Opinion
Case No. CV 05-00810 DDP (RNBx).
April 7, 2008
[Motion filed on February 13, 2008]
ORDER GRANTING ATTORNEY'S FEES
This matter comes before the Court on Plaintiff's motion for attorney's fees. After reviewing the materials submitted by the parties and considering the arguments therein, the Court grants the motion.
I. BACKGROUND
Plaintiff Michael Mitchell brought this ERISA action seeking long-term disability ("LTD") benefits pursuant to a benefit plan provided by his employer, CB Richard Ellis. Mitchell claimed a disability for several health problems, including chronic fatigue syndrome, restless legs syndrome, hemochromatosis, and depression. On December 3, 2007, the Court held that Mitchell was entitled to recover benefits.
Mitchell claimed benefits with Metropolitan Life Insurance Company ("MET"). MET initially denied Mitchell's claim because he was "still working." MET then denied Mitchell's appeal based upon a lack of objective evidence that Mitchell was disabled under the plan. After the appeal, Mitchell filed a lawsuit against MET seeking disability benefits. For the first time during litigation, MET raised the defense that it was not responsible for Mitchell's claim because Mitchell's alleged disability had started in October 2003 when UNUM Life Insurance Company of America ("UNUM") was the administrator and insurer. Mitchell next filed an administrative claim for LTD benefits with UNUM, which denied the claim.
After a trial, the Court held that MET abused its discretion in denying Mitchell's claim. The Court further held that MET was the responsible claims administrator and insurer for Mitchell's disability. (Findings of Fact and Conclusions of Law, December 3, 2007). The Court issued Judgment in this action on January 15, 2008. Plaintiff now brings a motion for attorney's fees under 28 U.S.C. § 1132(g).
II. DISCUSSION
ERISA permits the Court, "in its discretion," to "allow a reasonable attorney's fee and costs of action to either party." 28 U.S.C. § 1132(g). The Ninth Circuit has held that "this
section should be read broadly to mean that a plan participant or beneficiary, if he prevails in his suit under § 1132 to enforce his rights under his plan, should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Carpenters Health and Welfare Trust for S. Cal. v. Vonderharr, 384 F.3d 667, 674 (9th Cir. 2004) (internal quotation marks and alterations omitted). In this case, the Court has found that "Plaintiff is entitled to an award of reasonable attorney's fees." (Judgment, January 15, 2008.)
A. Reasonableness of Attorney's Fees
The parties primarily dispute whether the amount requested by Plaintiff's attorneys is reasonable. Attorneys' fees are calculated using the "lodestar" method, where courts "multiply the number of hours reasonably expended by the attorney(s) on the litigation by a reasonable hourly rate." McElwaine v. US West, Inc., 176 F.3d 1167, 1173 (9th Cir. 1999). "[T]he determination of a reasonable hourly rate is not made by reference to the rates actually charged the prevailing party." Welch v. Metro. Life Ins. Co., 480 F.3d 942, 946 (9th Cir. 2007) (internal quotation marks omitted). Instead, "billing rates should be established by reference to the fees that private attorneys of an ability and reputation comparable to that of prevailing counsel charge their paying clients for legal work of similar complexity." Id. (internal quotation marks omitted). "When a party seeks an award of attorneys' fees, that party bears the burden of submitting evidence of the hours worked and the rate paid." Carson v. Billings Police Dep't, 470 F.3d 889, 891 (9th Cir. 2006).
MET also contends that Plaintiff's attorneys did not comply with the meet and confer requirements of Local Rule 7-3. Plaintiff's attorneys suggest that they did attempt to meet and confer with Defendants, although it appears that those attempts occurred after filing of this motion. Nevertheless, the Court will hear the motion. MET has not been prejudiced because it had sufficient time to respond to the motion, for which Plaintiff's attorneys provided more than minimum notice. Further, the Judgment in this action indicated that an attorney's fee motion was forthcoming.
