 percent,
yielding $1,230.60.1 Defendant, on the other hard, argues that the
Court should measure pre-judgment interest with reference to 28
U.S.C. §§ 1961, 1961(a), which links the rate of post-judgment
interest to the rate of interest the Federal government pays on
money it borrows by means of Treasury bills.2
After reviewing the cases cited by the parties, the Court
agrees with District Judge Kaplan’s recent analysis in Doe, 2016 WL
749886, reducing the rate recommended by the Magistrate Judge
(i.e., New York’s statutory rate of 9 percent) to 4 percent. Judge

1

Four percent was the rate utilized by a District Judge in the Southern
District of New York after overruling a Magistrate Judge’s recommendation that
New York’s statutory rate of 9 percent should apply. See Doe v. Unum Life Ins.
Co., No. 12 Civ. 9327(LAK), 2016 WL 749886 (S.D.N.Y. Feb. 23, 2016), adopting in
part and rejecting in part, 12 Civ. 9327(LAK)(AJP), 2016 WL 335867 (S.D.N.Y. Jan.
28, 2016).
2

“Interest shall be allowed on any money judgment in a civil case recovered
in a district court. . . . Such 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 the date of the judgment.” 28
U.S.C. § 1961 (a) (footnote omitted).

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Kaplan explained that
New York’s statutory rate of 9 percent was adopted in
1981 when the Legislature raised the state rate from 6
percent. At that time, the prime rate was in the
neighborhood of 20 percent, and the rate on one year
Treasury bills was in the vicinity of 14 percent or more.
Today and in recent years, however, the prime and one
year T-bill rates have been under 4 percent and 1
percent, respectively. Inasmuch as no statute compels use
of the decades-old statutory New York State law rate of
interest, which is so much higher than the cost of
borrowing in recent times, this Court declines to use it
here. Rather, it applies something more closely
resembling current and recent borrowing costs, i.e., 4
percent.
Doe, 2016 WL 749886, at *1.
Turning to the period of time to be used in calculating prejudgment

interest,

“In

ERISA

cases,

courts

in

this

circuit

‘routinely calculate prejudgment interest from a midpoint date in
the delinquency period.’” Doe v. Unum Life Ins. Co. of Am., 2016 WL
335867, at *11 (quoting Alston v. Northstar La Guardia LLC, 10 Civ.
3611, 2010 WL 3432307, at *3 (S.D.N.Y. Sept. 2, 2010), rep. and
rec. adopted, (S.D.N.Y. Sept. 27, 2010); collecting cases); Finkel
v. Triple A Grp., Inc., 708 F. Supp.2d 277, 288 (E.D.N.Y. 2010)
(recommending that plaintiff be awarded “8% interest beginning from
November 17, 2007, a midpoint between October 17, 2007 and December
19, 2007, the period of delinquency”).
Here, the delinquency period began on October 31, 2014, the
date Defendant discontinued Plaintiff’s benefits, and ended on June
30, 2016, the date judgment was entered in Plaintiff’s favor, for

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a

total of

608

days.

The

midpoint

date

for

the

period

of

delinquency therefore is 304 days after October 31, 2014, or
August 31, 2015. Plaintiff accordingly is entitled to pre-judgment
interest at the rate of 4 percent from August 31, 2015, to June 30,
2016 (i.e., 304 days). The daily interest (calculated based on 4
percent

interest

per

annum

and

the

back

benefits

amount

of

$35,159.80) is $3.85 per diem. See Rosati Decl. ¶ 26 & Ex. C.
Interest should be computed on the basis of 304 days, as noted
above. See Doe, 2016 WL 749886, at *1. Therefore, Plaintiff is
entitled to pre-judgment interest in the amount of $1,171.35.
II.

Costs
Plaintiff

filing

fee

requests two

($400)

and

categories

of

service-of-process

statutory
fees

costs–the

($150.42).

In

addition, Plaintiff fees associated with the pursuit of mediation
($512.67) and the printing of the administrative record ($178.57).
In total, Plaintiff requests $1,241.66 in costs.
Defendant concedes that the filing fee is a taxable statutory
cost. Defendant further concedes that reimbursement proper for
Plaintiff’s portion of the fee involved in court-ordered mediation.
However, Defendant points out that the proof of service
Plaintiff filed with the Court (Dkt #3) states that the process
server fee was only $75.21, i.e., half the amount requested.
Plaintiff has conceded her error in this regard. Defendant further
notes that courts in this Circuit have determined that the maximum

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reimbursement for service of process is the fee charged by the
United States Marshals Service to serve process. See Woodard v. CSX
Transp.,

Inc.,

No.

