Howard v. Midland Credit Management, Inc.
Filing
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ORDER granting in part and denying in part plaintiff's 12 Motion for Attorney's Fees. Plaintiff Gordon Howard shall be awarded $2,525.00 in attorney's fees. By Judge Philip A. Brimmer on 9/24/12.(mnfsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-03123-PAB-BNB
GORDON HOWARD,
Plaintiff,
v.
MIDLAND CREDIT MANAGEMENT, INC., a Kansas corporation,
Defendant.
ORDER
This matter is before the Court on the Motion for Attorney’s Fees [Docket No. 12]
filed by plaintiff Gordon Howard. The motion is fully briefed and ripe for disposition.
I. BACKGROUND
On December 1, 2011, plaintiff filed a complaint [Docket No. 1] against
defendant Midland Credit Management, Inc. alleging violations of the Fair Debt
Collections Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. In his complaint, plaintiff
sought damages and reasonable attorney’s fees and costs pursuant to § 1692k(a). On
December 12, 2011, defendant served plaintiff with an Offer of Judgment pursuant to
Rule 68 of the Federal Rules of Civil Procedure, which plaintiff accepted on December
29, 2011 [Docket No. 7]. On January 3, 2012, judgment entered in favor of plaintiff and
against defendant in the amount of $1001.00, plus plaintiff’s costs and reasonable
attorney’s fees [Docket No. 9].
In the instant motion, plaintiff requests $3,690.00 in attorney’s fees based on
12.3 hours of work provided by his attorney, David M. Larson, at an hourly rate of
$300.00. Defendant opposes the motion for attorney’s fees and challenges Mr.
Larson’s hourly rate, the number of hours worked by Mr. Larson, and the inclusion of
hours worked for various tasks defendant asserts are clerical in nature.
II. ANALYSIS
Section 1692k(a) of the FDCPA provides that a successful plaintiff may seek
from defendant a “reasonable attorney’s fee as determined by the court.” 15 U.S.C.
§ 1692k(a)(3). To determine a reasonable fee request, a court must begin by
calculating the “lodestar amount.” Robinson v. City of Edmond, 160 F.3d 1275, 1281
(10th Cir. 1998). The lodestar amount is the “number of hours reasonably expended on
the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S.
424, 433 (1983). A party seeking an award of attorney’s fees must establish the
reasonableness of each dollar and each hour for which the party seeks an award. Jane
L. v. Bangerter, 61 F.3d 1505, 1510 (10th Cir. 1995).
As noted above, defendant objects to plaintiff’s billing rate and the number of
hours worked by his attorney. The Court addresses each objection in turn.
A. Hourly Rate
A “reasonable rate” is defined as the prevailing market rate in the relevant
community for an attorney of similar experience. Guides, Ltd. v. Yarmouth Group Prop.
Mgmt., Inc., 295 F.3d 1065, 1078 (10th Cir. 2002); Malloy v. Monahan, 73 F.3d 1012,
1018 (10th Cir. 1996). The party requesting fees bears “the burden of showing that the
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requested rates are in line with those prevailing in the community.” Ellis v. Univ. of Kan.
Med. Ctr., 163 F.3d 1186, 1203 (10th Cir. 1998). In order to satisfy his burden, plaintiff
must produce “satisfactory evidence – in addition to the attorney’s own affidavits – that
the requested rates are in line with those prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience and reputation.” Blum
v. Stenson, 465 U.S. 886, 895 n.11 (1984).
In support of his attorney’s hourly rate, plaintiff relies on (1) Mr. Larson’s ten
years of experience litigating FDCPA cases and his participation in several National
Consumer Law Center Conferences, (2) decisions from this District finding that a rate of
$250.00 per hour is reasonable for consumer law advocates, and (3) an affidavit
submitted by attorney Richard Wynkoop. Docket No. 12 at 7-10. The Court finds that
none of this evidence establishes that the prevailing market rate for attorneys with Mr.
Larson’s experience is $300.00 per hour.
First, although Mr. Larson has experience litigating over 1,300 FDCPA cases,
lecturing at Continuing Legal Education seminars, and participating at National
Consumer Law Center Conferences, this does not, by itself, establish the
reasonableness of an hourly rate of $300.00. This evidence establishes only the
relevant basis of comparison when determining the prevailing market rate for similarly
situated attorneys in the State of Colorado.
Second, plaintiff’s citation to one case from this District wherein Mr. Larson was
retained at a rate of $300.00 per hour for an FDCPA case is insufficient to establish the
prevailing market rate. Docket No. 12 at 7, ¶ 17. In that case, Mr. Larson was hired,
without objection, on the behalf of a Trustee in Bankruptcy and there is no indication
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that a judicial determination found $300.00 per hour indicative of the prevailing market
rate. See In re Carolina Galvan, 11-23769-MER, Docket Nos. 35-37 (Bankr. D. Colo.
