Opinion
Civil Action No. 03-1830, Section "K" (3).
April 28, 2005
Before the Court is Plaintiff's Motion To Set Attorney Fees and Costs (Rec. Doc.26). The Court considered the memoranda and relevant law and finds as follows.
BACKGROUND
Plaintiff filed suit against Entergy Corporation Companies' Benefits Plus Long Term Disability Plan ("The Plan") for termination of disability payments. See Complaint. Plaintiff also sought claims against Entergy Corporation for damages related to a loss of accrued years of service to Entergy. Id. at ¶ 20. The Court awarded Plaintiff LTD disability benefits and attorney's fees (Rec. Doc.25) and severed and stayed claims regarding the claims against Entergy Corporation. (Rec. Doc. 24). The Court must now determine the appropriate amount of attorney's fees in the matter regarding the determination of LTD benefits. ANALYSIS
The determination of a reasonable attorney's fee award involves a two-step process. See Rutherford v. Harris County, 197 F.3d 173, 192 (5th Cir. 1999). The Court must first determine the "lodestar" by multiplying the reasonable number of hours expended and the reasonable hourly rate for each participating attorney. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). This "lodestar" method serves as the initial estimate of a reasonable attorney's fee. Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 79 L.Ed.2d 891.
The second step involves the application of twelve factors the Fifth Circuit applies in determining what amount is warranted. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir. 1974). These factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions presented; (3) the skill required to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount of money involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Once the lodestar is computed by multiplying the reasonable number of hours by a reasonable hourly rate, the court may adjust the lodestar upward or downward depending on its analysis of the twelve factors espoused in Johnson. Dodge v. Hunt Petroleum Corp., 174 F.Supp.2d 505, 508 (N.D.Tex. 2001). The Fifth Circuit has approved the use of the lodestar calculation in ERISA cases, even if it has not been explicitly required. See Salley v. E.I. DuPont de Nemours Co., 966 F.2d 1011, 1016 (5th Cir. 1992). Calculation of the Lodestar
A. Hourly Rate
The Court will begin its calculation of the lodestar by determining the reasonable hourly rate submitted by the Plaintiff. The rate is determined by looking to "the prevailing market rates in the relevant legal community." Green v. Administrators of the Tulane Educational Fund, 284 F.3d 642, 662 (5th Cir. 2002). Plaintiff contends that a reasonably hourly rate for John Edwards is $275. Plaintiff argues that this litigation is difficult, complex and time consuming and based upon consultations with several New Orleans based attorneys experienced in ERISA Long Term Disability litigation, $275 is the reasonable and customary rate. Based on the Court's knowledge of the relevant legal community and a review of the reasonably hourly rates awarded in similar cases, the Court finds that the hourly rates asserted by Plaintiff are not reasonable. The Court in Roig v. The Limited Long Term Disability Program, 2000 WL 1473601 (E.D.La.) found that plaintiff's hourly rate of $225 was reasonable to the prevailing plaintiff in an ERISA LTD case. See also, Acosta v. Bank of Louisiana, 2003 WL 21406182 (E.D.La.) (finding hourly rate of $160 for in ERISA case was reasonable); Musmeci v. Schwegmann Giant Super Markets, 2002 WL 535462 (E.D.La.) (finding hourly rates of $160 and $200 reasonable). The Fifth Circuit affirmed a district court award of hourly rates in an ERISA LTD case for the followings amounts: for one attorney $250; for other attorneys $150. Wegner v. Standard Ins. Co., 129 F.3d 814, 823 (5th Cir. 1997). Although Plaintiff's attorney has five years experience of practicing law in Amite, Tangipahoa Parish, Louisiana, Plaintiff states, "[b]ased on consultations with several New Orleans based attorneys experienced in ERISA Long Term Disability litigation, the reasonable customary hourly rate . . . is $275." However, Plaintiff has failed to attach any affidavits or names supporting this statement. Furthermore, Plaintiff only cites to the above mentioned case, Roig. After considering Plaintiff's request and based upon the legal community in the New Orleans area, the Court concludes that a reasonably hourly rate fee for John Edwards is $225. In order to calculate the lodestar, the Court must now make a determination of the number of hours reasonably expended.
