LEFORGE v. FEIWELL & HANNOY, P.C.

Filing 158

ORDER granting in part and denying in part Plaintiff's 147 Motion for Attorney Fees and costs AND granting Plaintiff's supplemental 152 Motion for Attorney Fees. Court awards $37,415.00 in attorney's fees and $576.72 in costs to Mr. Murray. Plaintiff shall recover $1,847.03. Signed by Judge Richard L. Young on 6/2/2015. (TMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

LUDA CHRISTINE HAYWARD
LEFORGE,

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Plaintiff,
vs.
FEIWELL & HANNOY, P.C.,
Defendant.

1:11-cv-00526-RLY-DKL

ENTRY ON REQUEST FOR ATTORNEY’S FEES AND COSTS
On January 20, 2015, a jury determined that Defendant, Feiwell & Hannoy, P.C.
(“F&H”) violated the Fair Debt Collection Practices Act (“FDCPA”). The jury awarded
Plaintiff, Luda Christine Hayward LeForge (“LeForge”), $1,000.00 in statutory damages
and $4,500.00 in actual damages. The court instructed the parties to try to come to an
agreement on the attorney’s fees and costs. The parties have not been able to do so. As
such, LeForge has filed a motion for attorney’s fees and costs and a supplemental motion.
F&H objects to the amount of the fees and costs. For the reasons stated below, Plaintiff’s
motions are GRANTED in part and DENIED in part.
I.

Background
LeForge seeks an award of $37,415.00 in attorney’s fees, $576.72 in costs and

nontaxable expenses to counsel, and $23,528.31 in costs to LeForge. F&H objects and

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counters that a reasonable calculation of the attorney’s fees in this matter is $11,482.50 1
and a reasonable calculation of the costs and nontaxable expenses is $926.72. The court
will first consider the request for attorney’s fees and then examine the requests for costs.
II.

Standard
Under the FDCPA, a debt collector who violates the act, is liable to the successful

claimant for “the costs of the action, together with a reasonable attorney’s fee as
determined by the court.” 15 U.S.C. § 1692k(a)(1)(3). The Seventh Circuit has found
that the statute makes an award of such fees mandatory. See Tolentino v. Friedman, 46
F.3d 645, 651 (7th Cir. 1995).
The touchstone for a district court’s calculation of attorney’s fees is the lodestar
method, which is calculated by multiplying a reasonable hourly rate by the number of
hours reasonably expended. Id. at 856 (citing Hensley v. Eckerhart, 461 U.S. 424, 43337 (1983)). If necessary, the district court has the flexibility to “adjust that figure to
reflect various factors including the complexity of the legal issues involved, the degree of
success obtained, and the public interest advanced by the litigation.” Id. at 856-57. “The
standard is whether the fees are reasonable in relation to the difficulty, stakes, and
outcome of the case.” Connolly v. Nat’l Sch. Bus. Serv., Inc., 177 F.3d 593, 597 (7th Cir.
1999) (quoting Bankston v. Illinois, 60 F.3d 1249, 1256 (7th Cir. 1995)).
III.

Discussion
A.

Attorney’s Fees

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F&H did not include the supplemental fee statement in this determination. F&H did not object
to that motion seeking $3,330.00 in attorney’s fees.

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1.

Are Mr. Murray’s fees reasonable?

A reasonable attorney’s fee is defined as “the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly rate.” Hensley, 461 U.S. at
433. Mr. Kyle Murray’s hourly rate is $200.00 and his associate, Andrew Ferguson’s,
rate is $150.00 per hour. F&H does not object to the hourly rates of Mr. Murray or his
associate; however, F&H objects to certain hours that Mr. Murray and/or his associate
billed. Specifically, F&H asks the court to strike hours related to: (1) administrative and
clerical tasks, (2) Plaintiff’s attempt to reopen discovery, and (3) hours spent researching
based upon an unfamiliarity with the FDCPA practice and Seventh Circuit authority. The
court will discuss each in turn.
a.

