Westlake et al v. Atlantic Recovery Solutions, LLC
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
CHARLES WESTLAKE and CHARLOTTE
ATLANTIC RECOVERY SOLUTIONS, LLC,
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.,
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
However, the amount sought - $39,125.50 - is
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.
initiated this case on July 10, 2015, with the filing of their
Complaint alleging fraud in the inducement and intentional
Collection Practices Act (count II), and violation of the
Florida Consumer Collections Practices Act (count III). (Doc.
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).
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'
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
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.
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.
In the context of this consumer collection action, it is
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
expended on the litigation multiplied by a reasonable hourly
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). "When
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
acceptance of the case; (5) the customary fee; (6) whether the
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
Reasonable Hourly Rate
To calculate the lodestar in this case, the Court must
attorneys should have charged.
"A reasonable hourly rate is
the prevailing market rate in the relevant legal community for
similar services by lawyers of reasonably comparable skills,
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.
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
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
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
documentation in this case shows unabated duplication and
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 ¶
After due consideration, the Court determines that both
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
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,
experience at the market rate." Ceres Envtl. Servs., Inc. v.
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,
requested" in FDCPA and FCCPA case based on the finding that
"the case was not novel or difficult").
determine an appropriate hourly rate.
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.
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).
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
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
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,
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
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.
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
"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
reputation or experience of counsel."
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
Thus, the Court awards Mr. Condon $4,162.50 and
$2,637.50 for attorney services and $211.85 for paralegal
The Court has made this reduction considering that the
case was neither novel nor was it complex. The skill required
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.
previously noted, no Court time was required in this case,
which settled at mediation shortly after Defendant filed an
These considerations, and others detailed above,
support the Court's reduction in the number of hours found to
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
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.
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