RADFORD TRUST v. FIRST UNUM LIFE INSURANCE COMPANY OF AMERICA

399 F.Supp.2d 3 (2005) | Cited 2 times | D. Massachusetts | November 15, 2005

MEMORANDUM & ORDER

I. INTRODUCTION

On behalf of its beneficiary, John Doe ("Doe"), the plaintiffRadford Trust ("Radford") brought suit against the defendantFirst Unum Life Insurance Company Of America ("First Unum"),alleging damages resulting from First Unum's failure to pay longterm benefits to Doe pursuant to the terms of an insurance policyFirst Unum issued to Doe. Compl. [Doc. No. 1] at 1. Radfordsought relief under the Employee Retirement Income Security Act("ERISA"), 29 U.S.C. § 1132, et seq. (Count I), and underMassachusetts law, including Mass. Gen. Laws ch. 93A and thedoctrine of promissory estoppel (Count II). Id. ¶¶ 11-12. II. BACKGROUND

A. Procedural History

On August 25, 2003, First Unum filed a Motion for SummaryJudgment and Incorporated Memorandum of Law ("Def.'s Mot. forSumm. J.") [Doc. No. 13]. On September 19, 2003, Radford filed anopposition and a motion for Partial Summary Judgment andsupporting memorandum ("Pl.'s Summ. J. Opp'n") [Doc. Nos. 16-17],noting that it had "decided to withdraw its claim under Count II"and was "prepared to execute an appropriate stipulation ofdismissal of that claim." Id. at 1. On March 31, 2004, thisCourt granted Radford's motion for partial summary judgment onCount I, noting that "Radford has agreed to withdraw the claim inCount II." Order of 3/31/04 [Doc. No. 38] at 1. The Courtexplained its March 31, 2004 Order in a comprehensive anddetailed Memorandum and Order issued June 14, 2004. RadfordTrust v. First UNUM Life Ins. Co. of Am., 321 F. Supp. 2d 226(D. Mass. 2004).1

While the Court has attempted properly to manage and adjudicatethis case, motion practice has continued unabated, causing the court some confusion and mis-steps. It is the purposeof this memorandum and order to deal with all pending motions.Here is the current tally: 1. April 14, 2004 — Motion for Award of Attorneys Fees for Counsel Warren H. Pyle and Cathy Highet by Radford Trust ("Pl.'s Att'ys Fees Mot. I")[Doc. No. 43]; 2. April 26, 2004 — Motion for Attorney Fees for John Doe by Radford Trust ("Pl.'s Att'ys Fees Mot. II") [Doc. No. 44]; 3. April 28, 2004 — Response to Defendant's Submission regarding the Award of Benefits and Motion For First Unum to First Determine the Applicability of the Social Security Offset Provision by Radford Trust ("Pl.'s Offset Mot. & Resp. to Def.'s Submission") [Doc. No. 46]; 4. May 12, 2004 — Motion to Strike Response to Defendant's Opposition to Plaintiff's Motion for an Award of Attorney's Fees by First Unum Life Insurance Company of America (Def.'s Mot. to Strike) [Doc No. 52]; 5. May 19, 2004 — Retroactive request for leave to file "Plaintiff's Response to Defendant's Opposition To Plaintiff's Motion For An Award Of Attorney's Fees," ("Pl.'s Att'ys Fees Resp.") [Doc. No. 49], made in "Plaintiff's Opposition to Defendant's Motion to Strike Plaintiff's Response to Defendant's Opposition To Plaintiff's Motion For An Award Of Attorney's Fees," ("Pl.'s Mot. to Strike Opp'n") [Doc. No. 53]; 6. May 26, 2004 — Motion to Intervene to File Reply to Unum's Opposition to Motion for Attorney Fees for work by John Doe, and, Motion for Leave to request Doe's Additional Attorney Fees for Helping to Prepare this Filing by Bernard Doe ("Pl.'s Mot. to Intervene & Req. Add'l Att'ys Fees") [Doc. No. 54].

This Court's Order of June 14, 2004 amended its March 31, 2004Judgement and Order by: (1) holding that prejudgment interestshould run from June 13, 2000; and (2) stating that the Courtwould issue an Amended Judgment clarifying the appropriatecalculation of pre-judgment interest. Radford Trust,321 F. Supp. 2d at 253, 260. On July 14, 2004, First Unum filed a Noticeof Appeal as to the March 31, 2004 order and judgement. [Doc. No.58].

7. July 16, 2004 — Motion to Amend Memorandum & Order, of June 14, 2004 and Motion to Supplement the Administrative Record by Radford Trust (Pl.'s Mot. to Amend 7/14/04 Order & Supple. Admin. R.") [Doc. No. 59]; 8. September 3, 2004 — Motion to Award Damages Under State Law by Radford Trust ("Pl.'s State Damages Mot.") [Doc. No. 70].

In light of the appeal, all unresolved motions previously filedwith the Court were denied as moot on January 19, 2005. This waserror, however; indeed it was inexcusable since, on December 21, 2004 this Court received a Mandate of the FirstCircuit dismissing the appeal after granting of First Unum'smotion for voluntary dismissal. ("1st Cir. Mandate") [Doc. No.73]. This Court's mis-step promptly brought the filing of twomore motions, seeking to induce action at this level:

9. January 26, 2005 — Motion for Reconsideration of Order Denying Motions as Moot by Radford Trust ("Pl.'s Mot. for Recons.") [Doc. No. 74]; 10. February 10, 2005 — Motion for Declaration that First Unum has Repudiated the Court's Judgment and its Administrative Responsibilities Under the Insurance Policy so as to Entitle Plaintiff to Sue Immediately for Benefits Beyond the Twenty-Four Month Period by Radford Trust (Pl.'s Mot. for Decl.") [Doc. No. 75].

This Memorandum will address each pending motion and thenclarify the calculation of prejudgment interest and damages to bemade by First Unum.

III. DISCUSSION

A. The Motion for Attorney Fees for Counsel Warren H. Pyle andCathy Highet by Radford Trust is ALLOWED

1. Attorney's fees are warranted

ERISA provides that in "any action . . . by a participant,beneficiary, or fiduciary, the court in its discretion may allowa reasonable attorney's fee and costs of action to either party."29 U.S.C. § 1132(g)(1); Cottrill v. Sparrow, Johnson &Ursillo, Inc., 100 F.3d 220, 225 (1st Cir. 1996) ("fee awards underERISA are wholly discretionary"). The First Circuit has developeda five factor standard for determining whether an assessment ofattorney's fees is appropriate in an ERISA case. Cottrill,100 F.3d at 225. The five factors to consider are: (1) the degree ofbad faith or culpability of the losing party; (2) the ability ofsuch party personally to satisfy an award of fees; (3) whethersuch award would deter other persons acting under similarcircumstances; (4) the amount of benefit to the action asconferred on the members of the pension plan; and (5) therelative merits of the parties' positions. Id. An appellatecourt reviews the grant or denial of prejudgment interest inERISA cases solely for abuse of discretion. Id. at 223.

While First Unum contends that "the record contains noindication that the defendants exhibited bad faith," Def.'s Opp'nto Pl.'s Mot. for an Award of Att'ys Fees ("Def.'s Att'ys FeesOpp'n") [Doc. No. 47] at 2 (internal quotations and citationomitted), this Court found that the record indicated otherwise.

First Unum's conduct in denying Doe's claim was entirely inconsistent with the company's public responsibilities and with its obligations under the Policy. This is not the first time that First Unum has sought to avoid its contractual responsibilities, and an examination of cases involving First Unum and Unum Life Insurance Company of America, which like First Unum is an insuring subsidiary of Unum Provident Corporation, reveals a disturbing pattern of erroneous and arbitrary benefits denials, bad faith contract misinterpretations, and other unscrupulous tactics. These cases suggest that segments that have run in recent years on "60 Minutes" and "Dateline," alleging that Unum Provident "regularly declines disability claims as a way of boosting profits," may have been accurate.Radford Trust, 321 F. Supp. 2d at 247-49 (footnotes omitted).Accordingly, the Court stated "[a]s this Court has described,First Unum acted in bad faith in denying benefits to Doe, andwhile First Unum's position was entirely without merit, Radford'swas essentially correct." Id. at 259.

