IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DIANE G. MELECH, )

)

Plaintiff, )

) 

vs. ) CIVIL ACTION NO.: 10-00573-KD-M

)

LIFE INSURANCE COMPANY OF )

NORTH AMERICA, et al., )

)

Defendants. )

ORDER

This matter is before the Court on “Plaintiff’s Interim Application for Attorneys’ Fees 

and Costs Pursuant to 29 U.S.C. § 1132(g),” which was filed January 27, 2015 (Doc. 211). 

Prior to the filing of the instant motion, the district court granted summary judgment on 

behalf of the Defendant. (Doc. 162). This decision was vacated by the Eleventh Circuit Court of 

Appeals, and this court was instructed to remand the matter to LINA for further consideration. 

After complying with the Eleventh Circuit’s instructions on remand, this Court again entered 

summary judgment on behalf of the Defendant. (Doc. 259). 

In an ERISA action by a plan participant to recover benefits, “the court in its discretion 

may allow a reasonable attorney’s fee ... to either party.” 29 U.S.C. § 1132(g)(1). On March 27, 

2014, ten months prior to filing the instant motion, Plaintiff sought an award of attorneys’ fees 

and costs from the Eleventh Circuit. The parties extensively briefed the issue of attorneys’ fees 

and whether a remand to the plan administrator was an event sufficient to warrant the award of 

attorneys’ fees.

On July 16, 2014, the Eleventh Circuit remanded Plaintiff’s “Application for Fees and 

Costs” to this court “for a determination of the reasonable amounts of trial and appellate 

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attorney’s fees, costs, and expenses to be awarded, if any, should [Plaintiff] prevail on the merits 

of her underlying ERISA claims.” (emphasis added). Plaintiff filed a motion for the Court of 

Appeals to reconsider, arguing that its decision was in conflict with Hardt v. Reliance Standard 

Life Insurance Co., 130 S. Ct. 2149 (2010), and other Circuits’ decisions regarding whether 

remand to a plan administrator was an event rendering a party eligible for an award of attorneys’ 

fees and costs.1 On October 8, 2014, the Eleventh Circuit denied Plaintiff’s motion to reconsider 

without discussion.

Plaintiff makes the same arguments before this Court. However, the Court interprets the

mandate as allowing the undersigned to award an attorney fee only if Plaintiff prevailed on the

merits. As evidenced by this Court’s recent entry of summary judgment on behalf of the 

Defendant, Plaintiff did not “prevail on the merits of her underlying ERISA claims.” 

Accordingly, “Plaintiff’s Interim Application for Attorneys’ Fees and Costs Pursuant to 29 

U.S.C. § 1132(g)” is DENIED. (Doc. 211). 

DONE and ORDERED this 25th day of August 2015. 

/s/ Kristi K. DuBose

KRISTI K. DuBOSE

UNITED STATES DISTRICT JUDGE 

 1 In Hardt, the Supreme Court held that a plaintiff need not be a “prevailing party” in order to receive an award 

under Section 1132(g)(1). Id. at 2156. Instead, a party is “eligible” for an award of fees and costs, Id. at 2158 n. 

8,“as long as the fee claimant has achieved some degree of success on the merits.” Id. at 2152 (internal quotes 

omitted); accord Id. at 2158.“A claimant does not satisfy that requirement by achieving trivial success on the merits 

or a purely procedural victor[y].”Id.(internal quotes omitted). The standard is met, however, “if the court can fairly 

call the outcome of the litigation some success on the merits without conducting a lengthy inquir[y] into the question 

whether a particular party’s success was substantial or occurred on a central issue.” Id. (internal quotes omitted). 

However, the Hardt decision also stated: “[W]e need not decide today whether a remand order, without more, 

constitutes ‘some success on the merits’ sufficient to make a party eligible for attorney's fees under § 1132(g)(1).”

Id. at 2159.

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