Mull v. Motion Picture Industry Health Plan & Board of Directors..., Slip Copy (2017) 2017 WL 748980 2017 WL 748980 Directing Parties to Confer and File Notice of an Only the Westlaw citation is currently available. Agreed Award of Interest on the Fee Award or United States District Court, Briefs on that Issue by Monday, April 17, 2017 C.D. California. VALERIE BAKER FAIRBANK, U.S. DISTRICT Lenai Mull et al., Plaintiffs JUDGE v. *1 This was an action under the Employee Retirement Motion Picture Industry Health Plan Income and Security Act of 1974, 29 U.S.C. § 1001 & Board of Directors of Motion Picture et seq., as amended (“ERISA”). Four plaintiffs—Lenai Industry Health Plan, Defendants Mull (“Lenai”), her father Norman Mull (“Norman”), Motion Picture Industry Health Plan mother Danielle Mull (“Danielle”), and sister Carson and Board of Directors of Motion Picture Mull (“Carson”)—filed the original complaint against the Industry Health Plan, Counterclaimants Motion Picture Industry (“MPI”) Health Plan and the v. Motion Picture Industry Health Plan Board of Directors Lenai Mull and Norman Mull, (collectively “the Plan”). Plaintiffs asserted one legal claim Counterclaim-Defendants and one equitable claim. Defendants filed a FED. R. CIV. P. 12(b)(6) motion to dismiss. In December 2012, this Case No. LA CV 12-06693-VBF Court partially granted and partially denied the motion to | dismiss. As to plaintiffs' legal claim, the Court held that Filed 02/27/2017 plaintiffs “failed to state a claim that the reimbursement provision violated the clarity requirements of the statute Attorneys and Law Firms and regulations.” Mull v. MPI Health Plan et al., 937 Daniel E. Wilcoxen, Wilcoxen Callaham LLP, F. Supp.2d 1161, 1174-77 (C.D. Cal. 2012) (Fairbank, Sacramento, CA, Donald M. Decamara, Donald M. De J.) (discussing 29 U.S.C. § 1022(a) and 29 C.F.R. §§ Camara Law Offices, Carlsbad, CA, for Plaintiffs. 2520.102-2 and 2520.102-3). This Court allowed plaintiffs' equitable claim to survive, however. See Mull, 937 F. Michael Rasalan Odoca, Elizabeth Rosenfeld, Kathryn Supp.2d at 1177 (quoting and discussing CGI, 683 F.3d at Jane Halford, Wohlner Kaplon Cutler Halford and 1125-26). Rosenfeld, Encino, CA, for Defendants. The Court granted plaintiffs leave to amend, see Mull, 937 F. Supp.2d at 1182, and all four plaintiffs filed the First Proceedings (in chambers): ORDER Awarding Attorney Amended Complaint (“FAC”) (Doc 25) in February 2013. Fees to Plaintiffs But Reducing Rates & Hours; Defendants filed an Answer (Doc 26) in March 2013. A year later, in March 2014, the Court issued an order (Doc 49) granting defendants leave to file an amended answer Determining that Attorney DeCamara Should Be Paid (Doc 46-4) which asserted a counterclaim against Lenai $575 Per Hour; Determining that Attorney Wilcoxen and Norman. In May 2014, the Court granted Norman's Should Be Paid $575 Per Hour; Determining that motion to dismiss the counterclaim. See Norman Mull v. Attorney Wilcoxen Should Be Paid $400 Per Hour; MPI Health Plan, No. LA CV 13-00205-VBF Document (“Doc”) 68, ––– F. Supp.3d –––– (C.D. Cal. May 30, Approving 85% of the 546.15 2014). Requested Hours, i.e. 464.23 Hours; In September 2014, the Court granted summary judgment to plaintiffs Norman, Danielle, and Carson on the FAC. Directing Parties to Confer and File Notice See Mull v. MPI Health Plan, No. LA CV 13-00205- of an Agreed Fee Award Consistent with VBF Doc 69, ––– F. Supp.3d ––––, 2014 WL 4854548 this Order by Monday, April 3, 2017; (C.D. Cal. Sept. 30, 2014). Only Lenai's claims remained © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 Mull v. Motion Picture Industry Health Plan & Board of Directors..., Slip Copy (2017) 2017 WL 748980 pending against defendants, and defendants' counterclaim Donald M. De Camara, Daniel E. Wilcoxen, Mark P. remained pending against Lenai only. The same Order Robinson Junior, and Dennis A. Schoville (Docs 87-2 directed Lenai to report on the status of her bankruptcy through 87-5). In addition to defendant MPI's opposition proceedings by January 9, 2015. Lenai filed the report brief, the Court has considered the declarations that on January 7, 2015, noting that the Bankruptcy Court defendants have submitted from attorneys Kathyrn J. had rejected defendants' arguments for treating their Halford and Rebecca B. Mocciaro (Docs 97-1 and 97-2). counterclaims in this case as nondischargeable and had Pursuant to LCivR 7-15 and Fed. R. Civ. P. 78, the Court ordered Lenai's discharge on August 12, 2014; that the finds the fee application suitable for resolution without Trustee had issued his final account and distribution oral argument. report on December 17, 2014; and that her counsel expected the bankruptcy case to close in January 