Unum Life Insurance Company of America v. Martin

Filing 77

ORDER: Plaintiff's bill of costs 76 is granted. In addition, plaintiff's motion for attorney fees 73 is granted in part, such that plaintiff is awarded a total of $32,532.48 in attorney fees and costs. See formal order. Signed on 7/1/2014 by Chief Judge Ann L. Aiken. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
UNUM LIFE INSURANCE
COMPANY OF AMERICA,

Case No. 6:13-cv-00158-AA
OPINION AND ORDER

Plaintiff,

v.
JACK E. MARTIN,
Defendant.
Robert B. Miller
Kilmer Voorhees & Laurick, PC
732 N.W. 19th Avenue
Portland, Oregon 97209
Attorney for plaintiff
William C. Carpenter , Jr.
474 Willamette Street, Suite 303
Eugene, Oregon 97401
Attorney for defendant
AIKEN, Chief Judge:
Plaintiff Unum Life Insurance Company of America moves for
attorney fees and costs, in the amounts of $57,798 and $1,124.48,
respectively,

after prevailing on its breach of contract claim

against defendant Jack Martin.
Page 1 - OPINION AND ORDER

For the reasons set forth below,

plaintiff's motion is granted in part,

in that attorney· fees are

awarded in the reduced sum of $31,408 and costs are awarded in
full.
BACKGROUND

Defendant participated in a group long-term disability ("LTD")
insurance plan
employer

("Policy"),

Benton County.

offered through plaintiff,

Under

the

Policy,

any

Social

with his
Security

disability income ("SSDI") received by a disabled employee or his
family members from the Social Security Administration ("SSA") was
deductible
Miller

from monthly LTD benefits

Decl.

Ex.

4,

at

21-23.

In

as

an

"overpayment."

addition,

while

a

See

final

determination from the SSA regarding SSDI eligibility was pending,
the Policy permitted plaintiff to deduct estimated SSDI amounts
from a disabled employee's LTD payments.
During the course of his employment, defendant became unable
to

work

and

applied

for

LTD

benefits.

Plaintiff

approved

defendant's claim and he began receiving payments on June 18, 2000.
Subsequently,

defendant

applied

for

and

was

denied

SSDI.

He

appealed that decision.
On

October

15,

2004,

defendant

signed

a

reimbursement

agreement ("Contract") with plaintiff that deferred the estimated
SSDI deduction, thereby allowing defendant to receive full monthly
LTD payments until a final

SSA determination was made.

At that

time, plaintiff agreed that he would be liable "for all reasonable
costs

(including

collect[ing]

attorney

fees)

[incurred

by

plaintiff

[any] overpaid benefits." Miller Decl. Ex. 1.

Page 2 - OPINION AND ORDER

in]

Defendant
September

18,

was

eventually

2011.

On

awarded

September

25,

SSDI
2011,

by

letter

defendant

dated

provided

plaintiff with a copy of the SSA's award letter, which stated that
defendant would receive a check for retroactive SSDI in the amount
of $122,913.75. Plaintiff believed that defendant's children would
also

receive

family

SSDI

payments,

which

were

subject

to

the

Policy's and Contract's overpayment requirements. Because plaintiff
did not

~now

the precise amount of SSDI benefits that were or would

be paid to defendant's children, plaintiff made several requests to
defenaant to furnish copies of his family members' award letters.
After these attempts failed, plaintiff estimated that defendant and
his family received SSDI benefits in the amount of $186,464.33.
Plaintiff subsequently began recouping this overpayment amount by
withholding defendant's monthly LTD payments.
On January 29, 2013, plaintiff filed a complaint in this Court
against

defendant

defendant

filed

emotional distress

for

breach

of

counterclaims

contract.

for

On August

intentional

5,

2013,

infliction

of

("IIED"), declaratory judgment, and breach of

contract.
On August 8,

2013,

the Court granted plaintiff's motion to

dismiss defendant's IIED claim. On September 25, 2013, the parties
tried unsuccessfully to

settle their dispute via mediation.

On

November 5, 2013, this Court granted plaintiff's motion for summary
judgment

and

overpayments

found

that

resulting

defendant

from

retroactive SSDI benefits.
Page 3 - OPINION AND ORDER

his

owed

and

On March 19,

his

$111,148.73
family's

2014,

in

receipt

LTD
of

after the parties

filed cross-motions, the Court granted summary judgment in favor of
plaintiff on defendant's remaining counterclaims.
On

May

12,

2014,

plaintiff

filed

the

present

motion

for

$58,922.48 in attorney fees and costs based on work performed by
Portland

attorney

Robert

Miller.