This Court went on to conclude that First Unum could "wellafford to pay a fee award, [] the awarding of fees againstinsurers acting in bad faith would deter similar conduct by otherinsurers in the future," and that "participants and beneficiariesin other plans, particularly those administered by First Unum,will tend to benefit in a similar manner from this lawsuit."Id.

Having already held that attorney's fees were appropriate, thisCourt ordered the parties to submit papers regarding theappropriate amount of attorney's fees. Id. First Unum'scontention that Radford "has offered no analysis or explanationfor why it should be entitled to an award of attorney's fees" istherefore without merit, see Def.'s Att'ys Fees Opp'n at 1;this Court only requested Radford submit papers regarding theappropriate amount. First Unum has made no arguments not alreadyconsidered by this Court. Thus, in keeping with this Court'searlier determination, the Court now reaffirms that grantingattorney's fees to Radford in the case at hand is appropriate. 2. Determination of Attorney's Fees

Radford has requested attorney's fees in the amount of$30,747.10. Pl.'s Att'ys Fees Resp., Ex. 3 at 8. First Unum hasargued that the requested fee amount is excessive and the Courtshould award no more than $14,550. Def.'s Att'y Fees Opp'n at12.

ERISA provides for damages which include attorney's fees andcosts. 29 U.S.C. § 1132(g)(2); Massachusetts Carpenters Cent.Collection Agency v. Belmont Concrete Corp., No. 95-10491,1997 U.S. Dist. LEXIS 22233, at *35 (D. Mass. Sept. 30, 1997)(Woodlock, J.) (unpublished opinion) aff'd, 139 F.3d 304 (1stCir. 1998). The First Circuit has stated that where the relevantstatute does not provide an alternate method for calculatingreasonable attorney's fees, as is the case with the ERISAstatute, the "lodestar" method should be used. Tennessee GasPipeline Co. v. 104 Acres of Land, 32 F.3d 632, 634 (1st Cir.1994); Hedley-Whyte v. Unum Life Ins. Co., No. 94-11731,1996 U.S. Dist. LEXIS 5880, at *10 (D. Mass. Mar. 6, 1996) (O'Toole,J.) (unpublished opinion) (applying lodestar method to calculateattorneys' fees under 29 U.S.C. § 1132(g) (. "A court arrives atthe lodestar by determining the number of hours productivelyspent on the litigation and multiplying those hours by reasonablehourly rates." In re San Juan DuPont Plaza Hotel Fire Litig.,56 F.3d 295, 305 (1st Cir. 1995); Mogilevsky v. Bally TotalFitness Corp., 311 F. Supp. 2d 212, 216 (D. Mass. 2004); Martino v.Massachusetts Bay Transp. Auth., 230 F. Supp. 2d 195, 201 (D.Mass. 2002).

Once the appropriate hourly rate and number of hours reasonablyexpended are determined, the lodestar calculation will yield apresumptively correct result and "additional tinkering merelyserves to double count some factors." System Mgmt. Inc., v.Loiselle, 154 F. Supp. 2d 195, 209 (D. Mass. 2001). There is a"strong presumption," however, that the lodestar figure reflectsa reasonable assessment of the fees to be awarded. Id. at 204.Finally, the court is to determine the reasonable and necessarycosts to be awarded. See id. at 204, 210-11.

a. Reasonable Hours Expended

In calculating the lodestar estimate, only hours that were"reasonably expended on the litigation" ought be included.Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Under theframework of Hensley, a court may reduce the number of hoursasserted by the prevailing party if documentation is inadequate,or if effort put forth was "excessive, redundant, or otherwiseunnecessary." Id. at 433-34; Grendel's Den, Inc. v. Larkin,749 F.2d 945, 950 (1st Cir. 1984) (stating that "hours which wereduplicative, unproductive, excessive, or otherwise unnecessary"should be subtracted from the number of hours actually invested).The First Circuit requires that the prevailing party submit "detailed contemporaneous time records," the absence of which"will call for a substantial reduction in any award or, inegregious cases, disallowance." Grendel's Den, 749 F.2d at 952;Denny v. Westfield State Coll., Civ. A. Nos. 78-2235-F,78-3068-F, 1989 WL 112823, at *3 (D. Mass. May 12, 1989)(Freedman, C.J.) aff'd, 880 F.2d 1465 (1st Cir. 1989).

Radford has submitted records of hours spent by two attorneys:lead counsel Attorney Warren H. Pyle, ("Pyle"), a partner in thelaw firm of Pyle, Rome, Litchen, Ehrenberg & Liss-Riordan, P.C.,and Cathy Highet ("Highet"), an associate in the same firm. Pl.'sAtt'ys Fees Mot. I, Exs. A & B; Pl's Att'ys Fees Resp., Exs. 1 &2. The documents assert that Pyle worked a total of 90.6 hoursand Highet a total of 20.4 hours.2 Pl's Att'ys FeesResp., Ex. 3. First Unum contends that Radford: (1) has submitted4.1 hours for pre-litigation work not allowed under the ERISAframework; (2) did not sufficiently document Highet's time orexperience; (3) submitted an invoice which contains vague entriesnot providing adequate explanation of the exact nature of thetime spent; and (4) has submitted charges that should beconsidered excessive for the work performed. Def.'s Att'ys FeesOpp'n, at 6-9. (1) 4.1 hours of pre-litigation work

First Unum asks this Court to strike 4.1 hours of time as"pre-litigation" fees not permissible under ERISA. Id. at 6."Under ERISA, this court may award fees and costs `in any action'brought pursuant to the statute. Courts have read this provisionas applying to court actions only, and not administrativeproceedings. . . ." Doe v. Raytheon, No. 00-12545, 2002 U.S.Dist. LEXIS 13222, at *6 (D. Mass. Jul. 19, 2002) (Zobel, J.),(citing Choi v. Massachusetts Gen'l Physicians Org., Inc.,66 F. Supp. 2d 251, 255 (D. Mass. 1999) (Lasker, J.)). Expanding onthis proposition, First Unum argues that "a prevailing plaintiffis not entitled to recover legal fees for work performed prior tothe preparation and filing of the Complaint, such as work duringthe administrative process." Def.'s Att'ys Fees Opp'n at 6. FirstUnum thus concludes that the 4.1 hours of work spent by Pyleprior to filing the Complaint in December 2002 were foradministrative proceedings and ought be disallowed. Id.

The invoice and explanation of time submitted by Pyle however,indicates otherwise. Pyle attests that the work he performedbefore the preparation of the Complaint did not include anyparticipation in the administrative process. Pl's Att'ys FeesResp., Ex. 1 ¶ 2. Indeed, a review of the details and entries oftime spent prior to December 2002 reveals conversations,correspondence, and interviews with the client, reviews of file materials, and a review of the draft of theComplaint. Pl's Att'ys Fees Resp., Ex. 3. These entries areconsistent with the preparation of the Complaint and are allowed.See Doe, 2002 U.S. Dist. LEXIS 13222, at *6 (noting thatplaintiff is entitled to attorney's fees and costs for the workperformed in preparing a complaint). Furthermore, this Courtfinds the expenditure of 4.1 hours for these activities to bereasonable.

(2) 20.4 hours of Highet's time

First Unum also asks the Court to strike 20.4 hours from thecalculation of attorney's fees because Radford denoted the timespent by Highet only with a "CH" and did not originally describeher duties, her level of experience, or offer any justificationof her requested hourly rate. Def.'s Att'ys Fees Opp'n at 6-7. Asa matter within its discretion, the Court has allowed Radford'sretroactive request for leave to file its response to FirstUnum's Opposition to Radford's Motion for an award of attorney'sfees ("Pl's Att'ys Fees Resp."). See section D, infra.Radford's permitted response contained, inter alia, anaffidavit by Highet attesting to her level of experience and herrole within the case at hand. Pl's Att'ys Fees Resp., Ex. 2. Theexact details of how her time was spent on the case is specifiedwithin the invoice. See Pl's Att'ys Fees Resp., Ex. 3.Additional affidavits submitted lend support to her requested hourly rate. See Pl's Att'ys Fees Resp., Exs. 1A-1C.

