Varley v. Midland Credit Management, Inc.
Filing
16
ORDER granting in part and denying in part 9 Motion for Attorney Fees by Judge Robert E. Blackburn on 6/11/2012.(dbrow, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 11-cv-02807-REB-MJW
RICHARD VARLEY,
Plaintiff,
v.
MIDLAND CREDIT MANAGEMENT, INC., a Kansas corporation,
Defendant.
___________________________________________________________________
ORDER RE: PLAINTIFF’S MOTION FOR ATTORNEYS FEES
_____________________________________________________________________
Blackburn, J.
The matter before me is plaintiff’s Motion for Attorneys [sic] Fees [#9]1 filed
February 7, 2012. I grant the motion in part and deny it in part.
Plaintiff filed this case alleging violations of the Fair Debt Collections Practices
Act (“FDCPA”), 15 U.S.C. § 1692 et seq., on October 27, 2011. Not long thereafter,
plaintiff filed his Notice of Acceptance of Defendant’s Offer of Judgment Pursuant
to Fed. R. Civ. P. 68 [#6] on December 21, 2011. Judgment was entered on behalf of
plaintiff in the amount of the offer, $1,001.00. (See Judgment [#7] filed January 24,
2012.) Plaintiff now seeks $3,750.00 in attorney fees for 12.5 hours of work on the
case.2
1
“[#9]” is an example of the convention I use to identify the docket number assigned to a specific
paper by the court’s electronic case filing and management system (CM/ECF). I use this convention
throughout this order.
2
Plaintiff’s request for an additional $660.00 associated with filing his reply is untimely and will
not be considered. (See Brimer v. Life Insurance Co. of North America, 2012 WL 414386 at *7 (10th
Cir. Feb. 12, 2012).
The generally applicable “American Rule” provides that “the prevailing litigant is
ordinarily not entitled to collect a reasonable attorneys' fee from the loser.” Alyeska
Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616,
44 L.Ed.2d 141 (1975); see also Federal Trade Commission v. Kuykendall, 466 F.3d
1149, 1152 (10th Cir. 2006). Nevertheless, the FDCPA provides for an award of
reasonable attorney fees to a successful litigant. 15 U.S.C. § 1692k(a)(3). Plaintiff
therefore is entitled to such an award.
The starting point for any calculation of a reasonable attorney’s fee is the
“lodestar,” that is, the number of hours reasonably expended multiplied by a reasonable
hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76
L.Ed.2d 40 (1983); Malloy v. Monahan, 73 F.3d 1012, 1017-18 (10th Cir. 1996). 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. Hensley, 103 S.Ct. at 1941; Malloy, 73 F.3d at 1018. “‘Hours that are not
properly billed to one’s client also are not properly billed to one’s adversary pursuant to
statutory authority.’” Hensley, 103 S.Ct. at 1940 (quoting Copeland v. Marshall, 641
F.2d 880, 891 (D.C. Cir. 1980) (en banc)) (emphases in Copeland). Counsel therefore
must make a good faith effort to exclude hours that are “excessive, redundant or
otherwise unnecessary.” Id. at 1939-40.
In considering plaintiff’s application, I note first that his attorney’s requested
hourly rate of $300.00 is excessive and not in keeping with prevailing market rates in
the community for lawyers of comparable skill, experience, and reputation. As Judge
Babock found in a recent order in a similar case, all the courts that have considered
plaintiff’s counsel’s attorney fees requests have found a reasonable hourly rate for his
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services to be $250. (See Order at 3-4 [#16], filed March 16, 2012, White v. Calvary
Portfolio Services, LLC, Civil Case No. 11-cv-02217-LTB-KLM.)3 I concur and use
this fee as the starting point of my lodestar analysis.
As for the amount of hours expended, I believe the fee application evidences a
clear lack of billing judgment. Plaintiff’s counsel has included some 2.8 hours 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, 109
S.Ct. 2463, 2471 n.10, 105 L.Ed.2d 229 (1989). In addition, the entries for several
hours worth of attorney time allegedly devoted to drafting the complaint and reviewing
the answer – especially in light of counsel’s obvious and professed experience in these
types of cases – strikes this court as excessive and unnecessary. See Ursic v.
Bethlehem Mines, 719 F.2d 670, 677 (3rd Cir. 1983).
Where an attorney has failed to exercise billing judgment, the court may do so for
him by striking problematic entries or by reducing the hours requested by a percentage
intended to substitute for the exercise of billing judgment. See Harper v. City of
Chicago Heights, 223 F.3d 593, 605 (7th Cir. 2000), cert. denied, 121 S.Ct. 883
(2001), and cert. denied, 121 S.Ct. 1092 (2001); Walker v. United States Department
of Housing and Urban Development, 99 F.3d 761, 770 (5th Cir. 1996). In the exercise
of my broad discretion, I find the latter approach appropriate here. For the reasons
cited herein, I find that a reasonable amount of time expended on this case is 7.5 hours.
See Fox v. Vice, – U.S. –, 131 S.Ct. 2205, 2216, 180 L.Ed.2d 45 (2011) (“[T]rial courts
3
In addition, Judge Babcock found the assertions to the contrary contained in the affidavit
submitted by plaintiff in support of his motion for attorney fees – authored by the same affiant as pressed
here – unpersuasive. (Order at 4-5 [#16], filed March 16, 2012, White v. Calvary Portfolio Services,
LLC, Civil Case No. 11-cv-02217-LTB-KLM.) I concur with this analysis.
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need not, and indeed should not, become green-eyeshade accountants. The essential
goal in shifting fees (to either party) is to do rough justice, not to achieve auditing
perfection. So trial courts may take into account their overall sense of a suit, and may
use estimates in calculating and allocating an attorney's time.”); Malloy, 73 F.3d at 1018
(“[T]he district court need not identify and justify every hour allowed or disallowed, as
doing so would run counter to the Supreme Court's warning that a request for attorney's
fees should not result in a second major litigation.”) (citation and internal quotation
marks omitted).
Multiplying the number of hours reasonably expended (7.5) by the reasonable
hourly rate ($250.00) results in a lodestar fee award of $1,875.00.
THEREFORE, IT IS ORDERED as follows:
1. That plaintiff’s Motion for Attorneys [sic] Fees [#9], filed February 7, 2012,
is GRANTED IN PART and DENIED IN PART as follows:
a. That the motion is GRANTED to the extent that plaintiff is entitled to
$1,875.00 in attorney fees; and
b. That the motion is otherwise DENIED; and
2. That counsel for plaintiff is AWARDED $1,875.00 in attorney fees pursuant to
section 15 U.S.C. § 1692k(a)(3).
Dated June 11, 2012, at Denver, Colorado.
BY THE COURT:
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