Livingston v. Midland Credit Management, Inc.

Filing 16

ORDER. ORDERED that Plaintiff's Motion for Attorneys [sic] Fees, 10 , is GRANTED IN PART and DENIED IN PART. The motion is GRANTED to the extent that Plaintiff is entitled to $1,900 in attorney fees and DENIED in all other respects. ORDERED that counsel for plaintiff is AWARDED $1,900 in attorney fees pursuant to 15 U.S.C. § 1692k(a)(3) by Chief Judge Wiley Y. Daniel on 09/20/12.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No.

11-cv-02775-WYD-MJW

DOETTA LIVINGSTON,
Plaintiff,
v.
MIDLAND CREDIT MANAGEMENT, INC., a Kansas corporation,
Defendant.

ORDER

This matter is before the Court on Plaintiff’s Motion for Attorneys [sic] Fees, [ECF
No. 10], filed January 6, 2012. Defendant filed its Response [ECF No. 11] on January
27, 2012, and Plaintiff filed a Reply, [ECF No. 12], on February 10, 2012. For the
reasons stated below, I grant the motion in part and deny it in part.1
Plaintiff filed this case alleging violations of the Fair Debt Collections Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et seq., on October 24, 2011. Not long thereafter, Plaintiff
filed his Notice of Acceptance of Defendant’s Offer of Judgment Pursuant to Fed. R. Civ.
P. 68, [ECF No. 6], on December 20, 2011. Judgment was entered on behalf of the
Plaintiff in the amount of the offer, $1,001.00. See Judgment, [ECF No. 7], filed
December 23, 2011. Plaintiff now seeks $3,780.00 in attorney fees for 12.6 hours of

1

Defendant also filed several Notices of Supplemental Authorities [ECF Nos. 13, 14, 15] advising
the Court of recent orders by my colleagues on motions for attorney fees in other FDCPA cases in the
District of Colorado involving Plaintiff’s counsel, David M. Larson. Some of these cases also involve the
same defendant, Midland Credit Management, Inc., although there are different plaintiffs. I have reviewed
these Notices with in conjunction with my review of the record in this case.

work on the case by his attorney, Mr. David M. Larson.2 Defendant asks for an hourly
rate of $225-250 and seeks to reduce the number of hours allowed, so that the award is
$750. I will not repeat Defendant’s arguments here, but Defendant relies on its
allegations of clerical work performed by an attorney, excessive hours for various tasks,
work expended solely for padding an attorney’s fee award, and prior negotiations
between counsel.
Under the FDCPA, a successful litigant is entitled to reasonable attorney fees. 15
U.S.C. § 1692k(a)(3). Thus, Plaintiff is entitled to such an award. “To determine the
reasonableness of a fee request, [I] must begin by calculating the so-called ‘lodestar
amount’ of a fee, and a claimant is entitled to the presumption that this lodestar amount
reflects a ‘reasonable’ fee.” Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir.
1998) (quotations omitted). “The lodestar calculation is the product of the number of
attorney hours ‘reasonably expended’ and a ‘reasonable hourly rate.’” Robinson, 160
F.3d at 1281 (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). I must “approach
this reasonableness inquiry ‘much as a senior partner in a private law firm would review
the reports of subordinate attorneys when billing clients.’” Id. (quoting Ramos v. Lamm,
713 F.2d 545, 555 (10th Cir. 1983)).
In determining the reasonable number of hours spent on the litigation, the
applicant must exercise the same “billing judgment” as would be proper in setting fees for
a paying client. See Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996). “Hours
that are not properly billed to one’s client also are not properly billed to one’s adversary
2

Plaintiff’s request for an additional $780.00 associated with filing his reply is untimely and will not
be considered. See Brimmer v. Life Insurance Co. of North America, 462 Fed. Appx. 804, 811 (10th Cir.
Feb. 12, 2012) (an issue or argument may not be properly raised in the first instance in a reply brief).

