Salvatore D'EmanuElE v. Montgomery Ward & Co., Inc., Long Term Disability Plan & Trust Montgomery Ward & Company, Inc.

904 F.2d 1379
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 30, 1990
Docket88-6505
StatusPublished
Cited by131 cases

This text of 904 F.2d 1379 (Salvatore D'EmanuElE v. Montgomery Ward & Co., Inc., Long Term Disability Plan & Trust Montgomery Ward & Company, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Salvatore D'EmanuElE v. Montgomery Ward & Co., Inc., Long Term Disability Plan & Trust Montgomery Ward & Company, Inc., 904 F.2d 1379 (9th Cir. 1990).

Opinions

ALARCON, Circuit Judge:

Salvatore D’Emanuele appeals from the order of the district court awarding him attorney’s fees of $76,125.00 in his ERISA action pursuant to 29 U.S.C. § 1132(g). D’Emanuele requests that we vacate and remand the district court’s award of attorney’s fees. D’Emanuele claims that the district court erred by (1) failing to apply properly the hybrid lodestar/multiplier analysis for fee determination; (2) failing to offer a clear and concise explanation to support the fee award; and (3) failing to conduct a hearing in violation of due process. In addition, both D’Emanuele and Montgomery Ward seek attorney’s fees for this appeal. We vacate the district court’s order and remand with directions.

I. PERTINENT FACTS

On October 3, 1983, after exhausting his administrative remedies, D’Emanuele filed a pro se complaint in state court for long term disability benefits against Montgomery Ward & Co. and Montgomery Ward & Co. Long Term Disability Plan and Trust. Montgomery Ward removed the case to federal court. D’Emanuele, facing involuntary dismissal, obtained counsel. An amended complaint was filed on April 24, 1985, seeking relief under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001.

Montgomery Ward filed a motion for summary judgment on November 11, 1986. D’Emanuele filed a cross motion for summary judgment on January 5, 1987. While the summary judgment motions were under submission, D’Emanuele filed a second amended complaint adding a claim under the Racketeer Influenced and Corrupt Organizations Act of 1970, 18 U.S.C. §§ 1961-1968. On August 25, 1987, the district court issued its Memorandum of Decision and Order on the summary judgment motions. The district court, in denying Montgomery Ward's motion and granting D'Em-anuele’s motion in part, held that the Montgomery Ward & Co. Long Term Disability Plan and Trust “(a) imposed a substantive standard not required by the provisions of the Plan Document; (b) committed prejudicial violations of plaintiff’s ERISA procedural due process rights; (c) rendered a final decision that is not supported by substantial evidence; and (d) acted in bad faith.”

Thereafter, the parties entered into settlement negotiations. A settlement was reached on November 25,1987. The settlement agreement was filed with the district court under seal. On February 1, 1988, the district court approved the settlement. Pursuant thereto, the ERISA and RICO claims were dismissed with prejudice. The agreement further provided that D’Emanu-ele would receive attorney’s fees in an amount deemed reasonable by the district court.

A motion for attorney’s fees was filed on May 24, 1988. Counsel for D’Emanuele requested compensation for 1242.48 hours of his time at the rate of $175/hour ($217,-434.00), 37.81 hours of his associate attorney’s time at $135/hour ($5,104.34), and 153 hours of his legal assistants’ time at $65/hour ($9,945.00) for a total fee of $232,483.34. D’Emanuele’s attorney also [1382]*1382requested that the fee be increased by a multiplier of 2.5 for work completed prior to the date the district court granted D’Em-anuele partial summary judgment and by a multiplier of 1.75 for the work necessary to effect a settlement for an additional $312,-191.59. The total fee requested was $544,-674.93. Payment of attorney’s fees for the time required for the preparation of the fee application was also requested. Counsel informed the district court that he worked 134.6 hours on the motion for attorney’s fee. At $175 an hour, the amount claimed for preparation of the motion for attorney’s fees totaled $23,555.

The district court scheduled a hearing for determination of attorney’s fees on June 20, 1988. Thereafter, the district court vacated the hearing date and took the issues raised concerning the fee application under submission.

