DREW v. MAMARONECK CAPITAL LLC et al
Filing
42
ORDER GRANTING in part and DENYING in part 37 Motion for Attorney Fees. The Court finds that the Plaintiff's request should be reduced by 10 hours followed by a 25% reduction. The Defendants owe th e Plaintiff $19,635.00 in reasonable attorney's fees (95.2 hours at $275 per hour (1 0.25)) and $713.50 in reasonable costs. Accordingly, the Defendants are ORDERED to pay the Plaintiff $20,348.50. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 7/2/2018. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JUDITH DREW,
Plaintiff,
v.
MAMARONECK CAPITAL, LLC and
MCCULLOUGH PAYNE HAAN &
NADLER, LLC,
Defendants.
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CIVIL ACTION No. 5:17-CV-149 (MTT)
ORDER
In this Fair Debt Collection Practices Act (“FDCPA”) case, the parties have
reached a settlement, and, pursuant to their joint “Amended Notice of Settlement,”
Defendants Mamaroneck Capital, LLC and McCullough Payne Haan & Nadler, LLC
agreed to pay Plaintiff Judith Drew’s reasonable attorney’s fees and costs. Docs. 35;
36. But because the parties could not agree on attorney’s fees and costs, the Plaintiff
has moved for attorney’s fees in the amount of $28,930.00 and costs in the amount of
$713.50.1 Docs. 37; 41. The Defendants argue the Plaintiff is only entitled to $7,012.50
in attorney’s fees, “which is in line with similar fee awards for similar cases in the Middle
1
Initially, the Plaintiff requested $29,579.30: $28,866.00 in attorney’s fees (50.3 hours at $275 per hour +
54.7 hours at 275 per hour) and $713.30 in costs. Doc. 37 at 2-3. In her reply brief, the Plaintiff notes
that the billable hours have been reduced by 10.3 hours “to a total of 94.7 hours in an attempt to cull out
entries Defendants feel are overly redundant, administrative, or clerical in nature.” Doc. 41 at 8. Thus,
the Plaintiff now seeks $29,643.50: $26,042.50 in attorney’s fees through the filing of the Plaintiff’s initial
motion (94.7 hours at $275 per hour), an award of $2,887.50 for the filing of the reply brief (10.5 hours at
$275 per hour), and $713.50 in costs. Id. at 10.
District of Georgia.”2 Doc. 39 at 24. For the following reasons, the Court concludes the
Plaintiff should be awarded $19,635.00 in fees and $713.50 in costs. Accordingly, the
Defendants are ORDERED to pay the Plaintiff $20,348.50.
I. BACKGROUND
On April 18, 2017, the Plaintiff filed this action, alleging that the Defendants
violated multiple provisions of the FDCPA and that the Defendants were negligent.
Doc. 1 ¶¶ 81-98. In response, the Defendants moved to dismiss for improper venue,
insufficient service of process, and failure to state a claim. Doc. 7-1 at 2. The
Defendants also moved to stay discovery and pretrial deadlines pending a ruling on
their motion to dismiss. Doc. 8. On June 2, 2017, the Plaintiff filed an amended
complaint, which was nearly identical to her initial complaint with the main exception
that Defendant Mamaroneck was correctly identified, for purposes of service of process,
as a limited liability company based in Delaware, not New York. Compare Doc. 1 ¶¶ 89, with Doc. 14 ¶¶ 8-9. Subsequently, the Court denied the Defendants’ motions as
moot but allowed them to renew their motions, which they did.3 Docs. 16-19.
On September 12, 2017, the Court entered an Order granting in part and denying
in part the Defendants’ motion to dismiss. Doc. 25. On September 26, 2017, the
Defendants filed their answer to the Plaintiff’s amended complaint. Docs. 28; 29.
Counsel for the Defendants then filed a motion to withdraw from the case, which the
Court granted on October 13, 2017. Doc. 33. On October 16, 2017, the Court entered
its scheduling and discovery order. Doc. 34.
2
It does not appear the Defendants dispute the amount of $713.50 in costs.
