Negron v. Mallon Chevrolet Inc
ORDER granting in part and denying in part 52 Plaintiff's Motion for Attorney Fees. See attached Order. Signed by Judge Thomas P. Smith on September 24, 2012. (Slitt, M.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MAGDALIZ L. NEGRON,
CIVIL NO. 3:08-CV-182 (TPS)
MALLON CHEVROLET, INC.,
ORDER ON PLAINTIFF'S MOTION FOR ATTORNEYS' FEES
Pending before the Court is Plaintiff's, Magdaliz L. Negron,
Motion for Attorneys' Fees. The defendant, Mallon Chevrolet, Inc.,
has opposed the motion.
For the foregoing reasons, the Court
GRANTS the motion in part, and DENIES the motion in part.
This lawsuit arises out of the plaintiff’s purchase of a used
car from the defendant dealership on May 18, 2007.
was held September 28, 2010.
28 U.S.C. §636(c).
A bench trial
The Court found
for the plaintiff on her claims under the Truth in Lending Act
(TILA), 15 U.S.C. §1601 et seq., and for the defendant on the
plaintiff’s claims under the Connecticut Unfair Trade Practices Act
(“CUTPA”), Conn. Gen. Stat. §42-110a et seq.
Dkt.#49-1 at 1.
Court awarded the plaintiff TILA statutory damages of $1,000
determined at a later date."
Dkt. #49-1 at 5-6.
As the plaintiff
had not proved her CUTPA claim, judgment was entered in the
defendant's favor on that claim.
Id. at 16.
The parties were
unable to reach an agreement on the attorneys' fee issue.
"To determine reasonable attorneys' fees, the Second Circuit
has historically implemented the lodestar method of examining the
number of hours reasonably expended on the litigation multiplied by
a reasonable hourly rate."
Silver v. Law Offices Howard Lee
Schiff, P.C., No. 3:09cv912 (PCD), 2010 WL 5140851, at *1 (D.Conn.
Dec. 15, 2010) (internal quotation marks and citation omitted).
However, in 2008, the Second Circuit determined that "[t]he meaning
of the term 'lodestar has shifted over time, and its value as a
metaphor has deteriorated to the point of unhelpfulness."
Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522
F.3d 182, 190 (2d Cir. 2008).
In place of the lodestar method, the
court used the "presumptively reasonable fee" standard. Id. at 189.
The presumptively reasonable fee standard is predicated on the
same basic analysis as the lodestar method: the multiplication of
the hours reasonably expended by a reasonable hourly rate.
McDaniel v. County of Schenectady, 595 F.3d 411, 417 n.2 (2d Cir.
2010)("While the Arbor Hill panel indicated its preference for
abandonment of the term 'lodestar' altogether, the approach adopted
in that case is nonetheless a derivative of the lodestar method.").
"Using the presumptively reasonable fee standard, the district
adjustments to arrive at the final fee award."
5140851, at *1, citing Adorno v. Port Authority of New York and New
Jersey, 685 F.Supp.2d 507, 511 (S.D.N.Y. 2010) and McDow v. Rosado,
reasonableness analysis, the district court should consider the
factors enumerated in Johnson v. Ga. Highway Express, Inc., 488
F.2d 714, 717-19 (5th Cir.1974)1, Arbor Hill, 522 F.3d at 184, and
may adjust the presumptively reasonable fee based on the degree of
success of the prevailing party. See Adorno, 685 F.Supp.2d at 511.
Reasonable Hourly Rate
A reasonable rate is the rate that "a reasonable, paying
client would be willing to pay."
Arbor Hill, 522 F.3d at 184.
Second Circuit instructs the district courts to consider factors
such as the "complexity and difficulty of the case," "the resources
required to prosecute the case effectively," the Johnson factors,
and "the timing demands of the case."
Id. at 184, 190.
The twelve Johnson factors are: (1) the time and labor required; (2) the
novelty and difficulty of the questions; (3) the level of skill required to
perform the legal service properly; (4) the preclusion of employment by the
attorney due to acceptance of the case; (5) the attorney's customary hourly
rate; (6) whether the fee is fixed or contingent; (7) the time limitations
imposed by the client or the circumstances; (8) the amount invovlved in the
case and the results obtained; (9) the experience, reputation, and ability of
the attorneys; (10) the "undesirability" of the case; (11) the nature and
length of the professional relationship with the client; and (12) awards in
similar cases." Johnson, 488 F.2d at 717-19.