Two time entries of Highet's cannot reasonably be assigned asattorney's fees in this case. On September 29 and 30, 2003 Highetperformed 0.7 hours of research concerning "mental vs. physicaldisabilities." Pl's Att'ys Fees Resp., Ex. 3. In its March 31,2004 Order, this Court concluded that "[a]ny determination as towhether Doe's disability is a `mental' one or a `physical' onefor purposes of continuing receipt of benefits under the Policyis for First Unum, rather than this Court, to make in the firstinstance." Mem. & Order of 3/31/04 at 2. As this determination isfor First Unum to make and Radford did not succeed in persuadingthe Court to make this determination, the Court will not awardattorney's fees to Radford in conjunction with this research. Insum, this Court concludes that Radford may recover for 19.7 ofthe 20.4 hours of work performed by Highet.

(3) Vague and undefined time entries

First Unum complains generally that Radford "also has includedseveral additional vague and undefined time entries . . . thatprovide inadequate information. . . ." Def.'s Att'ys Fees Opp'nat 7. After a review of these records, the Court finds that theentries of billing hours are sufficient to satisfy the heightenedstandard of detail required under Grendel's Den.749 F.2d at 952 (noting that in cases involving fee applications, the absence of detailed contemporaneous records will call for asubstantial reduction or disallowance of any award). The vastmajority of Pyle's entries detail the exact nature of the taskundertaken, and all entries properly account for the exact timeexpended and the date of the documented work. See Pl's Att'ysFees Resp., Ex. 3. Entries documenting phone calls to the clientor drafting of letters require no more explanation to meet thestandard. See Parker v. Town of Swansea,310 F. Supp. 2d 376, 392 (D. Mass. 2004) (Dein, M.J.) (stating that entriesdocumenting phone calls with the plaintiff and his father"require no further details to be compensable"). Based on thisreview, the Court finds that the records kept and submitted werecontemporaneous and offered adequate detail so that the Courtcould offer meaningful review of the reasonableness of the timeexpended.

(4) Reasonableness of time spent

Finally, First Unum notes that Attorney Pyle claims to havespent eighteen hours "preparing Plaintiff's motion for summaryjudgment . . . in spite of the fact that Plaintiff agreed tovoluntarily drop its Chapter 93A claim and devoted its briefexclusively to the ERISA question." Def.'s Att'ys Fees Opp'n at7-8. First Unum argues that eighteen hours "is excessive andshould be reduced by [eight] hours." Id. at 8. Pyle assertsthat within the hours referenced by First Unum, he spent no timeon the Chapter 93A claim, implying that all eighteen hours complained of were dedicated solely to the ERISA claim. SeePl's Att'ys Fees Resp., Ex. 1 ¶ 4.

This Court does not consider eighteen hours spent in thepreparation of a successful motion for summary judgment to beexcessive. Cf. Horney v. Westfield Gage Co.,227 F. Supp. 2d 209, 216 (D. Mass. 2002) (Neiman, M.J.) (reducing attorney'sfees by 30% where attorney spent eighty-four hours to researchand draft an opposition to Defendants' summary judgment motionsand ninety-one hours to research and draft an opposition toDefendants' post trial motions); United States v. MetropolitanDist. Comm'n, No. 85-0489, 1987 U.S. Dist. LEXIS 4578, at *12(D. Mass. Apr. 24, 1987) (Mazzone, J.) (unpublished opinion)(concluding that "no more than 80 hours of the 245.80 hoursclaimed can be reasonabl[y] attributed to the initial task ofpreparing and briefing the motion" for partial summary judgment).The eleven-page memorandum in support of partial summary judgmentand in opposition of Defendant's motion for summary judgmentfocused upon the facts surrounding the denial of benefits to Doeand successfully persuaded the Court to grant partial summaryjudgment on the ERISA claim. Pl.'s Summ. J. Opp'n at 6-8. Thememorandum noted that a district court in Virginia had previouslyfound the defense First Unum employed in the case at hand to beuntenable. Id. at 8 (citing Hines v. Unum Life Ins. Co. ofAm., 110 F. Supp. 2d 458 (W.D. Va. 2000)). While the issues wereonly moderately complex and persuasive precedent had already been developed, Pyle's memorandum wascogent, well organized, effective, and made good use of thefactual record before the Court. See id.; Cf. Grendel'sDen, 749 F.2d at 953-954 (finding fifty-five hours spentpreparing seventeen-page brief involving single issue excessivewhile finding sixteen hours to write thirty-seven page briefreasonable); Bailey v. Dart Container Corp. of Michigan,980 F. Supp. 584, 595 (D. Mass. 1997) (Bowler, M.J.) (findingmemorandum well-drafted but nevertheless holding an attorney'sefforts to dismiss the case on procedural as opposed tosubstantive grounds to be excessive). In conclusion, the Courtfinds that no adjustment of the lodestar is warranted for theeighteen hours spent working upon the motion for summary judgmentbetween the 17th and 19th of September 2003.

First Unum also claims that 12.4 hours spent preparing a replybrief that it alleges was never filed is also excessive Def.'sAtt'ys Fees Opp'n at 8 (referring to Pl.'s Att'ys Fees Mot. I,Ex. B). Radford, however, responds that the 12.4 hours representtime spent on documents that were in fact filed with the Court inpursuit of their successful motion for summary judgment. SeePl's Att'ys Fees Resp., Ex. 1 ¶ 4. Specifically, Radford assertsthat the 12.4 hours correspond to time spent on: (1) a motion tosupplement the record [Doc. No. 24]; (2) a response concerningthe statement of material facts [Doc. No. 29]; and (3) asupplemental memorandum in support of partial summary judgment [Doc. No. 28].3 Pl's Att'ys Fees Resp.,Ex. 1 ¶ 4. In support of this assertion, Pyle's invoicedistributes the 12.4 hours as follows: 10/15/03 (2.5 hours) — Work on response to defendant's response to plaintiff's statement of material facts and a supplemental memorandum in response to Unum's opposition to motion for partial summary judgment 10/16/03 (2.5 hours) — Work on Reply Memorandum re Motion for Summary Judgment 10/20/03 (7.0 hours) — Work on Reply Memorandum, Response to Counter-Statement of facts; Telephone call with Attorney Porada 10/21/03 (0.4 hours) — Further work on Reply Memorandum, Response to Counter-Statement of facts; Telephone call with Clerk's officePl's Att'ys Fees Resp., Ex. 3 at 5.

12.4 hours spent in the preparation of a brief motion tosupplement the record, a two-page response concerning thestatement of undisputed facts, and a ten-page reply memorandum inpursuit of a successful motion for partial summary judgment is not clearly excessive. See Order and Judgment of 3/31/04;see, e.g., Bailey, 980 F. Supp. at 595 (reducing 29.75hours of time spent conferring, reviewing pleadings andbackground information and researching, drafting and revisingmemorandum and reply brief to 16.5 hours). Again, while theissues were not overly complex, Pyle filed these documents withthe Court in effective support of the successful motion forsummary judgment and, specifically concerning the replymemorandum, made adept use of the factual record. See Order of3/31/04. In conclusion, the Court finds that no adjustment of thelodestar is warranted for the 12.4 hours spent preparing themotion to supplement the record, the response concerning thestatement of undisputed facts, and the ten-page reply memorandumbetween the 15th and 21st of October, 2003.4

In sum, the Court finds that 90.6 hours for attorney Pyle and19.7 hours for attorney Highet are reasonable in pursuit of theirsuccessful motion for summary judgment. b. Reasonable Hourly Rates

After the reasonable time expended has been determined, thelodestar calculation requires the Court to multiply the number ofhours by a reasonable hourly rate. Hensley, 461 U.S. at 433. Indetermining the reasonable hourly rate, this Court must find "theprevailing hourly rate in Boston for attorneys of comparableskill, experience, and reputation." Martino,230 F. Supp. 2d at 205; see Blum v. Stenson, 465 U.S. 886, 895-96 (1984). Theburden is on Radford to provide this Court with affidavits andother forms of evidence that: "(1) establish [its] lawyer['s]skills and experience, and (2) inform the Court of the prevailingmarket rate in the community for attorneys with suchqualifications." Martino, 230 F. Supp. 2d at 205; see Blum,465 U.S. at 895-96.

