Reichers v. Delaware Asset Management, LLC.

Filing 13

ORDER of Judgment granting in part and denying in part 12 Motion for Default Judgment by Judge Christine M. Arguello on 11/20/13. Plaintiff is awarded damages, costs, and attorney fees.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 13-cv-02171-CMA-CBS
KIM REICHERS,
Plaintiff,
v.
DELAWARE ASSET MANAGEMENT, LLC,
Defendant.

ORDER OF JUDGMENT
This matter is before the Court on Plaintiff Kim Reichers’ Motion for Entry of
Default Judgment (Doc. # 12). Having reviewed the motion, and being fully advised
in the premises, the Court finds that entry of default judgment in favor of Plaintiff is
appropriate. Plaintiff also asks for an award of statutory and actual damages, attorney
fees, and costs.
I. BACKGROUND
This matter stems from allegations that Defendant Delaware Asset Management,
LLC violated the Fair Debt Collection Practices Act (“FDCPA”) in its attempts to collect
an alleged debt stemming from a payday loan. Plaintiff alleges that Defendant left her
a voicemail in which it failed to meaningfully identify itself, implied legal action had been
taken against her, and conveyed that she had engaged in criminal conduct. Plaintiff
also alleges that Defendant threatened her with legal action, falsely represented the

legal status of the debt owed by attempting to collect a debt she already paid, and failed
to notify her in writing of its intent to deposit a payment postdated more than five days.
All of these allegations, according to Plaintiff, amount to violations of the FDCPA. (Doc.
# 12.) Defendant has failed to enter an appearance or otherwise respond to this action
and on September 24, 2013, the Clerk entered default. (Doc. # 8.)
II. THE FDCPA
The FDCPA was enacted “to eliminate abusive debt collection practices by debt
collectors, to insure that those debt collectors who refrain from using abusive debt
collection practices are not competitively disadvantaged, and to promote consistent
State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692e.
The FDCPA provides that a successful plaintiff shall be awarded damages, costs, and
reasonable attorney fees as determined by the court. 15 U.S.C. § 1692k(a). In relevant
part, § 1692k(a) provides as follows:
(a) Amount of damages
Except as otherwise provided by this section, any debt collector who fails to
comply with any provision of this subchapter with respect to any person is liable
to such person in an amount equal to the sum of—
(1) any actual damage sustained by such person as a result of such failure;
(2)(A) in the case of any action by an individual, such additional damages as the
court may allow, but not exceeding $1,000; or
(B) [not relevant]; and
(3) in the case of any successful action to enforce the foregoing liability, the costs
of the action, together with a reasonable attorney's fee as determined by the
court.
15 U.S.C.A. § 1692k(a).
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III. ACTUAL DAMAGES
After entering default judgment, the Court takes all of the well-pleaded facts in a
complaint as true. See United States v. Craighead, 176 Fed.Appx. 922, 925 (10th Cir.
2006) (order and judgment). “If defendant does not contest the amount prayed for in
the complaint by failing to answer and the claim is for a sum certain or a sum that can
be made certain by computation, the judgment generally will be entered for that amount
without any further hearing. Id. (quoting 10A Charles A. Wright, Arthur R. Miller, & Mary
Kay Kane, Federal Practice and Procedure § 2688 (3d ed. 1998) (internal quotations
omitted); Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974) (“While a default judgment
constitutes an admission of liability, the quantum of damages remains to be established
by proof unless the amount is liquidated or susceptible of mathematical computation.”)
“It is a familiar practice and an exercise of judicial power for a court upon default, by
taking evidence when necessary or by computation from facts of record, to fix the
amount which the plaintiff is lawfully entitled to recover and to give judgment
accordingly.” 10A C. Wright, A. Miller, & M. Kane, supra, § 2688 (quoting Pope v. United
States, 323 U.S. 1, 12 (1944)).
A plaintiff who establishes a violation of the FDCPA may recover damages for
personal humiliation, embarrassment, mental anguish, or emotional distress. 15 U.S.C.
§ 1692k(a)(1). In relying on her own testimony, Plaintiff is required to “explain [her]
injury in reasonable detail and not rely on conclusory statements.” Llewellyn v. Allstate
Home Loans, Inc., 711 F.3d 1173, 1182 (10th Cir. 2013) (quoting Bagby v. Experian
Information Solutions, Inc., 162 Fed.Appx. 600, 605 (7th Cir. 2006) (internal quotation