1:10–cv–753(GLS),

2013

WL

6190843,

at

*1

(N.D.N.Y. Nov. 26, 2013) (“[T]he Second Circuit has articulated
that a district court may, in its discretion, shift the cost of
private process servers to the non-prevailing party, but limited to
the extent that those costs do not surpass that which would have
been incurred if the U.S. Marshals Service served process.”)
(citing United States v. Merritt Meridian Constr. Corp., 95 F.3d
153, 172 (2d Cir. 1996)). In 2014, that amount was $65.00 See 28
C.F.R.

§

0.114(a)(3)

(“For

process

served

or

executed

personally—$65 per hour (or portion thereof) for each item served
by one U.S. Marshals Service employee. . . .”) (last revised Sept.
30, 2013).
Lastly, the Court will not allow the cost incurred in printing
the

administrative

record

for

Plaintiff’s

counsel’s

own

use.

Plaintiff’s counsel has provided no authority for the proposition
that such a cost is compensable. This District’s “Guidelines for
Bills of Costs” indicate that the following types of charges are
generally “not taxable”: “Cost of . . . expedited copy produced
solely for the convenience of counsel, absent prior court approval.
. . .” (quoted in Document Sec. Sys., Inc. v. Coupons.com, Inc.,
No. 11-CV-6528 CJS, 2015 WL 1189551, at *4 (W.D.N.Y. Mar. 16, 2015)
(in connection with deposition expense, denying reimbursement for

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“incidental” charges by court reporting company totaling $400,
which included “realtime services”, CD Depo Litigation Package,
“exhibits scanned—searchable OCR”, and shipping and handling; such
“incidentals” were “not taxable as reasonably-necessary costs”).
In sum, reimbursement for the following costs will be allowed
by the Court: $400.00 (filing fee); $65.00 (service of process
fee); and $512.67 (court-ordered mediation fee), for a total of
$977.67.
III. Attorneys’ Fees
Defendant does not dispute Plaintiff’s attorney’s entitlement
to a reasonable fee, but argues that the requested rate of $600 per
hour is excessive and should be reduced to no greater than $275 per
hour. Defendant also argues that the number of hours charged by
Plaintiff’s attorney is excessive.
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

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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)]”)).
“Both [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
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)). Turning first to the question of the hourly rate that is
reasonable,

the

Court

has reviewed

the

caselaw cited

by

the

parties. The Court agrees that the rate of $600 requested by
Plaintiff’s counsel is excessive, and, indeed, counsel has never
received such a high rate in other cases. The Court also finds that
the rate of $275 per hour urged by Defendant is too low. The Court
finds that an hourly rate of $320 is reasonable and appropriate
here. This the same rate it awarded in an ERISA case to in-district
counsel of similar experience to Plaintiff’s attorney. See Gill v.
Bausch

&

Lomb

Supplemental

Retirement

Income

Plan

I,

No.

6:09–CV–6043(MAT), 2015 WL 1632518, at *1 (W.D.N.Y. Apr. 13, 2015)
(awarding $320 per hour to partners; and $300 per hour and 290 per

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hour to less experienced attorneys in the firm).
With regard to the issue of what constitutes a reasonable
number of hours, Defendant argues that the following two categories
of time should be excluded: the time spent on the fee application
(28.9 hours), and the time spent preparing supplemental briefing
(4.6 hours). As the Supreme Court has observed, “[b]ecause Hensley
v. Eckerhart, 461 U.S. 424, 437 . . . (1983), requires the district
court to consider the relationship between the amount of the fee
awarded and the results obtained, fees for fee litigation should be
excluded to the extent that the applicant ultimately fails to
prevail in such litigation.” Comm’r, I.N.S. v. Jean, 496 U.S. 154,
163 n. 10 (1990). With regard to the supplemental briefing on Halo
v. Yale Health Plan, Dir. of Benefits & Records Yale Univ., 819
F.3d 42 (2d Cir. 2016), it was not requested by the Court.
Furthermore, it was wholly unnecessary to the Court’s resolution of
the case. The Court therefore will exclude this time. See Jones v.
Life Ins. Co. of N. Am., No. 08-CV-6586, 2011 WL 3501725, at *5
(W.D.N.Y. Aug. 10, 2011) (“[T]he time spent on opposing Defendant’s
counterclaim

should

be

subtracted

from

the

reasonable

hours

expended, as Plaintiff was unsuccessful in this claim.”).
With
Plaintiff’s

regard

to

attorney

the

fee

expended

application,
28.9

hours

in

it
its

appears

that

preparation.