Attorney Bernard Kennedy has requested an hourly rate of $400
for his services, while Attorney Michael Kennedy has requested an
hourly rate of $350.
The Court has conducted an exhaustive review
of recent attorney's fee awards for TILA and FDCPA cases in this
District by attorneys with similar experience to the attorneys in
this case, and concludes that an hourly rate of $325 for each
attorneys is more appropriate.
See, e.g. Gomez v. People's United
Bank, No. 3:10cv904 (CSH), 2012 WL 3854956, at *2 (D. Conn. Sept.
5, 2012); O'Connor v. AR Resources, Inc, No. 3:08cv1703 (VLB), 2012
WL 12743, at *8 (D. Conn. Jan. 4, 2012); Silver v. Law Offices
Howard Lee Schiff, P.C., No. 3:09cv912 (PCD), 2010 WL 5140851, at
*2 (D.Conn. Dec. 15, 2010); Ellis v. Solomon & Solomon, P.C., No.
3:05cv1623 (JBA), 2009 WL 3418231, at *2 (D. Conn. Oct. 20, 2009);
Cooper v. Ellis Crosby & Assoc., Inc., No. 3:05cv1467 (MRK), 2007
WL 1322380, at *3 n.3 (D. Conn. May 2, 2007).
Kennedy has cited three cases in which he was awarded $400 per
hour, two of those cases were in the District of Maryland.
third case, Bundy v. NCE Financial, Inc., No. 3:10-cv-1462 (VLB)2
(D. Conn. Dec. 10, 2010), ECF No. 22, involved a default judgment
in which no defendant appeared in the case to challenge the request
In his affidavit in Bundy, Bernard Kennedy even noted
The Court notes that plaintiff's counsel incorrectly cited the case number
in his submission. The Court makes this notation not to embarrass counsel,
but to highlight the fact that the pleadings and papers authored by
plaintiff's counsel in this case are replete with typographical errors, halfsentences and other indicia of sloppy work. The quality of the work-product
simply does not comport with the hours allegedly billed in this case.
that the "[h]ourly billing rates of Connecticut private counsel
with which I am familiar are, Joanne S. Faulkner at $350.00 and
Daniel Blinn at $325.00 per hour." Bundy, Affidavit in Support of
Motion for Attorney Fees, Dec. 2, 2010, ECF No. 21-1 at 14.
instant case was relatively simple and did not require a high level
of skill to perform the legal service properly.
There are no
circumstances that would warrant a higher fee for Messrs. Kennedy
than Attorneys Faulkner or Blinn, the two preeminent consumer law
attorneys in this District. Accordingly, the Court finds that $325
is a reasonable hourly rate for Messrs. Kennedy in this case.
Number of Hours Reasonably Spent
"The task of determining a fair fee requires a conscientious
and detailed inquiry into the validity of the representations that
a certain number of hours were usefully and reasonably expended."
Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994).
Kennedy has submitted billing records for a total of 134.4 hours.
The Court has carefully reviewed the records, and finds these hours
to be excessive for such a simple case.
This case involved one
deposition, no motions for summary judgment, and a four hour trial.
As one example of the excessive billing in this case, Bernard
Kennedy has submitted bills for approximately 29 hours of legal
research, a figure that is patently unreasonable.
The bill for
research and writing for the post-trial brief amounts to 24 hours.
Bernard Kennedy billed 14.5 hours for researching and drafting the
attorney fee application and supporting memorandum and affidavits.
In short, all of these amounts are excessive in this simple case.
The Court's conclusion is buttressed by a review of other
example, Bernard Kennedy seeks payment for 10.5 hours for preparing
witness questions for a trial that lasted 4 hours.
He also seeks
0.4 hours for reviewing the Court's one page Order on Pretrial
Deadlines, 0.4 hours to prepare and file a two sentence Request for
Entry of Default, 0.5 hours to prepare and file a one paragraph
Motion for Default Judgment, and 0.6 hours to file a two sentence
Motion for Hearing on Damages.
