Paul McKAY, Plaintiff,
v.
RELIANCE STANDARD LIFE INSURANCE COMPANY, Unumprovident Corporation, and Unum Life Insurance Company, Defendants.
Case No. 1:06-CV-267.
United States District Court, E.D. Tennessee, Chattanooga.
March 3, 2009.*732 Amanda E. Scales, Eric L. Buchanan, Eric, Buchanan & Associates, PLLC, Chattanooga, TN, for Plaintiff.
Brandon B. Cate, Quattlebaum, Grooms, Tull & Burrow PLLC, Springdale, AR, for Defendants.
MEMORANDUM
CURTIS L. COLLIER, Chief Judge.
Before the Court is a report and recommendation ("R & R") (Court File No. 47) from United States Magistrate Judge William B. Mitchell Carter recommending the award of attorney's fees to Plaintiff Paul McKay. Defendant Reliance Standard Life Insurance Company has filed an objection to the R & R (Court File No. 50) and Plaintiff has responded to the objection (Court File No. 52). For the reasons below, as well as the reasons set forth in the R & R, this Court will ACCEPT and ADOPT the magistrate judge's report and recommendation.
I. FACTS AND PROCEDURAL HISTORY
The action which occasioned the R & R arises under the provisions of the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001 et seq. ("ERISA"). The background to Plaintiff's assertion of disability and grounds for his lawsuit against Defendant has been developed by the Court in the memorandum accompanying its September 28, 2007, 2007 WL 2897870, order dismissing Plaintiff's claims against Unumprovident Corporation and Unum Life Insurance Company (Court File No. 33). As part of that order, the Court remanded Plaintiff's claim against Defendant Reliance for further investigation (Court File No. 34). Specifically, Defendant was to determine (1) whether Plaintiff would fall within its "basic policy" or its "executive policy" during the time of his disability, and (2) once the appropriate policy was established, whether Plaintiff was covered by it under the policy's specific terms and definitions (Court File No. 33).
Shortly after entry of that order, Plaintiff moved for attorney's fees of $17,300.00 pursuant to ERISA § 502(g)(1), codified at 29 U.S.C. § 1132(g)(1) (Court File No. 36). Plaintiff amended his motion to make clear he sought attorney's fees only against Defendant Reliance, not Unumprovident Corporation or Unum Life Insurance Company (Court File No. 39). In his brief supporting the amended motion, Plaintiff argued that application of the five-factor test from Schwartz v. Gregori, 160 F.3d 1116, 1119 (6th Cir.1998), should result in an attorney's fee award to him. He also argued, citing various district court cases, that he became a "prevailing party" when he obtained a remand against Defendant and, as such, would be eligible for attorney's fees.
Defendant's response argued Plaintiff did not prevail by obtaining a remand and therefore was not entitled to a fee award (Court File No. 43). It argued that because a remand to a plan administrator for a decision is not an appealable final decision, Bowers v. Sheet Metal Workers' Nat'l Pension Fund, 365 F.3d 535, 538 (6th Cir. 2004), a fee award would be inappropriate because it is "an abuse of discretion for the district court to award attorney's fees to a losing party," Cattin v. Gen. Motors Corp., 955 F.2d 416, 427 (6th Cir. 1992). Defendant also cited its share of district court *733 cases which refused to award attorney's fees after remand to a plan administrator. Additionally, Defendant contended, even if Plaintiff could be considered a prevailing party, he would not be entitled to fees under the Schwartz five-factor test.
In issuing the R & R (Court File No. 47), Magistrate Judge Carter took into consideration the cases cited by both parties. After considering the cases, and the language of 29 U.S.C. § 1132(g)(1), Judge Carter concluded "the better view concerning granting attorney's fees upon remand for a full and fair review under an arbitrary and capricious standard is that held by the cases cited by plaintiff (id. at 5). Turning to analyze the five Schwartz factors, Judge Carter held it was appropriate to award reasonable attorney's fees and costs to Plaintiff. He then used the lodestar method to calculate a fee figure of $17,300.00. Defendant timely filed an objection to the R & R (Court File No. 50) and Plaintiff timely responded (Court File No. 52).
II. STANDARD OF REVIEW
This Court must conduct a de novo review of those portions of the report and recommendation to which objection is made and may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. 28 U.S.C. § 636(b)(1)(C).
III. DISCUSSION
Defendant objects to two findings in the R & R. First, it argues a fee award is inappropriate at this time because Plaintiff has not "prevailed." Second, it argues that even if Plaintiff is a prevailing party, he is not entitled to a fee award under the five-factor test set forth in Schwartz v. Gregori, 160 F.3d 1116, 1119 (6th Cir.1998) (Court File No. 50).
A. Application of Prevailing Party Standard
29 U.S.C. § 1132(g)(1) provides: "In any action under this title . . . by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney's fee and costs of action to either party." In objecting to the R & R, Defendant repeats its argument that because a remand to a plan administrator is not a final decision on the merits, Plaintiff has not yet prevailed. Plaintiff responds that by achieving a remand, he has become eligible for attorney's fees.
Both parties, however, are missing the threshold question, which is whether a party must be deemed a "prevailing party" at all to be awarded attorney's fees under ERISA. On its face, the statute contains no prevailing party requirement, but leaves to the court's discretion whether to award attorney's fees. Some courts, however, have read a prevailing party requirement into § 1132(g)(1). There is a significant split of authority betweenand withinfederal appeals courts on whether § 1132(g)(1) requires a party to prevail for a fee award, and the Sixth Circuit has not ruled definitively on the issue. See Eric C. Surette, Annotation, Requirement that Party Prevail to Obtain Attorney's Fees under § 502(g) of ERISA, 172 A.L.R. Fed. 571 (2001) (identifying the circuit split and collecting cases).
The Second and Eleventh Circuits clearly reject the prevailing party requirement. Salovaara v. Eckert, 222 F.3d 19, 27 (2d Cir.2000) (reemphasizing the statutory language that "a court has discretion to award attorney's fees `to either party' in an ERISA action"); Freeman v. Cont'l Ins. Co., 996 F.2d 1116, 1119 (11th Cir. 1993) ("Unlike other fee-shifting provisions, which give the court discretion to award fees to a prevailing party, § 1132(g)(1) allows a court to award fees *734 to either party. The law provides no presumption in favor of granting attorney's fees to a prevailing claimant in an ERISA action.") (citations omitted).
