United States District Court, D. Colorado
MICHAEL J. PAQUIN, an individual, Plaintiff,
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey for-profit corporation, Defendant.
ORDER ON ATTORNEY'S FEES AND COSTS
Brooke Jackson, United States District Judge
order issued on July 26, 2018 this Court reversed
defendant's termination of Long Term Disability
(“LTD”) benefits; ordered that the Michael J.
Paquin is entitled to past LTD benefits from the date of
termination (January 8, 2015) through the date of judgment,
with interest; ordered that Mr. Paquin's LTD benefits
would be reinstated as of the date of judgment and going
forward; and permitted Mr. Paquin to file a motion for
attorney's fees and costs pursuant to 29 U.S.C. §
1132(g). ECF No. 57 at 13. Final Judgment was entered
accordingly on July 26, 2018. ECF No. 58.
Paquin filed a motion asking for an award of attorney's
fees, costs and interest in the amount of $59, 980; costs in
the amount of $17, 845; and prejudgment interest in the
amount of $33, 364.75. ECF No. 61. Before the defendant
responded the parties notified the Court that they had
resolved the amount of LTD benefits, interest, attorney's
fees and costs and would file their stipulation of dismissal
upon reaching agreement on the terms of a settlement
agreement. ECF No. 64. However, the settlement fell through,
and plaintiff filed a second motion for attorney's fees,
costs and interest. ECF No. 69. The second motion, as
supplemented, requests an award of attorney's fees in the
amount of $66, 920; costs in the amount of $17, 845; and
pre-judgment interest in the amount of $33, 364.75. ECF No.
70 at 2.
response defendant informed the Court that it does not
challenge the reasonableness of the time expended by
plaintiff's counsel through judgment or counsel's
hourly rate. ECF No 72 at 1. However, defendant did challenge
three components of the total award sought by plaintiff: (1)
fees paid to doctors to render opinions during the
administrative phase of plaintiff's claim; (2) expert
witness fees paid to an attorney who evaluated the
reasonableness of plaintiff's attorney's fees; and
(3) the fees charged by plaintiff's counsel for time
spent on post-judgment settlement efforts. Id. at
1-2. Plaintiff has filed a reply. ECF No. 73. The Court held
oral argument on the motion on May 28, 2019 and took the
matter under advisement.
Amounts Paid to Doctors During Administrative
any action under [ERISA] . . . by a participant, beneficiary,
or fiduciary, 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). The key is that
fees and costs of the “action” are authorized.
The “action” is this lawsuit. Defendant states,
and plaintiff has not disputed, that every circuit court that
has considered the issue “has agreed that fees and
costs incurred during the administrative phase are not
compensable under § 1132(g)(1).” ECF No. 72 at 3-4
(citing cases from the Second, Third, Fourth, Sixth, Ninth
and Eleventh Circuits). A magistrate judge in this district
reached the same conclusion. See Cross v. Qwest
Disability Plan, No. 08-cv-00516-PAB-KMT, 2010 WL
5476790, at *6 (D. Colo. Dec. 30, 2010) (“Congress, in
enacting ERISA, clearly did not intend to provide for the
recovery of attorney's fees for work performed in
connection with the administrative review undertaken by a
the “American Rule, ” a prevailing party
generally cannot recover his attorney's fees absent a
statute or enforceable contract. Schnell v. OXY USA
Inc., 814 F.3d 1107, 1124 (10thCir. 2016).
Here, the statute authorizes an award of attorney's fees
and costs incurred in the “action, ” not in the
administrative phase that preceded the action. That is not to
say that the fees incurred on independent doctors during the
administrative phase were not well spent. However, the Court
is not authorized to award them. Accordingly, I deny
plaintiff's request for an award of $10, 575 for amounts
paid to doctors during the administrative phase.
Expert Witness Costs Incurred for an Attorney's Fee
authorizes an award of costs incurred in this action but does
not specify what costs may be awarded. Plaintiff incurred $6,
750 for the cost of an attorney's fees expert. However,
“absent explicit statutory or contractual authorization
for the taxation of the expenses of a litigant's witness
as costs, federal courts are bound by the limitations set out
in 28 U.S.C. § 1821 and § 1920.” Crawford
Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445
(1987). ERISA provides no explicit authorization for an award
of expert witness fees. See Holland v. Valhi Inc.,
22 F.3d 968, (10th Circ. 1994). Neither 28 U.S.C.
§ 1821 nor § 1920 authorizes expert witness fees.
See Ramos v. Lamm, 713 F.2d 546, 559 (10th Cir.
1983). Accordingly, without meaning to suggest that the
charges of the attorney's fee expert were unreasonable, I
must deny plaintiff's request for an award of those
Attorney's Fees for Time Spent on
incurred in preparing an attorney's fee request may be
awarded. See Case v. Unified School District No. 233,
Johnson County, Kansas, 157 F.3d 1243, 1253-54
(10th Cir. 1998). Defendant does not disagree with
that general proposition. ECF No. 72 at 7. It apparently is
undisputed that fees related to the preparation of the fee
application, as supported by the itemized billing records of
plaintiff's counsel, may be awarded. I calculate the
amount at $10, 800. See ECF No. 70-1 at 15, 16 and
19 (entries for July 27, 2018 through August 16, 2018 and
October 22, 24 and 30, 2018).
does, however, dispute attorney's fees incurred by
plaintiff's counsel for work on the unsuccessful efforts
to settle the issues concerning attorney's fees, costs
and interest after summary judgment was entered in
plaintiff's favor. Defendant's rationale is that
those fees were neither incurred in the “action”
nor in preparation of plaintiff's fee application. This
time I do not agree.
attorney's fees incurred in preparing a fee application
are awardable in ERISA cases, as I have found and defendant
concedes, then those fees must have been incurred in the
“action.” If so, it follows logically that the
efforts to settle the fee amount in lieu of a contested fee
application and award by the Court are incurred in the
“action.” The “action” was not
completed when the summary judgment order was entered. The
Court's order and judgment in favor of Mr. Paquin
included the provision that plaintiff could file an
appropriate motion for fees and costs pursuant to 29 U.S.C.
§ 1132(g). The parties' settlement efforts were part
and parcel of the effort to determine the reasonable amount
of fees and costs. Defendant cites Cross, 2010 WL
5476790 at *10 as contrary authority. However, that case did
not present the issue here, i.e., whether fees reasonably
incurred in an ...