Radford requests an hourly rate of $300 for Pyle as leadcounsel and $175 for Highet as assisting counsel. Pl.'s Att'ysFees Resp., Ex. 1 ¶¶ 3,5; Ex. 2 ¶ 3. In support of theserequested rates, both Pyle and Highet have submitted their ownaffidavits detailing their individual experience as lawyers.Pl.'s Att'ys Fees Resp., Ex. 2; Pl.'s Att'ys Fees Mot. I, Ex. A.In further support of these requested rates, the affidavits ofother Boston area attorneys attesting to their hourly rates arealso submitted. Pl.'s Att'ys Fees Resp., Exs. 1A-1C.

In response, First Unum argues that the rates requested are not in accord with recent rates awarded by the Federal DistrictCourt of Massachusetts. Def.'s Att'ys Fees Opp'n at 8-9. FirstUnum cites cases in which the hourly rate awarded is below the$300 hourly rate requested by Pyle.5 Id. Here, havingconsidered the experience of Pyle and Highet, the complexity ofthe issues in the case at hand, and the Court's knowledge of theprevailing market rates for attorneys and legal assistants withcomparable backgrounds, the Court finds that $250.00/hour and$125.00/hour are reasonable hourly rates for attorney's Pyle andHighet respectively.6

(1) Attorney Warren H. Pyle

Pyle's affidavit demonstrates that he has had a long career asa labor and employment law attorney in the Boston area. Pyle haspracticed labor and employment law since graduating from HarvardLaw School in 1958. Pl.'s Att'ys Fees Mot. I, Ex. A ¶¶ 1-2. Pyle is also a chapter editor of a labor law treatiseentitled The Developing Labor Law, and has "presented papers ona variety of labor and employment law topics at nationalconvocations of labor lawyers for the past thirty years." Id. ¶3. Pyle is admitted to practice before the United States SupremeCourt, the United States Court Of Appeals for the First Circuit,and the courts of the Commonwealth of Massachusetts. Id. ¶ 1.

In support of Pyle's assertion that a $300 hourly rate iscommensurate with that paid to other Boston area attorneys inlabor and employment law litigation cases, Pyle submitted anaffidavit citing two cases in which attorney's fees were assignedto Pyle's law partners in the amounts of $300 and $320 per hour.Pl's Att'ys Fees Resp., Ex. 1 ¶ 5 (indicating that a $300 hourlyrate was awarded to attorneys in Dahill v. Boston PoliceDep't, SJC 08324 (Marshall, C.J.)); Sprague v. UnitedAirlines, Inc., No. 97-12102, 2002 U.S. Dist. LEXIS 14519 (D.Mass. Aug. 7, 2002) (O'Toole, J.) (unpublished opinion) (awarding$320 hourly rate). Pyle also notes the case of Doe v.Raytheon, in which Judge Zobel approved an award of $300 perhour to the lead counsel, 2002 U.S. Dist. LEXIS 13222 at *2-3,*6. See Pl's Att'ys Fees Resp., Ex. 1 ¶ 5.

In addition, Radford proffers the affidavits of Arthur G.Telegen, Esq. ("Telegen"), Joan A. Lukey, Esq.("Lukey"), andHarvey A. Schwartz, Esq. ("Schwartz"). Pl's Att'ys Fees Resp.,Exs. 1A-1C. In 2002, Telegen, a partner in the firm of Foley, Hoag & Eliot, L.L.P. in Boston, Massachusetts and the chair ofthe firm's labor and employment department, stated that themarket rate charged for his time is $525 per hour. Pl's Att'ysFees Resp., Ex. 1A ¶ 2. At that time, Telegen had 27 years ofexperience. Id. ¶ 2. In 1993, Lukey, then a senior litigationpartner at Hale & Dorr in Boston, Massachusetts and chair of herfirm's Employment and Discrimination Practice Group, stated thather billable rate was $300 per hour. Pl's Att'ys Fees Resp., Ex.1B ¶¶ 2, 3, 5. Lukey also makes reference to Kevin Powers, Esq.("Powers"), noting that in 1993, experienced plaintiff-sidelitigation attorneys charged hourly rates ranging between $280and $300 per hour. Id. ¶¶ 5-6. In his affidavit, Schwartzstates that in Lopes v. Town of Mattapoisett, Mass., No.00-11970-WGY (D. Mass. 2002), he was awarded attorney's fees atthe rate os $330 per hour. Pl's Att'ys Fees Resp., Ex. 1C.

First Unum contends that $300 is too high and proposes no morethan $250 as a reasonable hourly rate. Def.'s Att'ys Fees Opp'nat 9. First Unum cites numerous cases in which courts haveawarded hourly rates of approximately $250 for Boston civilrights attorneys with many years of experience. Id. at 8-9(citing, inter alia, Wilson v. McClure, 135 F. Supp. 2d 66,71 (D. Mass. 2001) (awarding $250 hourly rate to Harvey Schwartz,Esq., who the court recognized as a highly skilled and prominentBoston civil rights attorney); Alfonso v. Aufiero,66 F. Supp 2d 183, 197 (D. Mass. 1999) (Saris, J.) (holding that $250 is a typical hourly rate for a senior civil rights trial attorney).

This Court rules that $250 is a reasonable hourly rate for anattorney of Pyle's experience, skill, and tenure before the bar.

(2) Attorney Cathy Highet

As noted previously, Highet is an associate working for thefirm of Pyle, Rome, Lichten, & Ehrenberg and has been employed byPyle's firm since May of that 2003. Pl's Att'ys Fees Resp., Ex. 2¶ 2. Highet graduated in 2003 from Boalt Hall School of Law,University of California, Berkeley. Id. ¶¶ 1. Highetspecializes in labor and employment law. Id. ¶ 2.

In support of Highet's assertion that a $175 hourly rate iscommensurate with that paid to other Boston area attorneys inlabor and employment law litigation cases, Radford refers to theaffidavits of Telegen and Schwartz. Pl's Att'ys Fees Resp., Exs.1A, 1C. In 2002, Telegen stated that the market hourly ratecharged for William J. Brennan ("Brennan"), an associate atFoley, Hoag, & Eliot, L.L.P., was $215. Pl's Att'ys Fees Resp.,Ex. 1A ¶¶ 2-3. At that time, Brennan had been an associate atFoley, Hoag & Eliot L.L.P. for approximately two years, althoughit is not clear how many years of total experience Brennan had atthat time. See id. ¶ 2. The Schwartz affidavit states that in1994 he was assisted by Kimberly Scheckner, an associate withseven years of experience and whose billable hourly rate is asserted to have been $190. Pl's Att'ys Fees Resp., Ex. 1C at 2,4-5.

In researching the appropriate hourly rates of associateattorneys, this Court has found that Highet's requested rate of$175 is too high. Highet's work consisted primarily of researchand the drafting of the reply to First Unum's motion for summaryjudgment, both important tasks to Radford's claim. The reductionof the requested rate from $175 to $125 is warranted, however,given Highet's years of experience at the time of the workperformed (less than 1 year). Moreover, $125 per hour isreasonable and appropriate in considering the prevailing marketrates for assistant counsel in the Boston area. See McDonoughv. City of Quincy, 353 F. Supp. 2d 179, 188 (D. Mass. 2005)(holding $150 hourly rate reasonable where associate counsel had9 years of unconcentrated emphasis in labor and employment law);Dash v. Chicago Ins. Co., No. 00-11911, 2004 U.S. Dist. LEXIS17309, at *38 n. 25 (D. Mass. Aug. 23, 2004) (Woodlock, J.)(unpublished opinion) (noting that the parties in the case agreedthat associate pay ranged between $130-170/hour which contrastedwith Gadsby & Hannah, L.L.P., which charged hourly rates forassociates of $150-220); Martino, 230 F. Supp. 2d at 206(holding $175 hourly rate reasonable for a labor and employmentattorney with 19 years of experience); Wilson,135 F. Supp. 2d at 72 (ruling that a third year associate's rate should be$120/hour); Alfonso, 66 F. Supp. 2d at 197 (awarding hourlyrate of $130 to associate); Guckenberger v. Boston Univ., 8 F. Supp. 2d 91,108 (D. Mass. 1998) (Saris, J.) (approving hourly rate of $140for junior attorney's core legal work); Murray v. Shaw Indus.,Inc., 990 F. Supp. 46, 48 (D. Mass. 1997) (approving hourly rateof $125 to $140 for associate counsel); Clifton v.Massachusetts Bay Transp. Auth., No. 95-2686, 2000 Mass. Super.LEXIS 22, at *49 (Feb. 3, 2000) (Gants, J.) (awarding an hourlyrate of $175.00 to an attorney who handled much of the discoveryand research and awarding an hourly rate of $125.00 to anattorney who organized trial materials and performed some legalresearch).

