Weiner v. Blue Cross and Blue Shield of Lousiana

Filing 69

MEMORANDUM OPINION AND ORDER: The Court GRANTS in part and DENIES in part BCBSLAs Motion for Attorneys' Fees [Dkt. No. 63 ]. (Ordered by Magistrate Judge David L. Horan on 10/24/2018) (mcrd)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
RICHARD H. WEINER, DPM, PA,
Plaintiff,
V.
BLUE CROSS AND BLUE SHIELD
OF LOUISIANA,
Defendant.

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No. 3:17-cv-949-BN

MEMORANDUM OPINION AND ORDER
Defendant Blue Cross and Blue Shield of Louisiana (“BCBSLA”) has filed a
Motion for Attorneys’ Fees, see Dkt. No. 63 (the “Fees Motion”), seeks an award of
attorneys’ fees and costs as a prevailing party under section 502(g)(1) of the Employee
Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132(g)(1).
The Court has dismissed with prejudice Plaintiff Richard H. Weiner, DPM, PA’s
(“Dr. Weiner”) claims against BCBSLA be on the grounds set forth in the Court’s
August 17, 2018 Memorandum Opinion and Order [Dkt. No. 60] and, on BCBSLA’s
motion [Dkt. No. 62], dismissed BCBSLA’s counterclaim against Dr. Weiner with
prejudice. See Dkt. No. 68.
For the reasons and to the extent explained below, the Court GRANTS in part
and DENIES in part Defendant Blue Cross and Blue Shield of Louisiana’s Motion for
Attorneys’ Fees [Dkt. No. 63].