Defendant

did

not

file

an

'entitled

to

opposition to plaintiff's motion.
S'I'ANDARD

"Under

Oregon

law

the

prevailing

party

is

reasonable attorneys' fees in addition to costs and disbursements'
in any action based on a contract that specifically provides for an
award of attorney's fees to the prevailing party." Copeland-Turner
v. Wells Fargo Bank, N.A., 2012 WL 92957, *1 (D.Or. Jan. 11, 2012)
(quoting Or. Rev. Stat.
contract

allows

for

§

~0.096(1)).

fees

pursuant to Or. Rev. Stat.

and
§

which

After establishing that the
party prevailed,

an

award

20.096 "is mandatory; the trial court

has no discretion to deny it, although it does have discretion as
to what amount is
191 Or.App.

520,

also Gates v.

'reasonable.'" Benchmark N.W.,
523,

83 P.3d 348

Deukmejian,

(2004)

Inc. v.

Sambhi,

(citation omitted); see

987 F.2d 1392, 1400-02

(9th Cir. 1992)

(court is required to ensure an award's reasonableness, regardless
of whether the opposing party objected to it).
generally

made

in

reference

to

the

factors

Such awards "are
listed

in

O.R.S.

20.075(1) and (2) ."Copeland-Turner, 2012 WL 92957 at *1.
DISCUSSION

It is undisputed the Contract authorizes attorney fees and
that plaintiff is the prevailing party. Thus,
Page 4 - OPINION AND ORDER

the sole remaining

issue the reasonableness of plaintiff's petition.
I.

Reasonableness of the Requested Rates
Plaintiff seeks $260 per hour for Miller,

years of experience." See Miller Decl.
Decl. Ex.
according

<JI<JI

4,

who has "over 23

6;

see also Miller

2. A reasonable rate for legal services is "calculated
to

the

prevailing

market

rates

in

the

relevant

community." McElmurry v. U.S. Bank Nat' 1 Ass'n, 2008 WL 1925119, *3
(D.Or. Apr. 30, 2008)

(citation and internal quotations omitted).

"This District considers the most recent Oregon State Bar Economic
Survey

('OSB Survey')

as its

'initial benchmark'

in determining

whether hourly billing rates are reasonable." Prison Legal News v.
Umatilla Cnty., 2013 WL 2156471, *4 (D.Or. May 16, 2013)

(citations

omitted) .
Here, the latest OSB Survey, issued in 2012, provides billing
rates by locality, years of experience, and area of practice. For
a Portland attorney with 21 to 30 years of experience, the average
and median rates are $326 and $333 per hour, respectively. Because
it

is

lower

than

average

for

attorneys

with

commensurate

experience, Miller's hourly rate of $260 is reasonable.
II.

Reasonableness of the Hours Expended
Plaintiff requests an award of fees for 222.3 hours of work.

Specifically, Miller seeks the following compensation: 8.5 hours of
preliminary work,

4 hours for drafting and filing the complaint,

39.8 hours relating to defendant's IIED counterclaim, 103.1 hours
for preparing and briefing the parties claims at summary judgment,
12.4 hours for assembling the present fee petition, 18.4 hours to
Page 5 - OPINION AND ORDER

keep plaintiff apprised of the lawsuit's status and perform other
miscellaneous
revolve,

tasks,

narrow,

and 36.1 hours

or

settle the

arising out

underlying

of attempts

issues

with

to

opposing

counsel. See Miller Decl. Ex. 3.
After

reviewing

underlying

plaintiff's

proceedings,

the

itemized

Court

finds

fee

petition

that

and

reductions

the
are

warranted for three reasons.
First,
contract

this case pertained to a

claim.

The

terms

concerning

unambiguous

of

the

straight-forward breach of
Policy

plaintiff's

and

Contract
to

entitlement

defendant's LTD benefits by his and his family's

are

offset

SSDI payments.

While defendant's insistence in pursuing counterclaims, especially
for IIED, certainly extended the underlying litigation, no single
issue

was

novel,

difficult,

or

complex.

In

fact,

plaintiff's

briefs, and the Court's decisions, relied on well-established legal
principles.

As such,

the Court finds the 142.9 hours accrued in

conjunction with Miller's substantive work -

i.e.

the motion to

dismiss and motions for summary judgment - excessive, especially in
light

of

the

fact

that

he

frequently

block-billed,

making

it

difficult to discern the amount of time allocated to each task.