3
In their renewed motion to dismiss, the Defendants no longer moved to dismiss on grounds of improper
venue but still argued improper service and failure to state a claim. See Doc. 18-1 at 1-2.
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About three months later, the parties filed a notice of settlement and an amended
notice of settlement, advising the Court that “they have agreed to settle the claims” and
that they “shall reach an agreement as to Plaintiff’s attorney[’]s fees and expenses of
litigation within thirty days of the filing of this Notice of Settlement.” Docs. 35; 36.
Because the parties could not reach an agreement within that time period, the Plaintiff
has moved for attorney’s fees and costs. Doc. 37.
II. DISCUSSION
A.
Attorney’s Fees and Costs Standard
“[T]he costs of the action, together with a reasonable attorney’s fee as
determined by the court,” are available for prevailing plaintiffs under the FDCPA. 15
U.S.C. § 1692k(a)(3). “The 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.” Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir.
2008) (citation and quotation marks omitted).4 This number is called the “lodestar,” and
“there is a strong presumption that the lodestar is the reasonable sum the attorneys
deserve.” Id. (citation and quotation marks omitted). The district court should exclude
“hours that were not reasonably expended,” such as work that was “excessive,
redundant, or otherwise unnecessary.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).
In determining whether a lodestar is reasonable, the district court should consider
twelve factors enumerated in Johnson v. Georgia Highway Express, Inc.: (1) the time
4
In Bivins, the district court had determined attorney’s fees under § 1988, not the FDCPA. Bivins, 548
F.3d at 1350. But the Supreme Court has observed that Congress generally patterns attorney’s fees
provisions of new statutes on those provisions of pre-existing statutes and “[t]he standards set forth in this
opinion are generally applicable in all cases in which Congress has authorized an award of fees to a
‘prevailing party.’” Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983) (citations omitted).
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and labor required, (2) the novelty and difficulty, (3) the skill required to perform the
legal service properly, (4) the opportunity cost of the attorney’s inability to work on other
cases as a result of accepting this one, (5) the customary fee, (6) whether the fee is
fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8)
the amount of money at issue and the results obtained, (9) the experience and ability of
the attorneys, (10) the undesirability of the case, (11) the nature and length of the
professional relationship with the client, and (12) attorney’s fee awards in similar cases.
488 F.2d 714, 717-19 (5th Cir. 1974)5; overruled on other grounds by Blancher v.
Bergeron, 489 U.S. 87 (1989); see also Blancher, 489 U.S. at 92 (“Johnson’s ‘list of 12’
thus provides a useful catalog of the many factors to be considered in assessing the
reasonableness of an award of attorney’s fees.”). Downward adjustment of the lodestar
is “merited only if the prevailing party was partially successful in its efforts,” a
determination the district court makes on a case-by-case basis. Resolution Trust Corp.
v. Hallmark Builders, Inc., 996 F.2d 1144, 1150 (11th Cir. 1993).
The Plaintiff documents her counsel’s work in affidavits and attached time
summaries. Docs. 37-2; 37-3; 37-4; 37-5; 41-1; 41-2; 41-4. The Defendants do not
contest the availability of attorney’s fees and costs. See generally Doc. 39. Rather, the
Defendants contend that the Plaintiff’s request for attorney’s fees is unreasonable
because (1) there is no evidence that the Plaintiff’s counsel’s rate of $275 per hour is in
line with prevailing market rates; (2) some of the tasks for which the Plaintiff’s counsel
billed were excessive, duplicative, administrative or otherwise unnecessary; (3) there is
no recovery for unsuccessful attempts to overturn the underlying judgment and pleading
5
The Eleventh Circuit has adopted as binding precedent the decisions of the former Fifth Circuit rendered
prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).
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errors; (4) some of the billing entries were vague or misleading “block billing” entries;
and (5) the Plaintiff’s counsel may not recover for fees billed after entry of the settlement
agreement. See generally id. The Court will address these arguments in turn,
considering the general appropriateness of the Plaintiff’s requested award and
examining the reasonableness of each contested task.
B.