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Background
As the Court explained in its August 17, 2018 Memorandum Opinion and Order:
Dr. Weiner is a healthcare provider who participates in the Blue Cross
and Blue Shield of Texas (“BCBSTX”) provider network, treating patients
who are participants and beneficiaries under health benefit plans
administered by BCBSTX. Defendant Blue Cross and Blue Shield of
Louisiana’s (“BCBSLA”) insureds have access to BCBSTX’s provider
network for services.
Dr. Weiner treated a patient who was insured by BCBSLA under
an Employee Health Benefit Plan (the “Plan”) established and
maintained for the patient’s employer. The Plan vests BCBSLA with full
discretionary authority to determine eligibility for benefits and/or to
construe the terms of the Plan.
At the time of treatment, Dr. Weiner obtained an assignment of
benefits from the patient, allowing Dr. Weiner to bill BCBSLA directly for
payment of services. The Plan contains an anti-assignment provision
prohibiting assignment of benefits to a third-party provider. Specifically,
the Plan states:
The Member’s rights and Benefits payable under this
Benefit Plan are personal to the Member and may not be
assigned in whole or in part by the Member.
Dkt. No. 40 at 107 (App._102).
Dr. Weiner treated the patient and submitted a claim to BCBSLA.
BCBSLA initially denied the claim, indicating that the Plan excluded the
treatment. Dr. Weiner appealed, and BCBSLA paid the claim. BCBSLA
later determined that the claim had been paid in error and sought a
refund from Dr. Weiner. Dr. Weiner appealed the refund request.
BCBSLA denied the appeal, and Dr. Weiner asked BCBSLA to review the
claim. In the meantime, BCBSLA recouped the money from a subsequent
payment to Dr. Weiner for treatment of a different patient.
Representing himself pro se, Dr. Weiner filed suit in the small
claims court of Dallas County, Texas against BCBSLA for “theft of money
involving recoupment for medical services.” Dkt. No. 1-2 at 6.
BCBSLA removed the case to this Court on the basis of federal
question jurisdiction. See Dkt. No. 1.
Dr. Weiner then filed an unverified amended complaint alleging
that BCBSLA’s recoupment violated ERISA. See Dkt. No. 8. The Court,
on its own motion and after considering submissions from the parties,
determined that the Court has subject matter jurisdiction because Dr.
Weiner’s claim to recover payments allegedly owed to him under the Plan
is dependent on his status as an assignee of a Plan enrollee’s benefits and
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relates to an ERISA plan and so is preempted. See Dkt. No. 33.
BCBSLA moves for summary judgment on Dr. Weiner’s claims. See
Dkt. No. 54. BCBSLA contends that there are no issues of material fact
concerning either Dr. Weiner’s lack of authority to sue BCBSLA for
improper recoupment or BCBSLA’s discretion in denying Dr. Weiner’s
claim. BCBSLA argues that Dr. Weiner has no right to sue BCBSLA for
the claims brought in this lawsuit because (1) the health benefit plan at
issue specifically prohibits an assignment of benefits and (2) the patient
does not possess the right to sue for recouped funds. BCBSLA also argues
that it did not abuse its discretion under the Plan when it denied the Dr.
Weiner’s claim because the claims are excluded from coverage under the
Plan and Dr. Weiner was so informed when he sought preapproval for the
procedure.
Dkt. No. 60 at 1-3.
The Court agreed and granted BCBSLA’s Motion for Summary Judgment [Dkt.
No. 54]. See id. at 8-15.
BCBSLA now asserts, in support of its Fees Motion, that
[t]he Court disposed of this matter on August 17, 2018 in a Memorandum
Opinion and Order granting summary judgment in favor of BCBSLA,
dismissing Plaintiff’s claims with prejudice. The Court’s Order was the
culmination of a proceeding in which Plaintiff claimed that BCBSLA had
violated ERISA by improperly recouping funds BCBSLA erroneously paid
to Plaintiff for services not covered by the plan at issue.
In April 2017, BCBSLA sought an early settlement of this matter
under Federal Rules of Civil Procedure 16 and 26. Plaintiff refused. The
Parties also conducted a settlement conference with U.S. Magistrate
Judge Stickney on June 2, 2017. Although Plaintiff’s allegations lacked
legal or factual basis, BCBSLA offered Plaintiff a monetary amount in
settlement that was multiples of the amount of benefits Plaintiff placed
at issue. Plaintiff refused. Whereupon, BCBSLA defended Plaintiff’s
claim and became a prevailing party, thus achieving the degree of success
necessary to merit an award of fees. Furthermore, all factors the Court
considers when awarding fees weigh in BCBSLA’s favor.
BCBSLA now moves to recover its attorneys’ fees and costs
incurred subsequent to its initial case review and efforts to reach an early
resolution.
Dkt. No. 63 at 2 (footnotes omitted).
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In response, Dr. Weiner explains that, “upon receipt of the decision by U.S.
Magistrate David Horan, issued a check to Defendant in the amount of overpayment
it requested,” which “was made to Defendant promptly and in good faith,” and
“object[s] to Defendant’s request for Attorney fees which is inappropriate, excessive,
and acts as a barrier to anyone acting pro se seeking recovery of money taken from
