Opinion
Civil Action No. SA-99-CA-0427 OG
February 26, 2001
MEMORANDUM AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
I. Introduction
The matter before me is plaintiff Primary Carenet of Texas' motion for reconsideration of the denial of attorney's fees and court costs, filed June 2, 2000. Docket Entry 27. This motion was filed in response to my previous recommendation made to the District Court to: grant, in part, plaintiff's motion for summary judgment on the grounds that the Employment Retirement Income Security Act's ("ERISA") civil enforcement provision, 29 U.S.C. § 1132, authorized plaintiff (as a 401k Plan fiduciary) to recover the excess distribution erroneously made to defendant in the amount of $3,602.44 plus post-judgment interest; but to deny plaintiff's request for attorneys' fees and costs based on insufficient documentary support and lack of case authority. The District Court, on September 29, 2000 accepted, in part, my recommendation, granting summary judgment in favor of plaintiff, but referring plaintiff's request for reconsideration on the issue of attorneys' fees. On October 6, 2000, I entered an Order asking pro se defendant, Andrea Scott, to respond to plaintiff's request for attorneys' fees. Scott complied with my Order submitting her response on October 30, 2000.
Docket Entry 25.
Docket Entry 28.
Docket Entry 29.
Docket Entry 30.
Based on the prior proceedings, I will assume that the parties are familiar with the factual background of this dispute as well as the law of the case. Thus, to avoid redundancy on the record, I will only discuss those facts that are pertinent to the limited issue of plaintiff's entitlement to attorneys' fees.
Please refer to my Memorandum and Recommendation entered on May 23, 2000 (docket entry 25) and the District Court's Order addressing the same (docket entry 28).
I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring plaintiff's motion for reconsideration filed in this proceeding to me to aid in its disposition by recommendation as my authority as a Magistrate Judge is statutorily constrained.
II. Jurisdiction
The court has federal question jurisdiction. 28 U.S.C. § 1331 29 U.S.C. § 1132(f).
III. Issue Presented
1. Whether plaintiff is entitled to a reconsideration of its request for attorneys' fees and court costs?
IV. Analysis and Conclusions of Law
1. Standard for Reconsideration
Plaintiff in this case is seeking reconsideration of my previous memorandum in which I recommended to the District Court that its request for attorneys' fees and court costs should be denied for insufficient evidence and lack of legal support. Because plaintiff's reconsideration arguments were also part of its objections to the Memorandum and Recommendation, the District Court reviewed them, finding that the additional evidence submitted by plaintiff was sufficiently relevant to the issue of attorney's fees that it should be considered by the Magistrate Judge. Although the District Court on September 29, 2000, entered an Order granting summary judgment in favor of plaintiff's substantive claim under ERISA, it did not enter final judgment on the case, pending my reconsideration on the issue of plaintiff's entitlement to attorneys' fees.
Docket Entry 28, at 1 fn.1.
The Federal Rules of Civil Procedure do not provide a mechanism with which a party may file a "motion to reconsider." It is a well-established rule of trial procedure that a District Court may reconsider an interlocutory order at its discretion. Although the District Court has the inherent power to modify, vacate, or set aside interlocutory orders when the interests of justice require and will "often accept such motions in the interest of substantial justice," one based on recycled arguments only serves to waste the resources of the court. Furthermore, "revisiting the issues already addressed 'is not the purpose of a motion to reconsider,' and 'advancing new arguments or supporting facts which were otherwise available [when the original motion was filed] is likewise inappropriate.'" A ruling, therefore, "should only be reconsidered where the moving party has presented substantial reasons for reconsideration." A motion for reconsideration should not give the losing party the opportunity to simply reargue its losing points and authorities. 2. Request For An Award of Attorneys' Fees And Court Costs
See Baustian v. State of La., 929 F. Supp. 980, 981 (E.D. La. 1996) (citing to FED.R.Civ.P.8(f)); and United States v. Emmons, 107 F.3d 762, 764 (10th Cir. 1997).
See FED. R. Civ. P. 54(b) (an order of the district court is subject to revision at any time before entry of judgment adjudicating all claims of all parties); and Rottmund v. Continental Assur. Co, 813 F. Supp. 1104, 1107 (E.D. Pa. 1992).
Baustian, 929 F. Supp. at 981.
Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991), cert. denied, 506 U.S. 828 (1992) (citation omitted); and Anderson v. Red River Waterway Commission, 16 F. Supp.2d 682, 683 (W.D. La. 1998).
Anderson, 16 F. Supp.2d at 683; and Baustian, 929 F. Supp. at 981 (citing State of Louisiana v. Sprint Communications Co., 899 F. Supp. 282 (M.D. La. 1995)).
Id . (citation omitted).
Originally, plaintiff sought an award of attorneys' fees of $6,524.00 for filing the instant lawsuit and motion for summary judgment. Additionally, plaintiff stated it had incurred $461.64 in court costs for which it also sought recovery, bringing the total amount of the requested award to $6,985.64. In support of this request, plaintiff attached a brief, general affidavit by counsel which I found insufficient to exercise discretion in favor of plaintiff's request. As a result, I recommended that the District Court deny the request.
Docket Entry 15, at 4.
Id . at Exhibit A-4. See Life Partners, Inc., v. Life Insurance Co., of North America, 203 F.3d 324, 325-26 (5th Cir. 1999) (district court's decision to award attorneys' fees is discretionary).
Docket Entry 25, at 10-12.
Now, in seeking reconsideration, Plaintiff has revised its original grand total request of $6,985.64 to $6,714.00, reflecting $6,524.00 in attorneys' fees and $190.00 in court costs. Moreover, plaintiff, in response to the evidentiary and legally deficiencies noted in my memorandum, has properly supported its request with relevant evidence and applicable legal authority. In particular, plaintiff has discussed the five factors to be considered in determining whether to award attorneys' fees pursuant to section 1132(g)(1) of ERISA: (1) the degree of the opposing party's culpability or bad faith; (2) the ability of the opposing party to satisfy an award of attorneys' fees; (3) whether an award of attorneys' fees against the opposing party would deter other persons acting under similar circumstances; (4) whether the party requesting attorneys' fees sought to benefit 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' position. These five factors are known as the " Bowen factors." As I previously noted, the Bowen factors are nonexhaustive: "a court should consider such factors. . . . [I]n any individual case, howeverother considerations may be relevant as well." Also, all five factors must be considered as "none of them is entitled to greater weight — much less unilaterally determinative powers — than any of the others." Having obtained sufficient evidence from plaintiff to properly evaluate its request within the applicable Bowen factors, it is my recommendation that plaintiff's request for attorneys' fees should begranted.
As the District Court noted, plaintiff had originally requested that it be awarded $461.64 in court costs, but has revised that figure downward to $190.00. Docket Entry 28 at 4 Fn.3 (citing to Docket Entry 27, at 6).
Docket Entry 27, at 2-5.
See Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255. 1266 (5th Cir. 1980). The Sunbeam-Oster Co., Inc., Group Benefits Plan for Salaried and Non-Bargaining Hourly Employees v. Whiteburst, 102 F.3d 1368, 1377-78 (5th Cir. 1996); and Dial v. NFL Player Supplemental Disability Plan, 174 F.3d 606, 613-14 (5th Cir. 1999). Section 1132(g)(1) allows "a reasonable attorney's fee and costs of action to either party." and not solely to the prevailing party. 29 U.S.C. § 1132(g)(1).
Id .
Bowen, 624 F.2d at 1266 (Emphasis added); see also Dial, 174 F.3d at 614 (ruling on attorneys' fees remanded, because among other issues, the district court failed to discuss other relevant non- Bowen factors).
Bowen, 624 F.2d at 1266.
With respect to the first factor, I note that Scott's persistent refusal to return the overpayment has compelled plaintiff to file this lawsuit. As I previously noted, the uncontroverted summary judgment evidence demonstrates that upon Scott's departure from employment with Primary CareNet, she received an erroneous overpayment as part of her 401k Plan distributions. Upon discovering the erroneous overpayment, plaintiff promptly contacted Scott, orally and in writing, to obtain reimbursement of the overpayment in the amount of $3,602.44. Scott nevertheless objected to plaintiff's request for reimbursement disputing the exact amount of the overpayment. In other words, Scott has not disputed that she in fact received an overpayment; she disputes, however, the specific or actual amount of the overpayment.
Docket Entry 27, at Exhibit E.
The summary judgment evidence indicates that the erroneous excess distribution to Scott was made July 7, 1998. Docket Entry. 15, Exhibit A-1, at 2. Also, the summary judgment record reflects that plaintiff requested reimbursement from defendant in writing beginning on October 15, 1998. Docket Entry 20, Exhibit A.