Conversely, the Fourth Circuit reads a prevailing party requirement into the statute. Martin v. Blue Cross & Blue Shield of Va., Inc., 115 F.3d 1201, 1210 (4th Cir.1997) ("Because of the strong suggestions in our own precedent, supported by the weight of authority from other circuits, we now make clear that in the Fourth Circuit, only a prevailing party is entitled to consideration for attorneys' fees in an ERISA action."). The Tenth Circuit also has a prevailing party requirement. Chambers v. Family Health Plan Corp., 100 F.3d 818, 828 (10th Cir.1996) (declining to award attorney's fees to plaintiff, or to remand to the district court for an explanation, because plaintiff did not prevail on any of his claims); Arfsten v. Frontier Airlines, Inc. Ret. Plan for Pilots, 967 F.2d 438, 442 n. 3 (10th Cir.1992) ("Because we reverse the district court's decision on the merits, plaintiff is not a prevailing party, and his arguments on attorney's fees are moot.").
Other circuits have conflicting authority within them. Compare Wade v. Hewlett-Packard Dev. Co. LP Short Term Disability Plan, 493 F.3d 533, 543 (5th Cir.2007) ("[W]e read [Salley v. E.I. DuPont de Nemours & Co., 966 F.2d 1011, 1017 (5th Cir.1992)] now as establishing, for ERISA's fee-shifting provision, a `prevailing party' test, analogous to the test under Fed.R.Civ.P. 54(d), for the award of costs. As Salley is the first case to discuss the award of costs under ERISA, Salley's application of the `prevailing party' test controls this case.") and Boggs v. Boggs, 82 F.3d 90, 94 n. 1 (5th Cir.1996), rev'd on other grounds, 520 U.S. 833, 117 S.Ct. 1754, 138 L.Ed.2d 45 (1997) (concluding a plaintiff did not prevail, and hence was not entitled to attorney's fees, because the Fifth Circuit affirmed the district court's denial of the plaintiff's request for declaratory judgment) with Gibbs v. Gibbs, 210 F.3d 491, 503 (5th Cir.2000) (concluding, after considering several conflicting cases, that "the greater weight of authority, from outside and within our own circuit, supports the notion that a party need not prevail in order to be eligible for an award of attorneys' fees under § 1132(g)(1) of ERISA").
The Seventh Circuit tilts more toward a prevailing party requirement, though there is also conflicting authority there. Compare Davis v. Chicago Mun. Employees Credit Union, 891 F.2d 182, 184 (7th Cir. 1989) ("A decision to shift fees under [§ 1132(g)(1)] is discretionary. We have tempered that discretion, however, by reading section 1132(g)(1) in conformity with other fee shifting statutes. Thus, as with 42 U.S.C. § 1988, one asking for a fee shift must be a prevailing party.") and Janowski v. Int'l Bhd. of Teamsters Local No. 710 Pension Fund, 812 F.2d 295 (7th Cir. 1987) (reversing the district court's attorney's fee award because plaintiffs did not meet the Seventh Circuit's prevailing party test) and Bittner v. Sadoff & Rudoy Indus., 728 F.2d 820, 829 (7th Cir.1984), overruled on other grounds by McCarter v. Ret. Plan for the Dist. Managers of the Am. Family Ins. Group, 540 F.3d 649 (7th Cir.2008) ("After [Ruckelshaus v. Sierra Club, 463 U.S. 680, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983)], it would be an abuse of discretion for the district court to award attorney's fees to a losing party, even though section 1132(g)(1) does not in so many words confine award of attorney's fees to winners, as the Civil Rights Attorney's Fees Awards Act does. But unlike that Act, ERISA does not create a presumption in favor of a prevailing plaintiff's request for fees and against a prevailing defendant's.") with Marquardt v. N. Am. Car Corp., 652 F.2d 715, 718 n. 2 (7th *735 Cir.1981) ("There is no requirement that a party must `prevail' in order to receive an award pursuant to § 1132(g). But, as a practical matter, we recognize that a court is more likely to find appropriate an award to a prevailing party than an award to a non-prevailing party.").
There is a similar intra-circuit split of authority in the First Circuit. Compare Doe v. Travelers Ins. Co., 167 F.3d 53, 61 (1st Cir.1999) ("[Attorney's fee and cost] awards are normally for the prevailing party. . . .") and Cottrill v. Sparrow, Johnson & Ursillo, Inc., 100 F.3d 220, 225 (1st Cir.1996) ("Congress declared that, in any ERISA claim advanced by a `participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney's fee' to the prevailing party. 29 U.S.C. § 1132(g)(1). Unlike other fee-shifting statutes, however, ERISA does not provide for a virtually automatic award of attorney's fees to prevailing plaintiffs. Instead, fee awards under ERISA are wholly discretionary.") with Gray v. New England Tel. & Tel. Co., 792 F.2d 251, 258 (1st Cir.1986). ("[T]he five factor standard is the appropriate one to be applied regardless of which party prevails.")
This Court has previously recognized the lack of controlling Sixth Circuit law. The Court has ruled that under § 1132(g)(2), an award of attorney's fees is mandatory where a fiduciary has prevailed in its suit. Otherwise, the court has discretion to award a reasonable attorney's fee and costs to either party, and the "Sixth Circuit has recognized no presumption as to whether or not attorney's fees should be awarded in an ERISA action." Evans v. Metro. Life Ins. Co., 2005 WL 2100655, at *2 (E.D.Tenn. Aug. 2, 2005). After applying the Schwartz five-factor test, the Court found an award of attorney's fees to the plaintiff unjustified. Id. at *6.
In this case, the Court finds most persuasive the analysis of a sister court within the Sixth Circuit in Winpisinger v. Aurora Corp., 469 F.Supp. 782 (N.D.Ohio 1979). The Winpisinger court recognized § 1132(g) differed from attorney's fee statutes that expressly restricted an award to prevailing parties, holding
[i]n the absence of any reference to [the attorney's fee language] in the ERISA legislative history, Congress will be understood to have intended that words be given their usual and ordinary meaning. Since "a reasonable attorneys' fee" may be allowed "to either party," it is concluded that fees may be allowed to counsel for either the prevailing party or the unsuccessful party.
