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Lasheen v. Loomis Co.

United States District Court, E.D. California

August 3, 2016

MOHAMED E. LASHEEN, Plaintiffs,
v.
THE LOOMIS COMPANY, et al., Defendants. AND RELATED CROSS-CLAIMS.

          ORDER

         On September 24, 2013, after extensive litigation before the district judge previously assigned to this case, that judge entered default judgment against defendants Embassy of the Arab Republic of Egypt, the Arab Republic of Egypt, and the Cultural and Educational Bureau (collectively, “the Egyptian defendants”) in the amounts of:

(1) $200, 000.00, based on defendants’ violation of the Employees Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132(a)(1)(B);
(2) $54, 926.00 in pre-judgment interest, calculated through December 5, 2012; and
(3) $226, 251.63 in attorney’s fees, calculated through November 21, 2012.

Order, Sept. 24, 2013 (“2013 Order”), ECF No. 368; Default J., ECF No. 369; see also Andrus Decl., Nov. 21, 2012 (“2012 Andrus Decl.”), ECF No. 359; Findings & Recommendations, Mar. 21, 2013 (“2013 F. & R.”), ECF No. 363. The default judgment amount totaled $481, 177.63. See Default J. 1.

         A number of events followed: the Egyptian defendants appealed the judgment to the Ninth Circuit on October 23, 2013 (ECF No. 370); the Ninth Circuit affirmed the court’s order on December 18, 2015 (ECF Nos. 376 & 379); the Ninth Circuit granted plaintiff Mohamed Lasheen’s request that attorney’s fees on appeal be transferred to the district court under Ninth Circuit Rule 39-1.8 on January 8, 2016 (ECF No. 378); the case was reassigned to the undersigned on January 11, 2016 (ECF No. 377); the parties appeared before this court for a Status Conference on March 3, 2016 (ECF No. 384); the Egyptian defendants filed a petition for writ of certiorari with the Supreme Court on March 16, 2016, case number 15-1179; and plaintiff filed an opposition brief with the Supreme Court on April 20, 2016.[1]

         Plaintiff now moves to update and amend the default judgment to add:

(1) $71, 550.42 in attorney’s fees, expenses, and costs incurred since November 21, 2012 under 29 U.S.C. § 1132(g)(1); and
(2) $3, 672.37 in interest since December 5, 2012 under 28 U.S.C. § 1961(a).

Pl.’s Mot. Amend J. (“Mot.”), ECF No. 387; Pl.’s Mem. P. & A. Mot. Amend J. (“Pl.’s Mem. P. & A.”), ECF No. 388. The Egyptian defendants filed an untimely, two-page opposition brief. ECF No. 390 (“Opp’n”); see E.D. Cal. L.R. 230(c). While the Egyptian defendants provided no explanation for the delay in filing their opposition, in the interest of resolving the matter on the merits, the court considers the opposition. The court submitted the matter as provided by Local Rule 230(g). As explained below, the court GRANTS plaintiff’s motion, as modified.

         I. DISCUSSION

         The factual and procedural history and the basis for the default judgment were discussed at length in the magistrate judge’s March 21, 2013 Findings and Recommendations, ECF No. 363, which the prior district judge adopted in full, ECF No. 368.

         A. Attorney’s Fees, Expenses, and Costs

         Plaintiff seeks to amend the default judgment to add $66, 150.00 in attorney’s fees and $5, 400.42 in expenses and costs incurred since November 21, 2012. Pl.’s Mem. P. & A. 4. The court first considers whether plaintiff is entitled to attorney’s fees on appeal under 29 U.S.C. § 1132(g)(1).

         1. Whether Plaintiff Is Entitled to Attorney’s Fees on Appeal

         As the court previously noted, “It is within the court’s discretion to grant an award of attorneys’ fees and costs in an ERISA case, and absent special circumstances, a prevailing ERISA plaintiff normally should receive such fees.” 2013 F. & R. 17 (citing 29 U.S.C. § 1132(g)(1) and McConnell v. MEBA Med. & Benefits Plan, 778 F.2d 521, 525 (9th Cir. 1985)). The court also has discretion to award attorney’s fees on appeal. Smith v. Ret. Fund Tr. of Plumbing, Heating & Piping Indus. ...


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