unrelated patients after making proper BCBS appeals.” Dkt. No. 65 at 4.
According to Dr. Weiner,
[w]hile Defendant obtained a dismissal of Plaintiff’s Motion for Summary
Judgment, it should not be awarded attorney fees. This was not a
frivolous suit without merit filed by Plaintiff. It was a simple suit for
Theft of Services filed in Justice of the Peace Court, provided by
unrelated, undisputed patients owed to Plaintiff and non-covered or
issued by Defendant. Defendant transferred this case to Federal Court
and it became an ERISA case.
Plaintiff pursued the case pro se due to the high cost of legal
representation and applied legal opinions already on file for similar
actions in other U.S. District Court recognizing legal standing, rights of
appeal, and proper stating a claim. Based upon those written opinions
aforementioned, Plaintiff based the decision to support and pursue his
claim now under ERISA challenges raised by Defendant.
[Dr. Weiner] prays the Court will award Defendant, BCBSLA no
attorney fees. There are conflicting opinions concerning provider status
and rights from other Circuit Courts.
Id. at 10.
In reply, BCBSLA contends that Dr. Weiner’s
Response also reflects the very sanctionable activity addressed in
BCBSLA’s Motion. Plaintiff argues that he is “not an attorney,” yet
admits that he brought this suit simply to establish legal precedent.
Specifically, Plaintiff states that he “considered the settlement offer by
BCBS,” but rejected an offer of multiples of the amount which Plaintiff
placed at issue, in order “to establish an opinion within this Circuit.”
Plaintiff hoped to establish precedent based on the reversed district court
opinion in the Pennsylvania Chiropractic Assn. case, even after the Court
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twice informed Plaintiff that this is invalid legal authority.
Dkt. No. 66 at 1-2 (footnotes omitted).
“BCBSLA prays the Court will enter an order awarding BCBSLA its attorneys’
fees as a prevailing party under section 502(g)(1) of the Employee Retirement Income
Security Act of 1974 (‘ERISA’), 29 U.S.C. § 1001, et seq., in the amount of $34,963.50
and $45.14 in costs.” Id. at 2 (footnote omitted).
In an unauthorized sur-reply, Dr. Weiner explains that he “disagrees that
Defendant should be awarded attorney fees, although Defendant ultimately prevailed
on the merits of its position in this Court.” Dkt. No. 67 at 2.
Legal Standards
As the United States Court of Appeals for the Fifth Circuit has recently
explained, under 29 U.S.C. § 1132(g)(1),
[a]n award of attorney fees under ERISA is “purely discretionary” and is
reviewed “only for an abuse of discretion.” ERISA § 502(g)(1) provides a
court with discretion to “allow a reasonable attorney’s fee and costs of
action to either party.” A claimant “must show ‘some degree of success on
the merits’ before a court may award attorney’s fees.” Success means “the
court can fairly call the outcome of the litigation some success on the
merits without conducting a lengthy inquiry into the question whether a
particular party’s success was substantial or occurred on a central issue.”
In doing so, the court may, but is not required to, weigh five factors [set
forth in Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255, 1266 (5th
Cir. 1980)]:
(1) the degree of the opposing parties’ culpability or bad faith;
(2) the ability of the 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
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all participants and beneficiaries of an ERISA plan or to resolve a
significant legal question regarding ERISA itself; and
(5) the relative merits of the parties’ positions.
North Cypress Med. Ctr. Operating Co., Ltd. v. Aetna Life Ins. Co., 898 F.3d 461, 485
(5th Cir. 2018) (footnotes omitted).
“A district court must explain its decision to deny fees.” Id. (internal quotation
marks omitted).
But, if “it is determined that the [claimant] is entitled to attorneys' fees, it is
incumbent upon the district court to ‘utilize the lodestar method to determine the
amount to be awarded.’” Lain v. UNUM Life Ins. Co. of Am., 279 F.3d 337, 348 (5th Cir.
2002) (quoting Wegner v. Standard Ins. Co., 129 F.3d 814, 822 (5th Cir. 1997)),
overruled on other grounds by Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 115-19
(2008).
Under the lodestar method, “the district court must determine the reasonable
number of hours expended on the litigation and the reasonable hourly rates for the
participating attorneys, and then multiply the two figures together to arrive at the
‘lodestar.’” Wegner, 129 F.3d at 822 (footnote omitted).
“A reasonable hourly rate is the prevailing market rate in the relevant legal
community for similar services by lawyers of reasonably comparable skills, experience,
and reputation.” Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1299
(11th Cir. 1988) (citing Blum v. Stenson, 465 U.S. 886, 895-96 n. 11 (1984)). The
relevant legal community is the community in which the district court sits. See Tollett
v. City of Kemah, 285 F.3d 357, 368 (5th Cir. 2002).
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The party seeking reimbursement of attorneys’ fees bears the burden of
establishing the number of hours expended through the presentation of adequately