Defendant argues that all of the time should be excluded because it
largely reflects counsel’s effort in attempting to justify a $600-

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per-hour

rate,

which

is

unsupportable

under

this

District’s

caselaw. Indeed, as Defendant notes, Plaintiff has not cited a case
where a court actually has awarded him that rate.
As a general matter, time spent on a fee application “is
compensable if reasonably spent, since ‘a refusal to award fees
incurred in connection with the fee application would tend to
dilute the fee award and thus to undermine the very purpose of
awarding fees.’” Cefali v. Buffalo Brass Co., 748 F. Supp. 1011,
1021 (W.D.N.Y. 1990) (quoting Chambless v. Masters, Mates & Pilots
Pension Plan, 697 F. Supp. 642, 649 (S.D.N.Y. 1988), aff’d in part
and rev’d in part on other grounds, 885 F.2d 1053 (2d Cir.1989);
other citation omitted). The Court therefore declines to exclude
all of the time spent on the fee application, and instead will
apply an across-the-board reduction of 20 percent. See Kirsch v.
Fleet Street, Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (“In reducing
the number of hours claimed, a court may, in its discretion, apply
an across-the-board percentage reduction ‘as a practical means of
trimming fat from a fee application.’”) (quotation omitted). The
Court therefore will reduce the compensable time with regard to the
fee application to 23.1 hours.
Subtracting the 28.9 hours and the 4.6 hours from the total
requested of 182.3 hours, see Rosati Decl. ¶ 25, leaves 148.8
remaining potentially compensable hours. In determining whether the
amount of hours billed is reasonable “the court takes account of

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claimed hours that it views as ‘excessive, redundant, or otherwise
unnecessary.’” Bliven v. Hunt, 579 F.3d 204, 213 (2d Cir. 2009)
(quoting Hensley, 461 U.S. at 434). As the Second Circuit has
explained, “[t]he relevant issue . . . is not whether hindsight
vindicates an attorney’s time expenditures, but whether, at the
time the work was performed, a reasonable attorney would have
engaged in similar time expenditures.” Grant v. Martinez, 973 F.2d
96, 99 (2d Cir. 1992) (citing Wooldridge v. Marlene Indus. Corp.,
898 F.2d 1169, 1177 (6th Cir. 1990)). “So long as an attorney’s
records specify ‘the date, the hours expended, and the nature of
the work done,’ Carey, 711 F.2d at 1148, they are sufficient.” Hnot
v. Willis Grp. Holdings Ltd., No. 01 CIV. 6558 GEL, 2008 WL
1166309, at *6 (S.D.N.Y. Apr. 7, 2008).
Defendant requests an across-the-board reduction in hours
billed of 20 percent because, according to Defendant, Plaintiff’s
attorney expended too much time on certain tasks, such as preparing
communications to defense counsel and the mediator in preparation
for settlement discussions; improperly billed for tasks such as the
review of orders and letters; and overbilled for preparation of
legal memoranda that re-used some boilerplate arguments employed in
other cases litigated by Plaintiff’s counsel. Defendant does not
identify any particular time entries as excessive, but argues that
17.5 hours expended in preparing communications to defense counsel
and the mediator “appear[s] to [be] repetitive billing for the same

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task.” Def’s Mem. at 11. According to Defendant, “[h]alf of that
time would be more than sufficient.” Id. Defendant also calls into
question the fact that equal time was billed for preparing the
summary judgment

motion

and

opposing

Defendant’s

cross-motion

“although it would be expected considerably more work would be
involved in the former.” Id. (footnote omitted). These assertions
are

by

no

means

self-evident

to

the

Court.

While

vague

and

inconsistent billing practices would justify a reduction in time
properly compensated, Defendant’s accusations are themselves vague.
Here,

the

Court

cannot

say

that

the

hours

billed

are

unreasonable, or that Plaintiff’s attorney combined activities
compensable

at

different

rates

into

a

block

billing

entry.

Therefore, the Court does not find any reduction warranted with
regard to the 148.8 remaining hours.
To summarize, the total number of hours for which Plaintiff’s
attorney be compensated is 171.9. This represents the reduced time
of 23.1 hours in connection with the fee application plus the 148.8
hours spent on litigating this case (excluding the 4.6 hours
expended on the supplemental briefing). Applying the hourly rate of
$320.00

to

171.9

hours

yields

an

attorney’s

fee

award

of

$55,008.00.
CONCLUSION
For

the

foregoing

reasons,

Plaintiff’s

First

Motion

for

Attorneys’ Fees, Interest, and Costs (Dkt #32) is granted to the

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extent that Plaintiff is awarded $55,008.00 in attorneys’ fees;
$1,171.35 in pre-judgment interest; and $977.67 in costs, for a
total award of $57,157.02. Defendant is hereby ordered to pay the
foregoing amount of $57,157.02 to Plaintiff.
SO ORDERED.
S/ Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

September 15, 2016
Rochester, New York

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