Palmer v. Midland Funding, LLC et al
Filing
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RULING granting in part as described herein 34 Motion for Attorney Fees. Palmer is awarded $15,340.00 in attorney's fees. Signed by Judge Janet C. Hall on 4/27/2015. (Lewis, D)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
GARY PALMER,
Plaintiff,
v.
MIDLAND FUNDING, LLC, et al.,
Defendants.
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CIVIL ACTION NO.
3:14-CV-00691 (JCH)
APRIL 27, 2015
RULING RE: PLAINTIFF’S FEE APPLICATION (Doc. No. 34)
I.
INTRODUCTION
Plaintiff Gary Palmer (“Palmer”) has moved for an award of attorney’s fees
pursuant to the Fair Debt Collection Practices Act (“FDCPA”), title 15, United States
Code, section 1692k(a)(3), in the amount of $16,140.00, for 40.35 hours at $400 per
hour. Plaintiff’s Fee Application (“Fee App.”) (Doc. No. 34). Defendants Midland
Funding, LLC, and Midland Credit Management, Inc. oppose Palmer’s Motion.
Defendants’ Memorandum in Opposition to Plaintiff’s Motion for Fee Application (“Opp.”)
(Doc. No. 35). Specifically, defendants argue that the requested rate of $400 per hour
is unreasonable, that some tasks performed by Attorney Joanne Faulkner could have
been performed by a secretary or paralegal, that Attorney Faulkner’s Fee Affidavit
requests certain fees that are duplicative or “unidentifiable,” and that fees incurred
between May 14, 2014 and November 5, 2014 should be reduced as duplicative of
those incurred in a separate action between plaintiff and defendants involving the same
counsel. For the reasons set forth below, Palmer’s application is GRANTED in part.
II.
STANDARD OF REVIEW
Under the FDCPA, a plaintiff who successfully prosecutes a defendant’s failure to
comply with any provision of the FDCPA is entitled to “a reasonable attorney’s fee as
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determined by the court.” 15 U.S.C. § 1692k(a)(3). Where the plaintiff prevails on an
FDCPA claim, an award of fees is mandatory even if the plaintiff is not entitled to actual
or statutory damages. Savino v. Computer Credit, Inc., 164 F.3d 81, 87 (2d Cir. 1998).
When determining attorney’s fees, district courts should:
in exercising its considerable discretion, . . . bear in mind all of the case-specific
variables that we and other courts have identified as relevant to the
reasonableness of attorney's fees in setting a reasonable hourly rate. The
reasonable hourly rate is the rate a paying client would be willing to pay. In
determining what rate a paying client would be willing to pay, the district court
should consider, among others, the Johnson factors; it should also bear in mind
that a reasonable, paying client wishes to spend the minimum necessary to
litigate the case effectively. The district court should also consider that such an
individual might be able to negotiate with his or her attorneys, using their desire
to obtain the reputational benefits that might accrue from being associated with
the case. The district court should then use that reasonable hourly rate to
calculate what can properly be termed the “presumptively reasonable fee.” 1
Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany & Albany Cnty.
Bd. of Elections, 522 F.3d 182, 190 (2d Cir. 2008). Thus, to calculate a presumptively
reasonable fee, the court must:
(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., No.3:09cv912, 2010 WL 5140851, at *1
(D. Conn. Dec. 16, 2010). As part of the reasonableness analysis, the court should also
consider the Johnson factors. Id.; Arbor Hill, 522 F.3d at 190. “After determining the
amount of the presumptively reasonable fee, the court may use its discretion to increase
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The Arbor Hill opinion also abandoned the use of the term “lodestar,” instead favoring
the phrase “presumptively reasonable fee,” which the Second Circuit noted is a better reflection
of how courts actually calculate attorney’s fees. 522 F.3d 182 at 190.
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or reduce the amount based on the particular circumstances of the case.” Chan v.
Sung Yue Tung Corp., 2007 WL 1373118, at *1 (S.D.N.Y. May 8, 2007).
III.
DISCUSSION
A.
Reasonableness of Hourly Rate
A reasonable hourly rate is “the rate a paying client would be willing to pay.”
Arbor Hill, 522 F.3d at 190. The determination of a prevailing rate requires a “casespecific inquiry into the prevailing market rates for counsel of similar experience and
skill to the fee applicant's counsel.” Cabala v. Morris, 2012 WL 3656364, at *6 (D.
Conn. Aug. 24, 2012) (citation and quotation marks omitted).
Plaintiff’s counsel, Joanne Faulkner, seeks fees at $400.00 per hour. Fee
Affidavit of Joanne S. Faulker (“Faulkner Aff.”) (Doc. No. 34-2) at ¶ 10. Defendants
argue that the prevailing rate awarded to Attorney Faulkner in prior FDCPA cases in this
district is $350 per hour, and thus that her hourly rate should be reduced to this amount.