2015. By separate Order (Doc 104), this Court granted in part See Doc 73 at 2; Doc 74 at 1-4 (Declaration executed and denied in part the plaintiffs' application for fees and Jan. 5, 2015) and id. at 5-17 (exhibits)). Accordingly, costs. Today's order determines the proportion of plaintiffs' by Order issued January 15, 2015 (Doc 75), this Court request that will be approved. Cf. Barnes v. AT&T Pension directed Lenai to provide an update within two months. Benefit Plan—Nonbargained Program, 963 F. Supp.2d On February 11, 2015, Lenai filed a report which stated 950, 954-55 (N.D. Cal. 2013) (“[P]ending before the Court that the final decree in her bankruptcy case had issued is Mr. Barnes's motion for attorney's fees.... Barnes is on January 23, 2015, and she attached a copy. See Doc asking for more than $1.3 million in fees.... [T]he Court 76-1. Accordingly, by Order issued February 12, 2015, this hereby grants Mr. Barnes's motion but orders the parties Court lifted the bankruptcy stay and directed the filing of to provide supplemental briefing so that the Court may motions on the remaining pleadings. determine ... the exact amount of fees and costs....”). *2 Lenai Mull and the defendants cross-moved for The Court will slightly reduce the rate sought by De Camara summary judgment on the FAC and the counterclaim and Wilcoxen to $575 instead of $600, but will approve the in March 2015. By Order issued July 17, 2015 (Doc $400 hourly rate sought by Drew M. Widders (Wilcoxen's 86), the Court granted Lenai summary judgment on the associate). The Court will reduce the requested 546.15 hours counterclaim, and then granted judgment on the FAC in by fifteen percent (15%) to adjust for block billing, to part to Lenai and in part to defendants. Plaintiffs noticed reflect extensive if necessary overlap between plaintiffs' an appeal, which the Circuit acknowledged by Notice filed motion briefs, to ensure that plaintiff are not compensated August 27, 2015 (Doc 94, Appeal No. 15-56246). See Ray for general overhead, and to prevent compensation at Haluch Gravel Co. v. Central Pension Fund of Int'l Union attorney rates for any non-attorney work. The Court of Operating Engineers & Participating Employers, ––– approves 464.23 hours of attorney work. The fifteen percent U.S. ––––, ––––, 134 S. Ct. 773, 780-82 (2014) (district discount shall be applied equally to each attorney's billing. court order resolving claims by employee benefit funds for additional contributions allegedly owed to funds under *3 The Court will direct the parties to confer, jointly the CBA was a final order, from which appeal had to be calculate the appropriate attorney-fee award consistent with taken within the 30-day period specified in Federal Rules the hourly rates and number of hours specified in this Order, of Appellate Procedure, notwithstanding the pendency of and file an agreed and stipulated fee amount by Monday, application for attorneys fees). Defendants' appeal is still April 3, 2017. The Court will direct the parties also to pending. 1 confer and agree, if possible, on the additional amount that is due to plaintiffs as post-judgment interest on the fee award. THE CURRENT APPLICATION FOR ATTORNEYS' FEES AND COSTS Finally, the Court will direct defendants to pay plaintiffs' Plaintiffs have applied for an award of attorneys fees counsel the costs sought ($594.95) no later than March 27, and costs. (Doc 87). In addition to plaintiffs' opening 2017. See Fed. R. Civ. P. 54(d); see also De Camara Dec. brief (Doc 87-1) and reply brief (Doc 98), the Court has ¶ 11 and Exhibit 8. considered the declarations that plaintiffs have submitted from plaintiff Lenai Mull (Doc 98-1) and attorneys © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 Mull v. Motion Picture Industry Health Plan & Board of Directors..., Slip Copy (2017) 2017 WL 748980 unenforceable as a matter of law because it was contained Analysis: All Four Plaintiffs Achieved a Sufficient only in the Summary Plan Description, not in any Degree of Success to be Entitled to Attorney Fees document that should be considered a Plan Document, In their notice of motion for attorneys fees and costs, the and thus was not a term of the plan; and (2) “[t]he Mulls summarize their argument as follows: Agreement and Declarations of Trust Establishing the Motion Picture Industry Health Plan ..., ... has been * * * [P]laintiffs Danielle Mull, Norman Mull and amended pursuant to a Resolution of the Directors ... Carson Mull prevailed on all their claims for relief to include the reimbursement/overpayment provision in against defendants. They obtained injunctive relief an exercise of ‘extreme caution’ following the Court's restoring the family's health coverage and monetary decision.” Doc 97 at 6.