Westlake et al v. Atlantic Recovery Solutions, LLC

Filing 25

ORDER: Charles Westlake's Motion for Attorney's Fees 19 , filed by Timothy Condon, Esq. and Charlotte Westlake's Motion for Attorney's Fees 21 , filed by Frederick Vollrath, Esq., are GRANTED IN PART in the total amount of $7,011.85. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 1/22/2016. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHARLES WESTLAKE and CHARLOTTE
WESTLAKE,
Plaintiffs,
v.

CASE NO:

8:15-cv-1626-T-33TBM

ATLANTIC RECOVERY SOLUTIONS, LLC,
Defendant.
__________________________________/
ORDER
This cause comes before the Court pursuant to Plaintiff
Charles Westlake's Motion for Attorney's Fees (Doc. # 19),
which was filed on December 3, 2015, by Timothy Condon, Esq.,
as

well

as

Plaintiff

Charlotte

Westlake's

Motion

for

Attorney's Fees (Doc. # 21), which was filed on December 4,
2015, by Frederick Vollrath, Esq. Defendant Atlantic Recovery
Solutions, LLC filed a consolidated Response to both Motions
on December 17, 2015. (Doc. # 22).
The Court finds that Plaintiffs are entitled to an award
of attorney's fees pursuant to the provisions of the Fair Debt
Collections Practices Act and Florida Consumer Collections
Practices Act.

However, the amount sought - $39,125.50 - is

beyond excessive.

For the reasons that follow, the Court

awards Mr. Condon $4,162.50 and awards Mr. Vollrath a total of
$2,849.35 (comprised of $2,637.50 for Mr. Vollrath's services

and $211.85 for his paralegal's services).

In total, the fee

award is $7,011.85.
I.

Background
Charlotte

Westlake

and

her

son,

Charles

Westlake,

initiated this case on July 10, 2015, with the filing of their
Complaint alleging fraud in the inducement and intentional
misrepresentation

(count

I),

violation

of

the

Fair

Debt

Collection Practices Act (count II), and violation of the
Florida Consumer Collections Practices Act (count III). (Doc.
# 1).

The nine-page Complaint was signed by Mr. Condon and

Mr. Vollrath. (Id.).
On September 15, 2015, the Court issued its Scheduling
Order (Doc. # 10) as well as its Order Referring the Case to
Mediation (Doc. # 11).

In addition, on September 22, 2015,

noting that Plaintiffs failed to move for entry of Clerk's
Default when Atlantic Recovery Solutions missed the deadline
to respond to the Complaint, the Court issued an Order
directing Plaintiffs to show cause why the action should not
be dismissed for lack of prosecution. (Doc. # 12).

Shortly

thereafter, on September 22, 2015, Atlantic Recovery Solutions
filed its Answer to the Complaint. (Doc. # 14).
On November 17, 2015, the mediator filed his report
explaining: "The case had been settled except for Plaintiffs'
2

attorneys' fees and costs which shall be presented to the
Court for resolution." (Doc. # 17). Notably, the case settled
before the commencement of formal discovery, prior to any
motions being filed, and without any hearings taking place.
Thereafter, Plaintiffs filed their respective Motions for
Attorney's Fees.

Specifically, Mr. Condon filed his Motion

for Attorney's Fees seeking fees totaling $23,310 (based on a
rate of $350 per hour and claiming 66.6 hours worked). (Doc.
# 19).

In addition, Mr. Vollrath filed his Motion for

Attorney's Fees seeking fees totaling $15,615.50 (based on a
rate of $350 per hour for attorney time and $95 per hour for
paralegal time and claiming 42.2 hours of attorney time and
8.9 hours of paralegal time). (Doc. # 21).
Atlantic Recovery Solutions characterizes the fee request
as "excessive and inappropriate" and requests that the Court
award Mr. Condon $2,592.50 and award Mr. Vollrath $1,657.50.
(Doc. # 22 at 2).

