Franco v. A Better Way Wholesale Autos, Inc. et al
Filing
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ORDER granting in part and denying in part 50 Motion for Attorney's Fees. Please see attached memorandum of decision. Signed by Judge Vanessa L. Bryant on 05/31/2016. (Thomas, R.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ELISA FRANCO,
Plaintiff,
v.
A BETTER WAY WHOLESALE AUTOS,
INC. and BCI FINANCIAL CORP.,
Defendants.
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CIVIL ACTION NUMBER:
3:14-cv-00422 (VLB)
May 31, 2016
MEMORANDUM OF DECISION
Plaintiff Elisa Franco moves for costs and attorney’s fees in connection
with her successful action raising a claim under the Truth in Lending Act, 15
U.S.C. § 1601, et. seq. (“TILA”). Franco seeks $15,500 on the basis of the costs
expended plus a $400 hourly rate (for her attorney), $150 hourly rate (for the
attorney’s paralegal), and $95 (for the attorney’s legal assistant) multiplied by the
number of hours expended.
Defendants A Better Way Wholesale Autos., Inc.
(“ABW”) and BCI Financial Corp. (“BCI”) oppose on the grounds that some of the
hours expended concern withdrawn state-law claims and that the attorney’s fees
are disproportionate to the damages awarded. For the following reasons, the
Court awards costs and attorney’s fees in the amount of $15,358.43.
Factual and Procedural Background
This action arises out of Franco’s purchase of a used car from ABW and
the assignment of the financing agreement to BCI. ECF No. 1 (Compl.). Franco’s
original complaint asserted a TILA claim as well as state-law claims for violation
of the Connecticut Retail Installment Sales Finance Act, for violation of the
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Connecticut Unfair Trade Practices Act, and for breach of the implied warranty of
merchantability. Id. at ¶ 1. The Court granted summary judgment for Franco on
the TILA claim (the only claim subject to a motion for summary judgment by
either party). ECF No. 42. Franco then voluntarily withdrew her state-law claims
by filing an amended complaint that omitted them. ECF No. 51 (Order). The Court
entered judgment in Franco’s favor. ECF No. 54.
Franco now moves for costs and attorney’s fees in the amount of $15,500.
ECF No. 50. She argues that her counsel’s experience, reputation, and ability
warrant an hourly fee of $400 (for her attorney), $150 hourly rate (for her
attorney’s paralegal), and $951 (for her attorney’s legal assistant) and that these
rates are commiserate with fees charged by other Connecticut firms on similar
matters. ECF No. 50-2 at ¶¶ 5–6. She submits detailed billing records showing
that the hourly rates multiplied by the time expended equals $14,529.50, that
costs amounted to $933.43, and that total expenditure was thus $15,462.93. Id. at
4–19 (Ex. A).
Defendants oppose on two grounds: the hours expended
improperly include time spent on the withdrawn state-law claims, and the fees are
disproportionate to the amount of damages awarded. ECF No. 59. Defendant
seeks an evidentiary hearing to contest this calculation. Id. Franco replies that
he omitted any time spent on the state-law claims, that proportionality is
irrelevant, and that Defendants waived their objections by failing to identify a
single charge as excessive. ECF No. 60.
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The declaration contains a typo: the rate charged for counsel’s legal
assistant was $95/hour, not $90/hour. Compare ECF No. 50-2 at ¶ 5, with ECF No.
50-2 (Ex. A) at 4–19.
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Legal Analysis
TILA permits a prevailing party to recover costs and attorney’s fees. 15
U.S.C. § 1640(a)(3). The question of attorney’s fees raises a question of federal
law where, as here, the action is founded on federal-question jurisdiction. In re
Citigroup S’holder Derivative Litig., 2013 WL 4441511, at *3 n.4 (S.D.N.Y. Aug. 19,
2013), aff’d sub nom. Moskal v. Pandit, 576 F. App’x 33 (2d Cir. 2014). The Second
Circuit applies the presumptively-reasonable-fee standard—that is, multiplying
the hours reasonably expended by a reasonable hourly rate. McDaniel v. County
of Schenectady, 595 F.3d 411, 417 n.2 (2d Cir. 2010). To do so, a district court
“engage[s] in a four-step process: (1) determine the reasonable hourly rate;
(2) determine the number of hours reasonably expended; (3) multiply the two to
calculate the presumptively reasonable fee; and (4) make any appropriate
adjustments to arrive at the final fee award.” Silver v. Law Offices Howard Lee
Schiff, P.C., 2010 WL 5140851, at *1 (D. Conn. Dec. 16, 2010) (citations omitted)).
A district court also considers the factors outlined in in Johnson v. Ga. Highway
Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974). See Arbor Hill Concerned
Citizens Neighborhood Ass’n v. Cnty of Albany, 522 F.3d 184 (2d Cir. 2008). The
prevailing party bears the burden of showing the presumptively reasonable fee.
See Cruz v. Local Union No. 3 of Int’l Bhd. of Elec. Workers, 34 F.3d 1148, 1160
(2d Cir. 1994).
Once established, the opposing party bears the burden of
justifying a reduction. See U.S. Football League v. National Football League, 887
F.2d 408, 413 (2d Cir. 1989) (“We note that a party advocating the reduction of the
lodestar amount bears the burden of establishing that a reduction is justified.”).
