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Mirsky v. Horizon Blue Cross and Blue Shield

United States District Court, D. New Jersey

February 19, 2014

LISA MIRSKY, Plaintiff,


JAMES B. CLARK, III, Magistrate Judge.

This matter comes before the Court upon Plaintiff Lisa Mirsky's ("Plaintiff") motion for attorney's fees [Docket Entry No. 25]. Defendant Horizon Blue Cross and Blue Shield of New Jersey ("Defendant") opposes Plaintiff's motion. [Docket Entry No. 28]. The Court has fully reviewed and considered all arguments made in support of, and in opposition to, Plaintiff's motion. The Court considers Plaintiff's motion without oral argument pursuant to L.CIV.R. 78.1(b). For the reasons set forth more fully below, Plaintiff's motion is GRANTED IN PART.


Plaintiff filed the instant action on April 11, 2011 seeking reimbursement of expenses under the Employee Retirement Income Security Act ("ERISA") of 1974, 29 U.S.C. §1001 et seq. Plaintiff claims that she suffered from "a serious bulimic eating disorder as well as post-traumatic stress disorder, associated with severe panic disorder, high anxiety, and depression. Plaintiff's Brief in Support at 1; Docket Entry No. 25-1. Plaintiff was eventually admitted to Castlewood Treatment Center in Ballwin, Missouri "for inpatient residential care on June 7, 2010." Id. Defendant initially approved Plaintiff's medical costs, but subsequently terminated coverage. Id. at 2. As a result, her father paid for her remaining treatment. Id. Plaintiff filed the instant action to recover those payments made by her father. After approximately two years of litigation, the parties filed cross-motions for summary judgment. On September 30, 2013, the Honorable Dennis M. Cavanaugh, U.S.D.J. granted Plaintiff's motion for summary judgment and denied Defendant's cross-motion for summary judgment. In its ruling, the District Court found that:

... Horizon's denial of Plaintiffs benefits for continued residential treatment was arbitrary and capricious on a number of grounds. First, the administrative record demonstrates Plaintiff met the Criteria for a Continued Stay under the Plan and that her continued residential treatment was medically necessary. Therefore to deny coverage for this treatment was unreasonable. Second, the decision by the final appeals board (Permidion) makes no reference to Horizon's Criteria for a Continued Stay which shows a failure to comply with procedures required by the Plan. Finally, Permidion's decision fails to address the conclusions of Mirsky's treating physicians and is clearly not supported by the evidence in the record.

Opinion on Summary Judgment ("Opinion") at 14; Docket Entry No. 20.

Plaintiff subsequently filed the instant motion for attorney's fees, arguing that she is entitled to same pursuant to 29 U.S.C. §1132(g)(1).


a. Time to File

In this District, motions for attorney's fees are now explicitly governed by L.Civ.R. 54.2, which provides that "[i]n all actions in which a counsel fee is allowed by the Court or permitted by statute, an attorney seeking compensation for services or reimbursement of necessary expenses shall file within 30 days of the entry of judgment or order, unless extended by the Court, a motion for fees and expenses in accordance with L. Civ. R. 7.1." (emphasis added). This Local Rule was amended in June 2013 to apply to motions, as well as affidavits in support of same.

b. Entitlement to Attorney's Fees

In actions brought pursuant to ERISA, there is a provision which allows for the reimbursement of attorney's fees to a party. Under subsection (g), "[i]n 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." 29 U.S.C. §1132. The Third Circuit has outlined five factors which a Court, in exercising its discretion, must consider in connection with a motion for attorney's fees. These factors are: 1) the offending party's culpability or bad faith; 2) the ability of the offending parties to satisfy an award of attorney's fees; 3) the deterrent effect of an award of attorney's fees against the offending parties; 4) the benefit conferred on members of the pension plan as a whole; and 5) the relative merits of the parties' positions. Ursic v. Bethlehem Mines, 719 F.2d 670, 673 (3d Cir. 1983). None of the above factors is dispositive and, furthermore, a party is not required to show that all factors weigh in its favor in order to warrant an award. Fields v. Thompson Printing Co., 363 F.3d 259, 275 (3d Cir. 2004).

c. Calculation of Fees

The party seeking attorney's fees has the burden of producing sufficient evidence of what constitutes a reasonable market rate for the character and complexity of the legal services rendered. Blum v. Stenson, 465 U.S. 886, 896, n.11 (1984). The burden of establishing the total fee rests on the fee applicant, who must provide appropriate documentation of the hours spent and the market rate. If the documentation in inadequate, a court may reduce the award accordingly. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The opposing party must make specific objections to the requested fee. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). "Once the adverse party raises objections to the fee request, the district court has a great deal of discretion to adjust the fee award in light of those objections." Id. However, the district court cannot decrease a fee award based on factors not raised at all by the opposing party. Id.

In determining a reasonable hourly rate, the Court must assess the "skill and experience of the prevailing attorneys and compare their rates to the rates in the community for similar services by lawyers of reasonable comparably skill, experience and reputation." Blakey v. Continental Airlines, 2 F.Supp.2d 598, ...

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