Reasonable Hourly Rate
First, the Defendants argue that the Plaintiff’s counsel’s rate of $275 per hour is
not reasonable. Doc. 39 at 4. “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 v. Housing Authority of City of Montgomery,
836 F.2d 1292, 1299 (11th Cir. 1988) (citation omitted). “The party seeking attorney’s
fees bears the burden of producing satisfactory evidence that the requested rate is in
line with prevailing market rates.” Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir.
1994) (quotation marks and citation omitted). Satisfactory evidence is “more than the
affidavit of the attorney performing the work.” Id. (quotation marks and citation omitted).
Here, the Defendants contend the hourly rate should be reduced to $250 per
hour because that rate “was deemed reasonable by this court for both of the same
counsel, and the same relevant legal community of the Macon Division of the Middle
District of Georgia,” in another case before the Court covering approximately the same
time period as this case.6 Doc. 39 at 5. The Defendants also argue that the Plaintiff’s
counsel have not submitted any independent evidence to show that $275 per hour is
6
The Plaintiff and her counsel “readily concede this court awarded a lower hourly rate in [the other case].”
Doc. 41 at 2 n.8.
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actually reasonable.7 Id. at 5-6. While it is true this Court as well as other courts in
FDCPA cases have deemed reasonable a rate of $250 per hour, that alone is not
determinative. Norman, 836 F.2d at 1299-1300 (“In evaluating comparability of the
market rates being attested to, the district court may wish to consider any of the
Johnson factors to the extent that they suggest that comparables offered may not be
relevant to the issues before the court or as they may affect the weight to be given to
the comparables being offered the court.”). Relying on a national survey as their
independent evidence that $275 per hour is reasonable, the Plaintiff’s counsel claim
“the reasonable hourly rate for handling consumer rights claims in this Court for
attorneys with four to five years of experience in consumer rights litigation is between
$295.00 an hour and $325.00 an hour.” Doc. 41 at 2-3. Both of the Plaintiff’s counsel
have been practicing law in Georgia since November 2012, litigating a significant
number of consumer cases. Doc. 37-1 at 6-7. As the Defendants acknowledge, the
Plaintiff’s counsel are “seasoned” attorneys. Doc. 39 at 8. The Plaintiff’s counsel also
note that based on their research, no plaintiff “had ever maintained a claim against a
defendant in an FDCPA action based on sending a letter to an inconvenient (but valid)
mailing address,” and thus they potentially had to create new law in prosecuting this
action. Doc. 41 at 3. Accordingly, the Court concludes an hourly rate of $275.00 is
within the range of reasonable rates in the relevant legal market, particularly given the
7
The Defendants also point out that the Plaintiff’s counsel initially presented them with an hourly rate of
$250 per hour “in an attempt to negotiate before presenting the issue to the court.” Doc. 39 at 6. First, as
the Plaintiff’s reply brief makes clear, the Defendants, by not responding to her initial request, made no
good faith attempt at negotiating before presenting the issue of attorney’s fees to the Court. Doc. 41 at 12. Moreover, the fact that the Plaintiff’s counsel previously presented a lower hourly rate, in an effort to
settle, has no bearing on requesting an hourly rate of $275 per hour, so long as that rate is reasonable.
As discussed below, the Court finds that it is.
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counsel’s years of experience litigating FDCPA cases and the novelty of the Plaintiff’s
case.
C.
Reasonable Hours Expended
The Court finds that the best way to determine the reasonableness of the
Plaintiff’s request is to consider the specific hours expended on certain tasks. See
Bivins, 548 at 1350 (“When a 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.” (citation omitted)).
1. Excessive, duplicative, administrative, or otherwise unnecessary tasks
The Defendants argue that they “should not have to pay for the 21.7 hours of
billing entries for work that is duplicative, administrative, or excessive.” Doc. 39 at 6-7;
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (“Counsel for the prevailing party
should make a good faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary. . . .”). According to the Defendants, the Plaintiff
“redundantly and excessively billed five (5) different times for researching how to serve
Defendants” for a total of 13.1 hours, when it only should have taken one hour of legal
research on a simple service issue. Id. at 7-8. The Court disagrees. As the Plaintiff’s
counsel point out, these additional hours were expended due to not only the difficulty in
finding the proper party to serve but also the Defendants’ own conduct. Doc. 41 at 4.
