Shultz v. Aetna Life Insurance Company (JOINT ASSIGN)(MAG2)

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION

RICHARD P. SHULTZ, )

)

Plaintiff, )

) CIVIL ACTION NO.

v. ) 1:16cv94-MHT

) (WO)

AETNA LIFE INSURANCE )

COMPANY and L-3 )

COMMUNICATIONS WELFARE )

PLAN, )

)

Defendants. )

OPINION AND ORDER

This case has been brought pursuant to the Employee

Retirement Income Security Act of 1974 (“ERISA”), as

amended, 29 U.S.C. § 1001, et seq. After being awarded

long-term-disability benefits because he can no longer

work, plaintiff Richard P. Shultz now seeks, under

ERISA’s fee-shifting provision, 28 U.S.C. § 1132(g)(1),

attorney’s fees and costs from defendants Aetna Life

Insurance Company and L-3 Communications Welfare Plan.

For the reasons below, the court holds that Shultz’s

petition for attorney’s fees and costs is due to be

granted, though not for the full amount requested.

I. BACKGROUND

As described in the magistrate judge’s first

recommendation, Shultz began working as an engineer for

a company in 2003. Rep. & Rec. (doc. no. 158) at 2.

After being diagnosed with bladder cancer in July 2013,

he could no longer work; his last day on the job was

July 23, 2013. One of his treating physicians stated

that Shultz had, “No ability to work ... due to

inoperable hernia & pulmonary emboli.” Id. at 3. The

physician later indicated that Shultz’s “Estimated

return to work date” was “Never.” Id. Based at least

in part on that physician’s findings, Aetna Life

approved Shultz’s short-term disability benefits

beginning in September 2013 and later approved his

claim for 24 months of long-term-disability benefits

beginning on October 22, 2013. Aetna Life informed

Shultz that, should he still be disabled after 24

months, he would need to meet a more stringent

definition of “disabled” to continue receiving

benefits; specifically, he would need to show that he

was “unable to work at any reasonable occupation solely

because of an illness, injury, or disabling pregnancy-

related condition.” Id. at 4.

At Aetna Life’s prompting, Shultz applied for, and

received, Social Security Disability Income. Aetna

Life sought reimbursement for those payments to recoup

part of the payments it had made to Shultz. Id. at 5.

However, the magistrate judge noted that the standard

for Social Security disability benefits--which Shultz

satisfied--is much higher than Aetna Life’s “reasonable

occupation” standard. Id. at 11.

As Shultz continued the treatment for his cancer

and as the end of the 24-month period approached, Aetna

Life investigated whether Shultz was able to work in

“any reasonable occupation.” A n Aetna Life nurse

reviewed Shultz’s file and noted that he was “inclined

to conclude, based on the current medical records in

the file, that Richard Shultz would have ful[l] time

functional capacity.” Claim File Pt. 2 (doc. no.

115-33); see Rep. & Rec. (doc. no. 158) at 5. Aetna

Life provided the nurse’s assessment to Shultz’s

treating physicians for their approval, and both signed

it. However, each physician later wrote with concerns

about Shultz’s ability to work; in fact, one physician

wrote that “th[e] letter noting [his] signature ... was

in error on the pre-printed form submitted by Aetna.”

Rep. & Rec. (doc. no. 158) at 6.

Aetna Life eventually terminated Shultz’s

long-term-disability benefits based on a “Transferable

Skill Analysis” that found that he could work as a

“boat dispatcher,” “purser,” or “test desk supervisor,”

a job very similar to the one that he was previously

deemed incapable of working. Id. at 6-7 (referring to

Shultz’s prior job as a “Help Desk Supervisor”). When

Shultz appealed Aetna Life’s determination to a higher

level, Aetna Life requested that an independent

physician, Dr. Elena Antonelli, complete an assessment.

See id. at 7.