On September 21, 1988, the district court filed its order awarding D’Emanuele attorney’s fees. The order provides as follows:

The court, after carefully considering all papers on file concerning plaintiff’s application for attorney’s fees in the above-entitled action, makes the following order:
(1) Plaintiff is awarded attorney’s fees in the amount of $76,125.00. This amount is reasonable given the nature and resolution of this case, and reflects a finding by the Court that plaintiff’s reasonable attorney’s fees should be 525 hours at $145.00 per hour. The Court, on several occasions, noted its concern over the manner in which plaintiff’s counsel was proceeding with this case. For reasons recited at an earlier sanctions proceeding, the Court will not reward plaintiff’s counsel for time put into such matters as rejected filings, responses to sanctions, ex parte motions to shorten time, unreasonably lengthy time put into research, and overly voluminous filings, and, accordingly, has discounted plaintiff’s submitted hours to a reasonable amount.
2. The Court will not upwardly adjust this award of fees, as plaintiff’s counsel suggests.

II. THE APPROPRIATE LEGAL STANDARDS

A. Applicability of Lodestar Analysis to ERISA

D’Emanuele contends that the district court failed to make a proper determination of the “lodestar” figure or to apply the relevant factors for awarding attorney’s fees under the law of this circuit. D’Emanuele also contends that the district court should have considered the factors set forth in Hummell v. S.E. Rykoff, 634 F.2d 446, 452-53 (9th Cir.1980), in fixing the proper fee. In response, Montgomery Ward argues that this circuit has never applied the lodestar/multiplier factors in ERISA cases.

D’Emanuele’s reliance on Hummell is misplaced. Hummell does not apply to the determination of the amount of attorney’s fees. The factors set forth in Hummell guide the district court in determining whether any attorney’s fees should be granted under 29 U.S.C. § 1132(a). Because the parties stipulated that attorney’s fees should be granted, the Hummell factors have no application.

We next turn to the question whether the lodestar/multiplier approach is applicable in calculating attorney’s fees under ERISA. Montgomery Ward contends that the lodestar/multiplier approach is not required in ERISA cases. The Supreme Court, in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), stated that the standards for determining fee awards set forth in that opinion “are generally applicable in all cases in which congress has authorized an award of fees to a ‘prevailing party.’ ” Id. at 433 n. 7, 103 S.Ct. at 1939 n. 7. Unlike the attorney’s fee provision of 42 U.S.C. § 1988 that was at issue in Hensley, however, ERISA does not limit attorney’s fees to a “prevailing party.” See 29 U.S.C. § 1132

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Trujillo v. GH Food Mart, Inc.
E.D. California, 2020
Josue Romero v. Provide Commerce, Inc.
906 F.3d 747 (Ninth Circuit, 2018)
Stanger v. China Electric Motor, Inc.
812 F.3d 734 (Ninth Circuit, 2016)
United States v. $28,000.00 in U.S. Currency
802 F.3d 1100 (Ninth Circuit, 2015)
Pierce v. County of Orange
905 F. Supp. 2d 1017 (C.D. California, 2012)
Oster v. Standard Insurance
768 F. Supp. 2d 1026 (N.D. California, 2011)
Jadwin v. County of Kern
767 F. Supp. 2d 1069 (E.D. California, 2011)
Reudy v. Clear Channel Outdoors, Inc.
693 F. Supp. 2d 1091 (N.D. California, 2010)
Winn-Dixie Stores, Inc. v. Reddick
954 So. 2d 723 (District Court of Appeal of Florida, 2007)
Tutor-Saliba Corp. v. City of Hailey
452 F.3d 1055 (Ninth Circuit, 2006)
United States v. Guess
390 F. Supp. 2d 979 (S.D. California, 2005)
Mogck v. Unum Life Insurance Co. of America
289 F. Supp. 2d 1181 (S.D. California, 2003)
Schefke v. Reliable Collection Agency, Ltd.
32 P.3d 52 (Hawaii Supreme Court, 2001)
Weatherhead v. United States
112 F. Supp. 2d 1058 (E.D. Washington, 2000)
Lucas v. White
63 F. Supp. 2d 1046 (N.D. California, 1999)
In Re Auto Parts Club, Inc.
224 B.R. 445 (S.D. California, 1998)
United States v. Harold B. Chapman, Jr.
146 F.3d 1166 (Ninth Circuit, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
904 F.2d 1379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salvatore-demanuele-v-montgomery-ward-co-inc-long-term-disability-ca9-1990.