In sum, the reasonable hourly rates to be used for attorneysPyle and Highet in the lodestar calculation are found to be $250and $125, respectively.

c. Adjusting the lodestar

"Once established, the lodestar represents a presumptivelyreasonable fee, although it is subject to upward or downwardadjustment in certain circumstances." Parker v. Town ofSwansea, 310 F. Supp. 2d 376, 398 (D. Mass. 2004) (Dein, M.J.)(quoting Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir.1992)). While "the trial court retains the authority to adjustthe lodestar . . . it must do so in accordance with acceptedprinciples." Coutin v. Young & Rubicam Puerto Rico, Inc.,124 F.3d 331, 337 (1st Cir. 1997). It is generally recognized that"[i]f a plaintiff prevails on only some of multiple claims, thena fee reduction may be in order." Id. at 339; Alfonso, 66 F. Supp. 2d at 198(noting that where "multiple claims are interrelated and aplaintiff has achieved only limited success, awarding her theentire lodestar amount would ordinarily be excessive"). To theextent that claims are not interrelated, i.e., where they "reston different facts and legal theories — they are by definitionseverable and unrelated" and time spent in connection withunsuccessful, severable claims should be eliminated. Coutin,124 F.3d at 339. "The guiding principle . . . is that a courtshould award only that amount of fees that is reasonable inrelation to the results obtained at trial." Alfonso,66 F. Supp. 2d at 198 (internal quotation marks omitted).

Analysis of the "results obtained" is a "preeminentconsideration in the fee-adjustment process." Coutin,124 F.3d at 338. In Coutin, the First Circuit explained that the meaningof "results obtained" includes: (1) "a plaintiff's success claimby claim;" (2) "the relief actually achieved;" and (3) "thesocietal importance of the right which has been vindicated."Id.; Mogilevsky, 311 F. Supp. 2d at 221. Applying theseprinciples to the case at hand does not warrant a reduction inthe lodestar amount.

The "claim by claim" factor does not militate in favor ofreducing the fee. This inquiry "focuses on the number ofsubstantive causes of action on which a plaintiff prevailed. If a plaintiff prevails on only some of multiple claims, then a feereduction may be in order." Alfonso, 66 F. Supp. 2d at 198(internal quotation marks and citation omitted). Here, only twoclaims were brought and one of those claims, for damages underMass. Gen. Laws ch. 93A, was voluntarily dismissed. This was nota case, however, where Radford consumed numerous and excessivehours in pursuit of this dismissed claim. In fact, Pyle assertsthat he "did little work" on the Chapter 93A claim and that he"ha[s] not requested fees" for it. Pl.'s Att'ys Fees Resp., Ex. 1¶ 4. The fact that Radford voluntarily dismissed one claimagainst First Unum and succeeded on the only claim pursued,indicates that no reduction is appropriate. Cf. Parker,310 F. Supp. 2d at 398-99 (indicating a reduction was appropriatewhere plaintiff only succeeded on 2 of 14 claims).

The amount of the award was not insubstantial, totaling over$100,000.00 as of April 13, 2004. See Def.'s SubmissionRegarding the Award of Benefits ("Def.'s Benefits Submission")[Doc. No. 40] at 4. The relief actually achieved does notmilitate for or against a modification of the lodestar amount.See Parker, 310 F. Supp. 2d at 399 (finding no adjustment tothe lodestar appropriate where the actual award was notinsignificant though short of what plaintiff was seeking).

Finally, the verdict in this case is of public significancegiven the importance attributed by Congress to the goals of ERISA policy, see 29 U.S.C. § 1001, and in curbing further flagrantdenials and patently unreasonable interpretations of their ownpolicies by First Unum. See Radford Trust,321 F. Supp. 2d at 247-49. Moreover, this case may be considered to be one involvingpublic significance beyond the identities of those directlyinvolved because First Unum can no longer claim good faith in itsability to pursue the same unreasonable interpretation of itsinsurance policies with other, similarly situated claimants, andother insurance companies may be precluded from making the sameargument. Cf. Parker, 310 F. Supp. 2d at 399 (finding that,in light of the outcome of the verdict, the case did not involvegreat public significance beyond those involved before thecourt). Thus, the public benefit of the decision in this case andthe importance of ERISA's public policies, see generally AetnaHealth, Inc. v. Davila, 124 S. Ct. 2488, 2501-02 (2004),counsel against a reduction in attorney's fees.

d. Costs

Radford has also submitted a bill of costs wherein it seeks$267.10 for costs related to this litigation. Pl's Att'ys FeesResp., Ex. 3 at 8 (referring to costs as "expenses"). First Unumhas objected to $67.10 of these costs, stating that as theypertain to courier charges, fax charges, and travel expenses,they are not allowed under ERISA, 29 U.S.C. § 1132(g). Def.'s Att'ys Fees Opp'n at 11-12. First Unum argues that because thesecosts are outside of the scope of 28 U.S.C. § 1920,7 theCourt should exercise its discretion and refrain from awardingthese costs under 29 U.S.C. § 1132(g). Id. at 10-11.

In guiding the lower courts, [t]he Supreme Court has attempted to give the word "costs" a consistent meaning in federal law. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 [,441-45] (1987) (harmonizing "costs" in Federal Rule of Civil Procedure 54(d) with "costs" in 28 U.S.C. § 1920). . . . [T]he Supreme Court noted that the word "costs" in fee-shifting statutes should be given the same meaning as the word "costs" in section 1920 of Title 28, [West Va. Univ. Hosps. v. Casey,] 499 U.S. 83, 87 n. 3 (1991). The Supreme Court went on to note, however, that reasonable out-of-pocket expenses incurred by the attorney and normally charged to the client could be awarded as part of the attorneys' fees." Id. (citing Northcross v. Bd. of Educ., 611 F.2d 624, 639 (6th Cir. 1979) ("Reasonable photocopying, paralegal expenses, and travel and telephone costs are thus recoverable pursuant to the statutory authority of § 1988")).Systems Mgmt., 154 F. Supp. 2d at 204.

Under ERISA, the court "in its discretion may allow . . . costsof action to either party." 29 U.S.C. § 1132(g); Def.'s Att'ysFees Opp'n at 10. While section 1132(g) does not define whatcosts are recoverable, the First Circuit and its district courtshave generally declined to award expenses beyond those recognizedin section 1920. Mr. and Mrs. S. v. Timberlane Reg'l Sch.Dist., No. 03-260-JD, 2004 U.S. Dist. LEXIS 4032, at *23 (D.N.H.Mar. 15, 2004) (unpublished opinion); see, e.g., In re SanJuan Dupont Plaza Hotel Fire Litig., 994 F.2d 956, 964 (1st Cir.1993) (interpreting scope of Fed.R.Civ.P. 54(d) and findinggeneral overhead expenses are not costs under section 1920);Rodriguez-Garcia v. Davila, 904 F.2d 90, 100 (1st Cir. 1990)(applying section 1920 in civil rights case and ruling "if thecosts were reasonably necessary to the maintenance of the action,then they are allowable"); Denny, 880 F.2d at 1470-72(following Crawford Fitting Co. v. J.T. Gibbons, Inc.,482 U.S. 437, 440-45 (1987) and noting that courts ought "not lightlyinfer" authorization for cost-shifting outside the boundaries ofsections 1920 and 1821). Courts have expressly held that section 1132(g) does not permit the award of costs beyond those specifiedin 28 U.S.C. §§ 1821 and 1920. See Holland v. Valhi Inc.22 F.3d 968, 979-80 (10th Cir. 1994); Boyadjian v. CIGNA Cos.,994 F. Supp. 278, 280, 282 (D.N.J. 1998) aff'd, 203 F.3d 816,cert. denied, 530 U.S. 1215 (2000); see also Agredano v.Mutual of Omaha Cos., 75 F.3d 541, 544 (9th Cir. 1996)(limiting "costs of action" to those costs defined by sections1920 and 1821 or similar such statutory provisions).

