Summary
denying Plaintiff's second request for attorney's fees and costs
Summary of this case from Tholke v. Unisys CorporationOpinion
No. 01 Civ. 5495 (HB).
January 26, 2005
OPINION ORDER
Following this Court's Order granting Defendants' motion for summary judgment, Tholke v. Unisys Corp., No. 01 Civ. 5495, 2004 WL 2339480 (S.D.N.Y. Oct. 18, 2004), Plaintiff Andrea Tholke ("Tholke") moves to collect attorneys' fees, in the amount of $107,156.25 in fees and $282.04 in costs, or $107,438.29, from Defendants. For the reasons set forth below, the motion for attorneys' fees is DENIED.
The court assumes familiarity with the discussion of the background facts as set forth in Tholke v. Unisys Corp, No. 01 Civ. 5495, 2002 WL 575650 (S.D.N.Y. Apr. 16, 2002) ( Unisys I) (remand to Committee for full and fair review); Tholke v. Unisys Corp, No. 01 Civ. 5495, 2003 WL 21203349 (S.D.N.Y. May 21, 2003) ( Unisys II) (granting Defendants' motion for summary judgment); Tholke v. Unisys Corp, No. 01 Civ. 5495, 2003 WL 22077429 (S.D.N.Y. Sept. 5, 2003) ( Unisys III) (denying plaintiff's attorney's fees request); Tholke v. Unisys Corp, No. 01 Civ. 5495, 2004 WL 960029 (2d Cir. May 5, 2004) ( Unisys IV) (reversing district court's granting of Defendants' summary judgment motion for failure to provide plaintiff with adequate notice); Tholke v. Unisys Corp., No. 01 Civ. 5495, 2004 WL 2339480 (S.D.N.Y. Oct. 18, 2004) ( Unisys V) (following remand from the Second Circuit, granting Defendants' motion for summary judgment).
I. BACKGROUND
Pursuant to the Second Circuit's decision in Unisys IV, which held that plaintiff lacked sufficient notice to properly prepare and oppose Defendants' motion for summary judgment, the Court memo endorsed a briefing schedule (Dckt. No. 57) that would ensure sufficient time to file and oppose cross-motions for summary judgment. See Fed.R.Civ.P. 56; see also First Financial Ins. Co. v. Allstate Interior Demolition Corp., 193 F.3d 109, 119 (2d Cir. 1999). The motions for summary judgment were filed in accordance with that memo endorsement. Unisys IV, No. 01 Civ. 5495, 2004 WL 960029, at *4.
On October 18, 2004, this Court found that "Tholke's disagreement with the Committee's conclusions were unfounded, the Committee's determination was adequately supported by substantial evidence" and, once again, granted Defendants motion for summary judgment. Unisys V, No. 01 Civ. 5495, 2004 WL 2339480, at *9.
Subsequently, on November 8, 2004, the unsuccessful Plaintiff filed a motion seeking attorneys' fees from the prevailing Defendant. On November 29, 2004 (Dckt. No. 80) and, again, on December 23, 2004 (Dkt. No. 85), the Court granted Defendants' request for an extension to file an opposition to Plaintiff's motion.
On January 11, 2005, attorney for Plaintiff, Robert Bach, sent a letter to Chambers which stated in pertinent part that "[a]fter having reviewed Defendants' papers, Plaintiff has elected not to submit a Reply."
II. APPLICABLE STANDARD
The relevant ERISA section regarding attorney fee awards, 29 U.S.C. § 1132(g)(1), provides a district court discretion to award "reasonable" attorneys' fees "in any action . . . by a participant, beneficiary, or fiduciary." The Second Circuit articulated a five-factor test for evaluating an attorneys' fee application:
(1) [T]he degree of culpability or bad faith; (2) the ability of the offending party to satisfy an award of attorney's fees; (3) whether a fee award would deter similar behavior; (4) the relative merits of the parties' positions; and (5) whether the action conferred a common benefit on a group of pension plan participants.Chambless v. Masters, Mates Pilots Pension Plan, 815 F.2d 869, 871 (2d Cir. 1987); see also Seitzman v. Sun Life Assurance Co. of Can., Inc., 311 F.3d 477, 482 (2d Cir. 2002). While, in theory, success on the merits is not required, the Second Circuit "has generally limited awards to a prevailing party, even though the statute does not so provide." T M Meat Fair, Inc. v. United Food and Comm'l Workers, Local 174, No. 00 Civ. 7968, 2002 WL 31202711, at *1 (S.D.N.Y. Oct. 02, 2002).
