Opinion
CIVIL ACTION NO. 4:09-CV-01398.
October 21, 2009
MEMORANDUM AND ORDER
In this ERISA dispute over payment of pension plan benefits, Plaintiffs Kenneth W. Lovell and Ellsworth Johnson seek a lump sum payment from two defined-benefit pension plans, the Equistar Chemicals, LP Retirement Plan ("Equistar Plan") and the LyondellBasell Retirement Plan ("Lyondell Plan") (collectively "Defendants" or "the Plans"). The parties have filed cross-motions for summary judgment, and both have submitted responses and replies. The motions now are ripe for decision. Having considered the parties' briefing, the applicable legal authorities, and all matters of record, the Court concludes that Plaintiffs' Motion should be granted and Defendants' Motion should be denied.
Plaintiffs' Motion for Summary Judgment [Doc. # 10] ("Plaintiffs' Motion"); Defendants' Motion for Summary Judgment [Doc. # 11] ("Defendants' Motion").
See Plaintiffs' Response to Defendants' Motion for Summary Judgment [Doc. # 12] ("Plaintiffs' Response"); Defendants' Response to Plaintiffs' Motion for Summary Judgment [Doc. # 13] ("Defendants' Response"); Plaintiffs' Reply to Defendants' Response to Plaintiffs' Motion for Summary Judgment [Doc. # 14] ("Plaintiffs' Reply"); Defendants' Reply to Plaintiffs' Response to Defendants' Motion for Summary Judgment [Doc. # 15] ("Defendants' Reply").
I. BACKGROUND
The parties agree that this case involves no material factual disputes. Plaintiffs Johnson and Lovell are beneficiaries under Defendant Plans. Both Plans are administered by the Benefits Administrative Committee ("BAC"), the Plans' named fiduciary.
Affidavit of Marie-Claire Abelanet (unnumbered exhibit to Defendants' Motion, available as Doc. # 11-1, at pages 4-11, on Electronic Court Filing (ECF) system) ("Abelanet Affidavit"), at 2, ¶ 5.
Each Plaintiff took early retirement. On October 27, 2008, Plaintiff Johnson elected to receive a lump sum payment of $118,176.91 from the Equistar Plan and $263,351.17 from the Lyondell Plan. His employment "Termination Date" was December 31, 2008, and his benefit "Commencement Date" was January 1, 2009. Plaintiff Lovell was entitled to a lump sum payment of $106,605.01 from the Equistar Plan and $258,560.20 from the Lyondell Plan. Lovell made his election for lump sum benefits on October 30, 2008, with the same Termination Date and Commencement Date as Plaintiff Johnson.
Affidavit of Ellsworth Johnson (unnumbered exhibit to Plaintiffs' Motion, available as Doc. # 10-1 on ECF system) and attached documents.
Id.
Affidavit of Kenneth Lovell (unnumbered exhibit to Plaintiffs' Motion, available as Doc. # 10-2 on ECF system) and attached documents.
Id.
On January 6, 2009, after the benefit Commencement Date but before the actual payments were made to Plaintiffs, LyondellBasell, the plan sponsor, filed for Chapter 11 bankruptcy protection. Based on the bankruptcy filing, Defendants denied Plaintiffs their lump sum benefits. On January 20 and 21, 2009, the Mercer Retirement Service Center ("RSC"), a third-party benefits outsourcing firm to whom the BAC had delegated some administrative tasks, sent letters to Plaintiffs requesting that they make a new payment election. Plaintiffs did not return the new forms to the RSC.
Abelanet Affidavit, at 2-3, ¶ 6.
See Letters from Equistar and Lyondell Plans to Plaintiffs (Exhibits N-Q to Abelanet Affidavit).
Defendants explain in detail their standard procedure for processing retirement benefit claims. This is relevant, according to Defendants, because Plaintiffs' payments could not possibly have been processed before the bankruptcy filing on January 6. In fact, the payment processing was completed by January 12, 2009, which the parties agree is a standard amount of time for processing.
