Free Response to Motion - District Court of Arizona - Arizona

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40 North Central Avenue Phoenix, Arizona 85004-4429 Telephone: (602) 262-5311 Stephen M. Bressler, State Bar No. 09032 Direct Dial: (602) 262-5376 Direct Fax: (602) 734-3742 EMail: [email protected] Ann-Martha Andrews, State Bar No. 012616 Direct Dial: (602) 262-5707 Direct Fax: (602) 734-3764 EMail: [email protected] Scott Bennett, State Bar No. 022350 Direct Dial: (602) 262-5338 Direct Fax: (602) 734-3816 EMail: [email protected] Attorneys for Defendants Provident Life and Accident Insurance Company and UnumProvident Corporation

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) Plaintiff, ) ) vs. ) ) UNUMProvident Corporation and Provident ) Life and Accident Insurance Company, ) ) Defendants. ) ) I. INTRODUCTION. Leavey has the burden of proving both that fees should be awarded and the reasonable amount of the requested fee award. He does not meet that burden. Leavey's application for $1 million in attorneys' fees incorporates an hourly rate of $500 for every partner, junior associate, and paralegal assistant who worked on this case. He has provided no evidence that this is a reasonable hourly rate. Moreover, his application fails to include a copy or statement of the fee agreement with two of the three involved law firms, as required by LRCiv 54.2(d)(2). An award of fees is truly discretionary. Associated Indem. Corp. v. Warner, 143 Ariz. 567, 569, 694 P.2d 1181, 1183 (1985) (expressly rejecting a reading of A.R.S. § 12341.01 that includes any presumption that fees should be awarded to the prevailing
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Brett D. Leavey,

No. CIV-02-2281-PHX-SMM RESPONSE TO PLAINTIFF'S MOTION FOR ATTORNEYS' FEES AND RELATED NON-TAXABLE EXPENSES

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party). "[T]here is no requirement that the trial court grant attorney's fees to the prevailing party." Id. at 570, 694 P.2d at 1184; accord Apollo Group, Inc. v. Avnet, Inc., 58 F.3d 477, 482 (9th Cir. 1995) (applying A.R.S. § 12-341.01 in diversity action). If this Court decides to grant fees, rather than accepting the plaintiff's unsupported claim, the Court is obligated to apply a reasonable hourly rate to the reasonable number of hours submitted by the plaintiff's counsel, and enter a correspondingly reasonable fee award. 1 Finally, Leavey has also sought reimbursement for costs that are not recoverable under federal or Arizona law. The request for non-taxable expenses should be denied in full. II. THE HOURLY RATES REQUESTED ARE UNREASONABLE AND THE TIME SPENT IS UNDOCUMENTED. A. Fees Must Be Calculated Under the "Lodestar Method." Arizona Revised Statutes § 12-341.01 gives this Court discretion to award "reasonable attorneys' fees" in contract actions. The touchstone of all "reasonable fee" calculations, including those under A.R.S. § 12-341.01, is the "lodestar method." See City of Burlington v. Dague, 505 U.S. 557, 562 (1992) ("The `lodestar' figure has, as its name suggests, become the guiding light of our fee-shifting jurisprudence."); Lange v. Penn Mutual Life Ins. Co., 843 F.2d 1175, 1188-86 (9th Cir. 1988) (applying lodestar method to assess reasonable fee award under A.R.S. § 12-341.01); Phoenix Central v. Dean Witter Reynolds, Inc., 768 F. Supp. 702, 704 (D. Ariz. 1991) (same); Marvin Johnson, P.C. v. Shoen, 888 F. Supp. 1009, 1018 (D. Ariz. 1995) ("In this diversity action, the availability of attorneys' fees is governed by state law."). The appropriate lodestar is computed by multiplying a reasonable hourly rate by a reasonable number of hours expended on the case. Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983); State ex rel. Corbin v. Tocco, 173 Ariz. 587, 591, 845 P.2d 513, 517 (App. 1992) (describing lodestar calculation). When the rate and the number of hours are
1

