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Flohrs v. Eli Lilly and Co.

United States District Court, Tenth Circuit

July 31, 2013

WILLIAM J. FLOHRS, Plaintiff,
v.
ELI LILLY AND COMPANY and AON HEWITT BENEFIT PAYMENT SERVICES, LLC, Defendants.

MEMORANDUM AND ORDER

SAM A. CROW, District Judge.

This ERISA case comes before the Court on Defendant Eli Lilly and Company's motion for attorneys' fees, costs, and expenses. Plaintiff opposes the motion (Dk. 88, 91). Costs are determined by the Clerk's office as a matter of course, so this memorandum shall deal solely with the disputed attorneys' fee request.

I. General Principles - ERISA Fee Awards

ERISA's attorney's fees provision, 29 U.S.C. § 1132(g)(1), provides "in any action under this subchapter... 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." Under this section, "it is within the district court's sound discretion to determine whether a party is entitled to attorney's fees as the result of an action brought under ERISA." Pitman v. Blue Cross and Blue Shield of Oklahoma, 217 F.3d 1291 (10th Cir. 2000), quoting Gordon v. United States Steel Corp., 724 F.2d 106, 108 (10th Cir. 1983).

Under ERISA, a party who has received some degree of success on the merits may recover fees from the opposing party.

A fee claimant need not be a prevailing party to be eligible for an award of attorney's fees and costs under ERISA. Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 130 S.Ct. 2149, 2152, 176 L.Ed.2d 998 (2010). A court may award fees and costs under 29 U.S.C. § 1132(g)(1) as long as the fee claimant has achieved "some degree of success on the merits." Id.
This court has established five factors a court may consider in deciding whether to exercise its discretion to award attorney's fees and costs: (1) the degree of the opposing party's culpability or bad faith; (2) the opposing party's ability to satisfy an award of fees; (3) whether an award of fees would deter others from acting under similar circumstances; (4) whether the party requesting fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA; and (5) the relative merits of the parties' positions. Gordon v. U.S. Steel Corp., 724 F.2d 106, 109 (10th Cir. 1983). No single factor is dispositive and a court need not consider every factor in every case. McGee v. Equicor-Equitable HCA Corp., 953 F.2d 1192, 1209 n. 17 (10th Cir. 1992).

Cardoza v. United of Omaha Life Ins. Co., 708 F.3d 1196, 1207 -1208 (10th Cir. 2013). These five factors are not exclusive and no single factor is dispositive. See Gordon, 724 F.2d at 109 (noting the district court should consider these five factors "among others."); McGee v. Equicor-Equitable HCA Corp., 953 F.2d 1192, 1209, n. 17 (10th Cir. 1992) (finding the factors "are merely guidelines, and while courts need not consider each factor, no single factor should be held dispositive.")

Defendant, having won its motion for summary judgment on all issues, has achieved a great degree of success on the merits. The sole matter on which Defendant did not prevail is its counterclaim, which the Court dismissed for lack of jurisdiction without having reached its merits. See Dks. 49, 79. The Court is thus free to exercise its discretion regarding a fee award.

II. Factors in Deciding to Award Fees

Because neither party has suggested other factors for the Court's consideration and none cries out for attention, the Court examines solely the five factors noted above.

A. Plaintiff's Culpability or Bad Faith

Defendant contends that Plaintiff's acts were both culpable and in bad faith.

1. No Bad Faith

Defendant shows the Court that Plaintiff repeatedly engaged in acts during discovery which, in the Court's view, if undertaken by an attorney, would likely violate ethical rules and could warrant sanctions. See Dk. 90, p. 14. But bad faith in the fee factor context most likely means "[d]ishonesty of belief or purpose." United States v. Lain, 640 F.3d 1134, 1138 (10th Cir. 2011) (examining attorneys' fees under Hyde Amendment). The Court is not persuaded that Plaintiff acted in bad faith, as nothing in the record shown to this Court reflects that Plaintiff's belief in ...


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