Carlile v. Reliance Standard Life Insurance et al

Filing 92

MEMORANDUM DECISION AND ORDER granting in part and denying in part 81 Motion for Attorney Fees; re 81 MOTION for Attorney Fees and Memorandum in Support. In total, Carlile is awarded $54,349.71 in appellate fees and costs. Signed by Judge Robert J. Shelby on 1/28/22. (jwt)

Case 2:17-cv-01049-RJS Document 92 Filed 01/28/22 PageID.1682 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

DAVID G. CARLILE,
Plaintiff,

MEMORANDUM DECISION AND
ORDER AWARDING APPELLATE
ATTORNEYS’ FEES

v.
RELIANCE STANDARD LIFE
INSURANCE COMPANY and RELIANCE
STANDARD LIFE INSURANCE POLICY
NUMBER LTD 123420,

Case No. 2:17-cv-01049-RJS
Chief Judge Robert J. Shelby

Defendants.
Following this court’s entry of judgment in favor of Plaintiff David G. Carlile,1
Defendants Reliance Standard Life Insurance Company and Reliance Standard Life Insurance
Policy Number Ltd 123420 (collectively, “Reliance”) appealed to the Tenth Circuit.2 The Tenth
Circuit affirmed the judgment3 and granted Carlile’s Motion for Appellate Attorneys’ Fees.4 The
matter was remanded to this court to determine the amount of appellate attorneys’ fees.5 Before
the court is Carlile’s Motion Regarding the Amount of Fees on Appeal.6 The Motion is fully
briefed, and for the reasons explained below, the Motion is GRANTED IN PART and DENIED
IN PART.

1

Dkt. 47.

2

Dkt. 58, Notice of Appeal.

3

Dkt. 78, Mandate of the US Court of Appeals.

4

See Dkt. 80, Docket Text Order Granting Attorneys’ Fees and Remanding.

5

Id.

6

Dkt. 81.
1

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BACKGROUND
Carlile seeks $54,960.00 in appellate attorneys’ fees.7 Additionally, Carlile requests
$296.008 in legal research costs and $115.579 in other costs. The Tenth Circuit previously
granted Carlile $185.71 in appellate costs and denied all other costs requested.10
Reliance objects that the amount of attorneys’ fees requested improperly includes time
related to proceedings before the district court and mediation ordered by the Tenth Circuit.11
Additionally, Reliance argues the remaining hours—specifically the time included for appellate
counsel learning about the case, preparing the appellate briefing, and preparing oral argument—
are unreasonable.12 In total, Reliance requests a reduction in attorneys’ fees to an award amount
of $30,776.83.13 Reliance also argues Carlile’s request for costs should be denied in whole
because the Tenth Circuit’s Attorneys’ Fee Order did not provide for a calculation of costs on
remand14 and the Tenth Circuit already made an award of Plaintiff’s appellate costs.15
LEGAL STANDARD
To determine the amount of fees to award, courts employ the lodestar method wherein
the fees awarded equal “the number of hours reasonably expended on the litigation multiplied by

7

Dkt. 90, Reply in Support of Motion re: Amount of Fees on Appeal at 1.

8

Dkt. 81 at 4; Dkt. 90 at 5.

9

Dkt. 82, Declaration of Alexander Dushku at 5.

10

Dkt. 79, Order and Supplemental Mandate of US Court of Appeals at 2.

11

Dkt. 87, Defendants’ Opposition to Plaintiff’s Motion re: Amount of Fees on Appeal at 2–4.

12

Id. at 3–5.

13

Id. at 6.

14

Dkt. 87-3, US Court of Appeals Order on Appellee’s Motion for Attorneys’ Fees at 1–2.

15

Dkt. 87 at 5; see also Dkt. 79 at 1–2.