Dr. Antonelli said she attempted to reach Shultz’s

treating physicians, but that they failed to return her

calls; at least one of the physicians disputed that

account. Dr. Antonelli never physically examined

Shultz but, based on a telephone conversation and a

review of his medical records, she determined that he

could return to work. She later read letters,

submitted by Shultz’s treating physicians, which stated

that they did not agree that Shultz was able to return

to work, but the letters did not affect her decision.

See id. at 8. Dr. Antonelli noted that neurocognitive

testing might be helpful to better understand Shultz’s

condition, but the record contains no indication that

such testing occurred. Based on Dr. Antonelli’s

review, Aetna Life denied Shultz’s appeal. See id.

Shultz then filed suit in this federal court,

claiming that Aetna Life and the Welfare Plan

improperly withheld long-term-disability and other

related benefits from him. The magistrate judge, to

whom the case had been referred, recommended that the

matter be remanded to Aetna Life’s administrator so the

parties could “complete the record and obtain a new

decision.” Id. at 13. In a later recommendation

noting again that the court was without the benefit of

a complete record, the magistrate judge declined the

Welfare Plan’s request to rule as to the claim against

it for non-long-term-disability benefits. See Supp.

Rep. & Rec. (doc. no. 164). Over objections, the court

adopted both of the magistrate judge’s recommendations

and remanded the case to the Welfare Plan for a new

determination on a complete record. See Judgment (doc.

no. 172).

Following the remand order, Shultz timely filed the

pending petition for attorney’s fees and costs. After

he filed the petition, Aetna Life notified him that it

was reinstating his long-term-disability benefits. See

Pl.’s Supp. to Mot. for Attorneys’ Fees (doc. no. 184-

1) at 1. He supplemented his petition to reflect that

he had prevailed in getting his long-term-disability

benefits. See id. But he also asked the court to keep

the case pending because the parties still had to

address “ancillary benefits and a few secondary

issues.” Id. Shultz has now represented to the court

that the parties “recently resolved all remaining

administrative issues not presently before the

[c]ourt.” Pl.’s Statement Regarding Conclusion of

Admin. Process (doc. no. 187) at 1.

Aetna Life and the Welfare Plan oppose Shultz’s

petition for fees and costs. They argue that (1) he

did not achieve the required “success on the merits” to

warrant attorney’s fees; (2) the court should exercise

its discretion to deny attorney’s fees; and (3), in the

alternative, the court should dramatically reduce his

requested fees and eliminate his requested expenses.1

The court will address each of these arguments in turn.

1. In telephonic conference calls on April 5 and

December 19, 2018, the parties declined the opportunity

to present supplemental briefing on: (1) Aetna Life’s

decision to reinstate Shultz’s long-term-disability

II. DISCUSSION

The court’s analysis proceeds in two parts. First,

the court considers whether Schultz is entitled to an

award of attorney’s fees and expenses from Aetna Life

and the Welfare Plan under 29 U.S.C. § 1132(g)(1).

Second, the court considers the amount of attorney’s

fees Schultz may recover.

A. Schultz has demonstrated that he is entitled to

attorney’s fees under ERISA.

Under § 1132(g)(1), “the court in its discretion

may allow a reasonable attorney’s fee and costs of

action to either party” provided that “the fee claimant

has achieved ‘some degree of success on the merits.’”

Hardt v. Reliance Standard Life Insurance Co., 560 U.S.

242, 245 (2010) (quoting Ruckelshaus v. Sierra Club,

463 U.S. 680, 694 (1983)). Following his new benefit

determination and award of long-term-disability

benefits; and (2) the resolution of ancillary benefits

and administrative matters.

benefits, there is no question that Shultz has

satisfied this threshold requirement.

However, even when a party has achieved some degree

of success on the merits, there is “no presumption in

favor of granting attorney’s fees to a prevailing

claimant in an ERISA action.” Freeman v. Cont’l Ins.