Bernard Kennedy also seeks 0.8
hours for filing a Motion to Amend the Complaint. Importantly, the
proposed Amended Complaint added only two sentences to the initial
Complaint, and the Motion to Amend simply explained that he was
unsuccessful in obtaining defendant's position on the motion.
Moreover, Bernard Kennedy seeks payment for 5.4 hours, at $400 an
hour, to drive from his home in Branford to pick up his son/cocounsel at Bradley Airport, and to bring him back to the airport
following the half day trial.
He also seeks 7.1 hours of payment,
again at $400 an hour, to fly from Maryland to Connecticut to
attend a settlement conference that, according to the docket,
lasted 80 minutes.3 Finally, Bernard Kennedy seeks 2.8 hours for
As will be discussed, Michael Kennedy also billed 4.6 hours to travel from
Branford to Hartford to attend this 80 minute conference.
notebooks, copying exhibits and inserting them into notebooks for
the Court, the clerk, and the parties.
This is in direct contrast
to Paragraph 10 of his Affidavit, in which he states that his
billing records "do not include non-legal tasks such as filing or
The aforementioned examples further support the Court's
determination that the number of hours billed in this case is
This is not the first time that a Judge in this District has
found Messrs. Kennedy's request for attorney fees to be excessive.
In 2004, Magistrate Judge William I. Garfinkle reduced by more than
half Messrs. Kennedys' request for attorney fees, noting that
"[t]he time allocated to travel is excessive.
Counsel has a
Branford office, and it is not reasonable to bill for expenses
relate to travel to and from Florida in regard to this matter.
Moreover, the time allocated to administrative tasks, telephone
calls, and research appears excessive in light of the relative
simplicity of this matter."
Endorsement Order Granting in Part,
and Denying In Part, Motion for Attorney Fees, Locascio v. Imps.
Unlimited, Inc., No. 3:02cv299 (SRU), (D. Conn. Feb. 3, 2004), ECF
Michael Kennedy has submitted a separate request for 13.1
settlement conference and trial.
To say that Michael Kennedy's
appearance at the trial was unnecessary is an understatement.
Moreover, his attempt to take the stand as an expert witness was
successful Odometer Act and CUTPA claim filed by Messrs. Kennedy
client, Judge Underhill found that:
there was no reason for two attorneys to work
simultaneously on this case...[B]ecause both attorneys
billed for trial attendance and preparation, they are
essentially asking for a combined rate of $550 an hour
for that time.
That rate is too high.
I express no
opinion about which attorney was better suited to which
tasks, instead I will simply reduce the total amount
awarded to the plaintiff's counsel jointly by the amount
of the duplicative fees (i.e., an amount equal to the
amount of Michael Kennedy's submission)."
Locascio, ECF No. 81, (D. Conn. April 30, 2004).
For the same
reasons expressed by Judge Underhill, the Court finds that a
combined rate of $750 an hour for Messrs. Kennedys' settlement
conference and trial attendance was excessive, as it was clearly
unnecessary for two attorneys to work simultaneously on this case.
As in Locascio, the Court expresses no opinion as to which attorney
was better suited to which tasks. Messrs. Kennedy can work out for
themselves how they apportion the final award in this case.
Upon careful reflection, a reasonable number of hours to
expend on this simple case is 75 hours.
While the defendant has
opined that 50 hours would be reasonable in this case, the Court
has reviewed the records of this and other similar cases and
concludes that 75 hours is more appropriate.
The Court notes that
Bernard Kennedy submitted a bill for 74.1 hours in Locascio, which
was also tried to the Court without a jury.
Presumptively Reasonable Fee
The third step of the "presumptively reasonable fee" analysis
is to multiply the "reasonable hourly rate" by the "number of hours
reasonably expended" in order to calculate the "presumptively
Silver, 2010 WL 5140851, at *1.
above, the "reasonable hourly rate" in this case is $325, and the
"number of hours reasonably expended" is 75, which results in a
"presumptively reasonable fee" of $24,375.
Adjustments to the Presumptively Reasonable Fee
Finally, at the fourth step of the "presumptively reasonable
fee" analysis, the Court must "make any appropriate adjustments to
arrive at the final fee award."