1. Hourly Rate
Plaintiff's attorneys claim an hourly rate of $500 for Glenn R. Kantor, $500 for Lisa S. Kantor, and $400 for Peter S. Sessions. (Pl.'s Mot. 7.) The $500 hourly rate for partners and $400 rate for Sessions became effective on January 1, 2008.
The Court finds that the 2008 prevailing market rate for plaintiff-side partner-level ERISA attorneys is $400-575/hour.See Hawkins-Dean v. Metro. Life Ins. Co., 2007 WL 2735684, at *1 (C.D. Cal. Sept. 18, 2007) (awarding senior partner $575/hour, associate $350/hour, and law clerks $200/hour); Rorabach v. Continental Cas. Co., 2007 WL 867301 (C.D. Cal. March 16, 2007) (awarding $450/hour). Here, Plaintiff's attorneys have submitted declarations that support rates within this range. (Declaration of Michael A. Vanic ¶¶ 8-9; Declaration of Caroline L. Elkin ¶ 7; Declaration of Daniel Feinberg ¶ 8.) They have further pointed to several cases that found partners at Kantor Kantor were entitled to a $400 or $450 rate. (Declaration of Glenn R. Kantor, Ex. A-E) "Affidavits of the plaintiffs' attorney and other attorneys regarding prevailing fees in the community, and rate determinations in other cases, particularly those setting a rate for the plaintiffs' attorney, are satisfactory evidence of the market rate." United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). Based on the evidence in the record, the Court finds that Plaintiff's attorneys have submitted sufficient evidence to show that $500 is a reasonable rate for partners with significant ERISA litigation experience.
Additionally, Plaintiff's attorneys submit a declaration of at least one attorney that charges $650 hourly rate. (Declaration of Ronald Dean ¶ 8.)
The Court finds that Sessions' $400 rate is reasonable. Sessions graduated from the University of Southern California Law School in 1997, and has practiced insurance law on ERISA and non-ERISA matters since then. Sessions joined Kantor Kantor in 2004, and estimates that he has handled 75 ERISA cases while at the firm. Courts have found a $350 rate for associates to be reasonable. See, e.g., Hawkins-Dean, 2007 WL 2735684, at *1. Plaintiff's attorneys submit evidence that associates with ERISA experience similar to Sessions have charged rates exceeding $400, and courts have found those rates to be reasonable. (Declaration of Teresa S. Renaker ¶ 12; Declaration of Peter Sessions, Exh. B.) Therefore, the Court finds the $400 rate reasonable.
In moving for attorney's fees and in Sessions' declaration, Plaintiff's attorneys request $400 per hour for Sessions. Plaintiff's attorneys appear to misstate in their reply brief that the requested fee for Sessions' work was $450.
MET takes issue with the $500 rate for partners because the majority of fees in this action were incurred prior to the January 1, 2008 rate increase, at times when the partners charged a $400 or $450 rate. (MET's Opp'n 5-6.) MET does not expressly challenge the rate for Sessions, but the Court presumes that it similarly disagrees with the request that Session's fees be assessed at his current rate. MET argues that Plaintiff's attorneys, if allowed to recover fees at their current rates, would receive a "windfall." (Id.)
However, "[d]istrict courts have the discretion to compensate plaintiff's attorneys for a delay in payment by . . . applying the attorneys' current rate to all hours billed during the course of the litigation." Welch v. Metro. Life Ins. Co., 480 F.3d 942, 947 (9th Cir. 2007). Allowing recovery at current rates encourages plaintiff's attorneys to take cases on a contingency basis by providing full compensation in exchange for successful enforcement of statutory rights. See Washington Public Power Supply System Securities Litigation Class Plaintiffs v. City of Seattle, 19 F.3d 1291, 1305 (9th Cir. 1994). In this case, Plaintiff's attorneys had to expend significant time and effort in order to bring administrative claims against both MET and UNUM, and to ultimately prevail at trial. To compensate for the delay in payment to Plaintiff's attorneys, the Court finds that application of the current $500 rate to all fees is appropriate.