B. Hours Expended
Plaintiff states 150.5 hours were expended on this case. Exhibit 2, Plaintiff's Motion To Set Attorney Fees and Costs. Plaintiff's attorney began calculating his hours from July 11, 2001 (the date of employment) through December 6, 2004 (the preparation of attorney fees costs). It is the fee applicant's burden to submit adequate documentation of hours expended. Louisiana Power Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995) and to establish the reasonableness of the number of hours expended in the lawsuit. Leroy v. City of Houston, 831 F.2d 576, 585 (5th Cir. 1987). Attorneys seeking fees should "make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission." Hensley, 461 U.S. at 434, 103 S.Ct. at 1939-40. If an attorney fails to exercise this "billing judgment," then a court may reduce the number of hours awarded, either by percentage or on a line-by-line basis. Green, 284 F.3d at 662. One of the factors courts consider in determining a reasonably number of hours is the results obtained. Heidtman v. County of El Paso, 171 F.3d 1038, 1043 (5th Cir. 1999). Yet, attorneys' fees need not "be commensurate with the actual amount of dollars awarded to plaintiff." Green, 284 F.3d at 663. Instead, the attorney for the prevailing party should be awarded fees for all time reasonably expended on a matter. Id. 1. Fees Incurred During the Claims Process
Defendant argues Plaintiff is not entitled to fees incurred during the claims process, prior to filing suit; therefore, entries from July 11, 2001 through and including May 5, 2003 should be excluded as they reflect services rendered prior to the commencement of the "action." Thus, the Court must decide whether Plaintiff's attorney is entitled to fees incurred prior to the filing of suit in federal court during the claims process in ERISA cases.
Courts are given discretionary authority to award attorney's fees in ERISA cases pursuant to 29 U.S.C. § 1132(g)(1) which states:
Attorney's fees and costs; awards in actions involving delinquent contributions (1) in any action under this subchapter (other than an action described in paragraph (2)) by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonably attorney's fee and costs of action to either party."
The Fifth Circuit has not determined whether an attorney is entitled to fees incurred during the claims process for ERISA claims; however, it has made this determination in other contexts. Brown v. Sullivan, 917 F.2d 189 (5th Cir. 1990) (abrogated by Gisbrecht v. Barnhart, 535 U.S. 789, 789 (2002) upon other grounds) (affirming district court's decision not to award attorney's fees for representation during the administrative phase of a social security benefits claim). See also, Knight v. Barnhart, 2003 WL 21467533 (E.D.La) (hours expended on administrative proceedings in a social security case are not compensable); Brannen v. Barnhart, 2004 WL 1737443 (E.D.Tex) (holding same); O'Neal v. Shalala, 1995 WL 317311 (E.D.La). "It is well established that fees may not be recovered for time spent on the administrative level prior to filing of the civil action in a district court. . . . However, it is clearly within the Court's discretion to allow reasonable fees for preparation of the complaint and steps taken initiating the appeal." Gardner v. Social Security Administration, 2001 WL 1537722 at *4(E.D.La.).
Defendant cites the following ERISA cases standing for its proposition. Cann v. Carpenters' Pension Trust Fund For Northern California, 989 F.2d 313 (9th Cir. 1993) (ERISA's attorney's fees provision limits award to fees incurred in litigation in court); Anderson v. Proctor Gamble Co., 220 F.3d 449(6th Cir. 2000) (ERISA does not permit parties to recover attorney's fees for legal work performed during administrative phase of benefits proceeding); Peterson v. Continental Casualty Co., 282 F.3d 112 (2nd Cir. 2002) (holding that pursuant to § 1132(g)(1) fees incurred in administrative proceedings prior to filing suit in the district court are unavailable). Based on the law provided, the Court finds that Plaintiff is not entitled to attorney's fees during the administrative proceedings. Thus, the Court will calculate Plaintiff's hours from June 24, 2003 through December 6, 2004.