Silver,2010 WL 5140851, at *1.
party advocating for reduction of the lodestar figure, or what is
now referred to as the "presumptively reasonable fee," bears the
burden of establishing that a reduction is justified. See U.S.
Football League v. National Football League, 887 F.2d 408, 413 (2d
Such an argument cannot be grounded in a lack of
proportion between the amount of attorney’s fees requested and the
size of the award attained, as TILA, like many other consumer
protection and civil rights statutes, “was enacted in part to
secure legal representation for plaintiffs whose . . . injury was
too small, in terms of expected monetary recovery, to create an
incentive for attorneys to take the case under conventional fee
Kassim v. Schenectady, 415 F.3d 246, 252 (2d Cir.
Rather, the principle behind any argument for reduction
should be to assure that fees are awarded only to the extent that
the litigation was successful.
litigation as a whole.”
See Norton, 36 F. Supp. 2d at 219.
Hensley v. Eckerhart, 461 U.S. 424, 440
limited. While plaintiff is a prevailing party under TILA, justice
requires that she only be awarded attorney’s fees to the extent
that the litigation was successful. As the Supreme Court stated in
Where a plaintiff has achieved excellent results, his
attorney should recover a fully compensatory fee. . . .
If, on the other hand, a plaintiff has achieved only
partial or limited success, the product of hours spent
times a reasonable hourly rate may be an excessive
amount. This will be true even where the plaintiff’s
claims were interrelated, nonfrivolous, and raised in
good faith. Congress has not authorized an award of fees
whenever it was reasonable for a plaintiff to bring a
lawsuit. . . . [T]he most critical factor is the degree
of success obtained.
Id. at 424, 434.
"excellent" results. While she succeeded in proving statutory TILA
damages, she did not prove a violation of CUTPA.
A reduction is
thus appropriate under this fourth step in the "presumptively
reasonable fee" analysis.
See, e.g., Adorno v. Port Authority of
New York and New Jersey, 685 F.Supp.2d 507, 516-18 (S.D.N.Y. 2010).
The Court will not employ a strictly mathematical approach of
reducing plaintiff’s attorneys' fee by fifty percent to reflect
that she only succeeded on fifty percent of her claims.
approach ignores the reality that separate claims in the same
lawsuit are often on unequal footing, requiring different emphasis,
recognizes that a significant part of the work committed to the
CUTPA claim was related to plaintiff’s successful TILA claim.
litigation as a whole, and the plaintiff was unsuccessful in
proving it to the Court.
Further reduction of the fee award is
thus necessary, not simply because plaintiff failed to prevail on
every contention of the lawsuit, but in recognition of her partial
determinations, and, because “it is unrealistic to expect a trial
judge to evaluate and rule on every entry in an application,” a
court may apply an across-the-board percentage cut “as a practical
means of trimming fat from a fee application.”
New York State
Ass’n for Retarded Children v. Carey, 711 F.2d 1136, 1146 (2d. Cir.
As is within its discretion, the Court will apply an
across-the-board percentage cut when reducing the presumptively
plaintiff’s fee request.
See Adorno, 685 F.Supp.2d at 516-18.
First, it would be exceedingly difficult, if not impossible, from
With these considerations in mind, the court reduces
the "presumptively reasonable fee" by thirty percent, resulting in
an attorneys' fee award of $17,062.50.
The court emphasizes that proportionality between the award
and the fee request played no role in its decision to reduce the
As discussed, reducing a fee request simply because
it is disproportionate to a damage award runs contrary to the
policies underlying TILA. The reductions of the fee award outlined
herein are based on the court’s dual determinations that plaintiff
ultimately achieved only partial success, and that much of the
hours billed were either unnecessary or improperly inflated.
The plaintiff has also submitted a request for costs in the
amount of $1,198.18. The Court has reviewed the request, and finds
that it is reasonable.
Accordingly, within 30 days, the defendant
shall pay plaintiff's attorneys' the total sum of $18,260.68 for
reasonable fees and costs in this case.
IT IS SO ORDERED.
Dated at Hartford, Connecticut this
day of September, 2012.
/s/ Thomas P. Smith
THOMAS P. SMITH
UNITED STATES MAGISTRATE JUDGE
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