First Unum objects to $55.10 in courier charges, $6.00 in faxcharges, and $6.00 in travel expenses for counsel because theyare not recoverable under 28 U.S.C. § 1920. Def.'s Att'ys FeesOpp'n at 11-12. As matter of law, the $55.10 in courier feesnoted here are out-of-pocket expenses that may be deemed part ofthe attorney's fees. See System Mgmt., 154 F. Supp. 2d at 211(ruling expenses recoverable as either attorney's fees or costsincludes "expenses for court filings, process servers, couriers,mailings, deposition transcripts, prints, trial exhibits, andinterpreters"); In re Fidelity/Micron Sec. Litig.,167 F.3d 735, 739 (1st Cir. 1999) (noting that courier fees and travelexpenses are not included in costs absent special circumstances);but see Wilson, 135 F.Supp 2d at 74 (disallowing expenses forcouriers). In light of these decisions, the $6.00 fax is allowedas a mailing but the $6.00 in taxi fares are disallowed as anon-compensable expense. Accordingly, the Court concludes that $261.00 is to be awarded Radford as costs.

3. Summary of Attorney's Awards

Accordingly, Radford's Motion for Attorney Fees for CounselWarren H. Pyle and Cathy Highet by Radford Trust [Doc. No. 43] isALLOWED. Based upon the foregoing reasoning, the Court holds thatPyle and Highet are entitled to $25,112.50 for attorneys' feesand $261.00 in costs, resulting in a total award of$25,373.50.8

B. The Motion for Attorney's Fees for John Doe by RadfordTrust is DENIED

While Doe indicates that a pro se licensed attorney "appearingfor himself . . . is entitled to the same attorney's fees whichcould be taxed in the cause if he had appeared for another,"Pl.'s Att'ys Fees Mot. I at 3 (citing 20 Am. Jur. 2d Costs § 70(2004)), the facts surrounding this action as well as UnitedStates Supreme Court and First Circuit precedent preclude it.

Generally, while awarding attorney's fees is intended toencourage litigation protecting civil rights, the more specific purpose of awarding attorney's fees is to enable potentialplaintiffs to obtain the assistance of competent, independentcounsel. Kay v. Ehrler, 499 U.S. 432, 436-37 (1991). When alawyer proceeds pro se however, that lawyer is deprived of"independent" judgment and leaves open the possibility thatemotion may undermine efficacy. See id. at 437.

In the context of a Freedom of Information Act case, the FirstCircuit articulated another rationale for denying attorney's feesto a pro se attorney litigant. The First Circuit reasoned that apro se attorney should not be entitled to any payment for thetime they spend litigating their own case because all pro selitigants, no matter their profession, expend time on their casesresulting in loss of income. Aronson v. U.S. Dep't of Housingand Urban Develop., 866 F.2d 1, 5 (1st Cir. 1989) ("Lawyers arenot the only persons whose stock in trade is time and advice.").Thus, the Aronson decision implies, the law ought not endorseunequal treatment of attorney pro se litigants vis-à-vis otherlitigants acting pro se. See id.

While the First Circuit has not directly addressed attorney'sfees for pro se attorney litigants in ERISA cases, other courtshave ruled that, in such cases, attorney's fees are notwarranted. Matassarin v. Lynch, 174 F.3d 549, 570 (5th Cir.1999) (ruling that because attorney plaintiff "performed most ofthe legal work and pursued unviable claims, the district courtdid not abuse its discretion in refusing to award attorneys' fees"); Bryan v. Michigan Funeral Dir. Ass'n, Inc., No.5:00-CV-9, 2001 U.S. Dist LEXIS 580, at *18 (W.D. Mich. Jan. 16,2001) (unpublished opinion); Boyadjian v. CIGNA Cos.,973 F. Supp. 500, 503-04 (D.N.J. 1997). Indeed, in the context of thiscase, the argument against awarding attorney's fees to pro seattorneys may even be stronger given that this attorney'sdisability claim involves his assertion that he is "disabled" andunable to perform the work of an attorney. Def. Opp'n to Pl.'sMot. for Att'y Fees for Legal Work by Doe ("Def.'s Opp'n toAtt'ys Fees Mot. I") [Doc. No. 50] at 1-2.

Radford has not convinced this Court that Doe ought becompensated for the legal work he allegedly performed inconnection with his ERISA claim. To support the proposition thata pro se attorney who has retained a second attorney may recoverpro se fees, Doe only cites a single state court decision arisingin a different context. Pl.'s Att'ys Fees Mot. I at 4 (citingDepartment of Conservation on behalf of the People v.Lawless, 100 Ill. App. 3d 74, 82 (1981) (holding that the trialcourt erred in denying pro se attorney's fees when the trialcourt did not justify denying the award through the balancing offactors including "the time and labor required, the customary feefor such legal work, the amounts of such awards in similar cases,the novelty of the question presented, the actual necessity ofhiring additional counsel, and the attorney's reputation andexperience"). For the reasons stated above, Radford's Motion for attorney's fees for legal work allegedly performed by Doe [Doc.No. 44] is DENIED.

C. Radford's Response to Defendant's Submission Regarding theAward of Benefits and Motion by Radford Trust for First Unum toFirst Determine the Applicability of the Social Security OffsetProvision is ALLOWED

Determining the applicability of the Social Security Offsetprovision contained within Doe's policy is necessary to calculatethe total amount of the award due Radford. See section J,infra. Thus, this motion [Doc. No. 46] is GRANTED to the extentthat it asks First Unum to determine the applicability of theSocial Security Offset provision and to incorporate thatdetermination into the calculation of the benefits due Doe withinfourteen days of the date of this Memorandum and Order. FirstUnum should also explain its rationale as to the applicability ofthe Social Security Offset provision, and provide any documentson which it relies to Radford and this Court.

D. The Motion by First Unum Life Insurance Company of Americato Strike Response to Defendant's Opposition to Plaintiff'sMotion for an Award of Attorney's Fees is DENIED

Local Rule 7.1(b)(3) of the United States District Court forthe District of Massachusetts states: Additional Papers. All other papers not filed as indicated in subsections (b)(1) and (2), whether in the form of a reply brief or otherwise, may be submitted only with leave of court.D. Mass. R. 7.1.

As Radford submitted their response to First Unum's opposition, without first filing for leave of court, First Unumargues that Radford's response should be stricken from therecord. Def.'s Mot. to Strike at 3. First Unum alleges thatRadford's "attempt to have the last word on this issue, when [it]was fully able to present its arguments to the Court in itsoriginal motion, is simply not permitted under the Local Rules."Id. at 4.

While Radford implicitly agrees that acquiring leave to fileits response was necessary under Local Rule 7.1(b)(3), it arguesthat this Court has ample authority to accept the supplementalattorney's fee information and draws the Court's attention to theFirst Circuit's decision in Wennik v. Polygram GroupDistribution, Inc., 304 F.3d 123, 134 (1st Cir. 2002). Pl.'sMot. to Strike Opp'n at 2. In Wennik, the court found "no abuseof discretion in the district court's acceptance of . . . revisedtime records," and noted further that precedent "suggest[s] thatacceptance of revised time records is not uncommon."304 F.3d at 134. In the alternative, Radford requests that this courtretroactively grant leave to file its response. Pl.'s Mot. toStrike Opp'n at 2.

Radford's retroactive request for leave to file "Plaintiff'sResponse to Defendant's Opposition to Plaintiff's Motion for anAward of Attorney's Fees", made in Radford's Opposition to FirstUnum's Motion to Strike [Doc. No. 53] is ALLOWED. First Unum'sMotion to Strike [Doc. No. 52] is DENIED. E. The Motion to Intervene by Bernard Doe to File Reply toUnum's Opposition to Motion for Attorney Fees for Work by JohnDoe and the Motion for Leave to Request Doe's Additional AttorneyFees for Helping to Prepare this Filing are DENIED

Doe's motion for attorney's fees has been denied. See sectionIII.B, supra. Thus, Radford Trustee Bernard Doe's Motion toIntervene to File Reply to Unum's Opposition to Motion forAttorney Fees for work by John Doe and Motion for Leave torequest Doe's Additional Attorney Fees, [Doc. No. 54] are bothDENIED as moot.