Id. at 785.
Implicit in the Winpisinger court's holding, and persuasive to this Court, is the conclusion that Congress knows how to restrict fees to the prevailing party. Numerous other attorneys' fee statutes contain an express prevailing party requirement. See, e.g., 42 U.S.C. § 1988(b) ("[T]he court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs."); 7 U.S.C. § 499g(b) ("If the petitioner finally prevails, he shall be allowed a reasonable attorney's fee. . . ."); 7 U.S.C. § 210(f) (same); see also Samuel R. Berger, Court Awarded Attorneys' Fees: What Is "Reasonable"?, 126 U. Pa. L.Rev. 281, 305 nn. 109-10 (1977) (collecting statutes with express prevailing party requirements). Had Congress intended such a restriction in the ERISA statute, it would have included it. "[C]ourts must presume that a legislature says in a statute what it means and means in a statute what is says there." Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992). In this regard, the Court is less persuaded by the reasoning of Davis *736 and Cottrill, which insert a prevailing party requirement into § 1132(g)(1) without grounding in the statutory language. Davis and Cottrill read a requirement into § 1132(g)(1) that is not expressly there, notwithstanding the many fee-shifting statutes which lack a prevailing party requirement, and it is thus difficult to see how those two cases read § 1132(g)(1) "in conformity" with the other statutes. Davis, 891 F.2d at 184.
The better approach is to presume Congress intended to omit a prevailing party requirement from the ERISA attorney's fee statute. This is in keeping with the general principle that in ERISA cases, a "district court is given broad discretion in awarding attorneys' fees," Maurer v. Joy Techs., Inc., 212 F.3d 907, 919 (6th Cir. 2000), while at the same time, "[t]here is no presumption that attorneys' fees will be awarded" to either party, id. (citing Foltice v. Guardsman Prods., Inc., 98 F.3d 933, 936 (6th Cir.1996)).
In this case, while Plaintiff has not experienced ultimate success in the sense of winning his benefits claim against Defendant, he has received another shot at those benefits by achieving a remand. "[P]laintiffs may be considered `prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); accord Deja Vu v. Metro. Gov't of Nashville & Davidson County, Tenn., 421 F.3d 417, 420 (6th Cir.2005). As the magistrate judge observed, Plaintiff is not a "loser" in any sense; even if he ultimately is ineligible for benefits, he has still seen success on the merits because his case was remanded for further consideration (Court File No. 47, at 4). The Court finds, therefore, that § 1132(g)(1) does not require Plaintiff to be a prevailing party, and even if it did, Plaintiff has achieved some degree of success such that an award of fees could be but at this stage, is not necessarilyreasonable.
Thus, the Court turns to the Schwartz five-factor test to assess the reasonableness of Plaintiff's claim for fees.
B. Application of the Five-Factor Test
This Court must consider each of the following factors in deciding the reasonableness of attorney's fees under § 1132(g)(1):
(1) the degree of the opposing party's culpability or bad faith; (2) the opposing party's ability to satisfy an award of attorney's fees; (3) the deterrent effect of an award on other persons under similar circumstances; (4) whether the party requesting fees sought to confer a common benefit on all participants and beneficiaries of an ERISA plan or resolve significant legal questions regarding ERISA; and (5) the relative merits of the parties' positions.
Schwartz, 160 F.3d at 1119. "Because no single factor is determinative, the court must consider each factor before exercising its discretion." Id. The Court examines each factor in turn.
1. Degree of opposing party's culpability or bad faith
The R & R held this factor weighed in Plaintiff's favor because Defendant summarily concluded, without supporting evidence, Plaintiff did not qualify for executive policy coverage, and because this failure to investigate was unreasonable and arbitrary, it rose to the level of culpability for ERISA attorney's fee purposes. In objecting to the R & R, Defendant contends (1) Plaintiff's counsel never argued Defendant applied the wrong policy, and the claimant must supply adequate *737 documentation to the plan in support of his claim, and (2) Defendant relied on Plaintiff's statement to the Social Security Administration he had become disabled on December 17, 2003, before Defendant's policy went into effect (Court File No. 50, at 4-6).[1]
The Court addressed the grounds for Defendant's first objection in its earlier memorandum (Court File No. 33, at 16). There, the Court dismissed this argument by noting "Plaintiff is not requesting the Court to consider evidence not included in the administrative record; rather, he argues Reliance's decision was unreasonable in light of the existing administrative record" (id.). Nothing has changed to persuade the Court this earlier holding was inaccurate. By virtue of arguing Defendant's decision was unreasonable, Plaintiff's counsel was contending Defendant applied the wrong policy. Nor does Miller v. Metropolitan Life Insurance Co., 925 F.2d 979, 986 (6th Cir.1991), the case on which Defendant relies, change the analysis. The Miller court upheld the district court's consideration of the plaintiff's failure to supply the documentation requested by the defendant plan administrator after the initial termination of benefits. Id. Here, however, Plaintiff has expressly disavowed reliance on any evidence not in the administrative record; instead, he challenges the denial of benefits based exclusively on what was already in the record. Hence, Defendant's argument is inapposite.
In responding to Defendant's objection, Plaintiff argues the Court already found, under the deferential arbitrary and capricious standard, that Defendant's failure to investigate was unreasonable and arbitrary, and hence culpable. However, a finding that a denial of benefits was arbitrary and capricious does not necessarily mean there was culpability or bad faith for purposes of an attorney's fee award. See Evans, 2005 WL 2100655, at *3 (differentiating between a "deliberate or bad faith attempt to deny benefits" and an "honest mistake" which, though arbitrary and capricious, would not rise to the level of culpability); see also Foltice, 98 F.3d at 937 (referencing the district court's conclusion that the denial of plaintiff's pension claim "was erroneous, even arbitrary, but did not evidence a degree of culpability approaching bad faith").