Administrative and clerical tasks

F&H asserts that the court should strike the hours devoted to administrative and
clerical tasks. In support, F&H relies on Spegon v. Catholic Bishop of Chicago, 175 F.3d
544, 553 (7th Cir. 1999). In Spegon, the Seventh Circuit found that the district court did
not abuse its discretion when it disallowed the time spent on “simple administrative tasks
that easily could have been performed by a full-time secretary.” Id. Specifically, those
tasks included “updating her ‘case list’ and calendar with the status of [the] case and
holding office conferences with a paralegal regarding a paralegal’s communications with
the court’s minute clerk.” Id. The court noted that these services were not the type an
attorney would normally bill for nor did they contribute to the further of Spegon’s interest
in the case. Id. Relying on that case, Defendant asks the court to not award fees for the
following:
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· 11/12/14: Conference with Kyle [Murray] regarding settlement conference
and pre-trial conference. Begin preparation of exhibit binders for trial. 2.80
($420.00)
· 11/12/14: Review of F&H’s objections to LeForge’s motions in limine and
jury instructions. Review of F&H’s motions in limine and jury instructions
in preparation of final pre-trial hearing. Conference with Andrew Ferguson
regarding trial binder preparation and preparation of exhibits for opposing
counsel, witnesses, and Court . . . 3.10 ($620)
· 1/16/2015: Preparation for trial. Prepare materials for case presentation.
Review juror questionnaires. 2.20 ($330.00)
· 1/19/2015: Travel to Indianapolis to attend Trial. Meet with clients to
discuss testimony at trial. Preparation with Kyle Murray for opening
arguments and witness examination. 7.50 ($1,125.00); and
· 1/19/2015: Exhibit binder review. Cross-examination review. Open
statement and closing argument review. Trip to Indianapolis . . . 10.50
($2,100.00)
The above tasks are clearly not clerical or administrative tasks, but rather detail
work that an attorney would do in anticipation of the final pretrial conference and trial.
Also, each entry furthers LeForge’s interest in this matter and is entirely different from
those excluded in Spegon. For example, travelling to Indianapolis for the trial is clearly a
task that a secretary could not perform in this matter. Furthermore, Mr. Murray states in
his affidavit that he has already reduced the time billed for those tasks that could be
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deemed administrative tasks. As such, the court overrules F&H’s objection to these
entries and finds them to be reasonable.
b.

Reopening of discovery

Second, F&H asks the court to strike those hours spent in an attempt to reopen
discovery, which the court rejected. According to F&H, such efforts were “futile” and
should be excluded. The court disagrees. Plaintiff was pro se during the discovery
period of this case. Because she did not make proper disclosures evidence concerning
her claimed damages would not be permitted to be introduced at trial. Mr. Murray knew
that this would be the result, and in vigorously representing his client, he sought to amend
his client’s pro se responses to avoid this consequence at trial. Simply because the court
did not find in LeForge’s favor does not make such an effort futile. Rather, Mr. Murray
did his best to represent his client’s interests. Thus, the court overrules F&H’s objection
to those entries and finds them to be reasonable.
c.

Hours related to research

Finally, F&H argues that the court should strike or reduce those hours related to
research due to an unfamiliarity with the FDCPA practice or Seventh Circuit authority.
According to F&H, these fees are “excessive, redundant or otherwise unnecessary.”
Small v. Richard Wolf Med. Instruments Corp., 264 F.3d 702, 708 (7th Cir. 2001). F&H
does not explain why the entries it objects to are excessive, redundant or unnecessary, nor
does F&H explain why such research is the result of a lack of experience in the FDCPA
practice or unfamiliarity with Seventh Circuit law. This is simply an unsupported

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conclusion made by the F&H. Thus, F&H’s objection is simply to time spent researching
without any explanation on why the time was excessive or unnecessary.
Time spent researching is clearly in the interest of LeForge; it is a necessary part
of the practice of law, whether an attorney normally practices in that area or not. As the
Seventh Circuit has stated, “No matter how experienced a lawyer is, he has to conduct (or
have conducted for him) research to deal with changes in the law, to address new issues,
and to refresh his recollection.” In re Continental Illinois Securities Litigation, 962 F.2d
566, 570 (7th Cir. 1992). In reviewing Mr. Murray’s time sheet, the court does not see
any entries in which Mr. Murray or his associate spent an unreasonable amount of time
researching an issue. As such, the court overrules F&H’s objection and finds that the
time Mr. Murray and his associate, Mr. Ferguson, spent researching is reasonable.
2.

Should Mr. Murray’s fees be reduced due to lack of success?

F&H also argues that Mr. Murray’s fees should be reduced by fifty percent due to
the lack of success in light of the demand and prior settlement offers and the lack of
complexity in this matter. F&H submits evidence concerning the parties’ settlement
communications. In December of 2013, LeForge, proceeding pro se, rejected a
settlement offer of $1,500.00 and instead demanded $1.5 million. This $1.5 million
dollar settlement proposal was submitted to F&H again on April 10, 2014, by Mr.
Murray. On October 28, 2014, Mr. Murray wrote a $1 million settlement proposal to
F&H. On November 14, 2014, F&H offered to settle the case for $20,000.00 plus
attorney’s fees and costs to be determined by the court. At trial, the jury awarded
LeForge $5,500.00.
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F&H, relying on Seventh Circuit case law, argues that “substantial settlement
offers should be considered by the District Court as a factor in determining an award of
reasonable attorney’s fees even when Rule 68 does not apply.” Moriarty v. Svec, 233
F.3d 955, 976 (7th Cir. 2000); see also Cooke v. Stegani Management Services, Inc., 250
F.3d 564, 570 (7th Cir. 2001). Moreover, an offer “is substantial if . . . the offered
amount appears to be roughly equal to or more than the total damages recovered by the
prevailing party.” Id. In Cooke, the Seventh Circuit upheld the district court’s fifty
percent reduction of the plaintiff’s fee petition when Cooke requested nearly $300,000
from the jury and walked away with $7,500.
LeForge responds by citing a more recent case from the Seventh Circuit showing
that such reasoning only applies when a nominal award is given. See Estate of Enoch ex
rel. Enoch v. Tienor, 570 F.3d 821, 823 (7th Cir. 2009). In that case the Seventh Circuit
stated:
In cases which involve more than a nominal award, we have rejected the
notion that the fee award should be reduced because the damages were
smaller than a plaintiff originally sought or that the fee award might, in fact,
be more than the plaintiff's recovery.
Id. In Enoch, the Seventh Circuit did not specifically overrule Cooke where the
plaintiff’s recovery was clearly not nominal.
Here, LeForge’s recovery was also not nominal. The jury awarded her the
maximum statutory award of $1,000 and an additional $4,500 for her actual damages.
Thus, the court must determine whether to follow Cooke or Enoch. Because Enoch is
more recent and rejects the holding of Cooke, the court will follow it. Thus, the court
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will not reduce the attorneys’ fees based on any apparent lack of success. Next, the court
will determine what costs, if any, Mr. Murray and LeForge are entitled to.
B.