Opp. at 6. However, the hourly rate sought here is less than the rate of other similarly
experienced attorneys in the market, Faulkner Aff. at ¶¶ 12-13, and the rate falls within
the range of awards Attorney Faulkner has previously received from other courts in this
Circuit, id. at ¶ 10. While Attorney Faulkner has received a rate of $350 per hour in a
number of prior cases, these cases date back nearly ten years. “‘A reasonable hourly
rate’ is not ordinarily ascertained simply by reference to rates awarded in prior cases,”
rather, it is the “prevailing market rate.” Farbotko v. Clinton Cnty. of New York, 433 F.3d
204, 208 (2d Cir. 2005). After considering the relevant “case-specific variables,” Arbor
Hill, 522 F.3d at 190, the court is satisfied that $400.00 is a reasonable hourly rate.
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B.
Reasonableness of time 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). The
court should “exclude hours that were not ‘reasonably expended.’” Id. at 133 (quoting
Hensley, 461 U.S. at 434). Attorney Faulkner has submitted billing records for 40.35
hours of work. Billing Records (Doc. No. 34-2).
Defendants argue that the time billed by Attorney Faulkner is excessive, in that
she “spent more time than was necessary to accomplish what can be considered as
standard drafting tasks” and that some time entries include “secretarial or paralegal
functions.” Opp. at 7. Specifically, they request that the court remove approximately
2.7 hours as improperly included paralegal/administrative tasks. Id. at 8. However,
while Attorney Faulkner is a solo practitioner, there is no evidence indicating that she
included non-legal functions in her billing records, or to contradict her sworn statement
that the time records do not include non-legal tasks. Faulkner Aff. ¶ 8. Thus, no
reduction in billable time is warranted on this basis. See Silver v. Law Offices Howard
Lee Schiff, P.C., 2010 WL 5140851 at *3.
Defendants further request that certain time entries be reduced or removed from
the fee award on the basis that they are duplicative or insufficiently clear. First, they
argue that the 11/08/14 time entry be reduced by 0.75 hours on the basis that it is
duplicative of the 10/24/14 entry, since both entries include reviewing discovery
responses. Opp. at 8. Plaintiff contends these entries are not duplicative, and that it
was necessary to review the defendants’ discovery responses twice, once for the
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discovery conference and second for the Motion to Compel. Reply in Support of Fee
Application (Doc. No. 36) (“Rep.”) at 5. The court agrees that the time spent was not
excessive and that no reduction is warranted for this entry.
Second, Defendants request that the 1/12/15 entry for 2 hours entitled “billing
judgment” be removed, arguing that it is unidentifiable. Opp. at 8. In response, plaintiff
states only that “the exercise of ‘billing judgment’ is a component of every fee request.”
Rep. at 5. The court agrees that plaintiff’s fees should be reduced by this amount,
particularly in light of the fact that plaintiff’s billing record also contains a separate 2 hour
entry from the same day entitled “prep fee app.” Opp. at 3, 8.
Third, defendants argue that the “miscellaneous” billing entry entitled “May 2014
confs client, potential co” 2 for 2 hours should be deducted as it is most likely duplicative
of the “miscellaneous” March 2014 entry. Opp. at 8. Plaintiff contends that this entry
represents “an exploration with co-counsel and plaintiff about whether this claim . . .
should be brought as a class action.” Rep. at 6. Defendants present no authority for
reducing the fee by this entry, other than their objection to its vagueness and their
presumption that it is duplicative of a different entry. This is insufficient to render the
time plaintiff’s counsel expended in these entries unreasonable. While not detailed, the
entries in question “contain sufficient information to permit the identification of the
general subject matter” of Attorney Faulkner’s time expenditure. Silver, 2010 WL
5140851 at *2 (internal quotations omitted).
Finally, defendants argue that Attorney Faulkner’s fees are duplicative because
of a separate action she instituted against them on behalf of the same plaintiff, Case
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Plaintiff’s Reply notes that the end of this entry was truncated, and it should have read “Confs
client, potential co counsel” (emphasis added). Rep. at 6.
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No. 3:14-CV-00692-RNC. This case was settled on Nov. 5, 2014. Defendants argue
that several tasks undertaken by Attorney Faulkner related to the prosecution of both
cases, and thus should be stricken from plaintiff’s claim for fees because they were
previously recovered as part of the other case. They argue that on this basis, plaintiff’s
fee award should be reduced by $2000. Opp. at 8. However, defendants provide no
basis as to which entries are duplicative or why $2000 is an appropriate reduction.
Additionally, Attorney Faulkner’s sworn affidavit represents that “the time records do not
duplicate work performed in any other file.” Faulkner Aff. at ¶ 8. Defendants provide no
authority for reducing attorney’s fees based solely on similar cases filed by the same
counsel, and there is nothing on the record before the court to evidence that Attorney
Faulkner included time expended on No. 3:14-CV-00692-RNC in her billing records in
this case.
IV.
CONCLUSION
For the aforementioned reasons, Palmer’s Motion for Attorney’s Fees (Doc. No.
34) is hereby GRANTED in part as described above. Palmer is awarded $15,340.00 in
attorney’s fees.
SO ORDERED.
Dated at New Haven, Connecticut this 27th day of April, 2015.
_/s/ Janet C. Hall
________
Janet C. Hall
United States District Judge
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