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Myers v. Mutual of Omaha Life Insurance Co.

United States District Court, N.D. Ohio, Eastern Division

August 23, 2017

TINA MYERS, Plaintiff,



         Pending before the Court is Plaintiff's request for attorney's fees. As the prevailing party under 29 U.S.C. § 1132(g)(1), Plaintiff seeks $26, 623 in attorney's fees. The Court granted Plaintiff's Motion for fees (ECF No. 43), but was unable to calculate the lodestar because Plaintiff had not provided sufficient information to demonstrate that counsel's fees were reasonable. The Court instructed Plaintiff's counsel to file supplemental material. Counsel complied. ECF No. 44. Defendant objects to several aspects of Plaintiff's requested fee award. ECF Nos. 42, 45. For the following reasons, the Court grants the fee award, in part.

         I. Background

         Plaintiff Tina Myers commenced this action under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq., against Defendant United of Omaha Life Insurance Company. Plaintiff challenged the Plan Administrator's decision denying her long-term disability benefits. ECF No. 1. The Court denied Defendant's Motion for Judgment on the Merits and remanded the matter to the Plan Administrator for a full and fair review. ECF No. 32.

         II. Standard of Review

         The Supreme Court has indicated that courts are to calculate attorney fees using the “lodestar” method. Blanchard v. Bergeron, 489 U.S. 87, 94 (1989); Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986) (“Delaware Valley I”). Under this methodology, the number of hours reasonably expended by the attorney are multiplied by the attorney's reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Lavin v. Husted, 764 F.3d 646, 649 (6th Cir. 2014). There is a “strong presumption” that the figure so calculated represents a reasonable fee. Delaware Valley I, 478 U.S. at 565. The lodestar, however, must be based on the “prevailing market rates in the relevant community.” Blum v. Stenson, 465 U.S. 886, 895 (1984).

         Although the burden of persuasion is on the fee applicant to document the hours and rates in the lodestar amount, Hensley, 461 U.S. at 437, the burden of production to challenge the reasonableness of the requested fee is on a party seeking an adjustment of that amount-Defendant in the case at bar, Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3rd Cir. 1990).

         III. Discussion

         Defendant does not object to Plaintiff's requested hourly rate, but objects to the reasonableness of the hours expended. In particular, Defendant argues that Plaintiff cannot receive fees for pre-litigation expenses or time related to the fee request, and that any fee award should be proportionate to Plaintiff's success.

         A. Hourly Rate

         Attorney fees are generally “calculated according to the prevailing market rates in the relevant community.” Binta B. ex rel. S.A. v. Gordon, 710 F.3d 609, 627 (6th Cir. 2013). The “prevailing market” is the “venue of the court of record”-in this instance, Northeast Ohio. Gonter v. Hunt Valve Co., Inc., 510 F.3d 610, 618 (6th Cir. 2007); see also Adcock-Ladd v. Sec'y of Treasury, 227 F.3d 343, 350 (6th Cir. 2000) (relevant community is the legal community within the court's territorial jurisdiction).

         Attorney Andrew L. Margolius claims a $400 hourly rate. Attorney Emily E. Gilbert claims a $300 hourly rate. In support of their request, Plaintiff's counsel submits their own declarations and resumes. ECF No. 41-2 at PageID #: 1275-77 (Declaration and Resume of Attorney Margolius) and id. at PageID #: 1278-80 (Declaration of Attorney Gilbert). Plaintiff's counsel also submits examples of other cases in which similar fees have been approved. ECF No. 44 at PageID #: 1297-1300 (citing Rui He v. Rom, No. 1:15-CV-1869, 2017 WL 1054814 (N.D. Ohio Mar. 21, 2017) (approving counsels' $395 and $350 hourly rates requested for work performed in a case concerning violations of the Ohio Deceptive Trade Practices Act) and Mosely v. City of Wickliffe, No. 1:14-cv-934 (N.D. Ohio Feb. 7, 2017) (approving a $300 hourly rate for work completed in a Section 1983 suit). Additionally, Plaintiff's counsel has provided affidavits from attorneys in the Cleveland area opining that Plaintiff's rates are reasonable. ECF No. 44-3 (Declaration of Attorney Subodh Chandra); ECF No. 44-4 (Declaration of Attorney Robert Armand Perez, Sr.). As evidence of the fees' reasonableness, Attorney Perez cited an ERISA case in which his own $400 hourly fee was approved. ECF No. 44-4 at PageID #: 1327 (citing Zuke v. Am. Airlines, Inc. Long Term Disability Plan, No. 1:13-cv-403 (S.D. Ohio Mar. 31, 2017)). Attorney Subodh Chandra compared Plaintiff's counsels fees to other “fee-shifting, civil-rights practitioners” within the region, noting that Plaintiff's counsel's fees are often lower than other attorneys' fees. ECF No. 44-3 at PageID #: 1315-16. Furthermore, Defendant does not dispute the requested rates. ECF No. 42 at PageID #: 1281.

         Because Plaintiff's counsel has demonstrated that the requested rates are fair, and typical of those in the area, the Court finds that the requested hourly rates are also reasonable.

         B. Reasonableness of ...

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