Any consideration of Leavey's request for attorneys' fees would be premature until after Provident Life's post-trial motions are resolved, as these may affect whether Leavey is a prevailing party and to what degree. These arguments are more fully set forth in Provident Life's Renewed Motion for a Judgment as a Matter of Law, or, in the Alternative, Motion for a New Trial.
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both reasonable, "the resulting product is presumed to be a reasonable fee." Blum v. Stenson, 465 U.S. 886, 897 (1984). Use of this method is mandatory. Staton v. Boeing Co., 327 F.3d 938, 965 (9th Cir. 2003) ("Under a fee-shifting statute, the court `must calculate awards for attorneys' fees using the `lodestar' method'") (quoting Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001)); Burke v. Arizona State Retirement Sys., 206 Ariz. 269, 275, 77 P.3d 444, 450 (Ct. App. 2003) (remanding with instructions to trial court to calculate attorneys' fees pursuant to lodestar method). The lodestar approach is the appropriate methodology regardless of whether the prevailing party's fee agreement is based on a contingency. In fact, the lodestar method is designed precisely for such cases: "`[E]vidence of reasonableness is required even in contingency fee cases . . . . The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.'" Burke, 206 Ariz. at 275, 77 P.3d at 450, (quoting Sanborn v. Brooker & Wake Prop. Mgmt., Inc., 178 Ariz. 425, 430, 874 P.2d 982, 987 (App. 1994)) (other internal quotations omitted). Accordingly, this Court must calculate a reasonable fee award here under the lodestar method. Reviewing the evidence with an eye to that calculation, the Court will conclude that Leavey's requested $1 million award is not supported. B. The Fee Application Does Not Provide Evidence Of Compensation Paid To Mr. Temple Or To Osborn Maledon.

Under LRCiv 54.2(d)(2), every fee application shall include a "complete copy of any written fee agreement, or a full recitation of any oral agreement." The only fee agreement attached to the plaintiff's memorandum is between Leavey and the Dawson & Rosenthal law firm. Mr. Temple's declaration provides no account of any fee arrangement between Leavey and himself. Likewise, Mr. Hudson's declaration provides no account of any fee arrangement between Leavey and Osborn Maledon. Neither of their declarations complies with LRCiv 54.2(d)(4)(B), which requires a statement supporting the reasonableness of the fees charged.

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Compliance with LRCiv 54.2 isn't just a nicety. A "genuine financial obligation" on the part of the litigant is "indispensable" to an award of attorneys' fees. Lisa v. Strom, 183 Ariz. 415, 419, 904 P.2d 1239, 1243 (App. 1995).2 As it is, there is no basis upon which to conclude that Leavey has any obligation whatsoever to pay either of these firms. But more significantly ­ since we assume that Mr. Temple and Osborn Maledon are indeed being paid ­ Leavey's failure to abide by LRCiv 54(d)(2) deprives Provident and this Court of information that is not only relevant but potentially definitive. Under the lodestar approach, the Court arrives at a reasonable fee by assessing the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. So even if, for instance, Dawson & Rosenthal (and not Leavey) is paying these other attorneys, their hours spent might reasonably be counted toward the total. But if their hours are relevant, their rate of pay is relevant too ­ and it becomes key information if the agreement between Dawson & Rosenthal and the other attorneys provides an hourly rate. "[T]he rate charged by the lawyer to the client is the best indication of what is reasonable under the circumstances of the particular case." Schweiger v. China Doll Restaurant, Inc., 138 Ariz. 183, 187-88, 673 P.2d 987, 931-32 (App. 1983). This observation would not change simply because the lead lawyers (and not the client) contracted the services. Finally, and perhaps most directly to the point, A.R.S. § 12-341.01(B) states that an attorneys' fee award "may not exceed the amount paid or agreed to be paid" ­ thus Leavey cannot use the lodestar approach to collect $500/hour for the work of attorneys who might have actually charged only $200/hour for their work. Here, Leavey has effectively suggested a rate of $500 per hour for every lawyer and paralegal who worked on the case. If any of the lawyers or paralegals were working for rates other than that, Provident and the Court were entitled to know. By failing to comply with LRCiv 54(d)(2), Leavey has deprived Provident and the Court of
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Lisa involved an attorney working pro se, but the holding is equally applicable here, since it was based on "public policy considerations," including the fact that "[a]ttorney's fees are meant to make a party whole for costs incurred for an attorney's services." Lisa, 183 Ariz. at 420, 904 P.2d 1244. See also A.R.S. § 12-341.01(B) (fee award "should be made to mitigate the burden of the expense of litigation").
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fundamental information. He cannot have it both ways. He cannot count these attorneys' hours in the lodestar calculation, but withhold information on their fee arrangements. C. The Requested Hourly Rate Is Not Reasonable.