Considering how both parties believed Defendant Mamaroneck was a New York limited
liability company, when there was actually another company with the same name based
in Delaware, only confirms that Defendant Mamaroneck’s corporate structure and
registered agent were not easily identifiable or ascertainable. Thus, it was certainly
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reasonable to spend more than an hour trying to determine which Mamaroneck to
serve. The other hours that the Defendants contest as being duplicative or excessive
were expended in response to the Defendants’ motion to dismiss for insufficiency of
service. Of course, because the Defendants raised the issue of improper service, it is
expected that the Plaintiff’s counsel would review the motion to dismiss, conduct further
research on the service issue, and draft a response. Further research regarding the
service issue is not duplicative, under the circumstances, particularly given the
Defendants failed to correct the Plaintiff that Mamaroneck was not a New York limited
liability company. Doc. 7-1 at 3. Only after the Plaintiff’s counsel conducted further
research, including speaking over the phone with an attorney from New York who
represented the other “Mamaroneck,” were the parties able to learn that there were two
“Mamaronecks,” one a real estate company and the other a debt collection company.
Doc. 41 at 4. Accordingly, the five billing entries totaling 13.1 hours are reasonable.
The Defendants also contest the 4.7 hours expended on PACER research of the
Defendants’ previous answers and disclosures, arguing that researching the
Defendants’ filings in other cases is not relevant to the present case, and, thus, is
unnecessary. Doc. 39 at 8. In response, the Plaintiff’s counsel state that this research
“could have yielded admissible evidence, as courts have routinely held that pleadings
from prior cases are admissible evidence at trial.” Doc. 41 at 6. The Court agrees with
the Plaintiff’s counsel. Researching an opposing party is laudable, and the Court has
no doubt the Defendants conducted their own research on the Plaintiff and her counsel,
or at least they should have. Accordingly, the Court finds that the claim for 4.7 hours
spent researching the Defendants’ previous answers and disclosures is reasonable.
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The Defendants also argue that the Plaintiff’s counsel should not recover for the
0.8 hours researching the effect of settlement versus judgment on a fee petition
because that is not related to FDCPA claims and “an offer of judgment was never on the
table from the Defendants.” Doc. 39 at 8-9. Counsel for the Plaintiff respond that “it is
not unreasonable for [them] to research potential resolutions to a case.” Doc. 41 at 6.
The Court agrees with the Plaintiff’s counsel. Accordingly, the claim for 0.8 hours spent
researching the effect of settlement as opposed to an offer of judgment is reasonable.
Next, the Defendants point to three billing entries related to the settlement offer
and argue that the Plaintiff’s counsel billed 0.3 hours for these “same tasks.” Doc. 39 at
9. However, as the Plaintiff’s counsel point out, while the settlement offers were similar,
they were not the same, and the Defendants fail to acknowledge that at the time of each
entry, “the prior offer of settlement had expired, necessitating an update to the new offer
of settlement.” Doc. 41 at 5. Accordingly, the claim for 0.3 hours expended on
proposing and updating the settlement offer is reasonable.
The Defendants also contend that the Plaintiff’s counsel “spent an excessive
amount of time on ‘researching claims and drafting the complaint.’” Doc. 39 at 9
(quoting the description of the task in the initial time summary). In particular, the
Plaintiff’s counsel spent a total of 6.8 hours on this task, and the Defendants argue this
amounts to “block billing, with no breakdown of the time spent on each.” Id. Moreover,
the Defendants contend that the “issues in this case were not especially complex, and
given that Plaintiff’s counsel practice primarily in this area and have filed hundreds of
similar complaints, it is reasonable to assume that this Complaint was a standard
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document used by Plaintiff’s counsel and their firms.” Id. at 9-10. Thus, according to
the Defendants, the fee entry should be reduced to at most 3 hours. Id. at 10.