2

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a reasonable hourly rate.”16 The lodestar calculation provides a useful starting point and may
generally be presumed to represent a reasonable fee award.17
A party seeking an award of attorneys’ fees should submit “meticulous, contemporaneous
time records that reveal, for each lawyer for whom fees are sought, all hours for which
compensation is requested and how those hours were allotted to specific tasks.”18 “Where the
documentation of hours is inadequate, the [] court may reduce the award accordingly.”19 The
court is also instructed to exclude hours that were not “reasonably expended,” for example
“hours that are excessive, redundant, or otherwise unnecessary.”20 From that point, a court may
adjust the fee award up or down based on the degree of success obtained by the prevailing
party.21
A reasonable hourly rate is based on the “prevailing [rate] in the community for similar
services by lawyers of reasonably comparable skill, experience and reputation.”22 Here,
Reliance does not contest the reasonableness of Carlile’s counsel’s hourly rate and only disputes
the reasonableness of the number of hours expended.23

16

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

17

Id.

18

Case v. Unified Sch. Dist. No. 233, Johnson Cnty. Kan., 157 F.3d 1243, 1250 (10th Cir. 1998); see also Hensley,
461 U.S. at 433 (“The party seeking an award of fees should submit evidence supporting the hours worked and rates
claimed.”).
19

Hensley, 461 U.S. at 433.

20

Id. at 434.

21

Id. at 434–36.

22

Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984); see also Case, 157 F.3d at 1256.

23

See Dkt. 87.

3

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ANALYSIS
I.

Amount of Attorneys’ Fees

First, Reliance argues for the exclusion of 36.9 hours of attorneys’ work either because it
was related to proceedings before the district court or because the entries were too cryptic or
heavily redacted for Reliance to ascertain the underlying activity or task.24 Of the entries
Reliance objects to on these grounds, 22.6 hours were already excluded from Carlile’s fee
request.25 Upon review of Carlile’s counsel’s invoices and summary time report, the court will
exclude an additional 3.5 hours, equating to $1,092.00, which contextually appear to be related
to proceedings before the district court.
The remaining time entries to which Reliance objects appear to relate to proceedings
before the Tenth Circuit and will not be excluded. Carlile has exercised proper billing judgment
and has winnowed down his request to exclude “hours that are excessive, redundant, or
otherwise unnecessary.”26 Comparing Carlile’s counsel’s invoices27 with the time report28
reveals counsel made a good-faith effort to reduce the fees requested to those incurred as part of
the appeal process. The fees requested are significantly reduced from those billed by counsel.29
Second, Reliance objects to the inclusion of 8.9 hours in entries related to mediation

24

Id. at 2–3.

25

See Dkt. 90-1, Time Report at 1–4.

26

Hensley, 461 U.S. at 434.

27

Dkt. 82 at 8–47.

28

Dkt. 90-1.

29

Compare Dkt. 82 at 8–47 (sum of fees from September 2019 to January 2021 equaling $62,494.50) with Dkt. 90-1
at 10 (sum of fees from September 2019 to February 2021 equaling $57,060.00) and Dkt. 90 at 1 (requesting
$54,960.00).

4

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proceedings ordered by the Tenth Circuit.30 Carlile responds that mediation was ordered and
scheduled by the Tenth Circuit and, while ultimately unsuccessful, Carlile should not be
penalized for his good-faith effort to participate in mediation and comply with Reliance’s
document requests.31
The court agrees with Carlile. But for Reliance’s appeal, Carlile would not have been
compelled to participate in the related mediation. While not part of the briefing and oral
argument proceedings before the Tenth Circuit, the mediation arose in relation to the appeal.
The time spent preparing for and attending it, and the related investigation and exchange of
documents, would not have been incurred absent the appeal. Additionally, of the time Reliance
objects to as related to mediation, 0.6 hours were already excluded from Carlile’s fee request.32
The remaining time expended by Carlile’s counsel is reasonable considering the extent of
mediation proceedings and Reliance’s ongoing document and records requests. Carlile should
not be penalized for his good-faith effort to participate and cooperate in mediation.
Third, Reliance objects to the amount of time appellate counsel spent “getting up to
speed” on the case.33 Carlile concedes Reliance’s contention that some time should be excluded
to account for appellate counsel learning about the case and stipulates to a reduction of $2,100.00
for time spent familiarizing new counsel with the case.34 This equates to a subtraction of
between 5 and 7.6 hours, depending on attorneys’ rates. Carlile argues the remaining time

30

Dkt. 87 at 4.

