Carter v. Medicredit, Inc.
MEMORANDUM OPINION. Signed by Judge William M Acker, Jr on 9/18/12. (KGE, )
2012 Sep-18 PM 04:02
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CIVIL ACTION NO.
Plaintiff, James Carter, obtained a judgment by accepting
Defendant, Medicredit, Inc.’s Rule 68 offer for $5,000, plus costs
and reasonable attorneys’ fees. The suit was pursuant to the Fair
Debt Collection Practices Act.
More effort has been spent on the attorneys’ fees question
than on the case itself. Plaintiff has a pending motion requesting
an hourly rate of $400 for attorney M. Stan Herring and an hourly
rate of $400 for attorney John G. Watts. Herring has produced time
records showing that he worked 45 hours and 18 minutes on this
case. At a rate of $400/hour, this totals $18,120.00. Watts has
produced time records showing that he spent 6.3 hours on this case.
At a rate of $400/hour, this totals $2,520.00.
The total amount of
attorneys’ fees they are requesting is $20,640.00. They have also
claimed costs of $278.66.
Medicredit does not and cannot contest that Plaintiff is
entitled to reasonable attorneys’ fees and costs. It agreed to it.
Medicredit contests, however, Carter’s suggested hourly rates and
claims that the total number of hours spent are not reasonable. Why
didn’t the parties agree on the attorneys’ fees when they agreed on
the amount to be received by Carter? It is now obvious that the
real loser is Medicredit.
Reasonable Hourly Rate
The burden is on Carter to establish that the requested amount
is reasonable. See Norman v. Housing Auth. Of Montgomery, 836 F. 3d
1292, 1299 (11th Cir. 1988). Regarding a determination of what is
reasonable, the Eleventh Circuit has said:
Under Hensley, the starting point in any
determination for an objective estimate of the
value of a lawyer's services is to multiply
hours reasonably expended by a reasonable
hourly rate. 461 U.S. at 433. A reasonable
hourly rate is the prevailing market rate in
the relevant legal community for similar
services by lawyers of reasonably comparable
applicant bears the burden of producing
satisfactory evidence that the requested rate
is in line with prevailing market rates.
Satisfactory evidence at a minimum is more
than the affidavit of the attorney performing
the work. It should also be noted that in line
with the goal of obtaining objectivity,
satisfactory evidence necessarily must speak
to rates actually billed and paid in similar
lawsuits. Testimony that a given fee is
evidence of market rate. Evidence of rates may
be adduced through direct evidence of charges
by lawyers under similar circumstances or by
opinion evidence. The weight to be given to
opinion evidence of course will be affected by
the detail contained in the testimony on
reputation, experience, similarity of case and
client, and breadth of the sample of which the
expert has knowledge.
Id.(citations omitted throughout).
Carter produces various forms of evidence to support a rate
of $400/hour. Each attorney submitted an affidavit detailing his
qualifications. They have both been practicing for roughly 15
years and in the past 5 years have devoted their practice solely
to cases like the case at hand. They also frequently present on
the FDCPA at CLE seminars and have written articles on the
Other than statements in affidavits1, Carter does not produce
$400/hour. Counsel do state that they have been hired by multiple
clients at this rate, but they say they do not want to break
attorney client privilege by producing such evidence.
Carter produces as an exhibit a 2010 FDCPA case before
Honorable Lynwood Smith and a 2010 case before this court in which
these attorneys received $350/hour. Plaintiff argues that the
attorneys have more experience than they did in 2010, and that
this justifies an increase to $400/hour.
Carter also produced signed affidavits from three attorneys
who say that the requested rate is appropriate. Medicredit argues
that these affidavits do not provide objective evidence because
they only state their opinion and do not provide evidence that the
Both affidavits state: “The majority of my cases involve FDCPA claims
and I charge an hourly rate of $400.00. As recently as today, we were hired by
a professional at $400.00 an hour in a consumer case. An hourly rate of
$400.00 is appropriate for the Carter v. Medicredit case.”
references her own rates; she says that she regularly charges
$350/hour, but as Medicredit points out, she now practices in
Additionally, $350 is not $400. The other two affidavits only
state that they believe $400/hour is appropriate here.
Carter also submits an exhibit that contains data on rates
for attorneys in DC and an exhibit that contains data comparing
Birmingham rates to DC rates. Medicredit has moved to strike these
therefore, the exhibits will not be used in fixing the appropriate
Medicredit’s counsel submits a personal affidavit stating
that she regularly receives $190 to $265/hour and an affidavit of
another attorney who defends FDCPA cases for $200-$250/hour.
However, Carter points to authority supporting the idea that a
defendant’s fees are not comparable to a plaintiff’s. See Norman
836 F.2d 1299-1300. This is because plaintiffs’ attorneys work on
a contingency basis compared to defendants’ attorneys who have
long client relationships with a guarantee they will be paid and
a guarantee they will continue to receive work. Also see Judge
Posner’s discussion in Matter of Continental Illinois Securities
Litigation, 962 F.2d 566 (7th Cir. 1992).2
“Suppose a lawyer can get all the work he wants at $200 an hour
regardless of the outcome of the case, and he is asked to handle on a
contingent basis a case that he estimates he has only a 50 percent chance of
winning. Then if (as under the lodestar method) he is still to be paid on an
hourly basis, he will charge (if risk neutral) $400 an hour for his work on
the case in order that his expected fee will be $200, his normal billing rate.
In view of Carter’s counsel’s specialized practice and the
reasonable hourly rate for each is $375.00 per hour.
Reasonableness of the Hours Plaintiff Expended
The Eleventh Circuit instructs that “[t]he next step in the
computation of the lodestar is the ascertainment of reasonable
hours. Hensley states that ‘excessive, redundant or otherwise
unnecessary’ hours should be excluded from the amount claimed. 461
US at 434.” See Norman, 836 F.2d 1292 (11th Cir. 1988). Medicredit
points to five specific areas where it believes the hours are
excessive. However, the court does not agree that Carter’s hours
should be reduced. Medicredit’s opposition to Carter’s motion for
attorneys’ fees has caused Carter’s counsel to spend extra hours
on this case. Largely because Carter has politely agreed not to
file a motion for more attorneys’ fees, the lawyers’ hours that he
has claimed will not be reduced despite the fact that the court
could spent a lot of time on the question of redundancy.
Having determined that Carter shall be allowed attorney fees
for 45.3 hours of work by Herring and for 6.3 hours of work by
Watts, at an hourly rate of $375, the court now multiplies the
hours worked by the appropriate rate as follows:
If the fee award is to simulate market compensation, therefore, the lawyer in
this example is entitled to a risk multiplier of 2 (2 x $200 = $400).” Id.
Total Fee for
Accordingly, this court determines that plaintiff’s motion
for award of attorneys’ fees is due to be granted. Plaintiff is
$19,350.00. and costs in the amount of $278.66.
A separate and
appropriate order will be entered.
day of September, 2012
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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