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marks omitted)). However, Plaintiff is not required to produce evidence to corroborate
her detailed and specific testimony. Id. “An injured person’s testimony alone may
suffice to establish damages for emotional distress provided that she reasonably and
sufficiently explains the circumstances surrounding the injury and does not rely on mere
conclusory statements.” Id. at 1183 (quoting Bach v. First Union Nat. Bank, 149
Fed.Appx. 354, 361 (6th Cir. 2005) (emphasis in original).
Here, Plaintiff claims out-of-pocket losses in the amount of $211.42 for payment
of a debt that was already paid, which she would not have paid but for Defendant’s
threats to take legal action against her. (Doc. # 12 at 11.) In addition, Plaintiff asks
for damages for emotional distress she sustained as a result of Defendant’s conduct.
(Id. at 11-12.) The Court must therefore determine whether Plaintiff is entitled to the
damages she seeks. Plaintiff avers that during a vacation, she received a voicemail in
which Defendant allegedly implied that Plaintiff engaged in criminal activity by failing to
pay her debt. This caused Plaintiff to fear that she would go to jail if the debt was not
paid. (Id.) Plaintiff also avers that when she “spoke with Defendant, she felt that, in
order to avoid being put in jail, she had no other choice but to pay off the debt again.”
(Id. at 11.) As a result of Defendant’s voicemail and call, Plaintiff claims she suffered
“humiliation, stress, anxiety, and fear. . . .” (Id.) Taking the factual allegations as true
with liability established by virtue of default judgment, the Court determines that Plaintiff
has demonstrated that she is entitled to actual damages. Pursuant to Plaintiff’s request,
the Court awards her $2,000.00 for the threatening phone call and voicemail she avers

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she received from Defendant. See Guajardo v. GC Services, LP, 498 Fed.Appx. 379,
387 (5th Cir. 2012) (upholding an award of $1500 per telephone call).
IV. ATTORNEY FEES
In this case, Plaintiff has pursued a successful action to enforce the liability
specified in § 1692k(a)(2)(A). As a result, she is entitled to an award of reasonable
attorney fees and costs under § 1692k(a)(3). Because Defendant has not responded to
Plaintiff's motion, the Court lacks the benefit of scrutiny and analysis from the opposing
party. Nonetheless, the Court has a duty to ensure that the request for attorney fees is
reasonable. See Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983).
Any determination of reasonable attorney fees starts with a calculation of the
“lodestar” amount. Id. at 433. The lodestar amount is “the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly rate.” Id.; Homeward
Bound, Inc. v. Hissom Memorial Ctr., 963 F.2d 1352, 1355 (10th Cir. 1992) (The Tenth
Circuit has recognized the lodestar amount as presumptively reasonable).
In the instant case, Plaintiff’s counsel provided a detailed statement of services
in which he claims that three attorneys of varying experience have spent a total of 6.9
hours providing legal services in this case.1 First, the Court questions the need for two
partners—Smith and Marco—to perform work on this run-of-the-mill case. Moreover,
both partners apparently billed for e-filing court documents, which are administrative
tasks or secretarial work that should not be billed at an attorney’s hourly rate. See, e.g.,
Miracle Gash v. Client Servs., Inc., No. 12–cv–01426–LTB–MJW, 2013 WL 1130717,
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Smith performed 3.7 hours, Marco performed 0.2 hours, and Bakov performed 3.0 hours of work on
this case.

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at *3 (D. Colo. March 18, 2013) (finding 0.5 hours, which “mostly ... relate to the e-filing
[of] court document” were “clerical or administrative tasks” and “not billable at the
lawyers hourly rate”). Therefore, the Court will reduce Attorney Smith’s time from 3.7
hours to 3 hours (see Doc. 12-2 (billing 0.7 hours to “review file, review draft Motion
for Default Judgment, make revisions, and file motion and exhibits electronically”)), and
Attorney Marco’s time from 0.2 hours to 0 hours (see id. (billing 0.2 hours to “review file
and Clerk’s Entry for Default and exhibits, electronically file motion and all exhibits”)).
See Fox v. Vice, --- U.S. ---, 131 S.Ct. 2205, 2217 (2011) (“[T]rial courts 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.”).
Having determined that Attorney Marco will not receive fees, the Court must only
determine the reasonable rate for Attorneys Smith and Bakov. The Court questions
whether counsel’s requested rate of $395.00 and $225.00 per hour for Smith and
Bakov, respectively, are reasonable rates. A “reasonable rate” is defined as the
prevailing market rate in the community in question for an attorney of similar
experience. Blum v. Stenson, 465 U.S. 886, 895 (1984). Unless the subject of the
litigation is “so unusual or requires such special skills” that only an out-of-state lawyer
possesses, “the fee rates of the local area should be applied even when the lawyers
seeking fees are from another area.” Jane L. v. Bangerter, 61 F.3d 1505, 1510 (10th
Cir. 1995); see also Lippoldt v. Cole, 468 F.3d 1204, 1225 (10th Cir. 2006) (rejecting

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plaintiff’s argument that cases from around the country establish reasonable rate
because the relevant community was Witchita, KS—where the FDCPA case was filed
even though one attorney practiced in Florida). The Court notes that there has been no
showing that the services provided in this case were so “unusual” or “special” to require
out-of-state counsel.
The party requesting fees bears “the burden of showing that the 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 her 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).
Plaintiff’s counsel provided affidavits stating that Smith is a managing partner and
has been licensed to practice for 20 years and Attorney Bakov is a junior associate who
has been licensed to practice for 1 year. (Doc. # 12-4.) Although counsel provides the
Laffey Matrix, the submissions to this Court do not provide information on the prevailing
market rate in this District.
The Laffey Matrix does not adequately establish the prevailing rate for consumer
law advocates in Colorado. Howard v. Midland Credit Mgmt., Inc., No. 11-CV-03123PAB-BNB, 2012 WL 4359361, at *3 (D. Colo. Sept. 24, 2012). 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.