In its earlier memorandum, which the magistrate judge took into account, the Court found a great deal of evidence supporting the conclusion Defendant acted arbitrarily and capriciously. Defendant "did not mention how it determined Plaintiff was governed by its basic policy in its denial letter" (Court File No. 33, at 13). Defendant did not define how Plaintiff fell into the "Class one" employee category which, Defendant maintains, required Plaintiff to contribute 100% toward his premiums to be eligible for long-term disability (id.). Defendant never asked Plaintiff's employer to clarify a statement regarding whether Plaintiff had elected long term or short term coverage, and never *738 expressly asked the employer precisely which coverage class covered Plaintiff (id. at 14).[2]
This arbitrary and capricious conduct rises to the level of culpability for § 1132(g)(1) purposes because ERISA plan administrators have a fiduciary duty to fully investigate a claimant's assertions before denying benefits, an obligation which is well established in the Sixth Circuit and other circuits. See Gregg v. Transp. Workers of Am. Int'l, 343 F.3d 833, 841, 843 (6th Cir.2003) ("The duties charged to an ERISA fiduciary are the highest known to the law. When enforcing these important responsibilities, [a court focuses] not only on the merits of the transaction, but also on the thoroughness of the investigation into the merits of the transaction.") (internal citations and quotations omitted); Bussian v. RJR Nabisco, Inc., 223 F.3d 286, 300-01 (5th Cir.2000); Gilbert v. EMG Advisors, Inc., 1999 WL 160382, at *1 (9th Cir. Mar. 17, 1999) (unpublished table opinion). See also Kalish v. Liberty Mut./Liberty Life Assurance Co., 419 F.3d 501, 512 (6th Cir.2005) (holding additional references to plaintiff's underlying condition, and the fact a medical review was done only by a nurse employed by defendant, should have prompted defendant to investigate further before denying plaintiff's disability benefits); Killian v. Healthsource Provident Adm'rs, 152 F.3d 514, 521 (6th Cir.1998) (concluding the plan administrator acted arbitrarily and capriciously in selectively reviewing information which only favored denying benefits to plaintiffs).
Here, as the Court previously concluded, Defendant should have conducted a full and fair investigation into Plaintiff's claim before denying him benefits. It did not, and its failure to do so was arbitrary and unreasonable. This was the Court's conclusion in its earlier memorandum, and the Court agrees with the magistrate judge that this arbitrary conduct represented significant culpability by the Defendant leading to the need for remand. The fact Defendant's duty to investigate, as the ERISA fiduciary, was well-settled law when it summarily denied Plaintiff's claim adds more force to the culpability determination. Accordingly, this factor weighs heavily in Plaintiff's favor.
2. Opposing party's ability to satisfy a fee award
The magistrate judge concluded, and both parties agree, that Defendant has the ability to satisfy a fee award. This factor weighs in Plaintiff's favor.
3. Deterrent effect of an award
The magistrate judge concluded requiring a remand to the plan administrator is a form of specific deterrence upon Reliance, and also "provides a general deterrence to other insurance companies because they will know that failure to provide a full and fair review could result in an award of attorney's fees," and as such, this factor weighs in Plaintiff's favor (Court File No. 47, at 7). Defendant's objection is limited to re-arguing Plaintiff had the opportunity to submit evidence supporting his claim and failed to do so (Court File No. 50, at 6-7). As the Court dismissed this argument above and in its previous memorandum (Court File No. 33), the Court finds the objection is not well-taken, and the *739 magistrate judge reached an accurate conclusion. Accordingly, this factor weighs in Plaintiff's favor.
4. Conferring a common benefit; resolving significant legal questions
The magistrate judge concluded, and both parties agree, that Plaintiff sought a private benefit and relied on settled law. This factor weighs in Defendant's favor.
5. Relative merits of the parties' positions
The magistrate judge concluded "plaintiff was clearly the prevailing party," that "Plaintiff's position was clearly more meritorious, having prevailed on an arbitrary and capricious standard," and that "[t]here were serious flaws in Reliance's decision-making process and a lack of substantial justification for Reliance's position" (Court File No. 47, at 8). Defendant objects, citing no legal authority, that "[i]t is premature to seek fees based on a remand because this fifth factor cannot be addressed until a decision has been made on the merits of the benefit claim" (Court File No. 50, at 7). Defendant also "disagrees strongly" with the magistrate judge's conclusions for the reasons it previously stated (id.).
The arbitrary and capricious standard is highly deferential to ERISA plan administrators in their determinations of benefit eligibility, as it is "the least demanding form of judicial review of administrative action." Smith v. Bayer Corp. Long Term Disability Plan, 275 Fed.Appx. 495, 504 (6th Cir.2008). Here, the fact Plaintiff overcame this significant hurdle and achieved a remand to determine benefit eligibility means his position had significant merit, regardless of whether he is ultimately the prevailing party for purposes of the ERISA statute. Moreover, as this Court already explained at length, Defendant conducted a truncated investigation into Plaintiff's claims for eligibility and did not adequately develop the administrative record to make the eligibility determination vis-à-vis which policy covered Plaintiff (Court File No. 33). On these facts, the Court concludes Plaintiff held the more meritorious position.
Having reviewed each of the Schwartz factors, the Court concludes the scale tips heavily in Plaintiff's favor, and an award of fees under § 1132(g)(1) would be reasonable. Accordingly, the Court will uphold the magistrate judge's R & R awarding fees.
C. Calculation of Attorney's Fees
While Defendant objects to an award of attorney's fees, it does not object to the method by which the magistrate judge calculated them (Court File No. 50). Though an award of attorney's fees is reviewed for abuse of discretion, the district court must give a clear and concise explanation for the fee award to enable appellate review. Drennan v. Gen. Motors Corp., 977 F.2d 246, 253 (6th Cir.1992). To enable review, the Court will briefly examine the magistrate judge's calculation for accuracy.
This Court has explained the law it uses in reviewing attorney's fees awards in Brooks v. Invista, 528 F.Supp.2d 785, 788-89 (E.D.Tenn.2007), including the fact that "[w]hile the lodestar method is the appropriate starting place for determining attorney's fees, the inquiry does not end there," id. at 789. The Court has considered the law it stated in Brooks, as well as the cases cited therein, in reviewing the magistrate judge's calculation.