Oct. 19, 2011). On the contrary, the majority of recent authority from this District has
found that a reasonable attorney’s fee for an attorney with Mr. Larson’s experience and
skill is $250.00 per hour. See, e.g., Johnson v. Midland Credit Management, Inc.,
11-cv-02864-RPM-MEH, Docket No. 14 (D. Colo. Feb. 27, 2012); Feder v. Midland
Credit Management, Inc., 11-cv-02872-JLK, 2012 WL 266417, *1 (D. Colo. Jan 30,
2012); Varley v. Midland Credit Management, Inc., 11-cv-02807-REB-MJW, Docket No.
16 (D. Colo. June 11, 2012). Thus, plaintiff’s own evidence shows that the prevailing
market rate for attorneys with Mr. Larson’s skill and experience is $250.00 per hour.
Third, Mr. Wynkoop’s affidavit is unpersuasive. Mr. Wynkoop claims that an
hourly rate of $300.00 per hour is reasonable because (1) Mr. Wynkoop and other
unidentified Colorado consumer law attorneys charge their clients $300.00 per hour for
their services, (2) the rate is consistent with Ron Burdge’s national survey of consumer
law advocates, and (3) the rate is consistent with the most recent Laffey Matrix. Docket
No. 12-1 at 3-4.
The fact that Mr. Wynkoop charges his clients at the rate of $300.00 per hour for
his services does not establish that $300.00 per hour is the prevailing market rate for
consumer law advocates in the State of Colorado. Mr. Wynkoop does not reveal the
identity of other “similarly qualified attorneys in Colorado.” Moreover, Mr. Burdge’s
survey indicates that it “does not take into consideration the factors of the degree of
concentration or years of practice, among other things, all of which will have a large
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impact on any particular person’s hourly rate.” See Ronald L. Burdge, United States
Consumer Law Attorney Fee Survey Report 2010-2011 at 12, available at
www.nclc.org/images/pdf/litigation/fee-survey-report-2010-2011.pdf. Given that
plaintiff’s argument for an attorney fee of $300.00 per hour rests on Mr. Larson’s years
of experience and degree of concentration in FDCPA cases, two factors not taken into
account by the survey, the Court finds that Mr. Burdge’s survey provides very little
support in establishing the prevailing market rate. See White v. Cavalry Portfolio
Services, LLC, No. 11-cv-02217-LTB-BNB, 2012 WL 899280, at *2 (D. Colo. March 16,
2012).
Furthermore, the Laffey Matrix does not adequately establish the prevailing rate
for consumer law advocates in Colorado. The Laffey Matrix establishes rates for
attorneys and paralegals under fee-shifting statutes, such as 42 U.S.C. § 2000e-5k,
based on the number of years since graduation from law school. Rooths v. District of
Columbia, 802 F. Supp. 2d 56, 61 (D.D.C. 2011). The Laffey Matrix is typically used to
determine legal fees in the Washington D.C. or Baltimore area. See
www.laffeymatrix.com. Although the matrix can be adjusted for different regions, courts
in other districts have found that the Laffey Matrix is not “more helpful than the rates
actually used by other courts or the rates of law firms.” Fitzgerald v. City of Los
Angeles, 2009 WL 960825, at *11 (C.D. Cal. 2009). The Fourth Circuit recently held
that a district court abused its discretion in awarding hourly rates requested by a
plaintiff’s counsel based only on affidavits from her own counsel and the Laffey Matrix.
See Robinson v. Equifax Information Services, LLC, 560 F.3d 235, 245-46 (4th Cir.
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2009) (finding that, in a Fair Credit Reporting Act case, the Laffey Matrix was not a
reliable indicator of hourly rates for litigation attorneys in Alexandria, Virginia as the
Matrix applies only to Washington D.C. attorneys). Consequently, because Mr.
Burdge’s survey and the Laffey Matrix are not indicative of the prevailing rate in
Colorado, Mr. Wynkoop’s affidavit does not sufficiently establish a prevailing market
rate of $300.00 per hour for attorneys with Mr. Larson’s experience.
Plaintiff argues that Mr. Larson’s rate of $250.00 has not increased since 2008
despite Mr. Larson gaining significant experience since that time. However, plaintiff’s
evidence does not establish that an increase in compensation is currently warranted.
The lodestar standard does not envision consideration of Mr. Larson’s experience in a
vacuum, and the majority of the evidence establishes that the prevailing rate in
Colorado remains $250.00 per hour. Accordingly, the Court concludes that $250.00 is
a reasonable hourly rate in this district for attorneys with the same skill and experience
as Mr. Larson.1
B. Number of Hours
In determining the reasonableness of the hours expended, a court considers
several factors. First, it considers whether the fees pertain to tasks that would ordinally
be billed to a client. See Ramos v. Lamm, 713 F.2d 546, 554 (10th Cir. 1983),
overruled on other grounds by Penn. v. Del. Valley Citizens Council for Clean Air, 483
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This holding is consistent with other decisions from this District. See, e.g.,
Skaer v. Nat’l Action Fin. Services, Inc., 08-cv-00422-REB-MJW, 2009 WL 724054 (D.