recorded time records as evidence. See Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir.
1993). The Court should use this time as a benchmark and then exclude any time that
is excessive, duplicative, unnecessary, or inadequately documented. See id. The hours
remaining are those reasonably expended. See id. There is a strong presumption of the
reasonableness of the lodestar amount. See Perdue v. Kenny A., 559 U.S. 542, 552
(2010); Saizan v. Delta Concrete Prods., Inc., 448 F.3d 795, 800 (5th Cir. 2006).
After calculating the lodestar, the Court may either (1) accept the lodestar figure
or (2) decrease or enhance it based on the circumstances of the case, taking into
account what are referred to as the Johnson factors. See Wegner, 129 F.3d at 822;
Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), overruled
on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 90 (1989).
The Johnson factors are: (1) the time and labor required; (2) the novelty and
difficulty of the legal issues; (3) the skill required to perform the legal service properly;
(4) the preclusion of other employment by the attorney as a result of taking the case;
(5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations
imposed by the client or other circumstances; (8) the monetary amount involved and
the results obtained; (9) the experience, reputation, and ability of the attorneys; (10)
whether the case is undesirable; (11) the nature and duration of the professional
relationship with the client; and (12) awards in similar cases. See Johnson, 448 F.2d
at 717-19; see also Saizan, 448 F.3d at 800.
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Because the lodestar is presumed to be reasonable, it should be modified only
in exceptional cases. See Watkins, 7 F.3d at 457.
Further, the lodestar amount may not be adjusted due to a Johnson factor that
was already taken into account during the initial calculation of the lodestar, see
Saizan, 448 F.3d at 800, and the lodestar calculation may take into account several
Johnson factors, see Black v. SettlePou, P.C., 732 F.3d 492, 503 n.8 (5th Cir. 2013).
The Court recognizes that courts have noted that the analysis set forth above,
and particularly the interplay of the lodestar analysis and the Johnson factors, may
have been called into question. See Perdue, 559 U.S. at 552-53; S&H Indus., Inc. v.
Selander, No. 3:11-cv-2988-M-BH, 2013 WL 6332993, at *2-*3 (N.D. Tex. Dec. 5, 2013).
But the United States Court of Appeals for the Fifth Circuit, without comment
or reference to the United States Supreme Court’s decision in Perdue, has continued
to utilize the approach laid out by this Court. See Black, 732 F.3d at 502-03; but see In
re Pilgrim’s Pride Corp., 690 F.3d 650, 663-64 (5th Cir. 2012) (analyzing whether any
changes brought about by Perdue apply to bankruptcy attorneys’ fees calculations); but
see also In re ASARCO, L.L.C., 751 F.3d 291, 296 (5th Cir. 2014) (following Pilgrim’s
Pride). And the Fifth Circuit, in a recent published opinion, has rejected the argument
“that Perdue clearly disfavors applying the Johnson factors to determine a fee award
and instead requires the use of only the lodestar.” Combs v. City of Huntington, Tex.,
829 F.3d 388, 393 (5th Cir. 2016). The Court of Appeals explained that
[w]e agree that Perdue requires courts to first calculate the lodestar;
indeed, this has long been our practice. See, e.g., League of United Latin
Am. Citizens No. 4552 (LULAC) v. Roscoe Ind. Sch. Dist., 119 F.3d 1228,
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1232 (5th Cir. 1997) (“The method by which the district court calculates
an attorneys’ fees award is well established. The district court first
calculates the ‘lodestar.’ ”). But Perdue does not, as Combs contends,
make it impermissible to then consider any relevant Johnson factors.
Perdue cautions against the sole use of the Johnson factors to calculate
a reasonable attorney’s fee but nowhere calls into question the use of
relevant Johnson factors to make this determination. Indeed, Perdue
expressly allows adjustments “in those rare circumstances in which the
lodestar does not adequately take into account a factor that may properly
be considered in determining a reasonable fee.” 559 U.S. at 554, 130 S.
Ct. 1662.
....
And though the lodestar is presumed reasonable, it may be adjusted
where it “does not adequately take into account a factor that may be
properly considered in determining a reasonable fee.” Perdue, 559 U.S. at
554, 130 S. Ct. 1662. .... Perdue, consistent with the Court’s frequent
pronouncements, explains that lodestar enhancements are to be rare. ....
In sum, the district court should begin by calculating the lodestar:
the reasonable hours expended multiplied by a reasonable rate. The
district court may then determine whether any other considerations
counsel in favor of enhancing or decreasing the lodestar. In light of the
“strong presumption” that the lodestar represents a sufficient fee,
enhancements must necessarily be rare. Perdue, 559 U.S. at 553-54, 130
S. Ct. 1662.
Id. at 393-95.
Perdue, then, did not change the landscape of calculating attorneys’ fees awards
in the Fifth Circuit. Accordingly, the analysis below will take into account the
necessary factors when determining the appropriate amount of attorneys’ fees to be
awarded under Section 1132(g)(1).
Analysis
I.

