Dave Nguyen v. Hartford Life Insurance Co.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 18 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
DAVE NGUYEN, No. 09-56748
Plaintiff-Appellant, D.C. No. 8:09-cv-00244-AG (SS)
v.
MEMORANDUM *
HARTFORD LIFE INSURANCE
COMPANY,
Defendant-Appellee.
DAVE NGUYEN, No. 09-56909
Plaintiff-Appellee, D.C. No. 8:09-cv-00244-AG (SS)
v.
HARTFORD LIFE INSURANCE
COMPANY,
Defendant-Appellant.
Appeal from the United States District Court
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Submitted June 6, 2011 **
Pasadena, California
Before: O’SCANNLAIN and IKUTA, Circuit Judges, and PIERSOL,
Senior District Judge.***
This appeal and cross-appeal involve a district court’s award of
attorney fees to Nguyen under the Employee Retirement Income Security
Act of 1974 (“ERISA”). See 29 U.S.C. § 1132(g)(1).1
The district court did not abuse its discretion in setting an hourly rate
of $180 for Nguyen’s attorney fees after Nguyen failed to offer any relevant
evidence to support the claimed $325 hourly rate. See Blum v. Stenson, 465
U.S. 886, 895 n.11 (1984) (fee applicant bears the burden of producing
satisfactory evidence of the prevailing rates in the community for similar
services by lawyers of reasonably comparable skill, experience, and
**
The panel unanimously concludes this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Lawrence L. Piersol, Senior District Judge for
the District of South Dakota, sitting by designation.
1
Hartford Life Insurance Company’s motion to take judicial
notice, filed at docket 20 in No. 09-56909, is denied.
2
reputation). Evidence submitted by Hartford supports the $180 rate set by
the district court.
Nguyen requested fees for 18 hours of time spent replying to
Hartford’s brief opposing the motion for attorney fees and attending the
hearing on the motion for attorney fees. In a somewhat cryptic manner, the
district court indicated that it had considered those 18 hours, and the district
court did not err in disallowing fees for those hours.
The district court appropriately awarded Nguyen attorney fees for
time spent on unsuccessful, non-ERISA claims because those claims were
related to the ERISA claims, and Nguyen achieved a level of success that
makes those and the other hours reasonably expended, a satisfactory basis
for making this fee award. See Dang v. Cross, 422 F.3d 800, 812-13 (9th
Cir. 2005); see also Elliot v. Fortis Benefits Ins. Co., 337 F.3d 1138, 1148
(9th Cir. 2003).
The district court properly calculated the lodestar amount by
multiplying the 164.2 hours reasonably expended by Nguyen’s lawyer by
the reasonable hourly rate of $180, resulting in the attorney fee award of
3
$29,556. See McElwaine v. U.S. West, Inc., 176 F.3d 1167, 1173 (9th Cir.
1999).
AFFIRMED.
4