In furtherance of her position, Scott asserts that plaintiff failed to provide her with a "correct" statement of her account showing the exact amount she owes to the 401k Plan. The competent summary judgment evidence does not support Scott's position. Specifically, plaintiff has provided evidence that it sent Scott a statement regarding her 401k Plan account and a statement illustrating overpayments totaling $3,602.44 made to her from the various investment funds available under the 401k Plan. Scott's response to plaintiff's motion for reconsideration simply reasserts the arguments previously made in her response to plaintiff's summary judgment motion. Because it is undisputed that Scott wrongfully retained the overpayment amount, the first factor counsels in favor of awarding attorneys' fees. Further, in her response to reconsideration, she expressed "awe of the fact that what seemed to be an easily resolved issue has escalated to this point." Nevertheless, I can reasonably conclude that the reason why this case "has escalated to this point" is due to Scott's unwillingness to cooperate with plaintiff in resolving this dispute.
Docket Entry 22, at 2 and Exhibits B-1 B-2. Further, plaintiff represents in its reply to Scott's response to summary judgment that the statements of Scott's account were forwarded to her former counsel, Ms. Modgling, on July 6, 1999. Id . at 2 fn.1.
Docket Entry 30.
Regarding Scott's ability to satisfy an award of attorneys' fees, Scott has simply stated that she is without means to afford legal representation. Scott fails to explain how her current financial situation affects her ability to satisfy an attorneys' fee award. Scott has been on notice since plaintiff's original request that an award of attorneys' fees can be assessed against her. Due to Scott's lack of response as to this factor, I cannot recommend that plaintiff's request for attorneys' fees be denied.
Docket Entry 30.
With respect to the third Bowen factor, which seeks a determination from the court as to whether awarding the requested attorneys' fees would serve as a deterrent, the facts of this case counsel, once again, in favor of the award. It is my opinion that under the circumstances of this case, awarding attorneys' fees to a plan fiduciary who had to initiate a legal proceeding to recover an overpayment from an individual (i.e., a former employee/plan participant), who has admittedly wrongfully retained said overpayment, would deter others from acting in a similar manner when confronted with similar circumstances.
Further, in addressing the fourth Bowen factor, it is evident that plaintiff's lawsuit, seeking reimbursement of the overpayment from Scott, would benefit all of its 401k Plan participants and their beneficiaries, as well as promote an efficient administration of the Plan. Lastly, regarding the fifth Bowen factor, the relative merits of the parties' positions are evident from the District Court's Order accepting my recommendation and granting summary judgment in favor of plaintiff.
Based on this analysis, it is my recommendation that an award of attorneys' fees in favor of plaintiff is appropriate. After careful review, I also recommend that an award of attorneys' fees in the amount requested by plaintiff is warranted.
Once the district court concludes that a party is entitled to attorneys' fees, it must utilize the lodestar method to determine the amount to be awarded. Under this 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." The lodestar is then adjusted upward or downward, depending on the circumstances of the case, after assessing the dozen factors set forth in Johnson v. Georgia Highway Express . The Johnson factors are: (1) the time and labor required for the litigation; (2) the novelty and complication of the issues; (3) the skill required to properly litigate the issues; (4) whether the attorney had to refuse other work to litigate the case; (5) the attorney's customary fee; (6) whether the fee is fixed or contingent; (7) whether the client or case circumstances imposed any time constraints; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) whether the case was "undesirable;" (11) the type of client-attorney relationship and whether that relationship was long-standing; and (12) awards made in similar cases. The district court's determination of reasonable hours and reasonable rates are reviewed for clear error. Any lodestar adjustments are reviewed for abuse of discretion. Plaintiff in this case has presented adequate documentation in support of its request for an award of attorneys' fees in the amount of $6,524.00, in addition to $190.00 in taxable court costs.
See Wegner v. Standard Insurance Co., 129 F.3d 814, 822 (5th Cir. 1997) (citation omitted).
Id . This calculation requires not only a determination of whether the total number of hours claimed were reasonable but also whether the particular hours claimed were reasonably expended. Id . at fn.16.
488 F.2d 714, 717-19 (5th Cir. 1974)
Id.
Wegner, 129 F.3d at 822.
Id .