Co., 996 F.2d 1116, 1119 (11th Cir. 1993). Instead,

the court is required to consider the following five

factors: “(1) the degree of the opposing parties'

culpability or bad faith; (2) the ability of the

opposing parties to satisfy an award of attorneys'

fees; (3) whether an award of attorneys' fees against

the opposing parties would deter other persons acting

under similar circumstances; (4) whether the parties

requesting attorneys' fees sought to benefit all

participants and beneficiaries of an ERISA plan or to

resolve a significant legal question regarding ERISA

itself; and (5) the relative merits of the parties'

positions.” Iron Workers Local No. 272 v. Bowen, 624

F.2d 1255, 1266 (5th Cir. 1980) (footnote omitted);2 see

also McKeown v. Blue Cross Blue Shield of Alabama, 497

F. Supp. 2d 1328, 1332 (M.D. Ala. 2007) (Thompson, J.).

“No one of these factors is necessarily decisive, and

some may not be apropos in a given case, but together

they are the nuclei of concerns that a court should

address.” Iron Workers Local, 624 F.2d at 1266.

Applying these factors to the case, the court finds

that Schultz is entitled to an award of attorney’s

fees.

1. Culpability or Bad Faith

The culpability-or-bad-faith factor weighs in

Shultz’s favor. Bad faith is a high bar. It is the

“conscious doing of a wrong,” United States v. Gilbert,

198 F.3d 1293, 1299 (11th Cir. 1999); “knowingly or

recklessly pursu[ing] a frivolous claim or engag[ing]

2. See Bonner v. City of Prichard, 661 F.2d 1206

(11th Cir. 1981) (en banc) (adopting as binding

precedent all decisions of the former Fifth Circuit

handed down prior to the close of business on September

30, 1981).

in litigation tactics that needlessly obstruct the

litigation of non-frivolous claims,” Schwartz v. Millon

Air, Inc., 341 F.3d 1220, 1225–26 (11th Cir. 2003); or

“deliberate deception, gross negligence or

recklessness,” Am. Bankers Ins. Co. of Fla. v.

Northwestern Nat'l Ins. Co., 198 F.3d 1332, 1336 (11th

Cir. 1999); see also Cross v. Quality Mgmt. Grp., LLC,

491 F. App'x 53, 56 (11th Cir. 2012).

But culpability is a lower standard than bad faith.

See Wright v. Hanna Steel Corp., 270 F.3d 1336, 1345

(11th Cir. 2001). Courts have found that an

administrator’s failure to consider all the appropriate

medical evidence in the case indicates, at minimum,

culpability. See Hines v. Unum Life Ins. Co. of Am.,

110 F. Supp. 2d 458, 469 (W.D. Va. 2000) (Williams, J.)

(finding bad faith in part because administrator failed

to consider relevant medical evidence); Lijoi v. Cont’l

Cas. Co., 414 F. Supp. 2d 228, 249 (E.D.N.Y. 2006)

(Glasser, J.) (finding culpability, but not bad faith,

on the part of administrator who failed to consider new

evidence of disability); Powers v. Thermadyne Holdings

Corp., No. 99-1427-WEB, 2001 WL 487902, at *11 (D. Kan.

Feb. 6, 2001) (Brown, J.) (declining to find bad faith

but finding that defendant’s failure to consider

appropriate evidence weighed in favor of awarding

attorney’s fees).

The court finds that Aetna Life and the Welfare

Plan acted with culpability because they failed to

consider all relevant information before making a

benefits determination. They argue that they had no

obligation to seek out “evidence which is in the

possession of others.” Def.’s Resp. to Mot. for

Summary Judgment (doc. no. 134-15) at 31. But it later

came to light--after a protracted discovery dispute the

court had to resolve--that Aetna Life already had

access to Shultz’s medical records. See Sealed

Document (doc. no. 145). Moreover, in making its

benefits decision, Aetna Life did not consider any

evidence produced in Shultz’s Social Security benefits

application, which Aetna Life itself prompted Shultz to

make.3 Aetna Life’s failure to give consider all

relevant evidence before denying Shultz’s claim points

to culpability on the insurance company’s part.