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Upon review of the motion, memorandum, declaration, and attached
documentation and applying the above standards, the Court finds that the hourly
rates for the attorney and paralegal are reasonable, that no unnecessary work
was performed by these individuals, that multiplying these figures amounts to
$14,425.00, and that no reduction is warranted.
The Court does not award
damages for the work performed by the legal assistant because clerical services
such as making telephone calls, proofreading, and preparing documents are not
compensable.
See Kottwitz v. Colvin, 114 F.Supp.3d 145, 148 (S.D.N.Y. 2015)
(“This Court also agrees with Judge Netburn’s conclusion that no attorney’s fee
award is appropriate for clerical tasks.”). The Court also finds that costs in the
amount of $933.43 are reasonable.
The Court thus awards damages in the
amount of $15,358.43.
Defendants’ unsupported opposition offers no reason for this Court to
second-guess Franco’s supported request for costs and attorney’s fees or this
Court’s independent analysis of that supported request.
challenge the reasonableness of the hourly rates.
Defendants do not
This Court has already
determined that a rate of $400 per hour for work performed by experienced
counsel in relation to similar federal statutes is reasonable. See Bundy v. NCE
Fin. Srvs. Inc., 10-cv-1462 (awarding attorney’s fees in FDCPA suit at $400/hour).
In the absence of any objection, the Court follows its own precedent.
But Defendants challenge the amount of time expended, arguing that
Franco’s calculation includes time expended on withdrawn state-law claims. This
specific objection is unfounded.
Franco’s counsel, in a sworn declaration,
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averred that he “removed the charges for all work that was performed in
connection with the claims” and “reduced the amount being sought for certain
entries in which the time spent was greater than would otherwise have been the
case because some of that work pertained to claims that are not being pursued at
trial.” ECF No. 50-2 at ¶¶ 9–10. This declaration is supported by the reductions
on the billing schedule. Id. at 4–19 (Ex. A). Defendants’ unfounded assertions to
the contrary provide no basis for casting doubt on the sworn statements by a
member of this Court’s bar.
Defendants offer no specific challenges to the amount of time expended.
The failure to make any specific challenges results in waiver. See, e.g., Ceglia v.
Zuckerberg, 2013 WL 2535849, at *5 (W.D.N.Y. June 10, 2013) (“Plaintiff does not
challenge a single entry in the Billing Schedule Defendants submit in support of
these hours as excessive, redundant or unnecessary. In the absence of specific
objections to the number of hours claimed, the district judge cannot be expected
to review, evaluate and rule on every entry in an attorney’s fee application.”);
Turley v. New York City Police Dep’t, 1998 WL 760243, at *2 (S.D.N.Y. Oct. 30,
1998) (“Therefore, on the basis of the record that I can review and in the absence
of a specific challenge by defendants’ counsel, I recommend that defendants’
argument that plaintiff's request for attorney’s fees be reduced by twenty percent
be rejected.”).
And the Court is under no obligation to hold an evidentiary
hearing to permit Defendants to concoct one. See Blum v. Stenson, 465 U.S. 886,
892 n.5 (1984) (“We decline to consider petitioner’s further argument that the
hours charged by respondents’ counsel were unreasonable. As noted above,
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petitioner failed to submit to the District Court any evidence challenging the
accuracy and reasonableness of the hours charged, . . . or the facts asserted in
the affidavits submitted by respondents’ counsel. It therefore waived its right to
an evidentiary hearing in the District Court.” (internal citation omitted)).
Defendants also argue that the attorney’s fees are disproportionate to the
damages awarded. This objection lacks an arguable basis in law. Attorney’s fees
in a TILA case need not be proportionate to the damages awarded. See Negron v.
Mallon Chevrolet, Inc., 2012 WL 4358634, at *4 (D. Conn. Sept. 24, 2012) (“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 arrangements.’” (citing Kassim v. Schenectady, 415
F.3d 246, 252 (2d Cir. 2005)). Franco obtained the statutory maximum amount of
damages on her TILA claim, and the attorney’s fees reflect only the work
performed on her entirely successful claim.
Two final observations. Defendants cite—without justification—only cases
applying the laws of Connecticut, Washington, and Michigan.2 But federal law
applies here. See In re Citigroup S’holder Derivative Litig., 2013 WL 4441511, at
2
The citation to Steiger v. J.S. Builders, Inc., 39 Conn. App. 32, 38 (1995),
happens to be relevant because the Second Circuit, as a matter of federal law,
considers the Johnson factors relevant.
The problem, however, is that
Defendants don’t understand why that citation is relevant, believing that this
Court should apply Connecticut law.
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*3 n.4. The Court does not grant relief to represented parties when they fail to
state a valid legal objection.
Cf. Local R. Civ. P. 7(a)1 (“Failure to submit a
memorandum in opposition to a motion may be deemed sufficient cause to grant
the motion, except where the pleadings provide sufficient grounds to deny the
motion.”).
Defendants’ opposition also fails to conform to this Court’s font-
formatting standards and is not electronically searchable.
See ECF No. 4
(Chambers Practices).
Conclusion
For the foregoing reasons, the Court awards costs and attorney’s fees in
the amount of $15,358.43.
IT IS SO ORDERED.
________/s______________
Hon. Vanessa L. Bryant
United States District Judge
Order dated in Hartford, Connecticut on May 31, 2016.
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