SCOTT v. LEADING EDGE RECOVERY SOLUTIONS LLC

Filing 21

ORDER GRANTING IN PART and DENYING IN PART 16 Motion for Attorney Fees. The Plaintiff shall receive $4,743.50 in attorneys fees. Ordered by Judge Marc Thomas Treadwell on 5/11/2012. (tlh)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JAMARCUS SCOTT,
Plaintiff,
v.
LEADING EDGE RECOVERY
SOLUTIONS, LLC,
Defendant.

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CIVIL ACTION NO. 5:11-CV-372 (MTT)

ORDER

This matter is before the Court on the Plaintiff’s Motion for Attorney’s Fees and
Costs. (Doc. 16). The Plaintiff seeks $5,613.50 in attorney’s fees. The Defendant
objects on two grounds: (1) the Plaintiff has failed to provide evidence of the prevailing
market rate in the Middle District of Georgia, specifically the Macon Division, and (2) the
Plaintiff cannot recover attorney’s fees for work that is duplicative, administrative, or
excessive. For the following reasons, the Motion is GRANTED in part and DENIED in
part with regard to attorney’s fees and DENIED as moot with regard to costs.
A. Litigation History
On May 24, 2011, the Plaintiff sent a notice of potential Fair Debt Collection
Practices Act claims to the Defendant and an offer to settle for $3,500.00. The
Defendant claims the notice was nothing more than a form demand letter devoid of any
factual allegations. On June 9, 2011, the Defendant requested a sworn statement from
the Plaintiff, and said that if the Plaintiff responded, “then the matter will be concluded in
very short order.” (Doc. 16-4, at 2). The Plaintiff provided an affidavit on June 30,

2011, which was forwarded to the Defendant’s outside counsel. Although the Plaintiff
was told an attorney would be in contact soon, he did not hear anything, and he filed
this action on September 16, 2011.
On October 27, 2011, the Defendant requested a demand from the Plaintiff. On
November, 9, 2011, the Plaintiff sent a demand for $4,750.00, inclusive of statutory and
actual damages, attorney’s fees, and costs, which expired one week later. After the
expiration of the Plaintiff’s demand, the Defendant made an offer to settle for $1,000.00.
The offer did not mention attorney’s fees or costs. On December 30, 2011, the Plaintiff
made another demand in the amount of $4,995.00 inclusive of all fees, which expired
one week later.
On January 24, 2012, the Defendant proposed a Fed. R. Civ. P. 68 Offer of
Judgment, which the Plaintiff accepted. (Doc. 14). The Offer of Judgment was for
$1,001.00 in statutory damages, $250.00 in actual damages, costs of the action, and
“reasonable attorney’s fees allowable under 15 U.S.C. § 1692k(a) through and including
the 14th day following service of this offer.” (Doc. 14-1, at 2). The Defendant offered
more than $1,000.00 so the Offer of Judgment would be higher than its previous offer.
However, because the FDCPA has a $1,000.00 statutory cap, the Parties agreed that
the judgment would be $1,000.00 in statutory damages and $251.00 in actual damages.
Taxation of costs against the Defendant has already been entered. (Doc. 19). Thus,
the remaining issue is the calculation of attorney’s fees.

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B. Calculation of Attorney’s Fees
1. Reasonable Attorney’s Fees in the Prevailing Market
Cook v. Law Offices of Forster & Garbus, 2010 WL 4941439, at *1-2 (M.D. Fla.)
– a case involving the Plaintiff’s counsel – provides a detailed overview of the applicable
law in FDCPA actions:
Pursuant to the FDCPA, an award of attorney's fees to the prevailing party
is mandatory. In Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), the
Supreme Court stated that “the most useful starting point for determining
the amount of a reasonable fee is the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly rate.” This
amount, which is commonly referred to as the lodestar, is then adjusted to
reflect the results obtained. This analysis applies when determining a
reasonable attorney's fee under FDCPA.
Cook, 2010 WL 4941439, at *1 (internal quotations and citations omitted). The
reasonable attorney’s fee must be based on the prevailing market rate in the relevant
legal community. Id.
With regard to the prevailing market rate:
The applicant bears the burden of producing satisfactory evidence that the
requested rate is in line with prevailing market rates. Satisfactory
evidence at a minimum is more than the affidavit of the attorney
performing the work…. Satisfactory evidence necessarily must speak to
rates actually billed and paid in similar lawsuits. Testimony that a given
fee is reasonable is therefore unsatisfactory evidence of market rate.
Evidence of rates may be adduced through direct evidence of charges by
lawyers under similar circumstances or by opinion evidence. The weight
to be given to opinion evidence of course will be affected by the detail
contained in the testimony on matters such as similarity of skill, reputation,
experience, similarity of case and client, and breadth of the sample of
which the expert has knowledge.
Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988)
(internal quotations and citations omitted). “When … the applicant for a fee has carried
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his burden of showing that the claimed rate and number of hours are reasonable, the
resulting product is presumed to be the reasonable fee….” Blum v. Stenson, 465 U.S.
886, 897 (1984).
The Defendant is correct that the relevant legal community is the Macon Division
of the Middle District of Georgia. Eaton v. Astrue, 2011 WL 3296097, at *2 n.3 (M.D.
Ga.). Here, neither the Plaintiff’s affidavits, the Laffey Matrix, nor the Consumer Law
survey sheds any light on the prevailing market rate in the Middle District of Georgia,
specifically the Macon Division. The Plaintiff points to one case involving “consumer
advocacy” in this district to support his argument, Gill v. Bluebird Body Co., 353 F.
Supp. 2d 1265 (M.D. Ga. 2005). While Gill may be helpful to show rates actually billed
seven years ago, it is not a similar lawsuit because it was brought pursuant to the
Magnuson-Moss Act, not the FDCPA. Thus, the Plaintiff has not met his burden of
showing that the claimed rate is reasonable, and there is no presumption of
reasonableness.
“A district court has ‘wide discretion’ in exercising its judgment on the appropriate
fee level, though the court must articulate the decisions it makes, give principled
reasons for those decisions, and show the specific fee calculations.” Sierra Club v.
Hankinson, 351 F.3d 1358, 1361 (11th Cir. 2003). “[O]rdinarily there are no quotations
for the prevailing market rate for a given attorney's services. Instead, the best
information available to the court is usually a range of fees set by the market place, with
the variants best explained by reference to an attorney's demonstrated skill.” Norman,
836 F.2d at 1301 (emphasis added). “[R]eputation and experience are usually only