Leavey has requested a fee award of $1 million for a total of 2,000 hours expended on his case. This amounts to an effective rate of $500 per hour. Leavey has the burden to establish that this is a reasonable rate. See, e.g., Blum, 465 U.S. at 897 (when fee applicant "has carried his burden of showing that the claimed rate and claimed hours are reasonable, the resulting product is presumed to be a reasonable fee"). Leavey's counsel have made no attempt to demonstrate that this is the "prevailing market rate of compensation" ­ the appropriate standard for lodestar calculations. See, e.g., Corbin, 173 Ariz. at 591, 845 P.2d at 517 (courts generally use the "prevailing market rate" to determine attorneys' fees "where fees are not paid on an hourly basis"). They could not show that $500 is the prevailing rate for the work performed here. 1. The Requested Hourly Rate Is Patently Unreasonable For Junior Associates And Paralegal Assistants.

Leavey requests a rate of $500 per hour for work performed by junior associates and paralegals. The declarations attached to the fee application make no mention of what the reasonable billing rate for these individuals should be, as required by LRCiv 54.2(d)(4)(B). Defense counsel is unaware of any junior associate or paralegal in the Phoenix market who commands a rate even approaching this. (See Exhibit A, Affidavit of Ann-Martha Andrews, ¶ 5) In the absence of their actual rates, Provident suggests that more reasonable rates for this time are as follows: (a) experienced paralegals (Ms. Leslie, Ms. Bonomolo, Ms. Kemp) ­ $150-$170; (b) less experienced paralegals (Ms. Parkes; Ms. Brown) ­ $120-$130; (c) first-year associates (Mr. Hummels) ­ $160-$175; (d) thirdyear associates (Ms. Janitch) ­ $215-$235. (Id. ¶ 4.)

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2.

Even For Experienced Attorneys, $500 Per Hour Is Extraordinary And Unreasonable.

While Provident Life does not question that Mr. Dawson, Ms. Rosenthal, and Mr. Temple are experienced in bad faith litigation, or that Mr. Hudson is experienced in appellate law, their declarations do not establish that $500 per hour is the prevailing rate for this work in this market ­ or that it is even reasonable in this market. Ignoring their burden of proof, Leavey's counsel have provided no information whatsoever on what hourly rate is reasonable and appropriate in this market for purposes of the lodestar calculation. Even for experienced litigators, $500 is extraordinary and is unreasonable here. In the absence of their actual rates, Provident suggests that a reasonable rate for experienced bad faith litigators is $350 to $400 per hour in the Phoenix legal market. (See Exhibit A, Affidavit of Ann-Martha Andrews, ¶ 4.) And reasonable rates for experienced appellate lawyers is $350 to $410. (Id.) D. Counsel's Billing Records Are Unreliable Because They Were Not Kept Contemporaneously.