As detailed herein, the Court reduces the

hourly rates of counsel from the requested rate of $350, to
the rate of $250. Thereafter, the Court applies a 75% acrossthe-board reduction to the number of hours requested to arrive
at a total fees award of $7,011.85.
II.

Analysis
In the context of this consumer collection action, it is
3

not

disputed

that

Plaintiffs

are

entitled

to

recover

reasonable attorneys fees and costs. "The fee applicant bears
the burden of establishing entitlement and documenting the
appropriate hours and hourly rates." Norman v. Hous. Auth. of
City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988).
In determining reasonable fees, the Court must calculate
the

lodestar,

which

is

the

"number

of

hours

reasonably

expended on the litigation multiplied by a reasonable hourly
rate."
a

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). "When

district

court

finds

the

number

of

hours

claimed

is

unreasonably high, the court has two choices: it may conduct
an hour-by-hour analysis or it may reduce the requested hours
with an across-the-board cut." Bivins v. Wrap It Up, Inc., 548
F.3d 1348, 1350 (11th Cir. 2008).
"In determining what is a 'reasonable' hourly rate and
what number of compensable hours is 'reasonable' the court is
to consider the 12 factors enumerated in Johnson v. Georgia
Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)." (Id.).
The Johnson factors include (1) the time and labor required;
(2) the novelty and difficulty of the issues; (3) the skill
required to perform the legal service properly; (4) the
preclusion

of

other

employment

due

to

the

attorney's

acceptance of the case; (5) the customary fee; (6) whether the
4

fee is fixed or contingent; (7) the amount involved and the
results obtained; (8) the experience, reputation, and ability
of the attorneys; (9) the undesirability of the case; (10) the
nature and length of the professional relationship with the
client; and (11) awards in similar cases.

Johnson, 488 F.2d

at 717–719.
A.

Reasonable Hourly Rate

To calculate the lodestar in this case, the Court must
determine

the

reasonable

hourly

attorneys should have charged.

rate

that

Plaintiffs'

"A reasonable hourly rate is

the prevailing market rate in the relevant legal community for
similar services by lawyers of reasonably comparable skills,
experience,

and

reputation."

Norman,

836

F.2d

at

1303

(citation omitted).
Plaintiffs bear the burden of producing evidence of the
prevailing market rate, which must "speak to rates actually
billed and paid in similar lawsuits," and may include the
expert opinions of other attorneys.

Id.

To satisfy this

burden, Plaintiffs' counsel provided the "Unsworn Declaration"
of Terence S. Moore, Esq., an attorney "familiar with the
amounts customarily charged by attorneys and awarded by courts
in the surrounding community." (Doc. # 1 at ¶ 2). Mr. Moore's
opinion is that "an attorney's fee of $350 per hour is
5

reasonable for legal work performed by both counsel in this
action." (Id. at ¶ 6).
In the Court's view, Mr. Moore's declaration offers only
vague statements as to reasonableness of the fees and fails to
persuade the Court that Mr. Condon and Mr. Vollrath are
entitled to the hourly rate of $350 for the simple and routine
case now under consideration.

Rather, the Court agrees with

the declaration testimony of Ernest H. Kohlmyer, III, Esq.
provided by Defendant in objecting to the fees sought in this
case. (Doc. # 22-1).

Among other observations, Mr. Kohlmyer

indicates:
It is my opinion based on my experience litigating
FDCPA/FCCPA cases through trial that there is
rarely a need for more than a single experienced
attorney to prosecute these types of cases [and]
given Attorney Vollrath's and Attorney Condon's
experience litigating these types of cases it is
difficult for me to believe it was necessary for
both of them to litigate this case.
(Doc. # 22-1 at ¶ 10). See also Johnson v. Univ. Coll. of the
Univ. of Ala. in Birmingham, 706 F.2d 1205, 1208 (11th Cir.
1983)("An award for time spent by two or more attorneys is
proper as long as it reflects the distinct contribution of
each

lawyer

to

multiple-lawyer
distinct

the

case

and

litigation.").

contributions

to

the

6

the

customary

Rather

practice

than

representation,

of

reflecting
the

fee

documentation in this case shows unabated duplication and
replication

of

tasks

by

multiple

layers

of

legal

professionals.
Mr.

