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Kaiser v. United of Omaha Life Insurance Co.

United States District Court, W.D. Wisconsin

November 4, 2016

ROBERT KAISER, Plaintiff,
v.
UNITED OF OMAHA LIFE INSURANCE COMPANY, d/b/a MUTUAL OF OMAHA and GROUP LONG-TERM DISABILITY POLICY GLTD-AMMA, Defendants.

          OPINION AND ORDER

          WILLIAM M. CONLEY District Judge

         In this action arising under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132(a), plaintiff Robert Kaiser sought long-term benefits for his deceased wife Dee Kaiser's disability due to Stage IV lung cancer. The court previously granted plaintiff's motion for summary judgment, remanding this case for further administrative proceedings to consider his claim. (Dkt. #63.) In that same opinion, the court found that plaintiff was entitled to an award of attorney's fees and costs under 29 U.S.C. § 1132(g)(1), and invited briefing on the appropriate amount of that award. (Id. at 18-21.) Having reviewed the parties' submissions, the court will award plaintiff the full amount of the requested attorneys' fees and costs, totaling $82, 140.84.[1]

         BACKGROUND

         In a brief in support of an award of attorneys' fees and costs, as well as in supplemental, supporting materials, plaintiff's counsel details the hours worked on this case and the hourly rates. In addition to filing the complaint, counsel also opposed defendants' motion to dismiss, filed a motion for summary judgment and opposed defendants' motion for summary judgment. In total, Senior Attorney Alan C. Olson spent 55.7 hours on this case, while Attorney Elizabeth A. Schmidt spent 200.5 hours.[2] (See Olson Aff. (dkt. #66) ¶ 10; Schmidt Aff. (dkt. #67) ¶ 7.) Plaintiff seeks an award of fees based on their actual billing hourly rates of $450 and $280, respectively.[3] In addition to the fee request, plaintiff seeks reimbursement of costs in the total amount of $935.84, which represents $485.06 in out-of-pocket litigation expenses (e.g., filing fees, service of process, photocopying, postage and copies) and $450.78 in on-line computer research charges. (Olson Aff., Exs. 1, 2 (dkt. ##66-1, 66-2); Bill of Costs (dkt. #70).)

         OPINION

         Plaintiff seeks attorney's fees under the lodestar approach, which involves multiplying the “number of hours reasonably expended on the litigation” by “a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). In its opposition, defendants do not challenge the reasonableness of the requested hourly rates, but rather the amount of time counsel reported spending on certain activities. Most of the challenges are sufficiently silly that no discussion from the court is warranted, including (by way of example) a challenge to 0.5 hour Attorney Schmidt reported spending to respond to defendants' motion to strike portions of plaintiff's reply brief.

         More substantive are defendants' challenges to the amount of time plaintiff's counsel spent drafting the complaint (19 hours) and the amount of time plaintiff's counsel spent drafting and responding to summary judgment (92 hours), although as plaintiff's counsel explains in the reply brief, the latter hours reflect other tasks beyond summary judgment. Even if these challenges had merit, however, defendants waived them by failing to comply with a straightforward direction from this court:

If defendant challenges the reasonableness of plaintiff's fee request in that opposition, its counsel shall also contemporaneously submit its itemized time records, invoices and proof of payment of such invoices.

(1/29/16 Op. & Order (dkt. #22) p.22.) Despite this clear direction, defendants provide no insight into the amount of time defendants' counsel actually spent on this case, including in particular the time spent (1) in investigating and drafting an answer to the complaint and (2) responding to summary judgment. Without this, the court has no basis to reduce the hours attributed to either category of time as reported by plaintiff's counsel, which were well-documented and within a range of reasonableness.

         Accordingly, the court will grant plaintiff the full amount of fees requested of $81, 205.00. In the absence of any challenge by defendants, the court will also award plaintiff costs in the amount of $935.84, finding such costs reasonably incurred in litigating this matter.

         ORDER

         IT IS ORDERED that:

         1) Plaintiff Robert Kaiser's motion for attorney fees and ...


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