The Court notes that MET may have compounded the time of this litigation by asserting that UNUM was the proper administrator only after Mitchell's administrative claim and long after Mitchell filed suit.
2. Hours Worked
The party seeking attorney's fees bears the burden of submitting evidence to support the hours worked and rates claimed. Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000). Plaintiff's attorneys have submitted detailed time records. However, MET raises several specific objections. A district court should exclude from calculation of the fee award those hours that are "excessive, redundant, or otherwise unnecessary." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The Court turns to consideration of MET's objections.
a. Time Drafting the Complaint
MET argues that Plaintiff's attorneys have billed 18 hours for drafting the complaint and that this amount is excessive. On the time record for Glenn Kantor, the time entered for preparing the complaint is 18 hours. (Pl.'s Exh. I, at 64.) However, in their reply brief, Plaintiff's attorneys explain that the time entry is a misprint and should read 1.8 hours. Upon calculation of Mr. Kantor's time entries, it is clear that the entry should read 1.8 hours. The Court finds the 1.8 hours for the complaint reasonable.
Furthermore, the Court notes a clerical error in the calculation of Mr. Kantor's time. The total time for Mr. Kantor's work should read 63 hours.
b. Time Spent Revising Briefs
MET next argues that Plaintiff's attorneys have billed excessive and duplicative time to review and revise briefs. Plaintiff's attorneys counter that the time was necessary due to the complex issues presented by this case.
MET challenges the following entries for reviewing and revising briefs:
February 20, 2007: Glenn Kantor records 3.3 hours and Peter Sessions records 3.8 hours. Sessions billed 9.9 hours to draft the brief.
August 30, 2007: Kantor records 3.2 hours and Sessions records 3.1 hours. Sessions billed 10.5 hours to draft the brief. September 14-17, 2007: Kantor records 2.8 hours and Sessions records 3.0 hours. Sessions billed 8.9 hours to draft the brief.
October 1, 2007: Kantor records 2.1 hours and Sessions records 2.2 hours. Sessions billed 7.8 hours to draft the brief.
(See Pl.'s Exh. I.)
The Court considers this time reasonable. It is not unusual for one attorney to draft a brief, for another attorney to review and revise the brief, and then for the drafting attorney to make final edits and changes. Furthermore, the complicated legal and factual issues in this case support the need for review and revision of briefs. Accordingly, the Court finds the time for revising and reviewing briefs to be reasonable.
c. Time Spent Preparing for Deposition
MET also objects to Plaintiff's attorneys time spent preparing for the deposition of Dr. Schmidt. Lisa Kantor and Peter Sessions collectively recorded 14.5 hours in preparation for Dr. Schmidt's deposition, which was taken by Lisa Kantor. Additionally, Glenn Kantor, Lisa Kantor, and Sessions each billed for participation in a conference call with MET regarding Dr. Schmidt's deposition, for a total of 6.6 hours. Plaintiff's attorneys emphasize that the time was necessary because Dr. Schmidt was an important figure in this case; MET largely based its denial of Mitchell's administrative appeal on Dr. Schmidt's report.
The Court finds the majority of the time spent on Dr. Schmidt's deposition was reasonable. Plaintiff had to prove that MET abused its discretion in denial of his claim. This denial was based in part on Dr. Schmidt's report. In finding that MET abused its discretion, the Court's holding was based in part on flaws in Dr. Schmidt's approach to review of Mitchell's condition. (See Findings of Fact and Conclusions of Law, December 3, 2007.) In light of Dr. Schmidt's role in denial of Mitchell's appeal and the Court's ultimate conclusion regarding Dr. Schmidt's review, it was reasonable for Plaintiff's attorneys to spend significant time preparing for her deposition.