Kohlmyer

also

posits

that:

"With

respect

to

a

reasonable hourly rate, it is my opinion based upon my
experience in litigating consumer law cases in the Tampa Bay
area that a reasonable hourly rate for consumer attorneys
ranges from $225 to $275 . . . . Attorney Vollrath's and
Attorney Condon's respective experience in litigating these
cases places them in the middle of this spectrum." (Id. at ¶
12).
After due consideration, the Court determines that both
attorneys

are

entitled

to

the

hourly

rate

of

$250.

See Anderson v. MFP, Inc., No. 8:12-cv-1843-T-TGW (M.D. Fla.
Aug. 25, 2015)(rejecting fee application for $350 per hour in
FDCPA case, and, instead awarding $250 per hour). The Court
reserves

higher

rates

for

"the

most

skilled

attorneys

litigating complex cases." Id. (citing Ottaviano v. Nautilus
Ins. Co., 717 F. Supp. 2d 1259, 1270 (M.D. Fla. 2010)). "A
prevailing plaintiff is not entitled to have the losing party
pay for an attorney with the most experience on a given issue,
regardless

of

price,

but

only

for

one

with

reasonable

experience at the market rate." Ceres Envtl. Servs., Inc. v.
7

Colonel McCrary Trucking, LLC, 476 F. App'x 198, 203 (11th
Cir. 2012); see, e.g., Valencia v. Affiliated Grp., Inc., 674
F. Supp. 2d 1300, 1308 (S.D. Fla. 2009)(rejecting counsel's
request for $350 hourly rate in FDCPA case based on the
finding that it was not a complicated case, among other
considerations); Sclafani v. I.C. Sys., Inc., No. 09-60174,
2010 U.S. Dist. LEXIS 35181, at *4 (S.D. Fla. Mar. 18,
2010)(finding

"no

support

for

the

$350.00

hourly

rate

requested" in FDCPA and FCCPA case based on the finding that
"the case was not novel or difficult").
The

Court

may

use

its

discretion

determine an appropriate hourly rate.

and

expertise

to

Scelta v. Delicatessen

Support Servs., 203 F. Supp. 2d 1328, 1331 (M.D. Fla. 2002).
Utilizing its experience and expertise, and upon review of the
case law, the declarations of counsel, and having considered
the case file as a whole, the Court finds the rate of $250 per
hour is reasonable.

The Court takes no issue with the

proposed hourly rate of $95 for paralegal services.

See

Access for the Disabled, Inc. v. Osceola Enter. of Kissimmee,
Inc., No. 6:09-cv-1805-Orl-31GJK, 2010 U.S. Dist. LEXIS 74056
at *16 (M.D. Fla. July 1, 2010)(rejecting $115.00 per hour as
a reasonable fee for paralegal services and finding $95.00 per
hour to be reasonable for such services).
8

B.

Reasonable Hours Expended

Next, the Court must determine the number of reasonable
hours expended by Plaintiffs' counsel. Mr. Condon claims 66.6
hours of attorney time and Mr. Vollrath claims 42.2 hours of
attorney time, in addition to 8.9 hours of paralegal time. The
amount claimed is patently excessive and demonstrates to the
Court that Plaintiffs' legal representatives did not utilize
billing judgment.

No depositions were taken, no discovery

demands were to have been exchanged (per Court Order), no
motions (other than the present Motions for Attorney's Fees)
were filed, and the case was not tried.

Rather, after the

Complaint and Answer were filed, the case settled at the
mediation conference.

