McCollum v. Life Ins. Co. of N. Am., Case No. 10-11471

• Decision Date: 25 January 2013
• Docket Number: Case No. 10-11471
• Parties: MELVIN MCCOLLUM, Plaintiff, v. LIFE INSURANCE COMPANY OF NORTH AMERICA, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

MELVIN MCCOLLUM, Plaintiff,

v.LIFE INSURANCE COMPANY OF NORTH AMERICA, et al., Defendants.

Case No. 10-11471

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: January 25, 2013

ORDER DENYING WITHOUT PREJUDICE

PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND COSTS

On December 6, 2012, pursuant to a Sixth Circuit mandate, the court remanded the case to Fabristeel Products, Inc., the plan administrator, to provide a full and fair review of Plaintiff Melvin McCollum's claim for disability benefits. Shortly thereafter Plaintiff moved for attorney's fees in the amount of $42,928.50 and litigation costs in the amount of $1,723.99. Plaintiff, however, has not yet achieved success, and his motion for attorney's fees and costs is not ripe.

Under ERISA, the court may award reasonable attorney's fees and costs to either party. 29 U.S.C. § 1132(g)(1). A party must show "some degree of success on the merits" before a court may award fees and costs under § 1132(g)(1). Hardt v. Reliance Standard Life Ins. Co., __ U.S. __, 130 S. Ct. 2149, 2158 (2010) (citations omitted). A claimant satisfies this requirement "if the court can fairly call the outcome of the litigation some success on the merits without conducting a lengthy inquiry into the question whether a particular party's success was substantial or occurred on a central

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issue." Id. (citations and alterations omitted). But the requirement is not met if the party achieves a "purely procedural victory" or "trivial success on the merits." Id. (citations and alterations omitted). The Supreme Court has specifically reserved for later the determination of "whether a remand order, without more, constitutes 'some success on the merits.'" Id. at 2159.

The case has been remanded to the plan administrator, "without more," to provide a full and fair review of Plaintiff's claim for disability benefits, and Plaintiff has not yet achieved any "degree of success on the merits." The court will deny the motion without prejudice pending the final review of Plaintiff's claim for disability benefits. Once the review has been completed (and, if necessary, subjected to review), if Plaintiff can then colorably claim "success on the merits," his attorney may either reinstate the present motion by filing a notice, file a new motion, or present a proposed stipulated order. Accordingly,

IT IS ORDERED that Plaintiff's motion for attorney's fees and costs [Dkt. # 48] is DENIED WITHOUT PREJUDICE.

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