See e.g. Weil v. Ret. Plan Admin. Comm. of Terson Co., 913 F.2d 1045, 1052 (2d Cir. 1990) (noting that three of five Chambless factors are affected by success on the merits); Miles v. N.Y.S. Teamsters Confer. Pension Ret. Fund Employee Pension Ben. Plan, 698 F.2d 593, 602 (2d Cir. 1983) ("Although success on the merits is not, in theory, indispensable to an award of attorneys' fees under 29 U.S.C. § 1132(g)(1), rarely will a losing party in an action such as this be entitled to fees."); Fase v. Seafarers Welfare Pension Plan, 589 F.2d 112, 116 (2d Cir. 1978) ("In any action under [ 29 U.S.C. § 1132(g)(1)] by a participant, beneficiary, or fiduciary . . . [a]n altogether sufficient support for the court's decision not to award attorney's fees under ERISA is that the attorney obtained no relief under that statute").
III. DISCUSSION
Plaintiff unsuccessfully sought to set aside the determination of the Committee and obtain Long Term Disability Benefits. The Court has already returned the matter for further review ( Unisys I) and twice granted Defendants' motion for summary judgment ( Unisys II and V). As this Court stated in Plaintiff's first motion for attorneys' fees, "Tholke fails to adduce persuasive reasons why her circumstances constitute the rare case that the prevailing party should pay for the losing party's attorneys fees and I could, on this ground alone, refuse to exercise my discretion to grant attorney's fees." Unisys III, No. 01 Civ. 5495, 2003 WL 22077429, at *2.Even though Plaintiff never requested and, in fact, opposed the return for further review, assuming arguendo that the return of Plaintiff's case for review was a partial success, Plaintiff has failed to satisfy a single factor of the Chambless test.
First, while Defendants acknowledge their financial ability to satisfy an award of attorneys' fees to Plaintiff in this case, a fact which is not dispositive, Veltri v. Bldg. Serv. 32B-J Pension Fund, No. 02 Civ. 4200, 2004 WL 856329, at *2 (S.D.N.Y. Apr. 20, 2004) (Baer, J.), Tholke failed to present any evidence which indicated that Defendants acted in bad faith:
Tholke adduces no evidence in her motion, other than this Court's finding that the Committee improvidently denied Tholke's application for long term benefits, that shows defendants acted in bad faith. Indeed, after a more thorough review by the Committee, it concurred with the ultimate conclusion arrived at by Mary Massman, a non-voting member and Secretary of the Committee who had prepared the report that the Committee initially relied on to reject Tholke's application for LTD benefits.Unisys III, No. 01 Civ. 5495, 2003 WL 22077429, at *2.
Third, Plaintiff fails to articulate how an award of attorneys' fees in this case would deter other ERISA fiduciaries and administrators from eschewing pension beneficiary requests. See Seitzman, 311 F.3d at 482. Indeed, as I recognized the first time I denied attorneys' fees and, again now, "the Committee ceased conducting final LTD claim reviews years before Tholke brought her lawsuit . . . Tholke's action cannot be said to have conferred any common benefit on other plan participants in regard to the procedure now followed by the Committee." Unisys III, No. 01 Civ. 5495, 2003 WL 22077429, at *2 (Baer, J.).
The fourth Chambless factor, "the relative merits of the parties' positions," favors the defendant's position provided their position is not "frivolous or improper or anything of that sort." Lauder v. First UNUM Life Ins. Co., 284 F.3d 375, 383 (2d Cir. 2002) ("Most courts . . . will only find this factor in plaintiff's favor in extreme situations"); Schachner v. Conn. Gen. Life Ins. Co., No. 89 Civ. 6403, 1994 WL 132143, at *1 (S.D.N.Y. 1994) ("in very close cases, courts have found that this factor should favor defendants"). Here, Defendants' position was neither frivolous or improper but, rather, it prevailed and, as such, the fourth Chambless factor tips decidedly in Defendants' favor.
Finally, as already stated, because the Committee no longer conducts final LTD claim reviews in the fashion challenged by plaintiff in the underlying suit, the success or failure of Plaintiff's case was not likely to benefit the other members of the plan.
Accordingly, as the balance of the Chambless factors tilts sharply against an award of attorney's fees, plaintiff's application is denied.
III. CONCLUSION
For all of the foregoing reasons, Tholke's motion for attorneys' fees is denied
The Clerk is instructed to close this motion and all other open motions and remove this case from my docket.
IT IS SO ORDERED.