The opinion of the court was delivered by: JAMES HOLDERMAN, District Judge
MEMORANDUM OPINION AND ORDER
On July 9, 2004, this court granted defendants Monsanto Company
("Monsanto"), Pharmacia Corporation ("Pharmacia"), and CP Kelco
U.S., Inc.'s ("Kelco") motions for summary judgment on plaintiff
Jon Magin's ("Magin"), claims under the Employee Retirement
Income and Security Act of 1974, 29 U.S.C. § 1001 et seq.,
("ERISA"), (Dkt. Nos. 108-10) aff'd Magin v. Monsanto Co.,
___ F.3d ___, No. 04-2997, 2005 WL 2008233 (7th Cir. Aug. 23, 2005).
On January 13, 2005, this court granted Monsanto and Pharmacia's
motion for an award of attorneys' fees and costs pursuant to
ERISA's fee shifting provision, 29 U.S.C. § 1132(g)(1), and an
assessment of sanctions against plaintiff Magin and his counsel
pursuant to 28 U.S.C. § 1927, but denied the defendants' request
for sanctions against Magin under Rule 11 of the Federal Rules of
Civil Procedure, Magin v. Monsanto Co., No. 03-1366, 2005 WL
83334 (N.D. Ill. Jan. 13, 2005). The court's January 13, 2005
order did not award a dollar amount to Monsanto and Pharmacia for
attorneys' fees and costs because the parties had failed to
comply with the requirements of Local Rule 54.3. Instead, the
court set additional dates for the parties' compliance with Local Rule 54.3 and associated briefing. On March
1, 2005, Monsanto and Pharmacia filed the pending motion for an
assessment of attorneys' fees and costs. (Dkt. No. 123). For the
reasons set forth below, Monsanto and Pharmacia's renewed motion
for attorneys' fees and costs of March 1, 2005 is granted.
On January 13, 2005, this court held that Monsanto and
Pharmacia were entitled to reasonable attorneys' fees and costs
under ERISA's fee shifting position. Magin v. Monsanto Co. No.
03-1366, 2005 WL 83334, at *3-5 (N.D. Ill. Jan. 13, 2005). This
court found that Magin had taken positions in this litigation
that were not substantially justified, not taken in good faith
and at times were objectively frivolous. Id. at *4-5. This
court concluded on January 13, 2005 that it would be
inappropriate for Monsanto and Pharmacia to bear their own
attorneys' fees and costs in this litigation. Id. at *5.
This court supported its January 13, 2005 determination that
fee shifting was appropriate in this case based on a variety of
shortcomings exhibited by Magin during the litigation. These
deficiencies included filing state law claims in a second amended
complaint after this court had previously held that Magin's state
law claims were preempted under ERISA. Id. at *4 ("Magin had
clear notice of the legal rule of ERISA preemption after this
court's ruling on the first amended complaint, yet he took a
second run at the same argument in his second amended
The court's opinion also noted that "Magin has failed to meet
court imposed deadlines and requirements at various times
throughout the litigation," Id. at *5, and he failed to provide
support for legal arguments with citation or explanation. Id.
at *4. Lastly, this court held that there were no special circumstances that mitigated against
levying an award of attorneys' fees and costs against Magin.
Id. at *5. Not only did Magin fail to provide evidence that he
would be unable to pay an award of attorneys's fee but "Monsanto
and Pharmacia argue that Magin received over $800,000 in salary
and severance payments from Monsanto in 2000 and 2001." Id. at
The court bifurcated its determination that Monsanto and
Pharmacia were entitled to an award of attorneys' fees and costs
from the determination of a reasonable dollar amount to award.
This court held that it was unable to determine a reasonable
award amount on January 13, 2005 due to the parties' failure to
comply with Local Rule 54.3. The court's January 13, 2005 opinion
ordered the parties to comply with Local Rule 54.3 and set
additional dates for briefing from the parties. The court
determines in this opinion that the $271,548.47 requested by
Monsanto and Pharmacia in attorneys' fees and costs is a
"Determination of an [attorney's] fee award is left to the
discretion of the district court in light of its `superior
understanding of the litigation and the desirability of avoiding
frequent appellate review of what essentially are factual
matters.'" Wengryn v. Connor Sports Flooring Corp., No. 01 C
1519, 2002 WL 2022608, at *2 (N.D. Ill. Sept. 3, 2002) (quoting
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Eddleman v.
Switchcraft, Inc., 965 F.2d 422, 424 (7th Cir. 1992)). "A
district court is within its discretion to reduce the number of
hours requested, or the hourly rate requested, as long as it
provides a reasonable, and `concise but clear explanation of its
reasons.'" Hacket v. Xerox Corp. Long-Term Disability Income
Plan, 355 F. Supp. 2d 931, 935 (N.D. Ill. 2005) (quoting Spegon
v. Catholic Bishop of Chicago, 175 F.3d 544, 551, 554-55 (7th Cir. 1999)).
Section 1132(g)(1) of ERISA states, "In any action under this
subchapter . . . 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." 29 U.S.C. § 1132(g)(1). "There
is a `modest presumption' in favor of awarding fees to the
prevailing party, but that presumption may be rebutted." Senese
v. Chicago Area I.B. of T. Pension Fund, 237 F.3d 819, 826 (7th
Cir. 2001) (quoting Harris Trust & Sav. Bank v. Provident Life &
Accident Ins. Co., 57 F.3d 608, 617 (7th Cir. 1995)).
In determining whether fees and costs are appropriate, the
court may apply one of two tests: (1) the "substantially
justified" test or (2) the multi-factor test.*fn1 The
Seventh Circuit leaves it to the district court to select which
test to apply since "both tests essentially ask the same
question: `Was the losing party's position substantially
justified and taken in good faith, or was that party simply out
to harass its opponent?'" Quinn v. Blue Cross and Blue Shield
Ass'n, 161 F.3d 472, 478 (7th Cir. 1998) (quoting Hooper v.
Demco, Inc., 37 F.3d 287, 294 (7th Cir. 1994)). "Substantially
justified means something more than non-frivolous, but something
less than meritorious." Senese, 237 F.3d at 826. The substantially
justified standard developed from the underlying policy that
"ERISA's remedial purpose is to protect, rather than penalize
participants who seek to enforce their statutory rights." Stark
v. PPM America, Inc., 354 F.3d 666, 673 (7th Cir. 2004) (quoting
Senese, 237 F.3d at 826)).
This court previously determined in its January 13, 2005
memorandum opinion and order that it is proper to assess
attorneys' fees and costs against Magin under ERISA's fee
shifting provision because he took positions in this litigation
which were not substantially justified, not taken in good faith
and at times were objectively frivolous. Magin v. Monsanto Co.
No. 03-1366, 2005 WL 83334, at *3-5 (N.D. Ill. Jan. 13, 2005).
The court must now determine ...