As far back as China Doll, Arizona courts have been warning lawyers that "any attorney who hopes to obtain an allowance from the court should keep accurate and current records of work done and time spent." 138 Ariz. at 188, 673 P.2d at 932, (quoting In re Hudson & Manhattan R.R. Co., 339 F.2d 114, 115 (2d Cir. 1964)). Yet Leavey's trial counsel did not keep contemporaneous billing records. Rather, they claim to have "conservatively reconstructed" their time. Assuming the time was reconstructed in December 2005, when the fee application was filed, the earliest time entries go back nearly four years. While courts do not per se disregard non-contemporaneous billing records, it is clear that they are strongly disfavored. See Frank Music Corp. v. Metro-Goldwyn-Mayer Inc., 886 F.2d 1545, 1557 (9th Cir. 1989) ("The lack of contemporaneous records does not justify an automatic reduction in the hours claimed, but such hours should be credited only if reasonable under the circumstances and supported by other evidence such as testimony or secondary documentation."); Spain v. Valley Forge Ins. Co., 152 Ariz. 189, 194, 731 P.2d 84, 90
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(App. 1986) ("The rule contemplates contemporaneously prepared time records, and we are not prepared to accept estimates."). An attorney's recollection becomes less and less reliable as months and years pass. Thus, it becomes difficult to assess precisely how long an attorney spent, for example, drafting a motion two years after that motion was filed. For this reason, the Court cannot accept the billing "estimates" at face value and should consider the inherent unreliability of the time estimates in the lodestar calculation overall. E. The Lodestar Amount Cannot Be Adjusted Upward. A lodestar figure, properly calculated, "is presumed to be the reasonable fee." Blum, 465 U.S. at 897; Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986) ("We have established a `strong presumption' that the lodestar represents the `reasonable' fee."); Marsh v. Digital Equip. Corp., 699 F. Supp. 1411, 1415 (D. Ariz. 1988) ("The lodestar figure is presumed to be the reasonable fee."). Absent exceptional circumstances, it should not be adjusted to shift a different amount to the losing party. Cases where adjustment is appropriate are "rare" and "exceptional" and require "specific evidence" that the lodestar rate does not represent a reasonable fee. Blum, 465 U.S. at 899-901; Lange, 843 F.2d at 1186 (applying Blum to analysis under A.R.S. § 12-341.01). The Supreme Court and the Arizona courts have held that the lodestar calculation incorporates virtually all of the factors that might be considered in adjusting a fee award. Quality of counsel, quality of performance, complexity, and risk--including risk assumed through a contingency fee agreement--are not grounds for increasing a reasonable fee award determined through a lodestar calculation. See City of Burlington, 505 U.S. at 561-62; Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711, 728-31 (1987); Delaware Valley Citizens' Council for Clean Air, 478 U.S. at 564-66; Blum, 465 U.S. at 897-901; Davis v. San Francisco, 976 F.2d 1536, 1549 (9th Cir. 1992) vacated in part on unrelated issue by Davis v. San Francisco, 984 F.2d 345, 345 (9th Cir. 1993) ("Dague represents an outright rejection of contingency as a factor relevant to the
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establishment of a reasonable fee.") As explained by the Arizona courts, "[t]he United States Supreme Court has made it very clear that the use of the lodestar method to enhance attorney's fees is the exception." London v. Green Acres Trust, 159 Ariz. 136, 148, 765 P.2d 538, 550 (App. 1988). Here, Leavey has demonstrated no "exceptional" circumstances warranting an award of fees in excess of the lodestar calculation. Despite the excessive verdict, this was a standard bad faith case. Any adjustment of the lodestar amount would be improper. See, e.g., Lange, 843 F.2d at 1186 (reversing enhancement of fee award as abuse of discretion in absence of evidence to overcome presumption that lodestar amount was reasonable fee). 3 III. THE FACTORS LISTED IN LRCIV 54.2(C)(3) SHOULD NOT AFFECT THE SIZE OF ANY ATTORNEYS' FEES AWARD HERE. Many of the LRCiv 54.2(c)(3) factors that Leavey discusses in the fee application are incorporated into the lodestar factors of reasonable rate and reasonable number of hours. For instance, the time and labor required is built into the reasonable number of hours spent on the case. And counsel's skill and experience, as well as the preclusion of other employment, are included in the determination of a reasonable hourly rate. As to the remaining factors (novelty and difficulty of the questions presented, the nature of the rights involved, and the undesirability of the case), all were typical for a disability bad faith claim--exactly the type of claim in which Leavey's counsel specialize. A. This Case Was Not Novel; The Plaintiff's Counsel Admit They Have Spent Years Litigating Similar Cases Against These Defendants.

The only facts in this case that were new to Leavey's trial counsel were the discrete facts contained in Leavey's 1,061-page claim file. (See Tr. Ex. 1.) The "pattern and practice" issues have frequently been litigated by these same attorneys against the
3

Leavey comments that the "maximum" award here would be $7.9 million. (Fee App. at pp. 2-3) While he is correct that under A.R.S. § 12-341.01(B) a fee award may not exceed the amount actually paid or agreed to be paid, Leavey is incorrect insofar as he implies that the fee award may be measured against the contingent percentage. A contingent fee agreement does not preclude an award of fees under A.R.S. § 12-341.01. Sparks v. Republic Nat'l Life Ins. Co., 132 Ariz. 529, 545, 647 P.2d 1127, 1143 (1982). But as set forth in Section II(A), above, the lodestar approach is the proper method of calculating a reasonable fee award in a contingent fee case.
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same defendants. They have conducted discovery on the same "pattern and practice" evidence several times and tried other cases to verdict on the same evidence. Given this history, it is disingenuous for Leavey to argue that his claims were novel because "[Provident Life's] handling of [Leavey's] disability claim had never been adjudicated in this jurisdiction." (Fee App. at 4.) The thrust of Leavey's case at trial was the alleged institutional bad faith, which is nothing new. Indeed, even while arguing "novelty," Leavey admits that his claim benefited substantially from "the knowledge and documents that [his] attorneys have accumulated over the last decade regarding insurance companies in general and these defendants specifically." (Id. at 6 (emphasis added).) He cannot have it both ways. B. The Motions For Summary Judgment And Motions In Limine Did Not Involve Novel Legal Issues.