In response, the Plaintiff’s counsel have provided a supplemental time summary, which
provides more detail to many of the entries contested by the Defendants. See generally
Doc. 41-1. With regard to the entry of “researching claims and drafting the complaint,”
the Plaintiff’s counsel provided the following amendment: “Conducted research as to
whether viable 1692c claim based on the facts and found no similar cases reported
(1.8); reviewed CFPB order regarding Georgia Recieveables [sic] to see if any claim
existed thereunder to pursue against Defendants in this suit (.5); drafted complaint
(4.5).” Id. at 1. This amendment sufficiently breaks down the time spent on each task;
thus, it adequately addresses the Defendants’ block billing concern. The Court also
does not find that the Plaintiff’s counsel “spent an excessive amount of time researching
claims and drafting the complaint.” While counsel for the Plaintiff may have used
standard forms to draft their complaint, it is clear the majority of the initial complaint, as
well as the amended complaint, contain a highly fact-specific sequence of events that
could not have come from common pleadings previously used by the Plaintiff’s counsel.
See generally Docs. 1; 14. Moreover, as the Plaintiff’s counsel note, they have
“ensure[d] there is both a factual and legal basis before filing pleadings and the time
entries reflect the time counsel expended in fulfilling these obligations.” Doc. 41 at 5
n.20. Accordingly, the Court finds that the Plaintiff’s claim for 6.8 hours is reasonable
for researching claims and drafting the complaint.
The Defendants also argue that the Plaintiff’s counsel are not entitled to recover
6.2 hours for performing tasks that are administrative or clerical in nature. Doc. 39 at 9;
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see Fischer v. Berryhill, 2017 WL 1078446, at *3 (N.D. Fla. Feb. 21, 2017), report and
recommendation adopted, 2017 WL 1074934 (N.D. Fla. Mar. 21, 2017) (finding that
costs of a clerical nature are not compensable as attorney’s fees). The Defendants
point out that the Plaintiff’s counsel billed multiple times for “mailing, filing, or otherwise
delivering documents.” Id. at 11. These are indeed administrative tasks that cannot be
recovered. Realizing as much, the Plaintiff’s counsel have, in their supplemental time
summary, reduced, either partially or entirely, most of these contested tasks. See
generally Doc. 41-1. The Court accepts the reductions as reasonable. However, there
are still some entries involving administrative or clerical tasks for which the Plaintiff’s
counsel should not have billed. They are: “File response to MTD and Motion to Stay
again” (0.2); “Provide .doc of agreement to OC per her request” (0.1); “Scan and send
agreement to OC” (0.2); and “File notice of settlement” (0.1). Accordingly, in addition to
the hours that the Plaintiff’s counsel reduced in their supplemental time summary for
performing administrative tasks, the Court finds reasonable a reduction of 0.6 hours.
Doc. 41 at 8.
2. Attempts to overturn underlying judgment and correct pleading errors
The Defendants argue the Plaintiff’s counsel may not recover for their
unsuccessful efforts to overturn the underlying debt and cite Norman for the proposition
that a district court “must deduct time spent on discrete and unsuccessful claims.” Doc.
39 at 13. (quoting Norman, 836 F.2d at 1302). If some of the claims are unsuccessful,
the district court may either attempt to identify specific hours spent on unsuccessful
claims or reduce the award by some proportion. Norman, 836 F.2d at 1302 (citation
omitted). The Defendants contend that the 4.7 hours spent on researching claims
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under O.C.G.A. § 9-11-60 for setting aside judgment were unreasonable because those
claims were never raised and, even if they were, they would have been unsuccessful.8
Doc. 39 at 14. The Plaintiff’s counsel acknowledge that they eventually made no effort
to set aside the underlying judgment; however, they argue that the underlying judgment
was “necessarily intertwined” with the prosecution of the FDCPA case, which justifies
researching those claims. Doc. 41 at 6-7. The Court agrees that the underlying
judgment is related to bringing the FDCPA claims, and while the claims under § 9-11-60
were eventually never raised, it certainly was reasonable to research whether setting
aside a state court judgment was viable or necessary before considering other options.
Accordingly, the Court finds reasonable the 4.7 hours spent on researching claims
under § 9-11-60.
