Harris v. Monarch Recovery Holdings Incorporated

Filing 35

ORDER AND OPINION granting in part and denying in part 29 Motion for Attorney's Fees; denying 32 Motion for discovery and an evidentiary hearing. Signed by Judge John W Sedwick on 3/17/14.(JWS)

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA

Dennis Harris,

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Plaintiff,
vs.
Monarch Recovery Holdings,
Defendant.

3: 13-cv-8090 JWS
ORDER AND OPINION

(Motions at dockets 29 & 32)

I. MOTION PRESENTED
At docket 29 plaintiff Dennis Harris (“Harris”) moves for an award of costs and
attorney’s fees. Defendant Monarch Recovery Holdings (“Monarch”) responds at
docket 32. Monarch’s supplemental documents are at docket 33. Harris’ reply is at
docket 34. Although Monarch’s response at docket 32 includes a request for discovery
and an evidentiary hearing, neither of the parties request oral argument on the pending
motions, and it would not be of aid to the court.
II. BACKGROUND
Harris sued Monarch alleging that Monarch is a debt collector which violated the
Fair Debt Collection Practices Act (“Act”) in the course of its dealings with him.1 After
Monarch appeared and answered, the case progressed on the docket in an

1

Complaint, doc. 1.

unremarkable manner. On December 30, 2013, Harris served his second offer of
judgment on Monarch in which he offered to settle the case for $1,000, but reserved his
right to seek costs and reasonable attorney’s fees. The offer was accepted by Monarch
on January 7, 2014.2 Judgment in the amount of $1,000, together with costs and
attorney’s fees to be determined was entered on January 8, 2014.
III. DISCUSSION
A. Costs
The only costs requested are the $350 filing fee and a $25 fee for service of
process.3 The filing fee and the service fee are taxable costs4 as distinguished from
non-taxable costs which litigants sometimes seek in connection with a motion for
attorney’s,\ fees. To recover taxable costs, a party must apply to the Clerk of Court
within 14 days from the entry of the final judgment.5 Harris has not applied to tax costs,
and the 14 days have run. It follows that Harris is not entitled to recover the $375 in
taxable costs requested in his motion.
B. Attorney’s Fees
Harris, of course, is the prevailing party and as a prevailing plaintiff he is entitled
to recover reasonable attorney’s fees pursuant to the Act,6 and a reasonable award of

2

Notice of the offer is at docket 26, the acceptance is at docket 27, and a copy of the
offer is at docket 27-1.
3

Doc. 29-2 at pp. 5-6.

4

28 U.S.C. § 1920; LR Civ. 54.1 (e)(1).

5

Fed. R. Civ. P. 54(d)(1); LR Civ. 54.1 (a).

6

15 U.S.C. § 1692k (a)(3).

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fees is mandatory.7 When determining the amount of reasonable attorney’s fees, the
district court must calculate the “lodestar,” which is determined “by multiplying the
number of hours the prevailing party reasonably expended on the litigation by a
reasonable hourly rate.”8
The parties are in substantial disagreement about both the multiplicand and the
multiplier. The court turns first to the multiplier, the reasonable hourly rate. The
attorneys’ rates are to be “calculated according to the prevailing market rates in the
relevant community.”7 The relevant community is Phoenix, Arizona.
Harris’ motion asks for an award of fees for the work by the lawyers and a
paralegal at Krohn & Moss, the California law firm which represents him. Harris
contends that the award should be based on the following rates: for Ryan Lee, $387 per
hour; for Douglas Baek, $290 per hour; and for the paralegal, $145 per hour. Harris’
most experienced attorney, Mr. Lee, has been practicing law for nine years.7 To
support the rates requested, Harris first argues that they are consistent with the rates
set out in the “Laffey Matrix,” which is a chart showing rates pertinent to practice in the
District of Columbia.8 Reliance on that chart is misplaced, because the District of
Columbia is not the relevant community.

7

Camacho v. Bridgeport Financial, Inc., 523 F.3d 973, 978 (9th Cir. 2008).

8

Id.

7

Blum v. Stenson, 465 U.S. 886, 895 (1984). Blum dealt with calculating fees for
purposes of 42 U.S.C. § 1988, but the same principles apply to calculating fees for purposes of
15 U.S.C. § 1692(k)(a)(3). Hollis v. Roberts, 984 F.2d 1159, 1161 (11th Cir. 1993).
7

Doc. 29-3 at ¶ 2.

8

Doc. 29-5.