According to the description of professional services attached as Exhibit C to plaintiff's motion for reconsideration, plaintiff's request seeks attorneys' fees for the legal work conducted by counsel since the inception of the lawsuit to its motion for summary judgment. A review of this evidence indicates that counsel spent a total of 49.6 hours in prosecuting this case. This total amount of hours claimed is reasonable, considering that plaintiff's counsel prepared a default judgment based on Scott's failure to appear by answering the lawsuit, and once she appeared, moved for summary judgment on the sole dispositive issue in the case. Multiplying that amount of hours by the applicable hourly rate of the individual working on plaintiff's legal team equals $7,093.00. It can be inferred that the lesser amount of requested attorneys' fees, $6,524.00 (a difference of $569.00) represents the hourly work performed by a legal assistant and/or associate attorney at lower hourly rates than the senior attorney working on the case. I believe that a lodestar adjustment is not appropriate in this case and that the lower requested amount of attorneys' fees should be awarded.
I note that the Description of Professional Services provided by plaintiff does not specify whether the particular service was conducted by the senior attorney (at a rate of $175.00/per hour), a legal assistant (at a rate of $90.00/per hour) or an associate attorney (at a rate of $155.00/per hour). Docket Entry 27, at 5 Exhibit C. Also, it is ambiguous from the record, whether the senior attorney's (Mr. Martimez) hourly rate changed during the course of the case, from $155.00 to $175.00. Id . at 5 Exhibit C, November 6 11, 1998 time entries. Nevertheless, sufficient evidence has been provided to assess the reasonableness of plaintiff's request.
Docket Entry 27, at 5 Exhibit D.
Even though this was a single issue case with well-settled ERISA law in support of plaintiff's position, plaintiff was required to retain an attorney well-versed on employment law matters, and particularly on ERISA issues. Plaintiff's counsel also prepared a motion for summary judgment with factual support on the dispositive issue in the case, namely, whether ERISA's civil enforcement provision authorized plaintiff to recover the overpayment from Scott. The outcome on summary judgment was favorable to plaintiff. It should also be noted that plaintiff's counsel sought a continuance of the scheduling order on two separate occasions pending a ruling on its motion for summary judgment, in an attempt to prevent unduly burdening the court with unnecessary filings and to reduce expenses for his client. Further, although the overpayment amount at issue is less than the requested attorneys' fee award, based on Scott's conduct and unwillingness to reimburse the plaintiff, I believe awarding the requested amount of attorneys' fees is appropriate. Not only was the amount of total hours (49.6) claimed in the case reasonable, but the particular hours as detailed by each time entry, were reasonably expended.
Id . at Exhibit B.
See Docket Entries 14 24.
Docket Entry 27, Exhibit C.
Likewise, the requested amount for taxable court costs, $190.00, which include filing fees and costs for service upon Scott, is reasonable. As a preliminary matter, the amount is significantly less than the amount originally requested of $461.64. In support of its request for court costs, plaintiff has submitted evidence that it attempted to avoid costs of service by requesting Scott to waive service of the citation pursuant to FED.R.CIV.P.4(d). Scott, however, refused to waive service. She cannot complain now about the additional costs associated with that decision.
Docket Entry 27, at 3-4 Exhibit A.
Id . and Docket Sheet Entries on June 7 25, 1999.
V. Recommendation
For the reasons discussed above, I recommend that plaintiff's motion for reconsideration on its request for an award of attorneys' fees, in the amount of $6,524.00, and $190.00 in taxable court costs (totaling $6,714.00), be GRANTED (Docket Entry 27). After considering the various Johnson factors in the context of this case, in addition to the five Bowen factors applicable to ERISA causes of action, it is my recommendation that neither an enhancement nor a reduction of the lodestar is warranted. An attorneys' fees award of $6,524.00, based on the amount billed hourly by plaintiff's counsel, is appropriate.
Plaintiff is also entitled to post-judgment interest on its award of $3,602.44 (overpayment). See Docket Entry 28, at 4 note 2 Docket Entry 25, at 9-10.
VI. Instructions For Service And Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this Memorandum and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to Title 28 U.S.C. § 636(b)(1) and FED.R.Civ.P.72(b), any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Report and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
See Thomas v. Arn, 474 U.S. 140, 150 (1985).
Douglass v. United Services Automobile Ass'n 79 F.3d 1415, 1428 (5th Cir. 1996).