Because Aetna Life’s investigation was “not as

thorough as it should have been to provide an impartial

determination,” Anderson v. Unum Life Ins. Co. of Am.,

No. CIVA 2:01CV894-ID, 2007 WL 604728, at *6 (M.D. Ala.

Feb. 22, 2007) (DeMent, J.), this factor weighs in

favor of Shultz.

2. Ability to Satisfy the Award

The ability-to-satisfy-award factor weighs in favor

of Shultz, as Aetna Life and the Welfare Plan concede

that they have the financial resources to satisfy the

award. See Def.’s Resp. in Opp. To Pl.’s Pet. (doc.

no. 182) at 20-21.

2. This evidence is not contained in the record.

See Rep. & Rec. (doc. no. 158) at 13.

3. Deterrence

The deterrence factor weighs in favor of an award

of attorney’s fees. Aetna Life and the Welfare Plan

argue that, because they have done “nothing to be

deterred,” id. at 21, this factor weighs against an

award. Specifically, they contend that, were this

factor to weigh against them, the court would risk

improperly awarding punitive damages in violation of

binding precedent. See Mass. Mut. Life Ins. Co. v.

Russell, 473 U.S. 134, 144-46 (1985) (holding that

punitive damages are unavailable under ERISA).

That argument is based on a misunderstanding of

this factor. A finding that Aetna Life’s conduct

should be deterred does not render punitive an award of

attorney’s fees. Instead, “the deterrent value of an

award of attorneys' fees is high.” National Cos.

Health Benefit Plan v. St. Joseph's Hosp., Inc., 929

F.2d 1558, 1575 (11th Cir. 1991), abrogated on other

grounds by Geissal v. Moore Med. Corp., 524 U.S. 74

(1998). If a culpable party did not have to pay

attorney’s fees, “it would only be liable for what it

should have covered before this litigation commenced.”

Id. “With nothing to lose but their own litigation

costs, other ERISA-plan sponsors might find it

worthwhile to force underfinanced beneficiaries to sue

them to gain their benefits or accept undervalued

settlements.” Id.

An award here would not punish Aetna Life and the

Welfare Plan; rather, it would deter future similar

conduct by all plan administrators who make benefits

decisions without considering the full administrative

record. Accordingly, this factor weighs in favor of an

award of attorney’s fees.

4. Whether an Award Would Benefit All Plan Members

or Resolve a Significant Legal Question

Regarding ERISA Itself

This factor only slightly favors Shultz. Shultz

admits this case did not seek to aid other plan

participants. Nonetheless, he argues that his briefing

on ancillary benefits addresses new questions, and that

the court’s ruling provides authority “setting out what

it takes for an insurer’s decision to be reversed.”

Pl.’s Reply Regarding Pet. for Atty’s Fees and Costs

(doc. no. 177) at 27.

Shultz’s argument on the ancillary-benefits issues

falls short. The court did not resolve the merits of

Shultz’s ancillary-benefits claims--those claims were

resolved by the parties.

But he fares better on his argument that the

court’s decision adds to ERISA jurisprudence. Although

the court did not conclusively resolve any legal

questions surrounding the plan’s interpretation, there

is precedential value in the court’s assessment of how

the plan administrator applied it. The court’s

decision provides guidance to plan administrators in

how they should make benefits decisions, which will

indirectly benefit other plan participants. It

likewise serves as persuasive authority for other

courts in deciding whether a benefits decision was

arbitrary and capricious. See Campbell v. United of

Omaha Life Ins. Co., 283 F. Supp. 3d 1138, 1143 (N.D.

Ala. 2017) (Ott, M.J.) (explaining that the court’s

ruling that an administrator’s denial of benefits was

erroneous “provide[s] some persuasive authority for the

future when a court must evaluate the proper course in

deciding whether to render a decision premised on the

record or to remand the case to an administrator”).