31

Dkt. 90 at 4; see also Dkt. 81 at 2–3.

32

See Dkt. 90-1 at 3.

33

Dkt. 87 at 3.

34

Dkt. 90 at 1, 3.

5

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Reliance objects to relates to appellate strategy meetings, case analysis, and the preparation of
appellate filings and oral argument.35
The court agrees with Carlile. In preparation for appeal, Carlile brought on additional
counsel, Alexander Dushku and Justin W. Starr. Of the time Reliance objects to as unreasonable
time spent learning the case, only 2.6 hours ostensibly relate to new counsel learning about the
case.36 The remaining objected-to entries relate to counsel’s involvement in appellate strategy
meetings and analysis of appellant’s brief.37 The court will not reduce the time requested beyond
the $2,100.00 subtraction already stipulated to by counsel.
Lastly, Reliance objects to the amount of time counsel spent drafting and revising the
appellee brief.38 Reliance argues the appellee brief and oral argument were “overstaffed and
overbilled” and seeks to reduce the 73.5 hours spent drafting and editing the brief by 25% to a
total of 55.1 hours.39 This would equate to reducing the total fee sought by $5,708.50. Carlile
responds that the time spent was reasonable, considering the arguments and rationale presented
by Reliance on appeal, and the appeal was not “overstaffed.”40 Rather, the brief was prepared as
a “collaborative effort,” and the time spent and the number of attorneys involved was
proportionate to the value of benefits denied to Carlile.41

35

Id. at 3–4.

36

Dkt. 90-1 at 1.

37

See id. at 1, 5–6.

38

Dkt. 87 at 4–5.

39

Id. Reliance requests a 25% reduction to 54.9 hours, but the court notes that a 25% reduction of 73.5 hours equals
55.1, not 54.9.
40

Dkt. 90 at 4–5.

41

Id. at 5.

6

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Again, the court agrees with Carlile. Reliance has not shown the time expended by
counsel drafting and revising the appellee’s brief was unreasonable. Nor has Reliance provided
justification for the seemingly arbitrary 25% reduction of counsel’s time.42 While the record
below was static, the approach and analysis put forth by the parties was not. Carlile’s counsel
was justified in expending the time reported to carefully research Reliance’s arguments and
marshal a response. The parties faced de novo review by the Tenth Circuit, not just of this
court’s decision but of the plan administrator’s decision to deny benefits.43 After four years of
litigation, and more than five years since Carlile was initially denied benefits, the investment of
counsel’s time to preserve Carlile’s judgment on appeal was justified.
At bottom, the court finds that Carlile’s request for appellate attorneys’ fees is supported
by detailed, contemporaneous time entries and counsel’s time was reasonably expended
participating in the appeal and related mediation. 44 Furthermore, Carlile’s counsel has exercised
sound billing judgment in limiting the fees requested and in stipulating to a reduction of the
request in response to Reliance’s objection.45 After subtracting the stipulated-to adjustment of
$2,100.00 for time spent familiarizing appellate counsel with the case, and the court’s own
adjustment for unrelated or cryptic entries equaling $1,092.00, the court will award Plaintiff
$53,868.00 in appellate attorneys’ fees.

42

See Dkt. 87 at 4–5.

43

See Dkt. 78 at 6–7.

44

See Hensley v. Eckerhart, 461 U.S. 424, 433–34 (1983).

45

See Dkt. 90 at 1–4.

7

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II.

Legal Research Costs

Carlile seeks an award of $296.00 for computer-based legal research costs.46 Reliance
objects that “research” is not reimbursable as a taxable cost.47 In response, Carlile acknowledges
computer research is “not a separately taxable cost” but rather is “a substitute for an attorney’s
time that is compensable under an application for attorneys’ fees.”48
The court agrees with Carlile. Computer research costs are not taxable costs authorized
under 28 U.S.C. § 1920 or Federal Rule of Appellate Procedure 39(e).49 Rather, “[c]ourts have
repeatedly clarified that computer research is not a separately taxable cost but ‘a substitute for an
attorney's time that is compensable under an application for attorneys’ fees.’”50 Following this
categorization, Carlile did not present his computer research costs to the Tenth Circuit in his Bill
of Costs.51 Rather, Carlile first presented his computer research costs as part of his Motion
Regarding the Amount of Fees on Appeal, before this court.52
Seeing no indication that the amount sought is manifestly unreasonable and adhering to
the Tenth Circuit’s categorization of research costs as “compensable under an application for
attorneys’ fees,” the court grants Carlile’s request for award of $296.00 for computer research

46

Dkt. 81 at 4.