BCBSLA is entitled to an award of its reasonable attorneys’ fees and costs.
As Dr. Weiner concedes, and as BCBSLA explains, see Dkt. No. 63 at 4-5, 9,

BCBSLA succeeded on the merits in this action, with a successful Motion for Summary
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Judgment resulting in dismissal with prejudice of Dr. Weiner’s claims, and therefore
is eligible for an award of its reasonable attorneys’ fees and costs under Section
1132(g)(1).
The Court then may – but is not required to – consider the Bowen factors in
deciding whether to award attorneys’ fees under Section 1132(g)(1). See LifeCare
Mgmt. Servs. LLC v. Ins. Mgmt. Adm’rs Inc., 703 F.3d 835, 846, 847 (5th Cir. 2013)
(noting that “the Supreme Court has clarified that we do not need to consider the
Bowen factors” and that, “[a]s the Supreme Court made clear in Hardt, ... the Bowen
factors are discretionary”); Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 25455 (2010) (“Because these five factors bear no obvious relation to § 1132(g)(1)’s text or
to our fee-shifting jurisprudence, they are not required for channeling a court’s
discretion when awarding fees under this section.”); see also Victory Med. Ctr. Houston,
Ltd. P’ship v. CareFirst of Md., Inc., 707 F. App’x 808, 810 (5th Cir. 2018) (“Once a
court determines that a party is eligible for a fee award, it may then examine the facts
of the case to determine if a fee award is appropriate. .... A district court has ‘broad
discretion’ under Hardt in awarding attorneys fees, limited only by the language of §
1132(g)(1).”).
Here, where the parties address the factors, the Court will as well.
A.

