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Atlantic Plastic and Hand Surgery, PA v. Anthem Blue Cross Life and Health Insurance Co.

United States District Court, D. New Jersey

September 24, 2019

ATLANTIC PLASTIC AND HAND SURGERY, PA and MICHAEL S. RISIN, M.D., as designated and authorized representative of Patient Clifford Robinson; and PATIENT CLIFFORD ROBINSON, individually, Plaintiffs,



         Having successfully sought dismissal of Plaintiff[1] Clifford Robinson’s (“Plaintiff”) claims pursuant to Section 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 (“ERISA”), which arose from the partial denial of benefits under an employee health insurance benefits plan, Defendant Ashland, LLC (“Ashland”) now moves for an award of attorney’s fees and costs. For the following reasons, Ashland’s Motion is GRANTED as to its request for attorney’s fees and costs, but DENIED as to the amount sought. However, on or before October 11, 2019, Ashland shall have an opportunity to provide the appropriate proofs for the purpose of establishing that the hourly rates at which it seeks to recover attorney’s fees are reasonable.


         The underlying facts of this dispute have been set forth in two previous Opinions, which this Court issued on March 22, 2018 and November 30, 2018. See Atl. Plastic & Hand Surgery, PA v. Anthem Blue Cross Life & Health Ins. Co., No. 17-4699, 2018 U.S. Dist. LEXIS 47181 (D.N.J. March 22, 2018); Robinson v. Anthem Blue Cross Life & Health Ins. Co., No. 17-4600, 2018 U.S. Dist. LEXIS 202887 (D.N.J. Nov. 30, 2018). To avoid repetition, I will only provide a brief summary here.

         On February 12, 2014, Dr. Risin, the owner of Atlantic, performed a surgical procedure on Plaintiff. Plaintiff is a member of a self-funded ERISA-governed employee health insurance benefits plan (the “Plan”), and the Providers are “non-participating, ” “out-of-network providers” as defined under the Plan. On June 22, 2017, after the partial denial of a claim resulting in an outstanding balance of $52, 259.70, the instant action was filed against Ashland and Anthem Blue Cross Life and Health Insurance Company (“Anthem”) (cumulatively, “Defendants”), [2] which sponsored and administered Plaintiff’s Plan.

         In the original complaint, Plaintiff alleged a wrongful denial of benefits claim pursuant to § 502(a)(1)(B) of ERISA, on the basis of Defendants’ failure to compensate the Providers at the “usual and customary charge” for out-of-network services. In addition, Plaintiff pled an independent claim for breach of fiduciary duty within the confines of § 502(a)(1)(B), arising from Defendants’ alleged failure to comply with certain procedural requirements under ERISA. However, on March 22, 2018, the Court granted Defendants’ motion to dismiss. In so ruling, the Court held that Plaintiff did not allege a Plan provision obligating Defendants to provide payment at the alleged rate of compensation, and that, standing alone, the purported fiduciary breaches did not establish a private cause of action under § 502(a)(1)(B). Nonetheless, Plaintiff was provided with leave to amend, for the limited purpose of identifying language requiring Defendants to provide payment at the “usual and customary charge” under the Plan, in support of his § 502(a)(1)(B) claim.

         In his amended pleading, Plaintiff realleged the purported fiduciary breaches which were already rejected as a basis for asserting a claim under § 502(a)(1)(B). In addition, he set forth a new theory of liability, unrelated to Defendants’ originally pled obligation to provide compensation at the “usual and customary charge.” Rather, Plaintiff referenced provisions in the Plan describing the manner by which Defendants were required to calculate the appropriate rate of benefits for the receipt of out-of-network “Emergency Services.” However, on November 30, 2018, the First Amended Complaint was, too, dismissed, as Plaintiff neither alleged that Defendants acted in contravention of the referenced provisions, nor did he articulate how those provisions entitled him to additional compensation under the Plan. The Court also reiterated that Plaintiff’s continuous references to Defendants’ alleged fiduciary functions could not support a cognizable § 502(a)(1)(B) claim. Although Plaintiff was, nonetheless, provided with a second opportunity to amend, he did not file an amended pleading within the permitted timeframe.

         In the instant matter, pursuant to section 502(a)(g)(1) of ERISA, Ashland seeks an award of attorney’s fees and costs, in the amount of $34, 725.29, for having successfully moved to dismiss Plaintiff’s complaint on two separate occasions. According to Ashland, a balancing of the Ursic factors, which are applicable when a party moves for attorney’s fees and costs within the context of an ERISA action, weigh in favor of granting such an award. Plaintiff opposes Ashland’s request.


         A. Standard of Review

         Section 1132(g)(1) of ERISA provides that “a 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); Templin v. Independence Blue Cross, 785 F.3d 861, 864-65 (3d Cir. 2015). That determination requires a two-pronged analysis, as a court must, first, consider whether a fee applicant is “eligible for such an award.” Templin, F.3d at 864. While a fee applicant need not be a “prevailing party” to be eligible for an award of attorney’s fees and costs in an ERISA action, “some degree of success on the merits” is required. Id., at 865. That condition is met if a “court can fairly call the outcome of the litigation some success on the merits without conducting a length[y] inquiry into the question whether a particular party’s success was substantial or occurred on a central issue.” Id. (internal quotation marks omitted) (quoting Hardt v. Reliance Std. Life Ins. Co., 560 U.S. 242, 254 (2010)). Mere “trivial success on the merits or a purely procedural victory, ” however, will not suffice for such an award. Id.

         If the initial inquiry is satisfied, the Third Circuit has instructed that a court must then weigh five factors, including:

(1) the offending parties’ culpability or bad faith; (2) the ability of the offending parties to satisfy an award of attorneys’ fees; (3) the deterrent effect of an award of attorneys’ 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, 672 (3d Cir. 1983) (citations omitted). Commonly referred to as the Ursic factors, no single one is dispositive. Einhorn v. M.L. Ruberton Constr. Co., 720 F.Supp.2d 639, 642 (D.N.J. 2010). Rather, the Ursic factors serve as flexible guidelines, which must be considered before a court, in an exercise of discretion, grants a fee applicant’s request for attorney’s fees and costs. Unisys Corp. Retiree Med. Benefits ERISA Litig. v. Unisys Corp., 579 F.3d 220, 239 (3d Cir. 2009). Moreover, such an award may be warranted, even when a fee applicant is unable to satisfy the totality of the Ursic factors. Fields v. Thompson Printing Co., 363 F.3d 259, 275 (3d Cir. 2004) (explaining that “the Ursic factors are not requirements in the sense that a party must demonstrate all of them in order to warrant an award of attorney’s fees . . . . ”).

         B. ...

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