Defendants' Motion, at 3.
Plaintiffs' counsel sent two letters to Defendants, dated February 10 and March 13, 2009, requesting a written explanation of Defendants' failure to pay lump sum benefits to Plaintiffs. On March 20, 2009, LyondellBasell responded through its Senior Counsel, JoAnn Beck. Ms. Beck stated that the lump sum payments to Plaintiffs "were affected by the Pension Protection Act (PPA) of 2006, which specifically precludes lump sum payments in a number of circumstances," including certain circumstances when a plan sponsor files for bankruptcy.
Letter from M. Harwell to BAC, dated February 10, 2009 (Exhibit R to Abelanet Affidavit); Letter from M. Harwell to BAC, dated March 13, 2009 (Exhibit S to Abelanet Affidavit).
Letter from J. Beck to M. Harwell, dated March 20, 2009 (Exhibit T to Abelanet Affidavit). This letter to Plaintiffs' counsel was returned undelivered, and was resent on May 4, 2009.
Id. at 1. Beck went onto explain that the Plan sponsors had filed for Chapter 11 protection on January 6, 2009, and that "[p]roposed IRS regulations under Section 1.436 of the PPA bar any lump sum payments while in bankruptcy unless the plans' actuary can certify that the plans meet certain funding levels after the filing." Id.
On March 30, 2009, the BAC met and considered the denial of lump sum benefits to Plaintiffs and other Plan participants. At the meeting, Abelanet explained to the BAC that retirement payments could not be processed until the RSC had received verification of the beneficiaries' employment termination, and therefore that the payment processing occurred after the bankruptcy:
Abelanet Affidavit, at 6, ¶ 13; BAC Minutes, dated March 30, 2009 (Exhibit V to Abelanet Affidavit).
[I]t was important that RSC receive verification of employment termination before processing a retirement payment because it is impermissible under the Plans' terms and ERISA to pay pension benefits until after separation from employment. Although Lovell's and Johnson's effective retirement date was January 1, 2009, RSC did not receive confirmation that their employment had terminated until receipt of the SAP interface sent on January 8, 2009 and loaded into RSC's system on January 12, 2009. Therefore, RSC could not begin to process their retirement payments until after the filing of the bankruptcy.
Abelanet Affidavit, at 6-7, ¶ 14. "SAP interface" is not defined in the affidavit, but its definition is unnecessary to the issues before the Court. [ FYI, from a google search, SAP seems to be the name of a business software company]
The BAC denied Plaintiffs' appeal "[b]ecause the Plans could not make lump sum payments to Lovell and Johnson at that time without risking the loss of their tax-exempt, qualified status, thereby harming all participants in the Plans."
Id. at 7, ¶ 15.
Defendants point out that Plaintiffs were not denied their pension benefits, but merely denied lump sum payments, and that Plaintiffs refused to elect another method of payment.
Plaintiffs filed this lawsuit in Texas state court on April 15, 2009. Defendants removed to this Court on May 8, 2009.
Notice of Removal [Doc. # 1].
II. SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing of the existence of an element essential to the party's case, and on which that party will bear the burden at trial. Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); see also Baton Rouge Oil and Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir. 2002).
FED. R. CIV. P. 56(c); Celotex Corp., 477 U.S. at 322-23; Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008).
For summary judgment, the initial burden falls on the movant to identify areas essential to the non-movant's claim in which there is an "absence of a genuine issue of material fact." The moving party, however, need not negate the elements of the non-movant's case. The moving party may meet its burden by pointing out "the absence of evidence supporting the nonmoving party's case."
Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005).
See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005).
Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir. 1995) (internal citations and quotations omitted).
If the moving party meets its initial burden, the non-movant must go beyond the pleadings and designate specific facts showing that there is a genuine issue of material fact for trial. "An issue is material if its resolution could affect the outcome of the action. A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."
Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001) (internal citation omitted).
DIRECT TV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2006) (internal citations and quotation marks omitted).
