Reilly

MEMORANDUM **

In this action to recover benefits allegedly due to an ERISA plan participant, we are called upon to decide whether the district court abused its discretion in ordering the plaintiff to pay attorneys’ fees. The *157 district court had jurisdiction under 28 U.S.C. § 1331 , 29 U.S.C. § 1132 (e)(1), and we have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm.

Under ERISA’s civil enforcement provisions, “a court in its discretion may award fees and costs of an action by a plan participant to either party.” Hummell v. S.E. Rykoff & Co., 634 F.2d 446, 452 (9th Cir.1980). The district court is to be guided by the Hummell factors. Id. at 453 .

In November 2002, Reilly brought an action against Brewer and others (Brewer), alleging essentially claims for recovery of benefits and breach of fiduciary duty (Reilly I). The district court granted Brewer’s motion for summary judgment as to the fiduciary duty claim, and found against Reilly on his claim for recovery of benefits after a bench trial.

In November 2006, Reilly filed this second action against Brewer, again seeking recovery of benefits and alleging breaches of fiduciary duty (Reilly II). Brewer successfully…