Here, Plaintiff claimed 65.55 attorney hours at $250 per hour, 6.5 paralegal hours at $90 per hour, and a $350 filing fee, for a total of $17,300.00 (Court File No. 47, at 11). Plaintiff submitted an affidavit of hours spent and the identity and qualifications of each attorney who worked on the *740 case (Court File No. 40). After reviewing this affidavit, the Court finds the hours stated for work on this case reflect a reasonable amount of preparation, and that the $250 and $90 per hour figures are reasonable market hourly rates in light of the attorneys' experience and qualifications, the rise in the consumer price index since the calculations used in similar cases commenced about ten years ago, and the fact Defendant does not contest the hourly rates. See Brooks, 528 F.Supp.2d at 788 ("The Supreme Court has established the basis of a fee award is the proven number of hours reasonably expended multiplied by a reasonable hourly rate, commonly called the `lodestar.'") (citing Hensley, 461 U.S. at 433, 103 S.Ct. 1933).
The Court finds the magistrate judge did not abuse his discretion in calculating attorney's fees and awarding $17,300.00 in fees to Plaintiff. Accordingly, the Court will uphold that award.
IV. CONCLUSION
For the foregoing reasons, the Court will ACCEPT and ADOPT the magistrate judge's R & R (Court File No. 47) and will AWARD attorney's fees in the amount of $17,300.00 to Plaintiff.
An Order will enter.
ORDER
For the reasons stated in the accompanying memorandum, the Court ACCEPTS and ADOPTS the magistrate judge's report and recommendation (Court File No. 47) and AWARDS Plaintiff attorney's fees in the amount of $17,300.00. The Court GRANTS Plaintiff's motions for attorney's fees (Court File No. 36, 39).
SO ORDERED.
REPORT AND RECOMMENDATION
WILLIAM B. MITCHELL CARTER, United States Magistrate Judge.
I. Introduction
Plaintiff's motion and amended motion for attorney's fees (Docs. 36 and 39) from defendant Reliance Standard Life Insurance Company (Reliance) are pending before the undersigned Magistrate Judge having been referred for a report and recommendation by the District Court pursuant to 28 U.S.C. § 636(b)(1)(B). Reliance responds in opposition based upon its contentions that plaintiff was not a "prevailing party" and that plaintiff cannot satisfy the five King[1] factors. For the reasons stated herein, it is RECOMMENDED plaintiff's motion for attorney's fees be GRANTED, and plaintiff be awarded $17, 300.00 in attorney's fees.
II. Background
The District Court had before it a Motion for Judgment on the Pleadings (Doc. 26) by which plaintiff sought to have the Court overrule Reliance's decision to deny his claim for disability benefits. For reasons set forth in detail in it's September 28, 2007 Memorandum, the Court denied plaintiff's Motion for Judgment on the ERISA record and dismissed plaintiff's claim against Unumprovident Corporation and Unum Life Insurance Company but remanded plaintiff's claim against Reliance for further investigation. Plaintiff now seeks attorney's fees from Reliance pursuant to ERISA § 502(g)(1), (29 U.S.C. § 1132(g)(1)).
III. Analysis
A. Entitlement to Attorney's Fees:
In an action to recover ERISA benefits by a plan participant, "the court in its discretion may allow a reasonable attorney's fee . . . to either party." 29 U.S.C. *741 § 1132(g)(1). This Circuit requires the district court to consider five factors in deciding whether to award attorney's fees: (1) the degree of the opposing party's culpability or bad faith; (2) the opposing party's ability to satisfy an award of attorney's fees; (3) the deterrent effect of an award on other persons in similar circumstances; (4) whether the party requesting fees sought to confer a common legal benefit on all participants and beneficiaries of an ERISA plan or resolve significant legal questions regarding ERISA; and (5) the relative merits of the parties' positions. No single factor is determinative. Schwartz v. Gregori, 160 F.3d 1116, 1119 (6th Cir.1998). See also, Secretary of Dep't of Labor v. King, 775 F.2d 666, 670 (6th Cir.1985).
Reliance argues that plaintiff has only secured a remand, that there has been no decision by the Court on plaintiff's eligibility under the Reliance disability policy and, therefore, plaintiff has not "prevailed" on his claim for benefits. Reliance contends any request for attorney's fees is premature.
Both parties can cite case law in support of their respective positions. In Soltysiak v. UNUM Provident Corp., 480 F.Supp.2d 970, 974 (W.D.Mich.2007), the court agreed that where the plaintiff obtained a reversal of defendant's denial of benefits and an order requiring defendant to conduct a full and fair review of plaintiff's disability claim, an award of attorney's fees was appropriate. See also, Elliott v. Metropolitan Life Ins. Co., 2007 WL 1558519 (E.D.Ky.2007) (unpublished) (awarding attorney's fees in a case remanded for further review); Green v. The Prudential Ins. Co. of America, No. 3:04-0078 (M.D. Tenn. June 14, 2005) (same); Christian v. Dupont-Waynesboro Health Care Coverage, 12 F.Supp.2d 535, 536 (W.D.Va.1998) (same); Miller v. United Welfare Fund, 72 F.3d 1066, 1074 (2d Cir.1995) (same).
