United States District Court, D. Connecticut
RULING GRANTING PLAINTIFF'S MOTION FOR
ATTORNEY'S FEES AND COSTS
JEFFREY ALKER MEYER UNITED STATES DISTRICT JUDGE.
Jennifer Dwinnell brought this ERISA action against her
former employer Federal Express Corporation and plan
administrator Aetna Life Insurance Company. Following my
order remanding her claim for reconsideration, she now moves
for an award of attorney's fees and costs. For the
reasons explained below, I will grant plaintiff's motion
and will award of $40, 657.75 in attorney's fees and $400
brought this action under the Employee Retirement Income
Security Act (ERISA), challenging the denial of her claim for
long term disability benefits under the terms of a disability
plan furnished by her former employer Federal Express
Corporation and administered by Aetna Life Insurance Company.
On February 14, 2017, I heard oral argument on the
parties' cross-motions for summary judgment. I concluded
that Aetna acted arbitrarily and capriciously by failing to
conduct a vocational analysis, as clearly required under
controlling Second Circuit precedent. See Demirovic v.
Bldg. Serv. 32 B-J Pension Fund, 467 F.3d 208 (2d Cir.
2006). Accordingly, I granted in part plaintiff's motion
for summary judgment and remanded the matter, instructing
defendants to reconsider plaintiff's claim after
conducting a vocational review in compliance with
Demirovic. Doc. #65 at 39-44. Plaintiff subsequently
filed a motion for attorney's fees and costs. Doc. #64.
ERISA, “the court in its discretion may allow a
reasonable attorney's fee and costs of action to either
party.” 29 U.S.C. § 1132(g)(1). Still, this
discretion is “not unlimited.” Donachie v.
Liberty Life Assur. Co. of Boston, 745 F.3d 41, 46 (2d
Cir. 2014). The Supreme Court has held that an award of
attorney's fees is appropriate only if the party seeking
fees has obtained “some degree of success on the
merits.” Hardt v. Reliance Standard Life Ins.
Co., 560 U.S. 242, 255 (2010). Indeed, “whether a
plaintiff has obtained some degree of success on the merits
is the sole factor that a court must consider in
exercising its discretion.” Donachie, 745 F.3d
at 46. In deciding whether to award fees, courts may also-but
are not required to- consider the five
(1) the degree of opposing parties' culpability or bad
faith; (2) ability of opposing parties to satisfy an award of
attorneys' fees; (3) whether an award of attorneys'
fees against the opposing parties would deter other persons
acting under similar circumstances; (4) whether the parties
requesting attorneys' fees sought to benefit all
participants and beneficiaries of an ERISA plan or to resolve
a significant legal question regarding ERISA itself; and (5)
the relative merits of the parties' positions.
Id. at 46 (quoting Hardt, 560 U.S. at 249
n.1); see also Chambless v. Masters, Mates & Pilots
Pension Plan, 815 F.2d 869, 871 (2d Cir. 1987).
contends that this Court's remand of her claim
constitutes “some degree of success on the
merits.” Defendants argue that in the absence of a
finding that plaintiff is entitled to benefits, a remand does
not constitute the requisite success on the merits. In
Hardt, the Supreme Court deemed a fee award
appropriate where the district court had remanded the
plaintiff's claim to the plan administrator and opined
positively on the merits of her claim, and where the
plaintiff was ultimately awarded benefits. The Hardt
Court explicitly declined to decide “whether a remand
order, without more, constitutes ‘some success on the
merits.'” 560 U.S. at 256. Nor has the Second
Circuit decided this question. Many other courts, however,
have found “remand simpliciter” to constitute
“some success on the merits.” See Valentine
v. Aetna Life Ins. Co., 2016 WL 4544036, at *4 (E.D.N.Y.
2016) (citing cases and concluding that “‘remand
simpliciter' is sufficient to constitute ‘some
success on the merits' under Hardt and that an
endorsement from the Court on the merits of the claim is
unnecessary”); see also Gross v. Sun Life Assurance
Co. of Canada, 763 F.3d 73, 77 (1st Cir. 2014);
McKay v. Reliance Standard Life Ins. Co., 428 F.
App'x 537, 546-47 (6th Cir. 2011).
generally persuaded by the reasoning of the other courts that
have addressed this issue. That is not to say that I cannot
imagine that some kinds of remands might be for highly
technical or clerical reasons, such that the act of remand
might not qualify as “some degree of success on the
merits.” But that is not the nature of the remand here.
The remand here for vocational analysis is essential to a
full and fair consideration of plaintiff's claim. It is
sufficient to constitute “some success on the
merits” for plaintiff.
also considered the five Chambless factors and find
that they weigh in favor of an award of attorney's fees,
despite defendants' arguments to the contrary. With
respect to the first factor, I find that defendants'
position was not taken in good faith, in light of the clear
Second Circuit precedent in Demirovic. Instead of
acknowledging at the outset of plaintiff's filing of this
case that Demirovic required remand for
reconsideration, defendants persisted in fighting
plaintiff's challenge, unnecessarily prolonging these
federal court proceedings. Moreover, at oral argument,
defendants' counsel irresponsibly argued that the Court
should not follow the Second Circuit's ruling in
Demirovic. See Doc. #65 at 27-28. This is
the first time (and I hope the last time) that counsel has
ever argued to me that I should not abide by the law of the
Second Circuit on a question that is governed by federal law.
the second and third Chambless factors, defendants
do not dispute their ability to pay, and requiring them to do
so may encourage them and others to conduct vocational
reviews in the future. As to the fourth factor, it is unclear
whether plaintiff sought to benefit all participants and
beneficiaries of the plan, though the outcome of this case
may benefit future participants to the extent that it
encourages defendants to conduct vocational reviews in other
the relative merits of the parties' positions weigh in
plaintiff's favor; as I have already explained,
Demirovic clearly required a vocational analysis,
and none was conducted in this case. See Valentine,
2016 WL 4544036, at *6 (“[B]y concluding that the
administrator's denial of benefits was arbitrary and
capricious . . . the Court recognized that plaintiff's
position was the meritorious position on the issue of
remand.”). Accordingly, I conclude that an award of
attorney's fees is appropriate not only under
Hardt, but also under the Chambless
concluded that an award is warranted, I must determine
whether the requested fee is reasonable. Defendants object to
plaintiff's request on several grounds. First, defendants
argue that Attorney Ramos's hourly rate of $375 is
unreasonable and should be reduced to $300. I find that
Attorney Ramos's rate is reasonable, in light of his
experience and the representations by Attorney ...