The degree of Dr. Weiner’s culpability or bad faith

The Court is persuaded by BCBSLA’s analysis that this factor weighs in favor
of awarding fees:
“A party’s conduct may rise to the level of bad faith for particularly
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wrongful conduct, such as the pursuit of frivolous claims.” “Yet a party
may still be culpable for conduct while not actually reaching the level of
bad faith.” Even where a party’s litigation position is not frivolous or
advanced in bad faith, the first factor may still weigh in favor of awarding
attorneys’ fees when the litigation position is baseless. In fact, the first
factor may weigh in favor of an award “notwithstanding any lack of bad
faith” when the nonmovant’s actions were primarily responsible for the
losses underlying the litigation. And when a litigant pursues an
indefensible interpretation of the ERISA plan at issue, reasonable
attorneys’ fees and costs are appropriate.
BCBSLA sought an early resolution with Plaintiff in April 2017
and at a settlement conference with U.S. Magistrate Judge Stickney on
June 2, 2017. At the settlement conference, Plaintiff was offered a
settlement that was multiples of the amount of benefits Plaintiff placed
at issue. Plaintiff refused, and all subsequent settlement demands were
for ever-increasing amounts which had no relation to the underlying
benefits sought. Furthermore, Plaintiff never would have paid BCBSLA’s
Counterclaim but for BCBSLA being a prevailing party.
The Court’s order denying Plaintiff’s motion for summary judgment
additionally demonstrates that Plaintiff’s claims were baseless.
Specifically, the Court noted that Plaintiff failed to verify and submit
admissible evidence with his amended complaint. BCBSLA objected to
Plaintiff’s “facts in support” of his motion for summary judgment, and the
Court sustained all of BCBSLA’s objections. The Court also held that
Plaintiff did not have a right to sue for plan
benefits under ERISA and found that Plaintiff’s own cited authority did
not support his claims because it was either inapplicable or invalid.
Despite the Court’s holding, Plaintiff continued to rely on this same
inapplicable authority in his response to BCBSLA’s motion to dismiss and
motion for summary judgment.
Indeed, Plaintiff re-urged virtually the same argument in his
amended complaint, motion for summary judgment, and response to
BCBSLA’s motion to dismiss and motion for summary judgment. In each
pleading, Plaintiff recited his version of the facts without proper
evidentiary support and cited the same inapplicable and invalid legal
authority. With each of Plaintiff’s filings, judicial and party resources
were consumed in order to respond to baseless, repetitive
claims.
Dkt. No. 63 at 5-6.
Dr. Weiner disagrees and contends that the legal issues he raised based on his
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oft-cited authorities needed to be raised and should eventually be resolved by the
United States Supreme Court. See Dkt. No. 65 at 5-9.
But, although Dr. Weiner is not an attorney, his continuous efforts to press his
positions based primarily on a district court decision that was reversed before Dr.
Weiner filed this suit support a finding that this factor favors an award of fees.
B.

Dr. Weiner’s ability to satisfy an award of attorneys’ fees

Dr. Weiner does not dispute his ability to satisfy a fee award.
Thus, the second factor weighs in favor of awarding fees and costs under Section
1132(g)(1).
C.

Whether an attorneys’ fees award against Dr. Weiner would deter others

Dr. Weiner contends that “[t]he risk now understood of opposing attorney fees
and low amount create a significant barrier to seeking money by a pro se provider
Plaintiff.” Dkt. No. 67 at 3. BCBSLA essentially agrees and urges that this factor
therefore weighs in favor of awarding fees:
The Court has an interest in deterring frivolous claims by a serial
litigants. The Fifth Circuit has criticized the “dogged pursuit of the claim
in the face of little or no legal or factual bases” as favoring an award of
attorneys’ fees. Indeed, the third prong has been applied in this Circuit
to “promote the fundamental principle that it is important to read the
governing contract carefully and thoroughly” before filing suit. Serial
filings, such as those at issue here, dissipate judicial resources and
disrespect ERISA’s clear statutory guidelines for standing and recovery.
Although the Court cannot enjoin Plaintiff from future unfounded claims,
it can discourage the practice by awarding fees in this case.
Dkt. No. 63 at 8 (footnotes omitted).
The Court agrees that an award of fees here would deter other persons acting
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under similar circumstances as Dr. Weiner has in this case.
D.

Whether BCBSLA sought to benefit all participants and beneficiaries of
an ERISA plan or to resolve a significant legal question regarding ERISA

The Court finds that this factor weighs slightly in favor of a fee award, as
BCBSLA contends that “the legal defense of the plan’s unambiguous terms is
consistent with BCBSLA’s fiduciary duties” and “BCBSLA’s defense of Plaintiff’s
groundless claims, and successful recovery of BCBSLA’s Counterclaim, was for the
benefit of the plan’s participants and beneficiaries.” Dkt. No. 63 at 8.
E.

The relative merits of the parties’ positions

The Court agrees with BCBSLA that, where “BCBSLA prevailed on all critical
issues before the Court,” “the merits of the Parties’ positions favor the award of
attorneys’ fees to BCBSLA.” Id. at 9.
Having considered all of the factors and Section 1132(g)(1)’s language, the Court
determines in its discretion that it is appropriate to award BCBSLA its reasonable
attorneys’ fees and costs under Section 1132(g)(1).
II.

