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Mendez v. FedEx Express

United States District Court, E.D. Michigan, Southern Division

January 17, 2017

Miguel Mendez, Plaintiff,
v.
FedEx Express and AETNA, Defendants.

          Mag. Judge, Anthony P. Patti

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR BACK BENEFITS, INTEREST, COSTS, AND ATTORNEY FEES [29]

          JUDITH E. LEVY, UNITED STATES DISTRICT JUDGE

         The Court previously granted plaintiff's motion for summary judgment, finding that defendants Federal Express Corporation and Aetna Life Insurance Company denied his claim for long-term disability benefits in violation of The Employee Retirement Income Security Act of 1974. (Dkt. 28.) At issue here is plaintiff's motion for back benefits, interest, costs, and attorney fees, pursuant to the Court's order. (Dkt. 29.) For the reasons set forth below, plaintiff's motion is granted in part and denied in part.

         Defendants do not oppose plaintiff's request for back benefits in the amount of $12, 479.38, nor do they oppose his request for reinstatement of his long-term disability benefits. (Dkt. 29 at 4.) Thus, the Court awards plaintiff $12, 479.38 in back benefits and orders defendants to reinstate plaintiff's long-term disability benefits.

         Defendants also do not oppose plaintiff's request for pre-judgment interest in the amount of $40.35, as calculated by plaintiff based on the 52-week Treasury 1 year constant maturity yield rate for each month, compounded annually. (See Dkt. 29 at 4-5; Dkt. 29-3.) Thus, the Court awards plaintiff pre-judgment interest in the amount of $40.35.

         Plaintiff also requests $699.60 in total costs (Dkt. 29 at 2; Dkt. 29-4), but defendants argue that plaintiff is entitled to taxable costs of only $400 for his e-filing fee, and not $114 for West Law research, $171.70 in copying costs, and $13.90 in postage. (Dkt. 33 at 2-3.) According to defendants, “routine copy expenses; those made for service; filing or for the convenience of counsel are not taxable within the discretion of the taxation clerk, ” and “computerized legal research charges and postage fees are not taxable.” (Id.)

         The Court has broad discretion to award costs to prevailing parties in ERISA actions. See 29 U.S.C. § 1132(g)(1) (providing that the Court “in its discretion may allow a reasonable attorney's fee and costs of action to either party”). And even nontaxable costs may be considered part of an attorney fee award under the statute, “as long as those costs are reasonable . . . [and] normally charged to a fee-paying client in the course of providing legal services.” See Potter v. Blue Cross Blue Shield of Mich., 10 F.Supp.3d 737, 771 (E.D. Mich. 2014) (collecting cases).

         Costs for legal research have been permitted as part of a reasonable attorney fee award. Id. (citing Gratz v. Bollinger, 353 F.Supp.2d 929, 945 (E.D. Mich. 2005) (awarding but reducing total research cost as “exorbitant”); Ousley v. GM Ret. Program, 496 F.Supp.2d 845, 852 (S.D. Ohio 2006) (awarding legal research costs)). So too have copying and postage costs. Id. (collecting cases). Here, plaintiff seeks modest nontaxable costs of only $114 for research, $171.70 for copying, and $13.90 for postage. And those are the costs that are regularly charged to fee-paying clients in the normal course. See Id. Thus, the Court awards plaintiff the total request of $699.60 in costs, $400 of which are taxable and $299.60 of which are part of the attorney fee award.

         Finally, plaintiff seeks $58, 185 in attorney fees, for 129.3 hours of work at a rate of $450 per hour. (See Dkt. 29-5 at 7.) Defendants do not dispute that plaintiff's counsel is entitled to an award. Rather, defendants argue that the requested amount is excessive for a number of reasons. According to defendants, the $450-per-hour rate is excessively high (they argue that plaintiff's rate should only be $250 per hour); a number of plaintiff's billing entries are excessive, unsupported, or vague; and there should otherwise be an across-the-board reduction of 25% because of voluminous block billing with vague descriptions. (Dkt. 33 at 3-9.)

         “The primary concern in an attorney fee case is that the fee awarded be reasonable, that is, one that is adequately compensatory to attract competent counsel yet which avoids producing a windfall for lawyers.” Geier v. Sundquist, 372 F.3d 784, 791 (6th Cir. 2004) (quoting Reed v. Rhodes, 179 F.3d 453, 471 (6th Cir. 1999)). The “lodestar” method-multiplying a reasonable hourly rate by the proven number of hours reasonably expended on the case by counsel-is the “proper method for determining the amount of reasonable attorney's fees.” Bldg. Serv. Local 47 Cleaning Contractors Pension Plan v. Grandview Raceway, 46 F.3d 1392, 1401 (6th Cir. 1995) (citing Pa. v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 563 (1986)). First, the lodestar must be calculated for each attorney involved. See Del. Valley Citizens' Council for Clean Air, 478 U.S. at 563. Second, the Court may, “within limits, adjust the ‘lodestar' to reflect relevant considerations peculiar to the subject litigation.” See Adcock-Ladd v. Sec'y of Treasury, 227 F.3d 343, 349 (6th Cir. 2000) (citing Reed, 179 F.3d at 471-72).

         A reasonable hourly rate is generally calculated according to the “prevailing market rates in the relevant community.” See Blum v. Stenson, 465 U.S. 886, 895 (1984). The “relevant community” here is the Eastern District of Michigan. See Adcock-Ladd, 227 F.3d at 350 (relevant community is the legal community within the court's territorial jurisdiction). And the “‘prevailing market rate' is that rate which lawyers of comparable skill and experience can expect to command” in the relevant community. See Id. “The appropriate rate . . . is not necessarily the exact value sought by a particular firm, but is rather the market rate in the venue sufficient to encourage competent representation.” Gonter v. Hunt Valve Co., 510 F.3d 610, 618 (6th Cir. 2007).

         Plaintiff argues that Craig Nemier and Michelle Mathieu, plaintiff's counsel, are entitled to $450-per-hour because they are “AV rat[ed]” attorneys with 40 and 34 years' experience, respectively, and should be awarded rates in the 95th percentile of attorneys with more than 35 years' experience, with an office location in south Oakland County, and with a practice of civil litigation. (See Dkt. 29 at 11-12.)

         According to the most recent survey from the State Bar of Michigan, attorneys with over 35 years' experience charged rates of $350 at the 75th percentile and $525 at the 95th. See State Bar of Michigan, Economics of Law Practice 6 (2014), http://www.michbar.org/ file/pmrc/articles/0000151.pdf. Attorneys who practice in Oakland County south of M-59 charged hourly rates of $325 at the 75th percentile and $495 at the 95th. See Id. at 7. Attorneys in a firm the size of 7 to 10 attorneys, the approximate size of plaintiff's counsels' firm, charged hourly rates of $325 at the 75th percentile and $455 at the 95th. See Id. And attorneys who practice plaintiffs'-side employment law charged hourly rates of $330 at the 75th percentile and $450 at the 95th.

         Mr. Nemier and Ms. Mathieu are experienced and well-qualified attorneys. The most relevant rate here is that of attorneys in the 75th percentile of the categories set forth above, because plaintiff's counsel bill for legal work that could not likely command the requested $450-per-hour from fee-paying clients. For example, plaintiff's counsel bill for work such as “prepare proposed [stipulated] order, ” “legal research case citations of [summary judgment] brief, ” and “legal research re recoverable atty fees in ERISA” (see Dkt. 29-5), which is often the type of work that is assigned to associates or legal assistants and charged at much lower rates. The Court will thus award a rate of $375-per-hour for the work performed by both counsel. ...


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