1

The district judge requested that both motions be heard by Magistrate Judge Morgan.

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DAVID C. BROWN,

Plaintiff,

v.

PRUDENTIAL INSURANCE CO. OF

AMERICA,

Defendants.

___________________________________ /

CASE NUMBER: 09-11685

HON. NANCY G. EDMUNDS

HON. VIRGINIA M. MORGAN

UNITED STATES MAGISTRATE JUDGE 

REPORT AND RECOMMENDATION ON 

MOTION FOR JUDGMENT (D/E #27) AND MOTION FOR ATTORNEY FEES (D/E #28)1

This matter is before the court on post-judgment motions regarding payment of

benefits under an ERISA plan. The district judge accepted the Report & Recommendation

and denied the defendant administrator’s Motion to Affirm the Denial of Benefits and granted

plaintiff’s motion for benefits, and remanded the matter to the administrator for a calculation

of benefits due. In attempting to effectuate the judgment, the lawyers were unable to resolve a

series of issues and so filed these motions. A hearing was held before the magistrate judge. 

For the reasons stated on the record, it is recommended that the motions are granted in part. It

is further recommended that counsel are to submit a modified judgment for signature by the

district judge on or before January 31, 2011.

It is further recommended that the terms of the judgment be as set below:

1. Costs: Plaintiff has moved for $350.00 in Rule 54(d) costs. Defendant agrees

2:09-cv-11685-NGE-VMM Doc # 45 Filed 01/14/11 Pg 1 of 4 Pg ID 338
2

to pay these. Defendant should pay $350 in costs to plaintiff’s counsel.

2. Attorney Fees: Plaintiff should be awarded attorney fees, payable by defendant,

for 69.7 hours at the rate of $300 per hour. 

3. Prejudgment Interest: Counsel have agreed upon a rate of 5% for prejudgment

interest. Plaintiff should be awarded interest on the

award from the date of the complaint until the date of the

judgment.

4. Back-benefits: The court ordered the defendant to calculate and pay the amount

of benefits awarded to plaintiff. Defendant has not done so. 

A. Defendant should calculate and pay benefits from March 27, 2007

through September 30, 2008. 

B. Under the plan, defendant is entitled to a set off for social security

benefits received by plaintiff. However, plaintiff failed to apply for

benefits. Thus, it is recommended that defendant may provisionally

subtract from that payment the estimated amount of social security

benefits that plaintiff would have received.

C. In order to receive the full amount of benefits under the Plan, plaintiff

must apply for social security disability. It is recommended that he be

ordered to do so forthwith. If Social Security determines that plaintiff

is not entitled to benefits, then Prudential be ordered to pay to plaintiff

the amount deducted as an expected offset within 45 days (or such

other time as agreed between counsel) of notice from plaintiff’s counsel

2:09-cv-11685-NGE-VMM Doc # 45 Filed 01/14/11 Pg 2 of 4 Pg ID 339
3

that plaintiff was not determined to be disabled prior to September 30,

2008.

D. Because plaintiff failed to apply for benefits timely, plaintiff should not

be entitled to interest on the withheld amount so long as the offset

amount is paid as ordered or agreed in part C. 

E. In order to obtain disability benefits under the Plan for any period after

September 30, 2008, plaintiff must submit his claim and supporting

information to the Administrator as per the Plan. It is recommended

that such language be incorporated into the proposed judgment.

F. Defendant is advised that if the claim is denied without good cause

either procedurally or substantively, the court could consider sanctions

in the event of a judicial appeal.

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to act within fourteen (14) days of service of a copy hereof

as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file

specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474

U.S. 140 (1985); Howard v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir. 1991); United

States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). The filing of objections which raise

some issues, but fail to raise others with specificity, will not preserve all the objections a party

might have to this Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390,

401 (6th Cir. 1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th

Cir. 1987). 

2:09-cv-11685-NGE-VMM Doc # 45 Filed 01/14/11 Pg 3 of 4 Pg ID 340
4

Within fourteen (14) days of service of any objecting party’s timely filed objections,

the opposing party may file a response. The response shall be no more than 20 pages in

length unless, by motion and order, the page limit is extended by the court. The response

shall address each issue contained within the objections specifically and in the same order

raised.

S/Virginia M. Morgan 

Virginia M. Morgan

United States Magistrate Judge

Dated: January 14, 2011

 

PROOF OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and via the

Court’s ECF System and/or U. S. Mail on January 14, 2011.

s/J. Johnson 

Case Manager to

Magistrate Judge Virginia M. Morgan

2:09-cv-11685-NGE-VMM Doc # 45 Filed 01/14/11 Pg 4 of 4 Pg ID 341