Leavey says his claims were novel because there were three motions for summary judgment and several motions in limine. (Fee App. at 4, 6.) Also relying on the motions, Leavey declares that "this case involved many complex and intensely contested legal and factual issues." (Id. at 6.) But Leavey has not shown that this case was any different than any other bad faith case. The summary judgment motions involved: (1) whether Leavey could recover a "lump sum" for future unpaid benefits; (2) whether Leavey was receiving "appropriate care" for his disability; and (3) whether Leavey had made a case for punitive damages. All of these motions were fact-intensive. None raised any novel legal questions. The motions in limine each involved either a rule of civil procedure or a rule of evidence.4 They were all procedural, not substantive, in nature. Further, they related specifically to the facts of this case and raised no novel legal issues. Simply stated, the
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The following motions in limine were filed in this case: (1) to limit Leavey's physicians' testimony to Leavey's medical condition, as reflected in their records; (2) to exclude evidence of unrelated claims; (3) to exclude the testimony of Daniel Hayes regarding statistical payment of claims; (4) to exclude the argument that Leavey was not entitled to benefits; (5) to exclude after-acquired evidence; (6) to preclude David McPhee and Barry Morenz from testifying about whether Leavey could return to work; (7) to preclude the testimony of Tawnia Newton because her expert report was never disclosed; and (8) to preclude Ralph Mohney and Jeff McCall from testifying because they were not disclosed as rebuttal witnesses.
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motion practice in this case does not qualify it as "novel," nor is it indicative of "difficult legal issues." C. The Case Was Not "Undesirable."

At a pretrial hearing regarding exhibit lists, Mr. Dawson told the Court that he was currently handling only six cases ­ an "undesirable" case does not make it onto such a select client list. Leavey's trial counsel acknowledge that they have spent "nearly a decade" amassing the skills and the evidence that they utilized to obtain a verdict here. (Fee App. at 3.) Indeed, they have been involved in several high-dollar verdicts against UnumProvident companies. Leavey's trial counsel gave up nothing to pursue this case because it is exactly the type of case that they seek to pursue.5 D. The Plaintiff's Highest Settlement Demand Was Only A Fraction Of The Jury's Award.

In a perfect example of how the literal truth may nonetheless be misleading, Leavey argues that this litigation could have been settled but "it was clear that defendants were not prepared to settle for an amount even approaching the judgment." (Fee App. at 3.) The jury's verdict was excessive and a surprise to both parties ­ neither party offered to settle in "an amount even approaching the judgment." Well in advance of trial, the parties exchanged settlement offers. The plaintiff demanded a substantial seven-figure settlement. Provident Life countered with a substantial, seven-figure offer that significantly exceeded the contractual liability. IV. THE PLAINTIFFS' CLAIM FOR NON-TAXABLE COSTS MUST BE DENIED. A. Leavey Cannot Recover These Litigation Expenses Because No Statutory Basis Exists For Recovery. Despite his obligation under LRCiv 54.2(c), Leavey has cited no authority "upon which [he] seeks an award of . . . non-taxable expenses." No such authority exists. Under 28 U.S.C. § 1920, a party may recover taxable costs only. See Aceves v. Allstate
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Another indication that the plaintiff's counsel did not consider this case "undesirable" is their willingness to advance over $100,000 in taxable and non-taxable costs ­ including such things as first-class airfare when traveling to depositions, sending two attorneys to each out-of-state deposition, and hiring a computer consultant to sit at trial to display exhibits that could be shown on the Court's "Elmo" for free. Those expenses would seem wasteful for an "undesirable" case.
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Ins. Co., 68 F.3d 1160, 1167-68 (9th Cir. 1995) (federal law governs recovery of costs in federal court, even for diversity cases). Leavey has already been awarded his taxable costs. See Order dated December 27, 2005. The costs he seeks here are admittedly "nontaxable" and are thus not covered by § 1920. Costs are recoverable only as provided by statute, and no federal statute authorizes the recovery of the costs that Leavey seeks here. For instance, expert witness fees are not recoverable under federal law. See Aceves, 68 F.3d at 1167-68 (observing that expert witness costs are no different than costs for any other witness, and are limited to the per diem reimbursement of $45 set forth in 28 U.S.C. § 1821). Federal courts sometimes allow these non-taxable expenses as part of an attorneys' fee award. See Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994) (award based on the court's interpretation of a federal fee-shifting statute); Gametech Int'l, Inc. v. Trend Gaming Sys., 380 F. Supp. 2d 1084 (D. Ariz. 2005) (award based on a contractual fee-shifting agreement). But Leavey's claim for attorneys' fees is based on a state statute ­ A.R.S. § 12-341.01 ­ and it is well-settled that "non-taxable costs" cannot be awarded as part of attorneys' fees under that statute. Ahwatukee Custom Estates Mgmt. Ass'n v. Bach, 193 Ariz. 401, 402-03, 973 P.2d 106, 107-08 (1999) (A.R.S. § 12341.01 is limited to actual attorneys' fees and does not include costs); accord In re MCW Brickyard Commercial, LLC, 2005 WL 3307351, 3 (D. Ariz. Dec. 6, 2005). Recoverable attorneys' fees include only payments to "the attorney or surrogate for his or her legal training and knowledge as it relates to the legal services rendered to, or on behalf of, a particular client." Id. The statute does not extend to fees paid to non-legal professionals ­ such as expert witnesses ­ or fees paid for items other than legal services ­ such as nontaxable copy or transcription costs. Id. All of Leavey's claimed "non-taxable costs" fall into these non-recoverable categories. The majority of the plaintiff's claimed non-taxable costs were expended on expert fees ($30,044 to "bad faith expert"/percipient witness Mary Fuller and $3,070 to other consultants/experts) and on the trial computer consultant ($26,250). The remaining
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charges are for first-class airfare to/from depositions, hotel rooms, rental cars, transcription, copying or similar expenses that the plaintiff did not include in his bill of taxable costs. None of these expenses are recoverable under Arizona or federal law. "A party cannot recover its litigation expenses as costs unless a statutory basis exists for recovery." See Bach, 193 Ariz. At 402; 973 P.2d at 107. Recovery of costs is therefore limited to the taxable costs set forth in 28 U.S.C. § 1920, which Leavey has already been awarded. Id. Accordingly, the Court should deny the plaintiff's request for non-taxable costs. B. Leavey Has Failed To Support Certain Expenses.