This factor thus weighs slightly in favor of Shultz.

5. The Relative Merits of Each Party’s Position

This factor clearly weighs in favor of Shultz. On

remand, the plan administrator found that Shultz was

entitled to long-term-disability benefits, a result

clearly evidencing that Shultz’s position on the merits

was correct. See Campbell, 283 at 1143 (“Plaintiff’s

position on the merits was correct, as evidenced by the

final determination by the Plan administrator on

remand.”).

After considering the Iron Workers factors, the

court finds that Shultz is entitled to an award of

attorney’s fees in this case.

B. Amount of Fees

Having found that Shultz is entitled to attorney’s

fees, the court must now determine the amount of fees

that are warranted. “The most useful starting point

for determining the amount of a reasonable fee is the

number of hours reasonably expended on the litigation

multiplied by a reasonable hourly rate.” Hensley v.

Eckerhart, 461 U.S. 424, 433 (1983). The court will

first consider the appropriate rate for Shultz’s

attorneys in this case.

1. Hourly Rate

The parties agree that one of Shultz’s attorneys,

Lee P. Fernon, is entitled to a rate of $ 250 per hour.

Similarly, the parties agree that Claudette Fowler, a

paralegal, is entitled to a rate of $ 125 per hour.

The parties disagree, however, as to the rate for

Thomas Sinclair. Shultz requests $ 475 per hour for

Sinclair, while Aetna Life and the Welfare Plan

maintain that Sinclair is entitled to a rate of not

more than $ 350 per hour.

A reasonable hourly rate “is the prevailing market

rate in the relevant legal community for similar

services by lawyers of reasonably comparable skills,

experience, and reputation.” Norman v. Hous. Auth. of

City of Montgomery, 836 F.2d 1292, 1299 (11th Cir.

1988). Generally, the market “rate of attorney's fees

is that of the place where the case is filed.” Cullens

v. Ga. Dep't of Transp., 29 F.3d 1489, 1494 (11th Cir.

1994). Notwithstanding this general rule, Sinclair

argues that he is entitled to a higher fee than the

local market can bear because “ERISA is a national

practice that is not normally compensated based solely

on the typical attorney rates in the area in question.”

Pl.’s Pet. for Atty’s Fees and Costs (doc. no. 179) at

30. In support of his position, Shultz cites several

out-of-circuit cases that have applied national market

rates in the ERISA context. See, e.g., Jeffboat, LLC

v. Dir., Office of Workers' Comp. Programs, 553 F.3d

487, 490 (7th Cir. 2009); Amos v. PPG Indus., Inc., No.

2:05-CV-70, 2015 WL 4881459, at *9 (S.D. Ohio Aug. 13,

2015) (Watson, J.).

This court has been unable to uncover any instance

of a court in the Middle District of Alabama--or

elsewhere in the Eleventh Circuit--applying national

market rates for attorney’s fees in ERISA litigation.

As pointed out by Aetna Life and the Welfare Plan--and

conceded by Sinclair--a court in the Northern District

of Alabama rejected Sinclair’s request to apply

national market rates in a similar case. See Campbell,

283 F. Supp. 3d at 1144-46. In determining that a

national market rate for ERISA litigation in Alabama

was not warranted just last year, the Campbell court

reasoned that (1) Sinclair’s declaration about the lack

of ERISA lawyers in Alabama was speculative and

conclusory; (2) there was no evidence that the

plaintiff had difficulty finding an attorney; and (3)

there was no evidence that ERISA plaintiffs had

difficulty finding counsel in that specific

jurisdiction. Id. at 1147-48.

Attempting to cure these deficiencies and receive a

higher rate of pay, Sinclair now offers compelling

evidence that just ten attorneys in Alabama are

responsible for nearly 60 % of the state’s ERISA cases.