The Defendants make a similar argument that the Plaintiff’s counsel may not fully
recover for researching claims that were dismissed as a matter of law for failure to state
a claim. Doc. 39 at 14; see generally Doc. 25. According to the Defendants, they
“should not be required to pay for legal services on claims that failed,” and, thus, a 50%
across-the-board reduction should be applied to the requested award. Doc. 39 at 14.
While it is true some of the Plaintiff’s claims were dismissed, counsel’s work on an
unsuccessful claim may still be recoverable if it is related to their work on another,
successful claim. See Hensley, 461 U.S. at 434-35. As the Plaintiff’s counsel correctly
point out, all of the claims raised in the Plaintiff’s initial complaint and amended
8
The Defendants also ask the Court to “completely remove the 0.1 [hour] email to opposing counsel
regarding the underlying judgment from Plaintiff’s recovery, as this is not relevant to the FDCPA claim
asserted.” Doc. 39 at 14. But as the Court mentions below, the underlying judgment is relevant to the
prosecution of the Plaintiff’s FDCPA claim. Accordingly, the 0.1 hour spent in drafting and sending the
email is reasonable.
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complaint were interrelated and arose out of a common nucleus of facts. Doc. 41 at 9.
But given that the Defendants were able to dismiss three out of the Plaintiff’s five
claims, it seems reasonable, and the Plaintiff’s counsel do not oppose, an across-theboard reduction of 25% of the award sought.9 Doc. 41 at 10 n.33; Hensley, 461 U.S. at
436-37 (“If, on the other hand, a plaintiff has achieved only partial or limited success,
the product of hours reasonably expended on the litigation as a whole times a
reasonable hourly rate may be an excessive amount. This will be true even where the
plaintiff’s claims were interrelated, nonfrivolous, and raised in good faith. . . . There is no
precise rule or formula for making these determinations. The district court may attempt
to identify specific hours that should be eliminated, or it may simply reduce the award to
account for the limited success.”).
The Defendants also argue that the Plaintiff’s counsel may not recover for the
time spent responding to the Defendants’ initial motion to dismiss because that motion
was “entirely successful” due to the Plaintiff’s counsel “amending their complaint to
correct the errors.” Doc. 39 at 14-15. Specifically, the Defendants contest the 9.8 hours
expended on responding to the initial motion to dismiss and drafting the amended
complaint. Id. at 15. It is far from clear what the Defendants mean by their motion
being “entirely successful,” particularly given that their initial motion to dismiss and
renewed motion to dismiss were nearly identical and the amended complaint mainly
corrected the service issue with respect to Mamaroneck and clarified that the Plaintiff
was bringing a claim under 15 U.S.C. § 1692f. Compare Doc. 7-1, with Doc. 18-1;
compare Doc. 1 ¶¶ 8-9, 88, with Doc. 14 ¶¶ 8-9, 88. It seems the Defendants’ better
9
As noted below, the Court applies the 25% reduction to the award after first adjusting the award for the
reasons discussed throughout this Order.
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argument is that the Plaintiff’s counsel may not recover for the 11.9 hours spent
responding to the second motion to dismiss or the 2.3 hours spent drafting the amended
complaint. Perhaps realizing this, the Plaintiff’s counsel, in their supplemental time
summary, reduced the number of hours drafting the amended complaint from 2.3 hours
to 1.5 hours and reduced the number of hours drafting a response to the second motion
to stay and second motion to dismiss from 3.5 hours to 2 hours and 8.4 hours to 5.4
hours, respectively. Doc. 41-1 at 3. While the Court accepts as reasonable the 0.8hour reduction in time for drafting the amended complaint, the Court does not find
reasonable counsel’s modified time for responding to the Defendants’ second motion to
stay and dismiss, considering the Plaintiff’s counsel already claimed to have expended
6.3 hours researching issues raised by the initial motion to dismiss, practically the same
issues raised in the second motion to dismiss. Accordingly, the Court reduces
counsel’s modified time by 4.4 hours and finds reasonable a total of 3 hours spent
responding to the Defendants’ second motion to stay and dismiss.