On the other hand, in Platt v. Walgreen Income Protection Plan, 2006 WL 3694580 *2 (M.D.Tenn. Dec. 14, 2006) (unpublished), the court held an award of fees was not warranted upon the Court's Order of remand reasoning that, absent a determination that plaintiff was entitled to benefits, an award of attorney's fees was premature. See also, Baca-Flores v. Hartford Life & Accident Ins. Co., 2006 WL 2130528 (E.D.Mich. July 28, 2006) (unpublished) (denying motion for attorney's fees based on remand where motion was filed after judgment on merits was entered for defendant. Court reasoned that plaintiff was not a prevailing party).[2]
In considering the respective positions of both parties, I find it significant that the ERISA attorney's fee provision does not limit its application to "prevailing" parties. It merely provides that "the court in its discretion may allow a reasonable attorney's fee and costs of action to either party." 29 U.S.C. § 1132(g) (1). Section 1132(g) "confers broad discretion on a district court in making the award of attorney's fees." Sec'y of Dept. of Labor v. King, 775 F.2d 666, 669 (6th Cir.1985). Nevertheless, as Reliance notes, the Sixth Circuit has held that it would be "an abuse of discretion for the district court to award attorney's fees to a losing party." Cattin v. General Motors Corp., 955 F.2d 416, 427 (6th Cir.1992) (quoting Bittner v. Sadoff & *742 Rudoy Indus., 728 F.2d 820, 829 (7th Cir. 1984)). See also Webb v. Cariten Ins. Co., 188 Fed.Appx. 391, 395 (6th Cir.2006) (holding that award of attorney's fees to loser was abuse of discretion). Accordingly, some degree of success on the merits is generally required before a party is eligible for an award of attorney's fees. See Ruckelshaus v. Sierra Club, 463 U.S. 680, 682, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983) (holding that a plaintiff must achieve "some success on the merits" to be eligible for fees under the Clean Air Act); Cattin, 955 F.2d at 427 (noting with approval the Seventh Circuit's application of Ruckelshaus in an ERISA case). Nevertheless, there is no requirement that a party prevail entirely in order to be eligible for attorney's fees. Douglas v. Evans Industries, Inc., 184 F.Supp.2d 636, 639 (E.D.Mich.2001) (plaintiff was prevailing party entitled to fees even though she obtained judgment for less than amount sought). In this case, plaintiff is not a "loser;" rather, it appears plaintiff has had a substantial level of success on the merits even if benefits were not granted. Further, I find the reasoning of the District Court in Elliott v. Metropolitan Life Ins. Co., 2007 WL 1558519 *1 (E.D.Ky. May 29, 2007) in allowing attorney's fees to the plaintiff upon remand to be especially persuasive:
Defendant's argument that Plaintiff did not "prevail" to at least some degree is questionable because of the rather significant hurdle that the "arbitrary and capricious" standard represents to plaintiffs and the reality that the failure to provide a reasoned denial necessitated the litigation and attendant fees in question.
I therefore conclude the better view concerning granting attorney's fees upon remand for a full and fair review under an arbitrary and capricious standard is that held by the cases cited by plaintiff. Therefore, I will turn to an analysis of the five factors under Schwartz and King.
(1) The degree of the opposing party's culpability or bad faith:
An examination of the District Court's Memorandum (Doc. 33) reveals there was significant culpability attached to Reliance in this case which necessitated the need to remand; whether this rises to bad faith is unclear but is not determinative since this factor requires culpability "or" bad faith, not both. See Elliott v. Metrop., 2007 WL 1558519 *3 (E.D.Ky.2007) ("[t]here is a distinction between culpability or bad faith, as evidence[d] by the inclusion of both terms and the presence of `or . . .'")
In the instance case, the plaintiff was employed as general legal counsel by U.S. Xpress Enterprises, Inc. (U.S. Xpress). Beginning January 1, 2004, Reliance was U.S. Xpress' long term disability insurance carrier. Immediately prior to January 1, 2004, Unumprovident Corporation and Unum Life Insurance Company provided U.S. Xpress with long term disability insurance coverage.
U.S. Xpress had two types of long term disability policies with Reliance, an executive policy and a basic policy. The basic policy covered "office employees" and "drivers" while the executive policy covered "executives graded as E-11 E-23 and sales employees graded as S1-S6." Under the executive policy, eligible persons were automatically covered and U.S. Xpress paid their premiums. Under the basic policy, eligible employees had to elect coverage and pay their own premiums. Reliance denied the plaintiff's claim on the basis that he was covered under the basic policy but had not elected coverage or paid premiums. In reviewing Reliance's denial, the District Court found that Reliance had "summarily" concluded, i.e., without supporting evidence, that plaintiff fell under *743 the basic policy coverage and failed to make a reasonable investigation to determine whether plaintiff fell within that class of executives graded as E-11 E-23 or whether plaintiff fell within that class of employees graded as office employees.[3] The District Court found "[t]his failure to investigate was unreasonable and arbitrary." (Memorandum at 14.) Reliance also made other arguments to the District Court in support of its decision. First, Reliance argued that plaintiff had not been covered by the Unum policy and therefore could not have had his coverage automatically extended to the Reliance policy. Reliance also argued that U.S. Xpress had not enrolled plaintiff in the executive policy and had not paid premiums for the plaintiff. Finally, Reliance argued plaintiff had become disabled before the effective date of its coverage beginning January 1, 2004. However, in each instance, the Court found insufficient evidence to support Reliance's position and that Reliance had failed to fulfill its duty to investigate fully plaintiff's claim. The Court ultimately concluded the administrative record was incomplete and remanded for further investigation. (Memorandum at 17-18).
Nevertheless, in opposition to plaintiff's request for attorney's fees, Reliance attempts to reargue the merits of this case by asserting there was no bad faith in its denial of plaintiff's claim because Mr. McKay became disabled before the Reliance policy went into effect on January 1, 2004. As previously indicated, the District Court addressed that issue in its Memorandum and concluded that remand for further analysis and investigation was still necessary. In sum, Reliance's culpability leading to the need for remand is significant. This first factor favors the plaintiff.
(2) The opposing party's ability to satisfy an award of attorney's fees:
Reliance concedes its ability to satisfy an award of attorney's fees. This factor weighs in favor of plaintiff.
(3) The deterrent effect of an award on other persons in similar circumstances:
Even though the District Court did not award benefits to plaintiff, requiring a remand to the administrator is itself a form of specific deterrence upon Reliance. Overcoming the arbitrary and capricious standard also provides a general deterrence to other insurance companies because they will know that failure to provide a full and fair review could result in an award of attorney's fees. See Elliott, 2007 WL 1558519 at 3. This third factor weighs in favor of plaintiff.
(4) Whether the party requesting fees sought to confer a common legal benefit on all participants and beneficiaries of an ERISA plan or to resolve significant legal questions regarding ERISA:
This is an individual claim for benefits that relies on settled law. Plaintiff argues the case will insure continued compliance with settled law and this is perhaps so. However, since this case sought a private benefit and relied on settled law, this factor weighs in favor of defendant.
(5) The relative merits of the parties' positions:
Defendant here argues plaintiff was not a prevailing party in the truest sense, having secured only a remand. As set out above, my review of the Memorandum of *744 the District Judge reflects not only that the decision of Reliance was arbitrary and capricious, but the process followed by Reliance was so flawed that it reflected conduct that was highly culpable. Further, Reliance's failure to provide initially a full and fair review of the plaintiff's claim was costly, in terms of time and attorney's fees. Here, plaintiff was clearly the prevailing party, even though only remand was accomplished. Plaintiff's position was clearly more meritorious, having prevailed on an arbitrary and capricious standard. There were serious flaws in Reliance's decision-making process and a lack of substantial justification for Reliance's position. For those reasons, I conclude the fifth factor, the relative merit of the parties' positions, weighs in favor of plaintiff.