From start to finish, the case was

pending for less than five months.
The Court makes the following findings with respect to
the amount of hours claimed in this action: (1) Mr. Condon's
and Mr. Vollrath's time entries include block billing and are
so vague that it is nearly impossible to determine the work
performed by counsel; (2) Mr. Condon and Mr. Vollrath each
include time entries that are clerical in nature; (3) two
attorneys were not necessary for this case; (4) Mr. Condon and
Mr. Vollrath have included unnecessary and duplicative time
entries; and (5) the case was settled without motion practice,
9

trial, or traditional discovery, rendering the number of hours
sought by counsel excessive and unnecessary.
The Court has frequently utilized an across-the-board fee
reduction

for

instances

were

counsel

have

submitted

fee

ledgers containing block billing and in other circumstances
where excessive fees were sought.

In this case, the Court

determines that an across-the-board fee reduction of 75% is
required to rectify the problem presented.

Most blatantly,

Plaintiffs' counsel billed for the preparation of an Amended
Complaint that was never authorized or filed, and also billed
for the preparation of formal discovery (such as Requests for
Admissions and Requests for Production) when the Court's
scheduling order, which was filed in this type of case to curb
fees

and

costs,

prohibited

the

parties

from

propounding

discovery requests.
"Fee applicants must exercise . . . 'billing judgment,'
that means they must exclude from their fee applications
'excessive, redundant, or otherwise unnecessary hours.'" ACLU
of Ga. v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999)(quoting
Hensley, 461 U.S. at 434).

Thus, fee applicants must exclude

hours "that would be unreasonable to bill a client and
therefore

to

one's

adversary

irrespective

reputation or experience of counsel."
10

of

the

skill,

Norman, 836 F.2d at

1301 (emphasis in original).
Here, Mr. Condon claims to have incurred 66.6 hours. The
Court reduces these hours by 75% and will allow Mr. Condon to
recover for 16.65 hours.

Likewise, Mr. Vollrath claims to

have incurred 42.2 hours.

The Court reduces these hours by

75% and will allow Mr. Vollrath to recover for 10.55 hours for
his

services

services.
awards

and

will

allow

2.23

hours

his

paralegal's

Thus, the Court awards Mr. Condon $4,162.50 and

Mr.

Vollrath

a

total

of

$2,849.35

(comprised

of

$2,637.50 for attorney services and $211.85 for paralegal
services).
The Court has made this reduction considering that the
case was neither novel nor was it complex. The skill required
to

perform

the

legal

services

properly

was

not

great,

especially considering that the only pleading Plaintiffs filed
was the initial complaint.

There is no indication that

Plaintiffs' counsel were precluded from other employment for
the four months that this case was pending, and minimal
efforts were expended to bring the case to a resolution.

As

previously noted, no Court time was required in this case,
which settled at mediation shortly after Defendant filed an
Answer.

These considerations, and others detailed above,

support the Court's reduction in the number of hours found to
11

be compensable. See Thornton v. Wolpoff & Abramson, L.L.P.,
312 F. App'x 161, 164 (11th Cir. 2008)(affirming 85% reduction
of lodestar in a FDCPA case); Vega v. Orlando Hous. Auth., No.
6:14-cv-1700-Orl-22GJK, 2015 U.S. Dist. LEXIS 122759, *3-4
(M.D. Fla. Sept. 15, 2015)(implementing a 75% across-the-board
reduction of attorneys' fees sought after finding: "this case
was a straightforward, uncomplicated matter that settled very
quickly [and] by no stretch of the imagination could this be
considered complex litigation.

Plaintiff was represented by

able attorneys who achieved a good result for their client,
but they spent (or at least billed) far too much time on the
case").
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Charles Westlake's Motion for Attorney's Fees (Doc. #
19), filed by Timothy Condon, Esq. and Charlotte Westlake's
Motion for Attorney's Fees (Doc. # 21), filed by Frederick
Vollrath, Esq., are GRANTED IN PART in the total amount of
$7,011.85, consistent with the foregoing.
DONE and ORDERED in Chambers in Tampa, Florida, this 22nd
day of January, 2016.

12