3. Vague and misleading billing entries
The Defendants also argue that the Plaintiff’s counsel “should not be allowed to
recover for 10.0 hours of vague billing entries.” Doc. 39 at 17. While some of the
entries in the initial time summary were vague, the Plaintiff’s counsel have, in their
supplemental time summary, described the contested entries in more detail and
reduced the time in one particular entry, “get agreement signed by Drew,” by 1.2 hours
to address the Defendants’ concern. See generally Doc. 41-1. The Court accepts
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these supplemental descriptions and reduction in time and finds reasonable the
remaining 8.8 hours of billing entries as reflected in the supplemental time summary.10
Though the Defendants also contend that the Plaintiff’s counsel should only
recover 50% of the misleading “block billing” entries, the Court finds that the
supplemental time summary has addressed most of these “block billing” concerns. As
to the entries in the supplemental time summary that remain unchanged from those
contested as “block billed” in the initial time summary, the Court finds no issue, with the
exception of the entries that the Court has already found unreasonable.
4. Billing entries after entry of settlement agreement
Finally, the Defendants argue there should be no recovery for fees billed after
entry of the settlement agreement because it was “not contemplated in the settlement
that Plaintiff’s counsel would seek or recover fees for their Motion for Attorney’s fees.”
Doc. 39 at 21-22. That argument is unavailing. While the Amended Notice of
Settlement is silent as to whether fees and costs end upon the effective date of the
settlement, it does state that “[s]hould the parties be unable to reach an agreement as
to the amount of Plaintiff’s attorney[’]s fees and expenses of litigation, the Plaintiff will
file a Motion for Fees and Costs. . . .” Doc. 36 at 1. Based on this, it seems clear that
the Defendants could reasonably anticipate the Plaintiff’s counsel having to expend
additional time researching and drafting a fee petition should the parties fail to come to
10
The Defendants also argue that the Plaintiff’s counsel expended too much time (a total of 2.1 hours) on
phone calls with their client. Doc. 39 at 18. But as the Plaintiff’s counsel explain in their reply brief, the
Plaintiff is an unsophisticated consumer, lacking reliable transportation and often requiring counsel to
travel to meet with her. Doc. 41 at 5. Accordingly, the Court finds the 2.1 hours reasonable. The Court
also finds reasonable the time conversing with the opposing counsel, because this was done to further
represent the Plaintiff’s needs.
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an agreement on attorney’s fees and costs. That is what happened here.11
Accordingly, the Court finds that the Plaintiff’s counsel may recover for fees billed after
entry of the settlement agreement.
However, the Court does not find reasonable the total amount of fees billed after
the parties’ settlement. While the Court finds no issue with co-counsels reviewing each
other’s work, it seems the amount of time (8.1 hours) spent researching and drafting the
fee petition is excessive, especially given that the Plaintiff’s counsel have likely used
standard forms to file fee petitions in other similar cases. Accordingly, the Court finds
reasonable 6.1 hours for researching and drafting the fee petition.
The Plaintiff’s counsel have also billed for time expended (10.5 hours) on
responding to the Defendants’ brief. See generally Doc. 41-2. Again, the Court finds
the total amount claimed to be excessive and instead finds reasonable 7.5 hours for
responding to the Defendants’ brief.
III. CONCLUSION
For the foregoing reasons, the Plaintiff’s Motion for Attorney’s Fees (Doc. 37) is
GRANTED in part and DENIED in part. The Court finds that the Plaintiff’s request
should be reduced by 10 hours followed by a 25% reduction. The Defendants owe the
Plaintiff $19,635.00 in reasonable attorney’s fees (95.2 hours at $275 per hour (1 –
0.25)) and $713.50 in reasonable costs. Accordingly, the Defendants are ORDERED to
pay the Plaintiff $20,348.50.
11
The Plaintiff’s counsel point out that they sent their initial itemized billing records to the Defendants on
January 22, 2018. Doc. 41 at 1. Counsel then “followed up with Defendants regarding the itemized
billing statement, indicating Plaintiff was willing to reduce fees and costs to $20,000.00.” Id. However,
according to the Plaintiff’s counsel, the Defendants were nonresponsive. Thus, again, it appears the
Plaintiff’s counsel have made efforts to negotiate while the Defendants have not.
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SO ORDERED, this 2nd day of July, 2018.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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