47

Dkt. 87 at 5 n.15.

48

Dkt. 90 at 5 (quoting Sorbo v. United Parcel Serv., 432 F.3d 1169, 1180 n.10 (10th Cir. 2005) (internal citations
and quotations omitted)).
49

28. U.S.C. § 1920 (enumerating taxable costs); Fed. R. App. P. 39(e) (enumerating costs taxable on appeal); see
also Sorbo, 432 F.3d at 1180 (citing Jones v. Unisys Corp., 54 F.3d 624, 633 (10th Cir. 1995) (specifically noting
“costs for computer legal research are not statutorily authorized”)).
50

Sorbo, 432 F.3d at 1180 n.10 (quoting United States ex rel. Evergreen Pipeline Constr. Co. v. Merritt Meridian
Constr. Corp., 95 F.3d 153, 173 (2d Cir. 1996)).
51

Dkt. 87-2, Bill of Costs.

52

Dkt. 81.

8

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costs associated with the appeal.
III.

Appellate Costs

Carlile also seeks an award of appellate costs in the amount of $301.28. This amount
includes $185.71 in costs already awarded by the Tenth Circuit plus an additional $56.80 for
copies requested by Reliance and $58.77 for transmitting documents to the Tenth Circuit.53
Reliance objects to any award of appellate costs outside the $185.71 already awarded by the
Tenth Circuit.54 Reliance’s objection is twofold. First, the Tenth Circuit Attorney Fee Order did
not provide for this court to calculate appellate costs on remand.55 Second, the Tenth Circuit
already reviewed Carlile’s request for appellate costs and denied the award of the costs now
being requested.56
The court agrees with Reliance on both points. The Bill of Costs Carlile submitted for
consideration by the Tenth Circuit included the same line items now before this court: $58.77 for
“Federal Express,” now styled as for “transmitting documents to the Tenth Circuit,” and $56.80
for “photocopies,” now styled as “copies requested by Reliance.”57 Both these costs were
considered and denied by the Tenth Circuit. The Circuit noted, “[c]opies of documents made for
a party’s counsel are not required by the court and are therefore not taxable. Further, the
expenses of delivering copies of required documents to the court or otherwise are not taxable.”58

53

Dkt. 82 at 5.

54

Dkt. 87 at 5.

55

Id.; see also Dkt. 87-3 at 1–2.

56

Dkt. 79 at 1–2; see also Dkt 87-2 at 2.

57

Dkt 87-2 at 2; Dkt. 82 at 5.

58

Dkt. 79 at 1.

9

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The Tenth Circuit already considered Carlile’s appellate costs, and specifically denied the
costs now being requested while awarding appellate costs in the amount of $185.71.59 This court
will not revisit the award of appellate costs. 60 Carlile’s Motion is denied to the extent it
requests an award of additional appellate costs.
CONCLUSION
For the reasons stated, the court GRANTS Carlile’s Motion IN PART. In total, Carlile is
awarded $54,349.71 in appellate fees and costs.61
DATED this 28th day of January, 2022.
BY THE COURT:

_______________________
ROBERT J. SHELBY
United States Chief District Judge

59

See id. at 1–2.

See City of San Antonio, Tex. v. Hotels.com, 141 S.Ct. 1628, 1636 (2021) (holding that “courts of appeals have the
discretion to apportion all the appellate costs covered by Rule 39 and that district courts cannot alter that
allocation”).
60

$54,349.71 = $53,868.00 (appellate attorneys’ fees) + $296.00 (legal research costs) + $185.71 (appellate costs
awarded by the Tenth Circuit).
61

10