1

See Prison Legal News, 2013 WL 2156471 at *7 (striking block billed
entries that "exceed[ed] three hours" because "[t]his District has
specifically

cautioned

against

1

[this

practice,

which]

greatly

The Court "divide[d] these blocks of time by the total
number of included tasks" to arrive at a billing period for each
of Miller's discrete undertakings. Sterling Sav. Bank v. Sequoia
Crossing, LLC, 2010 WL 3210855, *5 (D.Or. Aug. 11, 2010).
Page 6 - OPINION AND ORDER

hinder[s] the court's ability to assess the reasonableness of the
time expended")

(citations omitted); see, e.g., Miller Decl. Ex. 3,

at 21.
For instance,

Miller billed 54.9 hours in association with

plaintiff's first motion for summary judgment. See Miller Decl. Ex.
3, at 14-20 (8/5/2013, 8/8/2013, 8/14/2013, 8/15/2013, 8/20/2013,
8/21/2013, 8/26/2013, 8/27/2013, 8/28/2013,
9/23/2013,

9/24/2013,

9/26/2013,

9/19/2013, 9/20/2013,

10/3/2013,

10/17/2013,

and

11/12/2013 entries). Yet plaintiff's initial memorandum was eight
pages

long,

significant

portions

Policy's and Contract's terms.
First Mot.
because

Summ.

"[t] he

5-7.

J.

Court

See,

of

which

e.g.,

simply

recited

Pl.'s Mem.

the

in Supp. of

It was also devoted entirely to damages

has

established

that

the

Policy

requires

Martin to reimburse Unum for the benefits Martin or his

family

received

from

at

Miller's

reply,

the

Social

although

Security
slightly

Administration."
longer

at

13

Id.

pages,

reiterated the issues raised in his opening brief.

1.

largely

See generally

Pl.'s Reply to First Mot. Summ. J.
Miller also spent 48.2 hours on plaintiff's summary judgment
motion regarding defendant's counterclaims. See Miller Decl. Ex. 3,
at 21-26 (11/25/2013, 12/3/2013, 12/4/2013, 12/9/2013, 12/10/2013,
12/11/2013,
1/4/2013,
2/18/2013,

12/12/2013,

1/23/2013,
and

12/13/2013,

1/24/2013,

3/20/2014

12/17/2013,

1/27/2013,

entries) .

2/10/2013,
However,

12/18/2013,
2/14/2013,
defendant's

counterclaims were diametrically opposed to plaintiff's claims and
based largely on the same evidentiary record. See generally Def.'s
Page 7 - OPINION AND ORDER

Mem. in Supp. of Mot. Summ J.; Pl.'s Mem. in Supp. of Second Mot.
Summ. J. In other words, after plaintiff prevailed on its breach of
contract claim,

defendant's counterclaims for breach of contract

and declaratory judgment were likely to fail.
Co. of Am. v. Martin, 2014 WL 1154065, *1-2
(court

relying,

in

part,

on

its

See Unum Life Ins.

(D.Or. Mar. 19, 2014)

previous

summary

judgment

disposition to dismiss defendant's counterclaims); see also Pl.'s
Reply

to

First

counterclaim
declined

Mot.

for

to

J.

Summ.

breach

enter

of

1-2,

contract).

summary

counterclaims sua sponte,

13

(rebutting
Even

judgment

defendant's

though

against

the

Court

defendant's

plaintiff's second motion for

summary

judgment did not necessitate reviewing and summarizing substantial
amounts

of

new

evidence

additional

legal

complexity

involved,

and

research.
as

should

In

sum,

well

as

have
to

the

involved

very

account

for

the

limited

amount

little
lack of

of

legal

analysis, the hours Miller billed relating to summary judgment are
reduced overall by 50%~ This results in a deduction of 51.6 hours
from Miller's petition.
Regarding plaintiff's motion to dismiss, in March 2013, Miller
billed 2.6 hours for preparing an email to defendant concerning his
allegations of bad faith.

See Miller Decl. Ex.

entry);

Decl.

see

analysis

of

also
the

Miller
same

cases

Ex.

relied

6.
on

This
by

3, at 6 (3/5/2013

email
the

"included an

Court

to

grant

[plaintiff's] Motion to Dismiss." Miller Decl. <[ 12; see also Unum
Life Ins. Co. of Am. v. Martin, 2013 WL 3995005, *3-4
1,

2013).

(D.Or. Aug.

Miller also billed an additional 37.2 hours briefing

Page 8 - OPINION AND ORDER

plaintiff's motion to dismiss,

despite the fact that the opening

brief was only seven pages long, contained less than two pages of
legal analysis, and generally tracked his March 2013 email. Compare
Miller Decl. Ex.
see

also

6, with Pl.'s Mem. in Supp. of Mot. Dismiss 4-7;

Miller

Decl.

Ex.