In deciding whether a genuine and material fact issue has been created, the facts and inferences to be drawn from them must be reviewed in the light most favorable to the nonmoving party. However, factual controversies are resolved in favor of the non-movant "only `when both parties have submitted evidence of contradictory facts.'" The non-movant's burden is not met by mere reliance on the allegations or denials in the non-movant's pleadings. Likewise, "conclusory allegations" or "unsubstantiated assertions" do not meet the non-movant's burden. Instead, the nonmoving party must present specific facts which show "the existence of a genuine issue concerning every essential component of its case." In the absence of any proof, the court will not assume that the non-movant could or would prove the necessary facts.
Reaves Brokerage Co. v. Sunbelt Fruit Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003).
Alexander v. Eeds, 392 F.3d 138, 142 (5th Cir. 2004) (quoting Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir. 1999)).
See Diamond Offshore Co. v. A B Builders, Inc., 302 F.3d 531, 545 n. 13 (5th Cir. 2002).
Delta Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir. 2008).
Am. Eagle Airlines, Inc. v. Air Line Pilots Ass'n, Int'l, 343 F.3d 401, 405 (5th Cir. 2003) (citation and internal quotation marks omitted).
Little, 37 F.3d at 1075 (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)).
Affidavits cannot preclude summary judgment unless they contain competent and otherwise admissible evidence. A party's self-serving and unsupported statement in an affidavit will not defeat summary judgment where the evidence in the record is to the contrary.
See FED. R. CIV. P. 56(e); Love v. Nat'l Medical Enters., 230 F.3d 765, 776 (5th Cir. 2000); Hunter-Reed v. City of Houston, 244 F. Supp. 2d 733, 745 (S.D. Tex. 2003).
See In re Hinsely, 201 F.3d 638, 643 (5th Cir. 2000).
Finally, "[w]hen evidence exists in the summary judgment record but the nonmovant fails even to refer to it in the response to the motion for summary judgment, that evidence is not properly before the district court. Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment."
Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003) (internal citations and quotations omitted).
III. ANALYSIS
A. Application of Statutorily Defined Terms
Defendants do not dispute that Plaintiffs are eligible for retirement benefits under the Plans. Rather, the dispute between the parties centers on the effect of the bankruptcy, which was filed between the benefits' Commencement Date and the actual payment of benefits to Plaintiffs.
See Memo from J. Beck to BAC regarding Lump Sum Payments, dated March 30, 2009 (Exhibit U to Abelanet Affidavit) ("The participants are eligible for an early retirement benefit under both the [Equistar Plan] and the [Lyondell Plan]"); Defendants' Motion, at 13 ("Defendants do not dispute that the Plans' language in effect at the time of Plaintiffs' retirement allows participants to elect a lump sum pension benefit, with no express exception for bankruptcy") (citing Abelanet Affidavit, at 2, ¶ 5; Equistar Plan (Exhibit A to Abelanet Affidavit), at 25, § 9.1(e); Lyondell Plan (Exhibit C to Abelanet Affidavit), Part II, at 23, § 8.1(e)).
Defendants argue that, because of the bankruptcy filing on January 6, 2009, the lump sum payments to Plaintiffs were "prohibited payments" under the Pension Protection Act of 2006, which provides:
Bankruptcy. — A defined benefit plan which is a single-employer plan shall provide that, during any period in which the plan sponsor is a debtor in a case under title 11, United States Code, or similar Federal or State law, the plan may not pay any prohibited payment.
The statute goes on to define a "prohibited payment" as
any payment, in excess of the monthly amount paid under a single life annuity . . . to a participant or beneficiary whose annuity starting date (as defined in section 417(f)(2)) occurs during any period a limitation under paragraph (1) or (2) is in effect.
26 U.S.C. § 436(d)(5)(A). Paragraph (2), as referred to in the final clause, is the bankruptcy provision in § 436(d)(2), quoted above.
In other words, the Plans were prohibited from making a lump sum payment to Plaintiffs if Plaintiffs' "annuity starting date," as defined in Section 417(f)(2), occurred during any period in which the Plans' sponsor was a debtor in a case under Title 11, i.e., after Defendants' bankruptcy filing on January 6, 2009.