Upon review of all the Schwartz and King factors, I am satisfied that allowing plaintiff reasonable attorney's fees and costs in this case is appropriate.
B. Amount of Attorney's fees:
A party seeking attorney's fees under a federal fee shifting statute bears the burden to show he or she is entitled to the amount requested. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Reed v. Rhodes, 179 F.3d 453, 472 (6th Cir.1999), Brooks v. Invista, 528 F.Supp.2d 785, 788 (E.D.Tenn. 2007). The fees requested should be documented, and, where they are not, the district court may reduce the award accordingly. Id. The award of attorney's fees is left to the district court's exercise of discretion within the appropriate parameters which are discussed below. See Hensley, 461 U.S. at 437, 103 S.Ct. 1933; Reed, 179 F.3d at 469 n. 2; Hudson v. Reno, 130 F.3d 1193, 1208 (6th Cir.1997), overruled in part on other grounds by Pollard v. E.I. DuPont Nemours & Co., 532 U.S. 843, 121 S.Ct. 1946, 150 L.Ed.2d 62 (2001) (holding front pay does not constitute compensatory damages and thus is not subject to the statutory cap on compensatory damages under 42 U.S.C. § 1981a(b)(3)).
Attorney's fees for successful litigants under federal fee shifting statutes are commonly calculated using the "lodestar" method of multiplying the number of hours reasonably expended by a reasonable hourly rate.[4]Webb v. Board of Educ. of Dyer County, Tenn., 471 U.S. 234, 242, 105 S.Ct. 1923, 85 L.Ed.2d 233 (1985); Hensley, 461 U.S. at 433, 103 S.Ct. 1933; Adcock-Ladd v. Secretary of the Treasury, 227 F.3d 343, 349 (6th Cir.2000); Brooks, 528 F.Supp.2d at 788. The reasonableness of the hours expended and the attorney's hourly rate must be considered on a case by case basis. Hensley, 461 U.S. at 429, 103 S.Ct. 1933, Brooks, 528 F.Supp.2d at 788.[5]
*745 In determining the appropriate hourly rate to apply, the district court must consider the prevailing market rate in the relevant community for the same type of work at issue. Adcock-Ladd, 227 F.3d at 350; Reed, 179 F.3d at 473, Brooks, 528 F.Supp.2d at 788. The "relevant community" for fee purposes is the legal community within the court's territorial jurisdiction. Adcock-Ladd, 227 F.3d at 350; Hudson, 130 F.3d at 1208. The "prevailing market rate" is that rate which lawyers of comparable skill and experience can reasonably expect to command within the relevant community. Id. That rate may not, however, exceed the amount necessary to cause competent legal counsel to perform the work required. Coulter v. Tennessee, 805 F.2d 146, 148 (6th Cir. 1986); see also Adcock-Ladd, 227 F.3d at 349 ("The primary concern in an attorney fee case is that the fee awarded be reasonable, that is, one that is adequately compensatory to attract competent counsel yet which avoids producing a windfall for lawyers.") (citing Reed, 179 F.3d at 471). "Such fees are different from the prices charged well-to-do clients by the most noted lawyers and renowned law firms in a region. Under these statutes a renowned lawyer who customarily receives $250 an hour in a field in which competent and experienced lawyers in the region normally receive $85 an hour should be compensated at the lower rate." Coulter, 805 F.2d at 149; see also Reed, 179 F.3d at 472 (same); Hudson, 130 F.3d at 1208 (same).
Factors particularly relevant to this case in determining whether the hours expended are reasonable include: the difficulty of the legal issues presented by the case, the skill requisite to perform the legal services properly, and the experience and ability of the attorneys. See Hensley, 461 U.S. at 430 n. 3, 103 S.Ct. 1933. Hours which are "excessive, redundant, or otherwise unnecessary," are not reasonably expended. Id. at 434, 103 S.Ct. 1933.
While the lodestar method is the appropriate starting place for determining attorney's fees, the inquiry does not end there. Id. Other considerations may lead the district court to adjust the fee. Id. "`[T]he most critical factor' in determining the reasonableness of a fee award is `the degree of success obtained.'" Farrar v. Hobby, 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (citing Hensley, 461 U.S. at 436, 103 S.Ct. 1933); Cramblit v. Fikse, 33 F.3d 633, 635 (6th Cir.1994). Where the purpose of the litigation is to recover damages, then the district court must consider the amount and nature of damages awarded when determining attorney's fees. Farrar, 506 U.S. at 115, 113 S.Ct. 566; see also, Adcock-Ladd, 227 F.3d at 349; Cramblit, 33 F.3d at 635. Where the plaintiff achieves only partial success against the defendant, the district court must consider whether the plaintiff achieved a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award. Hensley, 461 U.S. at 434, 103 S.Ct. 1933. Finally, federal fee shifting statutes do not provide for enhancements of fees in order to compensate for the risk of nonpayment when an attorney takes a case on a contingency basis. City of Burlington v. Hague, 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992) (federal fee shifting statutes which authorize a court to award "reasonable attorney's fees" to a "prevailing or substantially prevailing party" do not authorize fee enhancements for the purpose of compensating attorneys hired on a contingency basis for the risk of loss); see also Davis v. Mutual Life Ins. Co. of New York, 6 F.3d 367, 381 (6th Cir.1993) (No fee enhancement due counsel for taking a case which impinges significantly on a small practice's ability to take other cases); Coulter v. Tennessee, 805 F.2d 146, 149 n. 4 (6th Cir.1986) ("In short, the lodestar figure includes most, if not all, of the relevant *746 factors comprising a `reasonable attorney's fee,' and it is unnecessary to enhance the fee for superior performance in order to serve the statutory purpose of enabling plaintiffs to secure legal assistance") (citing Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986)).