3,

at

6-14

(3/11/2013,

4/8/2013,

5/21/2013, 5/22/2013, 5/23/2013, 5/24/2013, 5/28/2013, 6/11/2013,
7/1/2013, 7/2/2013, 7/8/2013, 7/11/2013, and 8/2/2103 entries). The
Court recognizes that, at 14 pages, plaintiff's reply to the motion
to dismiss contained more legal analysis than his initial motion.
Compare generally Pl.'s Mem. in Supp. of Mot. Dismiss, with Pl.'s
Reply

to

Mot.

distinguishing

Dismiss.
precedent

Generally,
that

dismissal of his liED claim,

this

defendant

analysis

relied

on

in

entailed
opposing

and Miller previously addressed at

least one of these cases in his March 2013 email. See Miller Decl.
Ex. 6. The Court finds 15 hours sufficient to compensate for this
task. As a result, Miller's attorney fee request is reduced by 24.8
hours.
Second, the Court cannot find the hours spent attempting to
settle this dispute prior to summary judgment to be reasonable.
Although the Court commends Miller's efforts to work with opposing
counsel towards

a

resolution,

the hours

for mutual

conferences

result in nearly $10,000 worth of fees. Considering the lack of the
novelty and difficulty involved,

combined with the fact that the

parties were ultimately unable to successfully mediate this case,
the

Court

finds

that

compensating Miller for

the

9. 4 hours

he

actually spent in judicial settlement, plus an additional 10 hours
Page 9 - OPINION AND ORDER

to prepare and confer, sufficient. This

culminate~

in a 16.7 hour

deduction.
Finally,

I

reduce the request for fees arising out of the

present motion. Generally, a party entitled to attorney fees may
also recover additional amounts,

or "fees on fees," necessarily

incurred in obtaining an award. See, e.g., Baricevic v. Cal-Western
Reconveyance Corp., 2011 WL 5358667, *3-4 (D.Or. Nov. 3, 2011).

Th~

Court acknowledges that it takes time to assemble a fee petition.
Yet, at six pages, the majority of which constitutes a boiler-plate
recitation of the law or facts, plaintiff's motion has very little
in the way of legal analysis. See generally Pl.'s Mot. Att'y Fees;
see also Precision Seed Cleaners v.

Country Mut.

F.Supp.2d 1228, 1254-55

(reducing hours spent on an

(D.Or. 2013)

attorney fee petition that "contain[ed]

Ins.

Co.,

97 6

boilerplate information

about Markowitz and his expertise in fee litigation [and did] not
begin to address any information specific to this case until page
six") .

Further,

Miller's

billing

statements

were

compiled

electronically via a computer program employed by his firm.
Miller Decl.

'TI

9.

As such,

See

preparation of his actual invoices,

along with the accompanying declaration and motion,

was largely

clerical. See Sterling, 2010 WL 3210855 at *7 (clerical tasks, such
as

"filing

documents,
service,

motions
preparing

organizing

with

the

court,

affidavits
files,

and

filling
drafting

calendaring

out

and

printing

certificates

dates,

of

rescheduling

depositions, and sending documents" are not compensable); see also
Baricevic, 2011 WL 5358667 at *4 (describing the preparation of an
Page 10 - OPINION AND ORDER

attorney

fee

petition

as

"non-substantive

way of

simple

[work]

specialized skills").

that

required little

in the

The Court

therefore finds

4 hours adequate to compensate for the present

motion. Accordingly, Miller's petition is reduced by 8.4 hours.
After

taking

the

above-listed

deductions,

120.8

hours

of

Miller's time is awarded at $260 per hour, for a total of $31,408
in attorney fees. In arriving at this sum, the Court considered the
pertinent factors outlined in Or.

Rev.

Stat.

§

20. 07 5 and finds

that no further adjustments are necessary.
III. Costs
Plaintiff seeks to recover an additional $1,124.48 in costs;
this amount includes fees for photocopies, court filings,

service

of the summons and complaint, printing, postage, and UPS overnight
delivery.

See generally Pl.'s Bill of Costs. Costs are generally

awarded to the prevailing party in a civil action as a matter of
course unless the court directs otherwise.

See Fed.

R.

Ci v.

R.

54(d). The expenses which may be taxed as costs are enumerated in
28 U.S.C.

§

1920 and include any reasonable "out-of-pocket expenses

. . . that would normally be charged to a fee paying client." Nat'l
Warranty Ins. Co. v. Greenfield, 2001 WL 34045734, *9 (D.Or. Feb.
8, 2001)

(citation and internal quotations omitted).

In this case, the requested costs all fall within the purview
of

28

U.S.C.

statements.

§

1920

and

See Miller Decl.

appear
Ex.

3.

that plaintiff "has paid all of the
invoices." Miller Decl. i

within

plaintiff's

Moreover,

billing

Miller stipulated

. costs listed on

[his]

3. Costs are therefore awarded in full.

Page 11 - OPINION AND ORDER

CONCLUSION

Plaintiff's bill of costs (doc. 76) is GRANTED.

In addition,

plaintiff's motion for attorney fees (doc. 73) is GRANTED in part,
such that plaintiff is awarded a total of $32,532.48 in attorney
fees and costs.
IT IS SO ORDERED.
Dated this

Ann Aiken
United States District Judge

Page 12 - OPINION AND ORDER