This case therefore turns on the identification of Plaintiffs' "annuity starting date." Section 417(f)(2) provides:
The term "annuity starting date" means —
(i) the first day of the first period for which an amount is payable as an annuity, or
(ii) in the case of a benefit not payable in the form of an annuity, the first day on which all events have occurred which entitle the participant to such benefit.
In this case regarding a lump sum benefit, the second definition applies: "the first day on which all events have occurred which entitled the participant to such benefit." Some elaboration on the term "all events" is furnished in proposed IRS regulations, which state:
In the case of a benefit not payable in the form of an annuity, the first day on which all events have occurred (including the participant's election, the participant's severance from employment if the participant is below normal retirement age, and, if applicable, the participant's survival to the date as of which payment is made) which entitle the participant to such benefit as described in section 417(f)(2)(A)(ii).
72 Fed. Reg. 50544-01, 50551. Both parties cite to this proposed regulation and agree that it applies to this case.
Both of these provisions define the annuity starting date with reference to the date upon which a participant becomes entitled to benefits.
Merriam-Webster defines "entitle" as "to furnish with proper grounds for seeking or claiming something," giving the example, "this ticket entitle s the bearer to free admission." Merriam-Webster Online Dictionary, http://www.m-w.com.
Defendants argue that the "annuity starting date" in this case is no earlier than January 12, 2009 — the date upon which Plaintiffs' claim for benefits was processed by RSC, the third-party benefits outsourcing firm. Abelanet, manager for the Plans, explains that the BAC relied heavily on a broad reading of the phrase "all events":
Defendants' Motion, at 13.
[T]he BAC applied the definition of "annuity starting date" provided by the proposed IRS regulations under the PPA. Under the regulations, "annuity starting date" is defined as "the first day on which all events have occurred (including the participant's severance from employment if the participant is below normal retirement age, and, if applicable, the participant's survival to the date as of which payment is made) which entitled the participant to such benefits." With respect to Lovell and Johnson, the BAC determined that "all events" had not occurred until the RSC received the SAP interface verifying their employment termination on January 12, 2009, after the bankruptcy filing. Because the Plans could not make lump sum payments to Lovell and Johnson at that time without risking the loss of their tax-exempt, qualified status, thereby harming all participants in the Plans, the BAC denied their appeals.
Abelanet Affidavit, at 7, ¶ 15 (emphasis added). See Minutes of the BAC, dated March 30, 2009 (Exhibit V to Abelanet Affidavit), at LY000635 (BAC determined that, because SAP notice of final termination date and separation from service did not occur until January 12, 2009, after the bankruptcy filing, "all events had not occurred under either the retirement process or the regulatory definition of an annuity starting date").
Similarly, the denial letter to Plaintiffs, dated April 15, 2009, states:
[B]ased on the normal retirement process used for all pension payments from the Plans . . . the [BAC] found that not all events had occurred entitling [Plaintiffs] to the payments before January 6, 2009. Under the normal process, all pension payment requests are prepared when the [RSC] receives complete and correct information. That information includes receiving the final weekly SAP feed that confirms an employee's employment termination date. . . .
Based on information provided by Benefits Administration, the [BAC] found that the first SAP feed confirming employment terminations occurred on January 12, 2009, for employees whose last day on the payroll was December 31, 2008. Consequently, because separation from service was not confirmed until after the bankruptcy filing, the [BAC] found that all events had not occurred before the bankruptcy under the IRS regulations.
Letter from Jo Ann Beck, BAC Secretary, LyondellBasell, to Plaintiffs' counsel, dated April 15, 2009 (Exhibit W to Abelanet Affidavit), at 2 (emphasis added).