BCBSLA has established the amount of its reasonable attorneys’ fees.
BCBSLA’s Fees Motion is supported by the Declaration of Jonathan M. Herman,

which incorporates his firm’s records. See Dkt. No. 64.
Mr. Herman declares that he is “the founding and Managing Member of the
Herman Law Firm,” is “an attorney licensed to practice in Louisiana (admitted on
October 7,1994) and Texas (admitted on March 17, 2006),” is “admitted to practice
before all federal courts in Louisiana and Texas” and “was admitted to practice before
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the U.S. District Court for the Northern District of Texas on October 22, 2007,” and is
“lead counsel for the Louisiana Health Service & Indemnity Company, d/b/a Blue Cross
and Blue Shield of Louisiana (‘BCBSLA’) in this matter.” Id. at 1.
Mr. Herman explains:
7. As lead counsel, I am primarily responsible for devising and directing
a defense strategy for this case; drafting BCBSLA’s motion to dismiss,
motion for summary judgment, responsive pleadings, and this motion for
attorneys’ fees; taking the lead in crafting BCBSLA’s discovery strategy;
conducting a substantive review of documents produced by Plaintiff;
directing the research of the legal issues pertaining to BCBSLA’s defense
of this matter and the instant motion; conducting settlement negotiations
with Plaintiff; and investigating the factual background and collecting
documents to support BCBSLA’s motions to dismiss and for summary
judgment.
8. I have examined the records kept and maintained by my firm in the
regular course of its business and such records reflect all time spent and
the specific tasks performed in the rendering of legal services in this
matter. The entries on said records were regularly made at or near the
time of the transaction, act or event recorded thereby. All of the time
reported by my firm was incurred for the benefit of BCBSLA. The
attached billing statements are true and correct copies of the billing
statements submitted to BCBSLA on the date reflected thereon, and
maintained in the ordinary course of the firm’s business.
9. My firm was retained in this matter by BCBSLA on March 30, 2017.
During April 2017, I conducted an initial investigation and attempted an
early settlement of the matter with the Plaintiff under Federal Rules of
Civil Procedure 16 and 26.
10. By way of the instant motion, BCBSLA is seeking only attorneys’ fees
and costs incurred in defense of this matter beginning on May 1, 2017,
after my firm’s initial investigation and attempts at early settlement
pursuant to Federal Rules of Civil Procedure 16 and 26.
11. As a lawyer with 24 years of experience handling civil litigation, I
have handled numerous matters similar to this lawsuit. I have
represented BCBSLA since 2004. For purposes of this case, I have billed
BCBSLA the rate of $385.00 per hour, a significant discount to the rate
I normally charge other clients and the published rate for my services as
an Arbitrator for the American Arbitration Association. The associates
who worked on this matter billed at the rate of $275.00 per hour, also
discounted from the rate they charge other Herman Law Firm clients.
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Id. at 2-3.
Mr. Herman reports that the total number of hours expended on this matter by
his firm from May 1, 2017 to September 28, 2018 is 114.90 hours, billed at a total
amount of $34,826.00, broken down as 30.60 hours at $385.00 per hour by Jonathan
M. Herman, Managing Member, for a total of $11,781.00; 80.20 hours at $275.00 per
hour by Charles W. Hill, Associate, for a total of $22,055.00; and 3.60 hours at $275.00
per hour by Mitchell M. Hasenkampf, Associate, for a total of $990.00 (not $1,127.50).
See id. at 3.
And Mr. Herman declares that, “[t]hrough [his] experience as an attorney in
litigation matters such as this one, [he is] familiar with the reasonable and necessary
work required by attorneys at various experience levels to succeed in defending cases
such as this,” is “familiar with the customary and reasonable attorneys’ fees charged
in this market for cases of this type,” and is “familiar with the work that has been done