Plaintiff makes the following claim for fees:
1. Hours
Plaintiff claims 65.55 attorney hours to be compensated at a rate of $250 per hour, or $16,387.50; 6.5 hours of paralegal time to be compensated at a rate of $90 per hour, or $562.50, plus the $350 filing fee paid to commence this action. This calculates to a total figure of $17,300.00. An affidavit of hours spent including the identity and qualifications of each attorney is attached to the brief in support of their motion.
2. Market hourly rate
Plaintiff asserts that $250 per hour is the reasonable market rate for representation in this case. Counsel further asserts the law firm's current published hourly rate is $325 and supports, this with an attached affidavit of Eric Buchanan. (See attached Exhibit A to the motion). Counsel asserts this rate is not theoretical; i.e. the firm does have clients who are paying that rate. Id. See also National Ass'n of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1326 (D.C.Cir.1982) ("the actual rate that applicant's counsel can command in the market is itself highly relevant proof of the prevailing community rate"). However, plaintiff does not seek fees from Reliance at a greater hourly rate than the $250/$90 per hour which his contract of representation would call for should a quantum meruit value for services need to be calculated (See contract, Doc. 42).
Plaintiff submits in his brief that Social Security litigation is somewhat analogous to ERISA long term disability claims, as both involve federal court litigation, decided on written motions for judgment, restricted to the administrative record, concerning medical proof of disability. If anything, they argue, ERISA litigation is more involved in that it is apt to be more adversarial, as opposed to Social Security litigation where one party is an ostensibly neutral government agency.
Plaintiff points to a finding of this court over ten years ago, that an hourly rate of up to $200 per hour was reasonable for Social Security representation. See Green v. Apfel, No. 1:96-cv-458 (E.D. Tenn. Dec. 10, 1998) (J. Powers). The Green litigation was commenced in 1996, and the opinion cites older cases awarding $200 per hour in 1994. Id. At 7. Further, plaintiff shows from January 1994 to August 2007 the consumer price index (CPI-U) rose from 146.2 to 207.9. See ftp://ftp.bls.gov/pub/special.requests/cpi/cpiai.txt. The same percentage increase would make a $200 per hour rate in 1994 a $284 per hour rate in 2007.
In light of the foregoing, the experience and qualifications of the attorneys for plaintiff, the fact that plaintiff agreed to the rate reflected in the agreement between himself and counsel and the fact that Reliance does not appear to contest the hourly rates sought, the requested rates of $250 per hour for attorney time and $90 per hour for paralegal time appear reasonable to the undersigned and are therefore approved along with the requested filing fee.
IV. Conclusion
For the reasons stated herein, it is RECOMMENDED that plaintiff's motion for attorney's fees (Docs. 36 and 39) be GRANTED and that the plaintiff be *747 AWARDED attorney's fees and costs in the amount of $17, 300.00.[6]
Dated: July 17, 2008.
NOTES
[1] In making the latter argument, Defendant cites to Glenn v. MetLife, 461 F.3d 660, 674 (6th Cir.2006), aff'd, ___ U.S. ___, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008), as standing for the proposition that a plan administrator may not ignore the decision of the Social Security Administration. While the Sixth Circuit in Glenn found the plan administrator acted "in unacknowledged conflict with the determination of disability by the Social Security Administration," id., it never gave an express ruling on the amount of consideration the plan administrator must give to the Social Security Administration's decision. Moreover, Glenn reversed, as arbitrary and capricious, the plan administrator's decision denying disability benefits after the Social Security Administration determined the applicant was totally disabledthe exact result Defendant wishes to avoid here.
[2] In objecting to the R & R, Defendant maintains it pursued the question of Plaintiff's class of employment when it asked his employer whether he ever contributed to the prior plan, and the employer's representative responded she "didn't show he ever elected Long Term or Short Term" (Court File No. 50, at 4). This response, however, suffers from the same defect as the rest of Defendant's investigation: it is superficial and inadequate. Defendant does not provide evidence it made any efforts to determine why Plaintiff elected neither Long Term nor Short Term benefits.
[1] Secretary of Dep't of Labor v. King, 775 F.2d 666, 669 (6th Cir. 1985).
[2] Defendant also cites Giraldo v. Building Service 32B-J Pension Fund, 2007 WL 274416 (2d Cir. July 20, 2007). I found no such case at this citation. I did find Giraldo v. Building Service 32B-J Pension Fund, 502 F.3d 200 (2d Cir.2007) (per curiam) in which the Second Circuit considered whether an appeal of a denial of attorney's fees based on a remand to the plan administrator constituted a final judgment for which the Court of Appeals had subject matter jurisdiction to review. The Second Circuit concluded it did not but did not address the merits of the attorney's fee issue. Id. at 202-204.
[3] The undersigned is assuming, based on the plaintiff's job title as general legal counsel, that he would not have been categorized as a salesperson or driver. In any event, that assumption is immaterial for purposes of this motion. The District Court remanded this action for investigation into plaintiff's job category, whatever that might be.
[4] The provision permitting the award of attorney's fees under ERISA is 29 U.S.C. § 1132(g), for the FLSA it is 29 U.S.C. § 216(b) and for the THRA it is Tenn Code Ann. § 4-21-306(a)(7).
[5] There are twelve factors which the district court may consider in determining the basic lodestar fee and whether to make adjustments thereto. Reed, 179 F.3d at 471; see also Hensley, 461 U.S. at 434 n. 9, 103 S.Ct. 1933. These factors are:
(1) the time and labor required by a given case; (2) the novelty and difficulty of the questions presented; (3) the skill needed to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
Reed, 179 F.3d at 472 n. 3; see also Hensley, 461 U.S. at 430 n. 3, 103 S.Ct. 1933.
[6] Any objections to this Report and Recommendation must be served and filed within ten (10) days after service of a copy of this recommended disposition on the objecting party. Such objections must conform to the requirements of Rule 72(b) of the Federal Rules of Civil Procedure. Failure to file objections within the time specified waives the right to appeal the District Court's order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). The district court need not provide de novo review where objections to this report and recommendation are frivolous, conclusive or general. Mira v. Marshall, 806 F.2d 636 (6th Cir.1986). Only specific objections are reserved for appellate review. Smith v. Detroit Federation of Teachers, 829 F.2d 1370 (6th Cir. 1987).