F. The Motion by Radford Trust to Amend Memorandum & Order ofJune 14, 2004 and the Motion to Supplement the AdministrativeRecord are DENIED

Radford requests first that this Court supplement theadministrative record with an affidavit by John Doe purporting toestablish that Doe's original employer considered him disabled byschizophrenia at least as early as October 17, 1999. Pl.'s Mot.to Amend 7/14/04 Order & Supple. Admin. R. at 1. Supported bythis new assertion, Radford requests that this Court amend itsJune 14, 2004 Memorandum and Order and thereby: (1) change theeffective date for the calculation of prejudgment interest fromJune 13, 2000 to October 17, 1999; and (2) hold that theprejudgment interest should run until the date of the Court's"quantum judgment" in lieu of its "merits judgment." Id. at1-2.

1. Radford's Motion to Supplement the Administrative Record isDENIED

First Unum does not contest this Court's authority to supplement the administrative record. See Def.'s Opp'n to Pl.'sMot. to Amend Mem. & Order of June 14, 2004 and to Supple. theAdmin. R. [Doc. No. 65]. Under Fed.R.Civ.P. 60(b), the Courtmay "relieve a party . . . from a final judgment, order, orproceeding for . . . newly discovered evidence which by duediligence could not have been discovered in time to move for anew trial under Rule 59(b) . . . [or] any other reason justifyingrelief from the operation of the judgment." Here, Radford was nothindered in its ability to put forth its best evidence to supportall aspects of its case. The supplemental affidavit of Doe putsforth no "newly discovered evidence which by due diligence couldnot have been discovered" earlier. Nor does Doe's affidavitjustify relief or modification of the operation of the judgment.This Court will not allow Radford to supplement theadministrative record at this point in order to support elementsof liability that could, and should, have been properly placed inthe record when the principal case was filed and ruled upon.Radford's Motion to Supplement the Administrative Record [Doc.No. 59] is thus DENIED.

2. Radford's Motion to Amend the June 14, 2004 Memorandum andOrder is DENIED

Radford proposes two amendments to the June 14, 2004 Memorandumand Order of the Court: (a) making the effective date forinterest October 17, 1999; and (b) holding that the prejudgmentinterest continues until the date the court quantifies damages. Pl.'s Mot. to Amend 7/14/04 Order & Supple.Admin. R. at 1. Even had this Court granted Radford's motion tosupplement the administrative record, neither the conclusorystatements contained within Radford's supplemental affidavit, northe facts already in the record support amending this Court'sJune 14, 2004 Order.

a. The effective date for the calculation of interest is June13, 2000, not October 17, 1999

The Court has already carefully evaluated and determined theeffective date of prejudgment interest. In its June 14, 2004Order, this Court found that the information that First Unum received in Doe's initial claim application was sufficient to support [the] determination . . . that Doe was entitled to receipt of benefits as of October 17, 1999. Upon closer examination of the record, the Court has found information to which neither party pointed, showing that Doe did not submit an Employer's Statement and Job Analysis until June 13, 2000. See R. at FULCL00015-22. The information therein was important and arguably necessary for First Unum to reach a decision on Doe's benefits, so the Court revises its earlier finding and holding to reflect that Doe was eligible for benefits as of June 13, 2000.Radford Trust, 321 F. Supp. 2d at 253.

Even had the Court accepted the affidavit of Doe, it does notalter this Court's previous finding that: (1) First Unum requiredthe Employer's Statement and Job Analysis information in order todetermine whether Doe was disabled; and (2) that information wasnot received by First Unum until June 13, 2000. Id. Contrary to Radford's assertion, the information providedearlier than June 13, 2000 from Doe's physician did not provideFirst Unum with working condition information, i.e., occupationalduties, employment history, etc., necessary to make thedisability determination. This information was contained withinDoe's Employer Statement and Job Analysis and, as Radford doesnot contest, the Employer Statement and Job Analysis was notsubmitted to First Unum until June 13, 2000.

In an attempt to circumvent this fact, Radford submits Doe'ssupplemental affidavit to assert that Doe's former employerintentionally delayed furnishing the appropriate forms andinformation to First Unum. In support of these allegations,Radford offers only Doe's conclusory statements within thesupplemental affidavit; no other corroborating evidence isproffered. For these reasons, the Court will not amend itsjudgment and affirms that the effective date for the calculationof interest is June 13, 2000, not October 17, 1999.

b. Prejudgment interest is calculated as running until thedate of the underlying "merits judgment," not the "exact quantumjudgment"

Again, even assuming that the Court had granted Radford'smotion to supplement the administrative record, the cases citedin Radford's motion do not support amending this Court's June 14,2004 Order.

As this Court has previously noted, [t]here are often two distinct judgments in civil rights cases. The first, known as the "merits judgment," grants the prevailing party the right to recover attorney's fees. The second, known as the "exact quantum judgment," defines the precise amount of the fee award. The circuits are split as to when interest on an attorney fee award begins to accrue, with the Fifth, Sixth, Eighth, Ninth, Eleventh, and Federal Circuits holding that interest begins to accrue under section 1961(a) from the date of the merits judgment, and the Third, Seventh, and Tenth Circuits holding that interest begins to accrue on the date of the exact quantum judgment.Mogilevsky, 311 F. Supp. 2d at 224 (internal citationsomitted). This Court will not amend its June 14, 2004 Order andaffirms, consistent with its holding in Mogilevsky, thatinterest on the awarded attorney's fees and costs shall accrue asof the date of the underlying merits judgments pursuant to28 U.S.C. § 1961(a).

For the reasons cited above, Radford's motion to supplement theadministrative record [Doc. No. 59] is DENIED and Radford'sMotion to Amend the June 14, 2004 Memorandum and Order [Doc. No.59] is DENIED.

G. The Motion to Award Damages Under State Law by RadfordTrust is DENIED

On September 3, 2004, Radford requested pursuant toFed.R.Civ.P. 59(e) that this Court amend its June 14, 2004 judgmentand award multiple damages and additional attorney's fees underChapter 93A. Pl.'s State Damages Mot. at 1. In support of itsrequest, Radford asserts: (1) its withdrawal of its Chapter 93Aclaim, i.e., Count II of its original Complaint, ought not betreated as abandonment of additional remedies available under Chapter 93A; and (2) Chapter 93A is not preempted by ERISAbecause two recent Supreme Court decisions purportedly clarifythe limitations of preemption and would allow Radford's motionfor damages. Id.

1. Radford withdrew his claim for alleged violations ofMassachusetts state law and is therefore not entitled to damagesunder Massachusetts State law

Damages are only appropriate as to the claims upon which aplaintiff has prevailed. See generally Culebras Enter. Corp.v. Rivera-Rios, 846 F.2d 94, 103 (1st Cir. 1988) (holding that"reasonable costs that can be awarded pursuant to section 1988are only those related to plaintiffs' successful claims," andupholding denial of costs related to a particular claim because"[p]laintiffs did not prevail on that claim"). A plaintiff must"receive at least some relief on the merits of his claim beforehe can be said to prevail." Hewitt v. Helms, 482 U.S. 755,760 (1987). Thus, a party cannot recover damages underChapter 93A without first prevailing on a Chapter 93A claim forliability. See, e.g., Ciardi v. Hoffmann-La Roche,436 Mass. 53, 66 n. 20 (2002) (observing that "consumers whoprevailed on claims of unfair methods of competition and unfairor deceptive acts or practices in the conduct of any trade orcommerce" may recover damages and that relief is available to"the extent that the plaintiff is able to prevail on the issue ofliability"). Other district courts have denied motions under Rule59(e) because "other violations . . . were not overlooked; they were simply notpursued previously by [plaintiff]." Belmont v. AssociatesNat'l Bank, 219 F. Supp. 2d 340, 346 (E.D.N.Y. 2002) (denyingmotion to reopen discovery to seek out potential additionalviolations). As Radford's Chapter 93A claim was withdrawn, seeRadford Trust, 321 F. Supp. 2d at 226 n. 1, the Court did not —and does not — make any findings concerning it.