Even if the Court were to award Leavey these expenses, certain expenses should be deducted due to his failure to produce adequate supporting documentation. Specifically: (1) the plaintiff has failed to provide an invoice showing that the claimed $4,694 was paid to Delta Airlines on 09/09/03 or that, if it was, that this amount was reasonable for airfare; (2) the plaintiff has failed to provide an invoice for the claimed $31.57 expenditure on 06/21/04; (3) the plaintiff has failed to provide backup for the claimed 06/25/04 hotel expenditure of $896.676; and (4) the plaintiff has failed to provide an invoice for the $505.71 expenditure to InData on 09/24/05. V. CONCLUSION. In many respects, Leavey has not complied with the rule governing fee awards. The rate he seeks ­ $500 per hour for every person who worked on the case regardless of skill, experience, or possibly even the actual charge ­ is patently unreasonable. Most of the hours he claims are unsupported by contemporaneous time records. Leavey has failed to meet his burden of showing that the fee he seeks is reasonable. Accordingly, Leavey's motion should be denied, or, in the alternative, the Court should significantly reduce the amount.

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While there is a travel reservation that makes reference to this hotel stay, the stay was longer than the depositions required, the total charge does not match up, and there is no invoice attached to the Fee Application that would clarify how the plaintiff arrived at the charge specified.
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Finally, there is no basis in either federal or Arizona law for an award of nontaxable costs. Leavey's request for such an award must be denied. DATED this 3rd day of February, 2006. LEWIS AND ROCA LLP

By

s/Ann-Martha Andrews Stephen M. Bressler Ann-Martha Andrews Scott Bennett Attorneys for Defendants Provident Life and Accident Insurance Company and UnumProvident Corporation

CERTIFICATE OF SERVICE I hereby certify that on February 3, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Steven C. Dawson Anita Rosenthal Dawson & Rosenthal 6586 Highway 179 Suite B-2 Sedona, Arizona 86351 Attorneys for Plaintiff Gregg H. Temple Gregg H. Temple, P.C. 4835 East Cactus Road Suite 225 Phoenix, Arizona 85254-4196 Attorneys for Plaintiff Thomas L. Hudson Danielle D. Janitch Osborn Maledon, P.A. 2929 North Central Avenue Suite 2100 Phoenix, Arizona 85012-2794 Attorneys for Plaintiff

s/Roxann Draper 27 28
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