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Harris also argues that the rates he seeks are supported by a report titled
“United States Consumer Law Attorney Fee Survey Report 2010-2011 prepared by
R.L. Burdge (“Survey”)9 which is a compilation and presentation of hourly rates obtained
though an on-line survey of lawyers practicing consumer law from various locations.
Even assuming the Survey is reliable, it is of no utility here. It paints with too broad a
brush. It gives data on hourly rates for an eight-state area described as the West
Region in which the Survey places Arizona.10 There is no way to parse the Survey to
obtain information which is a reliable reflection of rates in Phoenix, Arizona.
Harris’ lawyers work in California, although one of them, Lee, is also admitted in
Arizona. That means their own rates reflect a different market for legal services. The
only evidence before the court which actually shows rates charged by lawyers who
handle litigation under the Act in Phoenix are the rates charged by Monarch’s counsel.
Monarch’s most senior lawyer, Sean P. Healy, has 16 years of experience, and his
hourly rate in the case at bar is $205 per hour.11 A more junior lawyer, Shawn Petri,
also worked on this case. He has practiced law for 10 years, and his hourly rate in this
case is $165 per hour. Paralegal assistants to Messrs. Healy and Petri were billed at
$80 per hour.
While Mr. Healy has more experience than Mr. Lee, the court finds that it is
reasonable to use Mr. Healy’s rate for Mr. Lee. Each man is the senior lawyer in

9

Doc. 29-4.

10

Id. at p. 18 of 67.

11

Doc. 32-2 at ¶¶ 2 and 6.

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charge of the litigation for his client. Similarly, although it appears that Mr. Petri has
more experience than Mr. Baek, the court also finds it reasonable to ascribe Mr. Petri’s
rate to Mr. Baek, for each of them was the junior lawyer on the engagement. With
respect to the paralegal, the court will use the $80 per hour rate charged by those who
worked on the case for Monarch, because it is the only evidence before the court with
respect to the appropriate hourly rate for paralegal services in Phoenix.
Monarch also contends that the number of hours charged by Harris’ lawyers are
excessive. Monarch provides evidence to show that the complaint and discovery
requests in this case are similar to those used by Krohn & Moss lawyers in other cases.
The court will not make any reduction on that basis, because each case is different and
even if a lawyer is working from a document used in an earlier case, it is necessary to
be sure that the finished product is suitable for the case at hand.
Monarch also complains about specific time entries by Harris’ lawyers and the
paralegal which it contends are clerical tasks, and in some cases reflect duplication of
effort. The entries are set out in Monarch’s response at pages 10 and 11.12 The first
entry challenged by Monarch, the entry for Mr. Baek on February 1, 2013, is not in the
court’s view work that could have been done by clerical staff. The court finds no fault
with the other February entries for Mr. Baek or Mr. Lee which Monarch contends are
duplicative. It is not inappropriate for the more senior attorney to review the work of the
more junior.

12

Doc. 32.

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The court agrees with Monarch that some of the entries for paralegal Ricardo
Teamor include time which should be excluded. Mr. Teamor’s time for April 9 will be
reduced by 0.4 hours to reflect the court’s view that requesting a check, preparing
postage and stamps, and putting a document in the mail is not activity for which a
paralegal is required. A secretary or file clerk could perform those tasks. The April 18
entry for Mr. Teamor describes work done by the process server, not Mr. Teamor, so
his time will be reduced by a further 0.3 hours. The entries for April 26 and August 19
by Mr. Teamor also describe clerical work, so his time must be reduced by an additional
0.4 hours.
Monarch also argues that the entries for Mr. Lee on October 29 and
December 17 show merely clerical work. Preparing a notice of Supplemental
Disclosures is not clerical, because it involves deciding what to disclose. Similarly,
while creating the paperwork to alter a deposition date may be clerical, the thought and
analysis of competing considerations that may be required to select the date is not.
The court finds no other adjustments are appropriate. Thus, the court will allow
the 12.6 hours claimed for Mr. Lee, and the 4.5 hours claimed for Mr. Baek, but will
reduce Mr. Teamor’s time from 2.3 hours to 1.2 hours. Applying the hourly rates
determined by the court, the award for Mr. Lee’s time will be $2,583; the award for
Mr. Baek’s time will be $742.50; and the award for Mr. Teamor’s time will be $96.00.
The total award comes to $3,421.50.
The last matter to consider is Monarch’s request to conduct discovery and for an
evidentiary hearing. Suffice it to say that the court considers this an invitation to play a
game that could not possibly be worth the candle. The request will be denied.
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IV. CONCLUSION
For the reasons above, the motion at docket 29 is GRANTED in part and
DENIED in part such that Harris shall have judgment against Monarch for $3,421.50,
and the motion for discovery and an evidentiary hearing at docket 32 is DENIED.
DATED this 17th day of March 2014.

/S/
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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