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proxies for skill, which in a rational economic environment is the ultimate determinant of
compensation level.” Id. at 1300.
The Plaintiff suggests a $335.00/hr and $275.00/hr rate for partners and senior
associates, $175.00/hr rate for junior associates, $135.00/hr rate for law clerks and
paralegals, and $100.00/hr rate for legal assistants. The Defendant suggests a
$245.00/hr and $200.00/hr rate for partners and senior associates, $125.00/hr rate for
junior associates, and $90.00/hr rate for law clerks and paralegals.1
Here, the Plaintiff is not entitled to a presumption of reasonableness and the
Court has been unable to find a similar lawsuit in the Middle District of Georgia to
address the prevailing market rate in an FDCPA action. Thus, the Court must
determine the prevailing market rate based on its knowledge of the rates in this district.
The Court has reviewed the exhibits attached to the Motion and finds that based
on the skill of the Plaintiff’s counsel, the prevailing market rates are those rates claimed
by the Plaintiff. With regard to reputation, the Plaintiff’s counsel has established a
national consumer protection practice. With regard to experience, Marshall Meyers,
Craig Ehrlich, and Dennis Kurz have been practicing for more than 10 years,2 and
$335/hr is within the range of reasonable rates in this market. Although it is not in the
record, Radbil has been practicing since 2006,3 and a $275/hr rate is reasonable. The
remaining attorneys only have 1-2 years’ experience and that is reflected in their
1

The Defendant does not suggest a rate for legal assistants.

2

Although the record is silent on Meyers’ years of experience, another court faced with this
issue assumed Meyers had comparable experience to named partner Alexander Weisberg. Bell
v. Midland Credit Mgmt, Inc., 2011 WL 673919, at *3 (W.D. Okla.).

3

Stone v. National Enter. Sys., 2009 WL 3336073, at *4 (M.D. Fla.).
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$175/hr rate. The Court finds that $135.00/hr is a reasonable rate for the work
performed by Russell Thompson while he was a law clerk. Finally, although the
individual experience of each paralegal and legal assistant is not in the record, the
Court finds that $135.00/hr and $100.00/hr, respectively, are reasonable rates.
2. Hours Reasonably Expended
The Defendant does not object to the Plaintiff’s recovery of attorney’s fees for
reasonable hours billed in this action. However, the Defendant argues it does not have
to pay for work that is duplicative, administrative, or excessive. The Defendant requests
the following reductions because the hours do not reflect a distinct contribution of that
attorney: Meyers (.5), Radbil (.8), and Ehrlich (.3). The Defendant further requests that
the Court reduce Meyers’ work performed on May 24, 2011, by at least .2 because it is
an administrative task.
The Defendant separately argues the Plaintiff should not be able to receive
attorney’s fees for time spent preparing the Motion. The Offer of Judgment served on or
around January 24, 2012, states that it applies “through and including the 14th day
following service of this offer.” On February 7, 2012, the Plaintiff filed his acceptance of
the Offer of Judgment as well as his Bill of Costs and the Motion. Because the Plaintiff
seeks attorney’s fees for costs incurred within the 14-day frame, the Plaintiff may
recover these attorney’s fees so long as the work was not duplicative, administrative, or
excessive. The Defendant alternatively argues 1.8 hours of Thompson’s time spent
preparing the fee petition should be reduced. The Defendant does not articulate why
these hours should be reduced, but because they involve revisions and preparation, the
Defendant seems to argue these hours are excessive.
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The Court agrees Meyers’ hours should be reduced by .5, Radbil’s hours should
be reduced by .8, and Ehrlich’s hours should be reduced by .3 because these hours are
duplicative. Meyers’ hours should be reduced by an additional .2 for being
administrative in nature. Further, the Court reduces Thompson’s hours related to the
fee petition by 1.8 because these hours are excessive.
The Plaintiff did not address Radbil’s .3 hours related to the fee petition. The
Defendant argued these hours were not compensable, but sought to reduce Radbil’s
hours by .8, not 1.1. To the extent the Plaintiff seeks compensation for Radbil’s hours
related to the fee petition, the Court finds that his time is not a distinct contribution and
thus not compensable.
Accordingly, the Motion is GRANTED in part and DENIED in part with regard to
attorney’s fees and DENIED as moot with regard to costs. The Plaintiff shall receive
$4,743.50 in attorney’s fees.4
SO ORDERED, this 11th day of May, 2012.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
4

Name
Marshall Meyers
Craig Ehrlich
Aaron Radbil
Dennis Kurz
Armando Nava
Andrea Crawford
Russell Thompson
Russell Thompson, Law Clerk
Paralegals
Legal Assistants

Hours
1.7
3.5
0
1.9
1.7
0.7
3.5
2.4
7.1
0.5
23

Rate
335.00
335.00
275.00
335.00
175.00
175.00
175.00
135.00
135.00
100.00

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Total
569.50
1,172.50
0.00
636.50
297.50
122.50
612.50
324.00
958.50
50.00
$ 4,743.50