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pursuant to statutory authority.” Hensley, 461 U.S. at 434 (citations omitted). Counsel
must therefore make a good faith effort to exclude hours that are “excessive, redundant or
otherwise unnecessary.” Id. I have a corresponding obligation to exclude hours not
“reasonably expended” from the calculation. Malloy, 73 F.3d at 1018.
Turning to my consideration of Plaintiff’s fee application, I first address the hourly
rate. Plaintiff’s attorney’s requested hourly rate of $300 is excessive and inconsistent
with prevailing market rates in the community for lawyers of comparable skill, experience,
and reputation. As both Judge Babcock and Judge Blackburn found in recent orders in
similar cases involving the same attorney as in this matter, all the courts that have
considered Mr. Larson’s attorney fees requests have found $250 to be a reasonable
hourly rate for his services. See Order at 3-4, [ECF No. 16], filed March 16, 2012, White
v. Calvary Portfolio Services, LLC, Civil Case No. 11-cv-02217-LTB-KLM; see also Order
at 2-3, [ECF No. 16], filed June 11, 2012, Varely v. Midland Credit Mgmt. Inc., Civil Case
No. 11-cv-02807-REB-MJW. Moreover, in all of the cases from this Court that Plaintiff
cites in support, Mr. Larson’s reasonable rate was found to be $250. See Motion for
Attorneys Fees at 6-7, [ECF No. 10]. I agree and use this fee as the starting point of my
lodestar analysis.3
With respect to the number of hours expended, I find that the fee application
evidences a clear lack of billing judgment. Judge Blackburn recently analyzed a similar

3

I note that both Judge Babcock and Judge Blackburn found unpersuasive the arguments
contained in the affidavit submitted by the plaintiff in support of his motion for attorney fees. See Order at
4-5, [ECF No. 16], filed March 16, 2012, White v. Calvary Portfolio Services, LLC, Civil Case No.
11-cv-02217-LTB-KLM; see also Order at 3, [ECF No. 16], filed June 11, 2012, Varely v. Midland Credit
Mgmt. Inc., Civil Case No. 11-cv-02807-REB-MJW. The affidavits in their cases were authored by the
same affiant here. I agree with the analysis put forth by my colleagues and agree that the affidavit is
unpersuasive.

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fee application by the Mr. Larson in a similar FDCPA matter involving the same
defendant, Midland Credit Management, Inc. See Order at 3, [ECF No. 16], filed June
11, 2012, Varely v. Midland Credit Mgmt. Inc., Civil Case No. 11-cv-02807-REB-MJW. I
concur with Judge Blackburn’s analysis and reduce the number of hours expended in the
instant matter to reach more reasonable calculation.
First, Plaintiff’s counsel has included nearly one hour worth of charges associated
with secretarial and administrative tasks, which are not billable at an attorney’s hourly
rate. See Missouri v. Jenkins by Agyei, 491 U.S. 274, 288 n. 10 (1989). Second, “in
light of counsel’s obvious and professed experience in these types of cases,” the number
of hours devoted to drafting the complaint and reviewing the answer and drafting and
reviewing other routine documents in FDCPA cases “strikes this court as excessive and
unnecessary.” Order at 3, [ECF No. 16], Varely v. Midland Credit Mgmt. Inc., Civil Case
No. 11-cv-02807-REB-MJW (citing Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3rd Cir.
1983)). Based on these conclusions, I subtract 4.5 hours from the number of hours
reasonably expended. I further subtract 0.5 hours because I consider some of the time
spent on emailing, phone calling, and recovering attorney’s fees duplicative, excessive or
both.
The resolution of this case was swift and lacked any serious dispute—as the file
reflects, an Offer of Judgment was made 6 weeks after this case was filed and Judgment
was entered for the Plaintiff within two months. Although Plaintiff may want a line by line
analysis of my assessment of resulting reduction, I “need not identify and justify every
hour allowed or disallowed.” Malloy, 73 F.3d at 1018 (noting that such a request would
run counter to the Supreme Court’s warning that a request for attorney’s fees should not
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result in a second major litigation). This is because the purpose of shifting fees “is to do
rough justice, not to achieve auditing perfection.” Fox v. Vice, -- U.S. --, 131 S. Ct. 2205,
2216 (2011).
Accordingly, for the reasons cited herein, I find that a reasonable amount of time
expended on this case is 7.6 hours. Multiplying the number of hours reasonably
expended (7.6) by the reasonable hourly rate ($250) results in a lodestar fee award of
$1900. Therefore, it is
ORDERED that Plaintiff’s Motion for Attorneys [sic] Fees, [ECF No. 10], filed
January 6, 2012, is GRANTED IN PART and DENIED IN PART. The motion is
GRANTED to the extent that Plaintiff is entitled to $1,900 in attorney fees and DENIED in
all other respects. It is
FURTHER ORDERED that counsel for plaintiff is AWARDED $1,900 in attorney
fees pursuant to 15 U.S.C. § 1692k(a)(3).

Dated: September 20, 2012.
BY THE COURT:

s/ Wiley Y. Daniel
WILEY Y. DANIEL,
CHIEF UNITED STATES DISTRICT JUDGE

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