The Court finds insufficient support for Defendants' broad reading of "all events." First, the Court is unconvinced that "all events" includes claim processing by a third party. Such a rule would make participants' entitlement to benefits nearly arbitrary, subject to delays and inefficiencies by any entity involved in processing a claim for benefits. The examples of "all events" cited in the proposed regulations do not support such a broad reading. Second, both the statute and the proposed regulation refer clearly to "all events" which entitle the participant to a non-annuity payment. Defendants have cited no authority, statutory or otherwise, supporting their argument that their processing of a benefits payment is a component of Plaintiffs' entitlement to benefits. In fact, the proposed regulations cited by the parties refer to the participant's "severance from employment," and not the Plan's confirmation of said severance. Defendants' briefing stretches the statute's language, stating that "all events that entitled Plaintiffs to receive their pension benefits certainly included the receipt of information needed for the final calculation of their benefit amount and the processing of their benefit payment." The emphasized language is not in the statue or proposed regulations.
Defendants cite to the example in the proposed regulations of the "participant's survival to the date as of which payment is made" as express recognition that the annuity starting date will "often" be later than the effective date of retirement. Defendants' Motion, at 12. In fact, this example is likely to apply in relatively few cases.
At oral argument, defense counsel stated that she was unaware of any case supporting her argument that administrative processing of a claim, wholly within the administrator's control, is a factor in whether a beneficiary is entitled to benefits. When questioned by the Court about the impact of the Fifth Circuit's decision in PBGC Benefit Guaranty Corp. v. Wilson N. Jones Mem. Hosp., 374 F.3d 362 (5th Cir. 2004), the parties agreed that the case, which interprets the phrase "all events," is not on point because it involves a different treasury regulation.
Id. at 12-13 (emphasis added).
The Court therefore holds that Plaintiffs' "annuity starting date" occurred before the Plans' sponsor filed for bankruptcy protection.
B. Applicability of Abuse of Discretion Standard
Under the Supreme Court's decision in Firestone Tire and Rubber Co. v. Bruch, a district court reviewing a denial of benefits under ERISA applies a de novo standard of review "unless the plan gives the administrator `discretionary authority to determine eligibility for benefits or to construe the terms of the plan,'" in which case the abuse of discretion standard is applied.
Dutka v. AIG Life Ins. Co., 573 F.3d 210, 212 (5th Cir. 2009) (quoting Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)); Mello v. Sara Lee Corp., 431 F.3d 440, 443 (5th Cir. 2005). Under Fifth Circuit authority, Bruch applies only to adjudication of a question of law; factual determinations under ERISA plans are reviewed under the abuse of discretion standard because "federal courts owe due deference to an administrator's factual conclusions that reflect a reasonable and impartial judgment." Dutka, 573 F.3d at 212 n. 2 (citing Pierre v. Conn. Gen. Life Ins. Co., 932 F.2d 1552, 1562 (5th Cir. 1991)).
Defendants argue that, under Firestone, their decision denying lump sum benefits to Plaintiffs should be upheld under the abuse of discretion standard. As support, Defendants state that the BAC has discretionary authority to "implement rules for the administration of the Plans, to determine eligibility under the Plans, to construe the terms of the Plans, and to correct any defect, omission or inconsistency in the Plans." These areas of the BAC's discretionary authority, however, are inapplicable here. Defendants do not dispute Plaintiffs' eligibility under the Plans, and the question presented by this case is not administration of Plan rules or interpretation of Plan terms, but rather the BAC's interpretation of statutory terms. Defendants' denial letter to Plaintiffs stated that lump sum payments to Plaintiffs had been denied because Plaintiffs' separation from service was not confirmed until January 12, 2009, after the bankruptcy filing, and therefore the BAC "found that all events had not occurred before the bankruptcy under the IRS regulations." The letter clearly demonstrates that the BAC's decision not based on interpretation of Plan terms, but rather on its interpretation of the statutory and regulatory terms "annuity starting date" and "all events." The committee's interpretation of a statutory term is not entitled to review for abuse of discretion under the Firestone standard.
