Berry v. Wise

Full title: MINDY BERRY, Plaintiff, v. DAVID WISE, Plan Administrator of THE DAVID…

Court: United States District Court, D. Oregon

Date published: Aug 17, 2004

Civil No. 03-3067-CO (D. Or. Aug. 17, 2004)

Opinion

Civil No. 03-3067-CO.

August 17, 2004

ORDER

JOHN COONEY, Magistrate Judge

This Court entered its Order on June 3, 2004, granting plaintiff's motion for summary judgment on her claim for statutory penalties for violation of ERISA (#39). The Court found that plaintiff was entitled to recover from defendant a penalty award of $2,640 (representing fifty-three days (April 18 to June 10, 2003) at $30.00 per day, equaling $1,590.00, plus 105 days (April 18 to August 2, 2003) at $10.00 per day, equaling $1,050.00). The Court also found that plaintiff failed to sustain her burden on motion for summary judgment as to recovery of attorney's fees because she requested attorney's fees in the conclusion of her reply brief, without discussion of the relevant factors in determining an award, and did not request fees in her motion for summary judgment. Before the Court is plaintiff's motion for reconsideration (#41), which is opposed by defendant.

I. DISCUSSION

Plaintiff moves the Court to reconsider and amend its Order on the issue of attorney's fees. Plaintiff contends that, because she prayed for attorney's fees in her complaint and prevailed in her ERISA action, she is entitled to attorney's fees. Plaintiff also moves the Court to reconsider and amend its Order on the issue of the determination of the amount of penalty. She contends that the Court's reduction of the penalty amount exceeded the scope of the motion for summary judgment as it required a weighing of facts which requires a hearing on factual matters relating to the case. Defendant responds that plaintiff offers nothing new or different in her motion so there is no reason for the Court to reconsider. Defendant contends that plaintiff was required to request attorney's fees in her motion for summary judgment and show her entitlement to that additional penalty. Defendant contends that, as to the award of penalty, plaintiff confuses this with a material issue of fact and an award of less than the full penalty is not the equivalent of a factual determination.

A court may reconsider its grant of summary judgment under either Federal Rules of Civil Procedure Rule 59(e) or Rule 60(b).Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). Reconsideration of a decision is appropriate if the court: 1) is presented with newly discovered evidence; 2) committed clear error or the initial decision was manifestly unjust; or 3) there is an intervening change in controlling law. Id. at 1263. It appears that plaintiff argues that the Court committed error in its Order granting summary judgment.

As to the issue of attorney's fees, the Court merely determined that plaintiff did not meet her burden on summary judgment and, therefore, an award was not appropriate at that time; the Court did not intend to foreclose plaintiff from seeking attorney's fees prayed for in her amended complaint.¹ See Int'l Ass'n of Bridge, Structural, Ornamental, and Reinforcing Ironworkers, Local Union 75 v. Madison Indus., Inc., 733 F.2d 656, 658-59 (9^th Cir. 1984) (holding that all attorney's fee requests are collateral to the main action) (and citing Culinary Serv. Employees Union, Local 555 v. Hawaii Employee Benefit Admin., Inc., 688 F.2d 1228 (9^th Cir. 1982) (attorney's fee request pursuant to 29 U.S.C. § 1132(g)).

1 Currently pending before the Court are plaintiff's motion for attorney's fees (#44) and amended motion for attorney's fees (#57).

The Court has reviewed the law and finds that it committed no error when it reduced the penalties awarded based on the record before it. 29 U.S.C. section 1132(c)(1)(B) provides that an administrator who fails to or refuses to provide requested information within thirty days "may in the court's discretion" be personally liable "in the amount of up to $100 a day" from the date of such failure or refusal. Plaintiff argued in her briefs submitted in support of summary judgment that, "Since, it is established that defendant is liable for penalties, the amount of penalties imposed against defendant is left to the sound discretion of the court, Kerr v. Charles F. Vatterott Co., 184 F.3d 938, 948 (8th Cir. 1999); Brooks v. Metrica, Inc., 1 F. Supp.2d 559 (E.D. Va. 1998)," and contended that factors such as prejudice or bad faith "are factors in determining the amount of penalties that should be imposed," (Pl. Reply at 3). Plaintiff argued that, considering the factors, she was entitled to the full penalty award of $110 per day, (Pl. Mem. at 4, Pl. Reply at 4, 6). See Brown v. Am. Life Holdings, Inc., 64 F. Supp.2d 882, 891 (S.D. Iowa 1998) (on motion for summary judgment; stating, in the circumstances of the case, that, "The Court has the discretion to award Plaintiff between $0 and $22,900 under § 1132(c), which is the equivalent of a penalty up to $100 per day for 229 days," and finding that, because there were no aggravating factors, an award of less than the maximum amount, in the amount of $25 a day for 229 days, was appropriate); Brooks v. Metrica, Inc., 1 F. Supp.2d 559, 568-69 (E.D. Va. 1998) (on cross-motions for summary judgment; stating that, once a violation of ERISA is established, "the amount of the statutory penalty to be imposed, if any, is left to the discretion of the court," and finding that the amount of the daily penalty assessed would be adjusted from $100 to $80 for each day Metrica was in violation); Paris v. F. Korbel Bros., Inc. 751 F. Supp. 834, 840 (N.D. Cal. 1990); Thomas v. Jeep-Eagle Corp., 746 F. Supp. 863, 864-65 (E.D. Wisc. 1990);Krawczyk v. Harnischfeger Corp., 869 F. Supp. 613, 631 (E.D. Wisc.), aff'd, 41 F.3d 276 (7^th Cir. 1994); Pagovich v. Moskowitz, 865 F. Supp. 130, 138 (S.D.N.Y. 1994); see Daughtrey v. Honeywell, Inc., 3 F.3d 1488, 1494 (11^th Cir. 1993) (on motion for summary judgment; holding that the undisputed facts of the case required the district court to impose a penalty under section 1132(c) and remanding to the district court "for the determination of an appropriate penalty within the statutory range of up to $100 a day").

Accordingly, the Court reaffirms its Order on summary judgment.

II. ORDER

Based on the foregoing, IT IS ORDERED that plaintiff's motion for reconsideration of its Order on motion for summary judgment (#41) is granted and, upon reconsideration, is reaffirmed.

IT IS SO ORDERED.