Pl.’s Reply Regarding Pet. for Atty’s Fees and Costs

(doc. no. 183) at 20. Therefore, his argument goes, it

must be difficult for wronged individuals to find

attorneys to represent them in ERISA litigation, and

paying a national market rate to ERISA attorneys is the

only way to right this wrong.

But “[c]ourts are not authorized to be generous

with the money of others.” Am. Civil Liberties Union

of Ga. v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999).

Sinclair’s office is in Birmingham, Alabama, and this

action was filed in Montgomery. Sinclair appears to be

a capable attorney and may command fees as high as

$ 625 elsewhere, see Reyes v. Bakery & Confectionery

Union & Indus. Int'l Pension Fund, 281 F. Supp. 3d 833,

852 (N.D. Cal. 2017) (Tigar, J.), but the court does

not agree that fees paid in his faraway litigation

dictate the fee that Sinclair deserves here.

This court is mindful, however, of the statistics

cited by Sinclair and cognizant of the difficulty of

ERISA litigation. For that reason, the court will

consider the relevant market to be the state of Alabama

and apply an hourly rate of $ 350 per hour--the same

rate he was paid in Birmingham--even though this case

was filed in Montgomery, an area with lower costs and

expenses. In making this determination, the court has

considered the affidavits filed by Sinclair as well as

the affidavits filed by Aetna Life and the Welfare

Plan, and concluded that $ 350 (as opposed to $ 475)

per hour is the appropriate rate. As the parties have

agreed, the court also finds appropriate rates of $ 250

per hour for Fernon and $ 125 per hour for Fowler.

2. Reasonable Hours

Having determined an appropriate hourly rate,

“[t]he next step in the computation of the lodestar is

the ascertainment of reasonable hours.” Norman, 836

F.2d at 1301. The court should exclude “excessive,

redundant or otherwise unnecessary hours.” Id.

(internal citation and quotation marks omitted). The

party challenging the hours must be “reasonably

precise” in its “objections and proof” with respect to

the challenged hours. Id. There are ten portions of

Shultz’s claimed hours that Aetna Life and the Welfare

Plan contest, though they rarely cite specific entries

of the hourly records. It is often unclear what,

precisely, they challenge, and, in many cases, there is

no way for the court to determine which hours they say

warrant reduction. And, even where the court can

discern the entries to which they object, at least one

of their objections is in error.4 Aetna Life and the

4. The court assumes that these errors were

accidental and not violations of defense counsel’s duty

of candor to the court.

Welfare Plan contend that Shultz’s motions to compel

discovery were denied by the magistrate judge, but omit

the fact that one of these denials was later overruled

by this court on review of the magistrate judge’s

decision. See Order (doc. no. 144).

Along the same lines, Aetna Life and the Welfare

Plan object to time spent by Shultz’s attorneys on

summary-judgment briefing because Shultz did not

prevail on summary judgment. However, Shultz was

successful in achieving remand, and the court did not

reach several of Shultz’s arguments because it ordered

remand. That the court did not need to reach each of

Shultz’s arguments does not indicate that Shultz’s

arguments were meritless or that he should have known

at the outset that they would ultimately become

unnecessary.

Given that the fee application is voluminous; that

Aetna Life and the Welfare Plan’s objections are

imprecise; and that determining the appropriateness of

some of the billed hours would require the relitigation

of the parties’ discovery disputes, this court will not

undergo “an hour-by-hour review [that] is both

impractical and a waste of judicial resources.”

Loranger v. Stierheim, 10 F.3d 776, 783 (11th Cir.

1994). Instead, the court will employ an

across-the-board percentage cut in which “the court

aims to simulate the effect of a line-by-line analysis

while avoiding the waste of judicial resources that

such an impractical approach would entail.” Laube v.

Allen, 506 F. Supp. 2d 969, 981 (M.D. Ala. 2007)

(Thompson, J.).