2. Consideration of Radford's claims that Mass. Gen. Lawsch. 93(A) is not preempted by ERISA is not appropriate at this time

Radford brings its motion under Rule 59(e) in light of tworecent Supreme Court cases, Kentucky Ass'n of Health Plans,Inc. v. Miller, 538 U.S. 329 (2003) and Aetna Health, Inc.v. Davila, 542 U.S. 200 (2004), alleging these cases affect thepreemption of state law claims by the federal framework ofremedies available under ERISA. See Pl.'s State Damages Mot. at3-4. Consideration of whether the status of preemption of claimsunder Chapter 93A was changed by the recent Supreme Court casesis not necessary here, however, because Radford did not pursueits claim under that law. As the only claims pursued were allegedviolations of ERISA, the effect of the most recent Supreme Courtdecisions upon the preemption of state law by ERISA is not beforethe Court, and the Court expresses no opinion concerning it.

Because Radford's September 3, 2004 motion to award damagesunder state law seeks relief not requested in the complaint and the effect of recent decisions by the Supreme Court is not atissue, this Court will not use Radford's motion as a vehicle toreconsider its previous decisions. Accordingly, Radford's Motionto Award Damages under State Law [Doc. No. 70] is hereby DENIED.

H. The Motion for Reconsideration Of Order Denying Motions AsMoot by Radford Trust is ALLOWED

Radford's Motion for Reconsideration of the Motions Denied asMoot on January 19, 2005 [Doc. No. 74] is ALLOWED. This Orderaddresses and resolves all outstanding motions before the Court.

I. The Motion by Radford Trust For Declaration that First Unumhas Repudiated the Court's Judgment and its AdministrativeResponsibilities Under the Insurance Policy so as to EntitlePlaintiff to Sue Immediately for Benefits Beyond the Twenty-FourMonth Period is DENIED

In its Order dated March 31, 2004, this Court held "[a]nydetermination as to whether Doe's disability is a `mental' one ora `physical' one for the purposes of continuing receipt ofbenefits under the Policy is for First Unum, rather than thisCourt, to make in the first instance." Order of 3/31/04 at 2.While Radford's motion that this Court declare that First Unumhas repudiated the Court's judgment [Doc. No. 75] is DENIED, thisCourt ordered First Unum, within thirty calendar days from March10, 2005, to make the determination whether Doe's disability is a"mental" or "physical" one and to provide such determination toRadford Trust, its beneficiary, Doe, and the Court. See Orderof 3/10/05, at 1 [Doc. No. 78]. J. The Amended Judgment Clarifying Appropriate Calculation OfPre-Judgment Interest And Award Of Damages

In its Order issued on March 31, 2004, this Court held thatRadford is entitled to recover prejudgment interest from October17, 1999 onward, at the rate of 12 percent annum or the averagerate of return for First Unum's investments between October 17,1999 and March 31, 2004, whichever is greater. Order of 3/31/04at 2. On April 14, 2004, First Unum submitted a memorandumexplaining the calculation of long-term disability benefitspayable to Radford, pursuant to this Court's March 31, 2004Order. See Def.'s Benefits Submission. Therein, First Unumattested that Radford is entitled to a total award of$192,902.50. Id. at 4. Radford submitted its response on April28, 2004, proposing that this Court enter judgment for a total of$213,227.11. Pl.'s Offset Mot. & Resp. to Def.'s Submission at 6.In this Court's June 14, 2004 Order, it amended the March 31,2004 Order, holding that prejudgment interest should run fromJune 13, 2000 and stating that the Court would issue an AmendedJudgment clarifying the appropriate calculation of prejudgmentinterest. Radford Trust, 321 F. Supp. 2d at 252 n. 21, 253,260.

Accordingly, the Court holds that Radford's beneficiary, Doe,was entitled to receive benefits under the First Unum policy thatis the subject of this action ("Policy") as of June 13, 2000, andfor twenty-four months thereafter, and that Radford is entitledto collect on Doe's behalf. The Court further holds that for purposes of paying Doe's benefits, First Unum must treatDoe as having been continually disabled between that date and thecurrent date, and as having complied with any requirements underthe Policy for continued receipt of benefits. To the extent thatDoe remains qualified for continuing receipt of disabilitybenefits after this date, he must comply with such requirementsas the Policy imposes.

The Court also holds that Radford is entitled to prejudgmentinterest from June 13, 2000, onward at the rate of either 12percent annum, see Mass. Gen. Laws ch. 231 § 6C, or the averagerate of return for First Unum's investments between June 13,2000, and this date, whichever is higher. The Court further holdsthat Radford is entitled to postjudgment interest on the benefitsjudgment (including prejudgment interest accrued to date), andthe cost and fee awards this Court has determined to beappropriate, at the statutory rate of 4.26%. See28 U.S.C. § 1961(a); Federal Reserve Statistical Release, available athttp://www.federalreserve.gov/releases/h15/current (last modifiedOct. 30, 2005).

Accordingly, within fourteen days from this date, First Unumshall submit to the Court and to Radford an accurate calculationof the average rate of return on its investments during theperiod between June 13, 2000, and this date, as well as suchmaterials as are necessary to make such a calculation, unless the parties shall agree as to said rate of return or agree that it isless than twelve percent. Radford shall have twenty-eight daysfrom this date to submit any materials challenging it.

Also within fourteen days from this date, First Unum shallsubmit to the Court and to Radford an accurate calculation of thebenefits and interest to which Radford was entitled as of thisdate, as well as such materials as are necessary to make such acalculation, unless the parties shall agree to the amount owed.In making such a calculation, the Court holds that the interestwill be calculated using simple and not compound interest.Radford Trust, 321 F. Supp. 2d at 257 n. 25 (citing Coupounasv. Madden, 401 Mass. 125, 132 (1987); Inhabitants of Tisburyv. Vineyard Haven Water Co., 193 Mass. 196, 198 (1906). Anydetermination as to the applicability of the social securityoffset provision is for First Unum, rather than this Court, tomake in the first instance. First Unum's calculations willreflect whether and how the social security offset provisionapplies in its calculations of the benefits owed Doe. Lastly, theCourt notes that First Unum's calculations should reflect thatFebruary 2004 has 29 days given that 2004 is a leap year. SeePl.'s Offset Mot. & Resp. to Def.'s Submission at 2. Radfordshall have twenty-eight days from this date to file any materialschallenging First Unum's calculation.

IV. CONCLUSION For the foregoing reasons,

1. Radford Trust's April 14, 2004 Motion for Attorney Fees[Doc. No. 43] is ALLOWED in the total amount of $25,373.50;

2. Radford Trust's April 26, 2004 Motion for Attorney Fees forJohn Doe [Doc. No. 44] is DENIED;

3. Radford Trust's April 28, 2004 Motion For First Unum toFirst Determine the Applicability of the Social Security OffsetProvision [Doc. No. 46] is ALLOWED;

4. First Unum's May 12, 2004 Motion to Strike Response toDefendant's Opposition to Plaintiff's Motion for an Award ofAttorney's Fees [Doc. No. 52] is DENIED. Radford's retroactiverequest for leave to file a response to Defendant's Opppositionto Radford's Motion for Attorneys Fees [Doc. No. 49], made inPlaintiff's Opposition to First Unum's Motion to Strike [Doc No.53], is ALLOWED.

5. Bernard Doe's May 26, 2004 Motion to Intervene to File Replyto Unum's Opposition to Motion for Attorney Fees for work by JohnDoe, and, Motion for Leave to Request Doe's Additional AttorneyFees for Helping to Prepare this Filing [Doc. No. 54] are DENIED;

6. Radford Trust's July 16, 2004 Motion to Amend the Court'sMemorandum & Order of June 14, 2004 and Motion to Supplement theAdministrative Record [Doc. No. 59] are DENIED;

7. Radford Trust's September 3, 2004 Motion to Award Damages Under State Law [Doc. No. 70] is DENIED;

8. Radford Trust's January 26, 2005 Motion for Reconsiderationof Order Denying Motions as Moot [Doc. No. 74] is ALLOWED andsatisfied with this Order; and

9. Radford Trust's February 10, 2005 Motion For Declarationthat First Unum has Repudiated the Court's Judgment and itsAdministrative Responsibilities Under the Insurance Policy so asto Entitle Plaintiff to Sue Immediately for Benefits Beyond theTwenty-Four Month Period [Doc. No. 75] is DENIED.

10. Within fourteen days of this date, First Unum shall submitto the Court and to Radford an accurate calculation of thebenefits and interest to which Radford was entitled as of thisdate, as well as such materials as are necessary to make such acalculation, unless the parties shall agree to the amount owedand shall submit an agreed form of judgment.

SO ORDERED.

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