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Id. (citing Rooths v. District of Columbia, 802 F. Supp. 2d 56, 61 (D.D.C. 2011)). The
Laffey Matrix was prepared by the District of Columbia’s U.S. Attorney’s Office and is
used to determine legal fees in the Washington D.C. or Baltimore area. See Laffey
Matrix: The Primary Tool for Assessing Legal Fees in the Washington-Baltimore Areas,
http://www.laffeymatrix.com; (Doc. # 12-3). 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.” Howard,
2012 WL 4359361, * 3 (quoting 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 id. (citing Robinson v.
Equifax Information Services, LLC, 560 F.3d 235, 245–46 (4th Cir. 2009) (holding, 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 the Laffey Matrix is not indicative
of the prevailing rate in Colorado, counsel’s affidavits do not sufficiently establish a
prevailing market rate of $395.00 and $225.00 per hour for attorneys with Smith and
Bakov’s experience. See id.
If the district court does not have adequate evidence of prevailing market rates
for attorney fees, then it may, “in its discretion, use other relevant factors, including its
own knowledge, to establish the rate.” Lippoldt, 468 F.3d at 1225. A district judge may

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consider his or her “own knowledge of prevailing market rates as well as other indicia of
a reasonable market rate.” Id.
In Colorado, the prevailing market rate for experienced counsel in FDCPA cases
is $250 per hour. See, e.g., Miracle Gash v. Client Servs., Inc., No. 12–cv–1426–LTB–
MJW, 2013 WL 1130717 (D. Colo. Mar. 18, 2013); Johnson v. Leading Edge Recovery
Solutions, LLC, No. 12–cv–03103–CMA–CBS, 2013 WL 674057 (D. Colo. Feb. 22,
2013); Kittle v. Accredited Collection Agency Inc., No. 07-CV-01716-REB-BNB, 2011
WL 683815 (D. Colo. Feb. 15, 2011); Segura v. Midland Credit Mgmt, Inc., No. 12–cv–
00830–PAB–BNB, 2013 WL 560702 (D. Colo. Feb. 14, 2013). Therefore, the Court will
reduce Smith’s rate from $395 to $250, making the total award for his fees $750. (See
Doc. # 12 at 14 (3.0 hours x $250 = $750)). Attorney Bakov’s rate will be reduced from
$225 to $200, making the total award for his fees $600. (See id. (3.0 hours x $200 =
$600). See Peterson-Hooks v. First Integral Recovery, LLC, No. 12-cv-01019-PABBNB, 2013 WL 2295449, *8 (D. Colo. May 24, 2013) (finding $200 a reasonable rate
for an attorney with 1.5 years of experience).
In addition, the Consumer Law Attorney Fee Survey lists the median paralegal
rate for the Western region as between $75.00 and $99.00. Scadden v. Weinberg,
Stein & Associates, LLC, No. 12-CV-02454-PAB-MEH, 2013 WL 1751294, at *6
(D. Colo. Apr. 23, 2013). Although the paralegal who worked on this case has been
certified as a paralegal for ten years, her affidavit contains no information about her
actual experience working in the legal field. Therefore, the Court finds that $75.00 per
hour is a reasonable rate. See id.; Lockmon v. Thomas F. Farrell, P.C., No. 12–cv–

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02319–CMA–MEH, 2012 WL 6590426, at *3 (D. Colo. Dec. 18, 2012) (“the Court finds
that the average rates set forth in the [Consumer Law Attorney Fee] Survey ($230 for
attorneys, $75 for paralegals) are reasonable”). Therefore, the Court will reduce the
paralegal rate from $115 to $75, making the total award for paralegal fees $735. (See
Doc. # 12 at 14 (9.8 hours x $75 = $735)). Accordingly, the Court awards a total of
$2,085.00 in attorney fees.
V. CONCLUSION
Based on the foregoing, it is ORDERED that Plaintiff’s Motion for Default
Judgment as to Delaware Asset Management, LLC is GRANTED IN PART and
DENIED IN PART.
Specifically, it is ORDERED that judgment is entered in favor of Plaintiff Kim
Reichers and against Defendant Delaware Asset Management, LLC, in the amount
of $1,000.00 for statutory damages pursuant to 15 U.S.C. § 1692k(a)(2)(A). It is
FURHTER ORDERED that Plaintiff is awarded $2,211.42 in actual damages,
pursuant to 15 U.S.C. § 1692(k)(a)(1). It is
FURTHER ORDERED that costs in the amount of $445.00 and attorney fees
in the amount of $2,085.00 are also awarded.
DATED: November

20

, 2013
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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