Aetna Life and the Welfare Plan proposed an

across-the-board cut of two thirds of Shultz’s

attorneys’ hours because of his “extremely limited

success,” a claim they made before Shultz was awarded

long-term-disability benefits on remand. Def.’s Resp.

in Opp. To Pl.’s Pet. (doc. no. 182) at 35. Meanwhile,

Shultz proposes a 10 % reduction in hours as a

“compromise” position. Pl.’s Reply Regarding Pet. for

Atty’s Fees and Costs (doc. no. 183) at 29.

The court finds that a 10 % reduction is reasonable

and appropriate. Although Shultz prevailed on the

merits and was awarded his long-term-disability

benefits, some claims were dismissed, and the court

“must deduct time spent on discrete and unsuccessful

claims.” Norman, 836 F.2d at 1302. The court will

deduct no more than 10 % of the hours expended because

Aetna Life and the Welfare Plan failed to make

“reasonably precise” objections to the hours expended,

id. at 1301, and the court find reasonable the

remaining hours expended by Shultz’s counsel.

Shultz requests the following hours: 148.5 hours

for Sinclair; 400.4 hours for Fernon; and 45.5 hours

for Fowler. Decl. of Thomas Sinclair (doc. no. 177-6).

After a 10 % reduction, those hours are: 133.7 hours

for Sinclair; 360.4 hours for Fernon; and 41 hours for

Fowler.

3. Other Matters

Finally, Aetna Life and the Welfare Plan argue that

Shultz is not entitled to costs and expenses under Rule

54 of the Federal Rules of Civil Procedure because he

is not a prevailing party. For the reasons already

given above, this argument is meritless.

Aetna Life and the Welfare Plan also argue that,

under ERISA’s fee-shifting provision, certain costs

(including legal research, postage, and travel) can be

recovered only “if it is the prevailing practice in the

legal community to bill fee-paying clients separately

for those expenses,” Evans v. Books-A-Million, 762 F.3d

1288, 1299 (11th Cir. 2014), and Shultz has not carried

his burden to demonstrate that it is the prevailing

practice. In response, Shultz states that “the Court

is the best position to determine what the prevailing

practice is,” Pl.’s Reply Regarding Pet. for Atty’s

Fees and Costs (doc. no. 183) at 45, and that similar

expenses were approved without objection in Campbell v.

United of Omaha Life Ins. Co., 283 F. Supp. 3d at 1152.

Because the court is not convinced that the single,

uncontested award of costs in Campbell is sufficient to

establish the prevailing practice in the legal

community, Shultz has failed to carry his burden.

Therefore, the court will exclude the following costs

claimed by Shultz: $ 340.24 for shipping; $ 651.40 for

electronic research; and $ 95.23 for travel.

This court has carefully considered additional

factors listed and discussed in Johnson v. Georgia

Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974),

but they do not warrant a different result.

***

For the above reasons, it is ORDERED that:

(1) Plaintiff Richard P. Shultz’s petition for

attorney’s fees and costs (doc. no. 177) is granted,

though not for the full amount requested.

(2) Attorney’s fees are awarded to plaintiff Shultz

from defendants Aetna Life Insurance Company and L-3

Communications Welfare Plan to the following extent:

(a) For Thomas Sinclair at the rate of $ 350

per hour for 133.7 allowable hours, totaling

$ 46,795.

(b) For Lee P. Fernon at the rate of $ 250 per

hour for 360.4 allowable hours, totaling $ 90,100.

(c) For Claudette Fowler at the rate of $ 125

per hour for 41 allowable hours, totaling $ 5,125.

(3) Expenses and costs are awarded to plaintiff

Shultz from defendants Aetna Life Insurance Company and

L-3 Communications Welfare Plan in the amount of

$ 1,744.72.

This case remains closed.

The clerk of the court is DIRECTED to enter this

document on the civil docket as a final judgment

pursuant to Rule 58 of the Federal Rules of Civil

Procedure.

DONE, this the 13th day of August, 2019.

/s/ Myron H. Thompson

UNITED STATES DISTRICT JUDGE