Salvatore D'EmanuElE v. Montgomery Ward & Co., Inc., Long Term Disability Plan & Trust Montgomery Ward & Company, Inc.

Salvatore D’Emanuele appeals from the order of the district court awarding him attorney’s fees of $76,125.00 in his ERISA action pursuant to 29 U.S.C. § 1132 (g). D’Emanuele requests that we vacate and remand the district court’s award of attorney’s fees. D’Emanuele claims that the district court erred by (1) failing to apply properly the hybrid lodestar/multiplier analysis for fee determination; (2) failing to offer a clear and concise explanation to support the fee award; and (3) failing to conduct a hearing in violation of due process. In addition, both D’Emanuele and Montgomery Ward seek attorney’s fees for this appeal. We vacate the district court’s order and remand with directions.

I. PERTINENT FACTS

On October 3, 1983, after exhausting his administrative remedies, D’Emanuele filed a pro se complaint in state court for long term disability benefits against Montgomery Ward & Co. and Montgomery Ward & Co. Long Term Disability Plan and Trust. Montgomery Ward removed the case to federal court. D’Emanuele, facing involuntary dismissal, obtained counsel. An amended complaint was filed on April 24, 1985, seeking relief under the Employee Retirement Income Security Act (ERISA), 29…

dissenting:

I respectfully dissent. In my view, we are required to affirm the judgment of the district court because D’Emanuele failed to make a motion for more specific findings pursuant to Fed.R.Civ.P. 52(b). Rule 52(b) provides that “[u]pon motion of a party made not later than 10 days after entry of judgment the court may amend its findings or make additional findings and may amend its judgment accordingly.” Fed.R.Civ.P. 52(b) (emphasis added). By its terms, rule 52(b) suggests that an appealing party such as D’Emanuele who complains about the lack'of specificity in the district court’s findings must move the district court to make more specific findings.

This case presents a paradigmatic example of the circumstances to which rule 52(b) was designed to apply. Rather than go to trial, D’Emanuele and Montgomery Ward settled the bulk of their dispute out of court. The only matter not covered by the settlement agreement was the amount of *1390 attorney’s fees D’Emanuele would receive, and, therefore, this was the only issue left to be resolved by the district court.

D’Emanuele filed an application for attorney’s fees and the district court rendered its decision. D’Emanuele…

904 F.2d 1379 59 USLW 2012 , 12 Employee Benefits Ca 1782 Salvatore D'EMANUELE, Plaintiff-Appellant, v. MONTGOMERY WARD & CO., INC., Long Term Disability Plan & Trust; Montgomery Ward & Company, Inc., et al., Defendants-Appellees. No. 88-6505. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 4, 1989. Decided June 5, 1990. As Amended on Denial of Rehearing Aug. 30, 1990. Herbert Hafif, Law Office of Herbert Hafif, Claremont, Cal., James J. Guziak, James J. Guziak, A P.C., Santa Ana, Cal., for plaintiff-appellant, Salvatore D'Emanuele. Richard D. Roth, Reid & Hellyer, Riverside, Cal., for the defendants-appellees Montgomery Ward & Co., Inc., and Montgomery Ward & Co., Inc., Long Term Disability Plan and Trust. Appeal from the United States District Court for the Central District of California. Before WALLACE, PREGERSON and ALARCON, Circuit Judges. ALARCON, Circuit Judge: 1 Salvatore D'Emanuele appeals from the order of the district court awarding him attorney's fees of $76,125.00 in his ERISA action pursuant to 29 U.S.C. Sec. 1132 (g). D'Emanuele requests that we vacate and remand the district court's award of attorney's fees.…