Two Supreme Court cases Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 106 S.Ct. 3088, L.Ed.2d 439 (1986) and Sullivan v. Hudson, 490 U.S. 877, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989) granted attorneys' fees during administrative proceedings under the Clean Air Act and application for Supplemental Security Income Benefits. However, this Court agrees with the extensive analysis provided in the Peterson case which stated the following: "it is important to note in both Delaware Valley and Hudson, the Court authorized only the award of fees incurred during an administrative proceeding that occurred after a court of law assumed jurisdiction over the case . . . [t]hus, neither case supports the proposition that ERISA should be interpreted as providing for pre-litigation fees and costs." Peterson, 282 F.3d 112, 122 (2nd Cir. 2002). Similarly, this Court had no jurisdiction of this case until it was filed in federal court.
2. Billing Increments
Defendant argues the billing increments of a quarter hour (.25) are not reasonable and objects to a number of entries where Plaintiff's attorney submitted .25 and .50 as the time expended on specific tasks. The Local Rules on attorney's fees awards, LR 54.2, does not require certain billing increments. See also, Causeway Medical Suite v. Foster, 2000 WL 533515 (E.D.La.)) (refusing to reduce the standard billing increments); Harper v. Apfel, 2001 WL 125347 (E.D.La.)) (refusing to reduce the quarter hour billing increments because the fees requested are reasonable). The Court reviewed the entries objected to by the Defendant and find that in balance, the fees requested are reasonable. Although it may have taken less time for one task or perhaps even more time on another, the Court finds on the whole the entries objected to on pages 7-11 are acceptable. See Defendant's Opp. Defendant also objects to other entries arguing that time spent was excessive or unreasonable. The Court reviewed each entry and finds the time spent on these entries are also reasonable.
3. Claims against Entergy
The defendant argues that fees expended dealing with Entergy Corporation should be excluded from the court's calculation, as they do not pertain to Plaintiff's claim against the Plan for long term disability benefits. It is true that time spent on one claim that is separate and distinct should be excluded from the calculation. "When a plaintiff fails to prevail on a claim that is separate and distinct from his successful claims, the hours expended on the unsuccessful claim should be excluded from calculation of a reasonable fee." Clark v. Butler, 916 F.2d 255, 258 (5th Cir. 1990) ( citing Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1938, 76 L.Ed.2d 40 (1983). However, the entries Defendant seeks to exclude involve the Motion To Stay and Sever Claims against Entergy. These are closely related to the claims against the Plan for LTD benefits, and, thus, should not be excluded from the calculation. However, if the Plaintiff had submitted any entries after the Court determined to stay and sever the claims against Entergy, the Court would most likely reach a different result.
Accordingly, the Court finds the hours reasonably expended is 100.25 hours, that is 150.5 hours less 50.25 hours between July 11, 2001 through May 5, 2003.
The Johnson Factors
The lodestar is presumed to be a reasonable fee, unless special circumstances warrant an upward or downward adjustment of the lodestar. Delaware Valley I, 478 U.S. at 565. The United States Supreme Court has noted that some of the Johnson factors are subsumed into computation of the lodestar. Id. The Court further noted that upward departures are rare. Id. This Court considered many of the factors in computing the lodestar based upon Defendant's Opposition and finds that neither an upward or downward departure from the lodestar is necessary. Neither parties urge any of the Johnson factors and the Court finds it unnecessary to apply them to the lodestar.
Accordingly,
IT IS ORDERED that Plaintiff's Motion To Set Attorney Fees and Costs (Rec. Doc. 26) in the amount of $41,387.50 is DENIED. IT IS FURTHER ORDERED that plaintiff is entitled to Attorney's Fees in the amount of $22,556.25 and court costs in the amount of $150.00.