The abuse of discretion standard involves a two-step process. First, the court determines whether the administrator's interpretation of the plan is legally correct. If the administrator's interpretation was legally correct, there can have been no abuse of discretion. If the administrator's interpretation was legally incorrect, then the court proceeds to determine whether the administrator's decision was an abuse of discretion. Aboul-Fetouh v. Employee Benefits Comm., 245 F.3d 465, 472 (5th Cir. 2001).
Defendants' Motion, at 8 (citing Abelanet Affidavit, at 2, ¶ 5; Equistar Plan (Exhibit A to Abelanet Affidavit), at 37-39, § 13.2; Lyondell Plan (Exhibit C to Abelanet Affidavit), Part I, at 39-40, § 11.4).
See Memo from Beck to BAC regarding Lump Sum Payments, dated March 30, 2009 (Exhibit U to Abelanet Affidavit) ("The participants are eligible for an early retirement benefit under both the [Equistar Plan] and the [Lyondell Plan]."); Defendants' Motion, at 13 ("Defendants do not dispute that the Plans' language in effect at the time of Plaintiffs' retirement allows participants to elect a lump sum pension benefit, with no express exception for bankruptcy.") (citing Abelanet Affidavit, at 2, ¶ 5; Equistar Plan (Exhibit A to Abelanet Affidavit), at 25 § 9.1(e); Lyondell Plan (Exhibit C to Abelanet Affidavit), Part II, at 23, § 8.1(e)).
Letter from Beck to Plaintiffs' Counsel, dated April 14, 2009 (Exhibit W to Abelanet Affidavit).
[ Do you want to address this defense argument at all? If not, we could delete this FN.] Defense counsel argued at oral argument that the Plans' administrator was required to incorporate the statutory and regulatory terms at issue into the Plan and to treat them as terms of the Plan itself. Therefore, the argument continues, the administrators' decision interpreting the statutory terms in the Plan is entitled to deference from this Court. The Court is unconvinced, and declines to hold that Congress and the federal courts have deferred to statutory interpretations by plan administrators. Indeed, Defendants have cited the Court to no authority suggesting such broad deference.
Moreover, for the specific terms at issue, Defendants have not directed you to "all events" or "annuity starting date" in the Plan itself; they are just arguing that the entire statute is somehow incorporated. I found the definition of annuity starting date in the Plans, although Defendant has not cited you to it. The Plans define "annuity starting date" as "the first day of the first period for which an amount is payable as an annuity or any other form of benefit." Equistar Plan, at 3, § 2.5; Lyondell Plan, Part I, at 4, § 2.4. The Plans' definition, therefore, does not include the term "all events." Also, the Plans' definition differs slightly from the statutory definition, and the parties are arguing in their briefing about the statutory definition. (As stated above, the statute defines annuity starting date as "the first day on which all events have occurred which entitle the participant to such benefit." 26 U.S.C. § 417(f)(2)(A)(ii).)
The Firestone opinion illustrates the distinction between a court's review of statutory and plan terms. In Firestone, as discussed above, the Supreme Court allowed for different standards of review when a court reviews an administrators' interpretation of plan language. Firestone, 489 U.S. at 115 (discussing de novo and abuse of discretion review). However, when interpreting a statutory term — in particular, the term "participant" in 29 U.S.C. § 1024(b)(4) — the Court construed the term, and reversed the Court of Appeals, without mention of deference to the plan administrators' interpretation of the term.
IV. CONCLUSION
For all of the foregoing reasons, it is hereby
ORDERED that Defendants' Motion for Summary Judgment [Doc. # 11] is DENIED. It is further
ORDERED that Plaintiffs' Motion for Summary Judgment [Doc. # 10] is GRANTED. Judgment for Plaintiff Johnson is granted in the amounts of $118,176.91 (Equistar) and $263,351.17 (LyondellBasell). Judgment for Plaintiff Lovell is granted in the amounts of $106,605.01 (Equistar) and $258,560.20 (LyondellBasell). It is further
ORDERED that Plaintiffs have requested costs, including attorneys' fees, and may file a separate motion in accordance with Rule 54(d), FED. R. CIV. P.