Colo. Mar. 18, 2009); Babeon v. Nat’l Action Fin. Services, Inc., 08-cv-00027-JLK-CBS;
Miller v. Cavalry Portfolio Services, LLC, 08-cv-00772-ZLW-KLM; Ocker v. Nat’l Action
Fin. Services, Inc., 08-cv-00421-REB-MJW; Harper v. Phillips & Cohen Associates,
LTD, 08-cv-01500-REB-KLM.
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U.S. 711, 717 n. 4 (1987). Plaintiff must demonstrate that his counsel used “billing
judgment” in winnowing down the hours actually spent to those reasonably expended.
Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1257 (10th Cir. 2005). If not, a court
should take extra care to ensure that an attorney has not included unjustified charges in
his billing statement. Id. A court should also consider whether the amount of time
spent on a particular task appears reasonable in light of the complexity of the case, the
strategies pursued, and the responses necessitated by an opponent’s maneuvering. Id.
Ultimately, the Court’s goal is to fix a fee that would be equivalent to what the attorney
would reasonably bill for those same services in an open market and fees will be denied
for excessive, redundant, and otherwise unnecessary expenses. Ramos, 713 F.2d at
553.
Defendant argues that plaintiff seeks an unreasonable number of attorney hours.
Specifically, defendant claims that, in addition to time billed by Mr. Larson for what
amounts to clerical tasks, plaintiff’s fee request contains excessive and duplicative
entries. Docket No. 15 at 9. Defendant requests a reduction in plaintiff’s fee request
from $3,690.00 to $2,460.00 based on the $300.00 hourly rate. Docket No. 15 at 14.
In other words, defendant requests a reduction of 4.1 hours from plaintiff’s demand of
12.3 hours worked.
In Missouri v. Jenkins by Agyei, 491 U.S. 274 (1989), the Supreme Court found
non-compensable “purely clerical or secretarial tasks [which] should not be billed at a
paralegal rate, regardless of who performs them.” Id. at 288 n. 10. The Court
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reasoned that such non-legal work may command a lesser rate, but its “dollar value is
not enhanced just because a lawyer does it.” Id.
A review of defendant’s time entries reveals that one hour of plaintiff’s fee
request is devoted to non-compensable clerical or administrative tasks, namely, e-filing
court documents, converting documents into PDFs, and sending emails to the Court
regarding service of process. See Jenkins, 491 U.S. at 288 n.10. Additionally, the
Court finds that the .2 hours spent on a phone call with Mr. Wynkoop is duplicative
because Mr. Wynkoop files affidavits in all of Mr. Larson’s cases and there is no
explanation of how each of these conversations differ in every case. Moreover, the
Court further subtracts one hour because some of the time entries spent on emails,
phone calls, and reviewing one line minute orders are redundant, and otherwise
unnecessary, Hensley, 461 U.S. at 434, and because this case did not resolve complex
or otherwise complicated issues. Defendant filed an Offer of Judgment 11 days after
plaintiff filed the complaint and plaintiff accepted the Offer of Judgment within 28 days
of filing the complaint. Prior to the entry of judgment, plaintiff’s attorney was not
required to perform substantial legal work outside of drafting the complaint, serving
defendant, and drafting the Rule 68 Offer of Judgment. Accordingly, the Court
concludes that the reasonable number of hours spent by plaintiff’s attorney in this case
is 10.1 hours.
C. Lodestar Amount
Based on the aforementioned conclusions, the Court finds that the lodestar
figure for plaintiff’s attorney’s fee request is $2,525.00 (10.1 hours multiplied by a
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$250.00 hourly rate). This fee award is reasonable given the issues presented in this
case and it is also adequate to attract competent counsel to similar cases without
producing a windfall for attorneys. Blum, 465 U.S. at 893-94.
To the extent plaintiff requests additional attorney’s fees for litigating the attorney
fee issue, the Court denies such request as plaintiff’s motion was largely unsuccessful.
Although recovery of fees for resolving an attorney’s fee request is normally allowed
even after the merits of the dispute have been settled, Hernandez v. George, 793 F.2d
264, 269 (10th Cir. 1986), plaintiff does not establish why these fees should be included
when the arguments made in the request have been rejected. See Cummins v.
Campbell, 44 F.3d 847, 855 (10th Cir. 1994) (finding that, while an attorney is generally
allowed to recover fees for work in seeking attorney fees, a district court has discretion
to deny award for those hours if the underlying claim for fees is unreasonable); see also
Glass v. Pfeffer, 849 F.2d 1261, 1266 n.3 (10th Cir. 1988) (“It is obviously fair to grant a
fee for time spent litigating the fee issue, at least if the fee petitioner is successful and
his claim as to a reasonable fee is vindicated, since it is the adversary who made the
additional work necessary.”) (citation and internal quotations omitted). Accordingly, the
Court will deny plaintiff’s request for an additional three hours of attorney’s fees in
connection with the reply to the motion for attorney’s fees.
III. CONCLUSION
Accordingly, it is
ORDERED that plaintiff’s Motion for Attorney’s Fees [Docket No. 12] is
GRANTED in part and DENIED in part. It is further
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ORDERED that plaintiff Gordon Howard shall be awarded $2,525.00 in
attorney’s fees.
DATED September 24, 2012.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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