on this matter” and that, “[b]ased on [his] personal knowledge of the work done in this
case, [he has] an opinion as to what reasonable attorneys’ fees would be in this matter,”
which is that “reasonable attorneys’ fees to serve as lead counsel for BCBSLA in this
lawsuit from May 1, 2017 to September 28, 2018, total $34,963.50.” Id. at 3-4.
According to Mr. Herman, “[t]his amount is more than reasonable under the” Johnson
factors.” Id. at 4.
The billing records that Mr. Herman submitted reflect the work that BCBSLA’s
attorneys performed and include a narrative description – with redactions apparently
to protect attorney work product or attorney-client privilege – of the work done and the
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number of hours that it took to complete the work. “Redaction of billing records is
acceptable so long as the court has sufficient information to determine that the hours
related to those entries were reasonably expended.” Brown v. ASEÀ Brown Boveria,
Inc., No. 3:14-cv-37-CWR-LRA, 2018 WL 283844, at *3 (S.D. Miss. Jan. 3, 2018); accord
Randolph v. Dimension Films, 634 F. Supp. 2d 779, 800 (S.D. Tex. 2009) (“Redaction
of billing records is acceptable as long as the court has sufficient information to form
an opinion on the reasonableness of the fees.”).
The Court has carefully reviewed these records and finds that the redactions did
not always permit the Court to make that determination. More specifically, the entries
for Mr. Herman on May 15, 18, 19, 22, 26, and 31, 2017, June 5 and 9, 2017, October
4 and 5, 2017, March 29, 2018, July 27, 2018, August 17 and 21, 2018, and September
24 and 27, 2018 do not identify the subject of the attorneys’ communications or other
tasks and therefore fail to provide sufficient information to assess whether the time
expended was reasonable in representing BCBSLA in this action. Accord Monarch
Invs., LLC v. Aurrecoechea, Cause No. A-14-CA-01019-SS, 2017 WL 1034647, at *4
(W.D. Tex. Mar. 16, 2017).
“Redacted entries must be excluded if they do not provide sufficient information
to classify and evaluate the activities and hours expended.” Randolph, 634 F. Supp. 2d
at 800.
Under the circumstances, the Court determines that a reduction of 8.70 hours
at $385 per hour, totaling $3,349,50, is appropriate.
The Court otherwise finds that the remaining 106.20 total hours for which
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BCBSLA seeks to recover its fees were reasonable and necessary to successfully
representing BCBSLA in this case and are not excessive, duplicative, or inadequately
documented and therefore were reasonably expended for the tasks for which BCBSLA
should be awarded its attorneys’ fees under Section 1132(g)(1).
The Court finds that the claimed rates of $385.00 and $275.00 per hour are
reasonable and within the market rate for attorneys handling this type of litigation in
the Dallas area of these attorneys’ experience level.
The Court therefore finds the appropriate lodestar here to be calculated as 21.90
hours at $385.00 per hour by Jonathan M. Herman, plus 80.20 hours at $275.00 per
hour by Charles W. Hill, plus 3.60 hours at $275.00 per hour by Mitchell M.
Hasenkampf, for a total of $31,476.50.
The Court has considered the Johnson factors but notes that the lodestar is
presumed to be reasonable and should only be modified in exceptional cases.
Here, BCBSLA does not seek an enhancement of its attorneys’ fees, and the
Court finds that there are no other exceptional circumstances.
But the Court does not find that the $45.14 in expenses has been adequately
explained or supported, and the Court will not award those costs.
Conclusion
For the reasons and to the extent explained above, the Court GRANTS in part
and DENIES in part BCBSLA’s Motion for Attorneys’ Fees [Dkt. No. 63].
The Court ORDERS that Plaintiff Richard H. Weiner, DPM, PA must pay
Defendant Blue Cross and Blue Shield of Louisiana its reasonable attorneys’ fees under
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29 U.S.C. § 1132(g)(1) in the amount of $31,476.50.
SO ORDERED.
DATED: October 24, 2018

_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

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