Nevertheless, some of the preparation time was likely duplicative. In preparing for the deposition, Lisa Kantor billed 5.4 hours and then took the deposition. Sessions billed an additional 9.1 hours, but did not take or attend the deposition. Where Sessions did not take the deposition, the Court reduces Sessions' preparation time to 5.5 hours. Plaintiff's attorneys are otherwise entitled to fees for the time expended on preparation for the deposition.
Furthermore, Plaintiff's attorneys do not explain the need for three attorneys to participate in the conference call regarding the deposition. While Lisa Kantor and Peter Sessions were involved in preparation for the deposition, Glenn Kantor does not appear to have participated in preparation for the deposition, other than drafting the notice of deposition. Where Glenn Kantor was largely not involved in preparation for the deposition, the Court considers his time spent on the conference call to have been unnecessary. Therefore, the Court reduces Glenn Kantor's hours by the 2.2 hours that he participated in the conference call.
3. The Fee Award
Based on the attorney's rates and hours worked, including reductions, the Court calculates the following fee award:
Glenn Kantor — $500 X 60.8 hours = $30,400 Lisa Kantor — $500 X 29.9 hours = $14,950 Peter Sessions — $400 X 141.9 hours = $56,760 The Court also awards an additional $3400.00 in connection with the motion for attorney's fees. Therefore, the total fee award is $105,510.B. Costs
On January 30, 2008, Plaintiff filed an Application to Tax Costs against MET. The parties agreed that MET would not oppose an amended Bill of Costs seeking $2,613.91. Plaintiff's attorneys itemize costs of $10,947.86 for this action. (Pl.'s Exh. J.) Initially, Plaintiff's attorneys sought the difference between the $10,947.86 and the $2,613.91 already included in the Bill of Costs. However, in light of MET's objection to reimbursement for expert witness fees, Plaintiff's attorneys withdraw their request for expert witness fees. See Downey Community Hosp. V. Wilson, 977 F.2d 470, 474 (9th Cir. 1992). Plaintiff's attorneys modify their request to $1,827.80 in additional costs. Since these costs do not fall within those expressly covered by 28 U.S.C. § 1920, the Court still must consider MET's argument that Plaintiff's attorneys are only entitled to costs covered by 28 U.S.C. § 1920.
This addresses MET's objection to including costs already itemized in the Bill of Costs.
MET points to Agredano v. Mutual of Omaha Companies, 75 F.3d 541 (9th Cir. 1996), which held that the recovery of "costs of action" under 29 U.S.C. 1132(g)(1) are limited to those costs covered by 28 U.S.C. § 1920. Id. at 544. However, in Trustees of the Constr. Indus. Laborers Health Welfare Trust v. Redland Ins. Co., 460 F.3d 1253 (9th Cir. 2006) [hereinafter "Trustees"], the Ninth Circuit held that litigation expenses are recoverable as part of "attorney's fees" under 1132(g)(2)(D), as long as "separate billing for such expenses is `the prevailing practice in the local community.'" Id. at 1258-59 (citations omitted). Although Agredano limits costs under 29 U.S.C. 1132(g)(1) to those covered by 28 U.S.C. § 1920, Trustees endorsed awarding expenses as part of attorney's fees even if not the kind of expenses normally covered by 28 U.S.C. § 1920. Id. at 1258 (citations omitted).
The Ninth Circuit acknowledged that some costs, such as expert witness fees, cannot be recovered as attorney's fees. Trustees, 460 F.3d at 1258.
Accordingly, the Court awards Plaintiff's attorneys expenses as part of their attorney's fees. However, to the extent that Plaintiff's attorneys waived the right to a $185.00 pro hac vice application fee in exchange for MET's non-opposition to their Bill of Costs, the Court does not consider Plaintiff's attorneys entitled to that cost. The Court reduces the request by the $185.00 application fee, and awards $1642.80 in expenses as part of attorney's fees.
III. CONCLUSION
For the foregoing reasons, the Court GRANTS the motion. The total award including fees and expenses is $107,152.80.
IT IS SO ORDERED.