Costs
1.

Mr. Murray’s Costs

Mr. Murray seeks $576.72 in costs. F&H does not dispute his claimed costs and
nontaxable expenses. Thus, the court awards Mr. Murray $576.72 in costs.
2.

LeForge’s Costs

LeForge seeks $23,528.31 in expenses and costs. In her affidavit, Plaintiff states
that she incurred the following out-of-pocket expenses as a result of this litigation:
Paper, Ink, and Other Office
Materials
Postage and Postal Services

$2,903.24

Travel Expenses

$9,725.94

Airfare and Parking

$6,300.00

Pacer Account Charges

$79.40

Prior Attorney Fees and Expenses

$3,222.86

Court Filing Fees

$350.00

Total Expenses and Costs

$23,528.31

$946.87

F&H does not dispute the $350 cost for the filing fee in this matter; however, it disputes
the remaining expenses. After analyzing the documentation submitted by LeForge, F&H
asserts that LeForge and her counsel did not have a good faith basis to believe that she
incurred $23,528.31 in out of pocket expenses “directly attributed to this litigation from
April 9, 2011 to January 20, 2105. F&H asks the court to strike LeForge’s request for
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costs and expenses as a result. In the alternative, F&H asks the court to award LeForge
no more than $2,668.11. The court will first consider the requested fees and basis for
those requests and then will proceed to whether a lack of good faith existed warranting
sanctions.
a.

Specific Requests
1.

Office Expenses and Postage

LeForge seeks payment for home office supplies including computer monitors,
computer software, printers, phones, fax machines, paper, and ink. As F&H asserts, fees
for paper, ink and other office materials are not recoverable because they are not fees that
are typically billed to the client. See Henry v. Webermeier, 738 F.2d 188, 192 (7th Cir.
1984). As such, those fees are not recoverable. On the other hand, typically fees for
postage are passed onto the client, and thus are recoverable. See Dickinson v. Indiana
State Election Bd., 817 F. Supp. 737, 753 (S.D. Ind. 1992); see also Eli Lilly and Co. v.
Zenith Goldline Pharmaceuticals, Inc., 264 F. Supp. 2d 753, 779 (S.D. Ind. 2003)
(awarding an amount for ordinary postage after finding overnight couriers were not
reasonably necessary for the case); Harvey v. Mohammed, 951 F. Supp. 2d 47, 68-70
(D.D.C. 2013). Defendant does not object to LeForge recovering for the necessary
postage.
2.

Travel Expenses, Airfare, and Parking

In her affidavit, LeForge seeks $9,725.94 for travel expenses and $6,300.00 for
airfare and parking. Her documentation showed $6,597.67 in travel related expenses
after duplicate entries were removed from the calculation. Defendant objects to four of
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the seven trips to Indianapolis claimed by LeForge and also objects to any recovery for
flights for Plaintiff’s husband, who is not a party to this litigation. The court agrees that
travel for Mr. LeForge is not recoverable because he is not a party to this litigation.
Thus, any costs incurred by him are not the responsibility of F&H. Now, it will turn to
the seven trips to Indianapolis.
The seven trips to Indianapolis occurred in August 2010, July 2011, June 2013,
July 2013, November 2013, November 2014, and January 2015. The trips required for
court appearances were in June 2013, November 2014, and January 2015. F&H does not
object to these three trips. Rather F&H objects to the August 2010 trip, July 2011, July
2013, and November 2013 trips because they were not required for this litigation.
LeForge only provides an explanation for one of the four trips. According to LeForge,
she travelled to Indianapolis in November 2013 for an interview with an attorney or firm.
The court finds awarding expenses for that trip is unreasonable; LeForge could have
interviewed a potential attorney over the phone rather than in person. The fact that she
chose to do so in person is not an expense F&H should be expected to fund. Thus,
LeForge cannot recover for the November 2013 trip.
LeForge requests travel expenses for a trip dating August 18-21, 2010. First, this
trip is disallowed as it occurred nine months prior to this lawsuit. Second, the court has
reason to believe that this trip was actually for business located in Warsaw, Indiana,
approximately 135 miles from the Indianapolis airport. Although LeForge flew into
Indianapolis, she drove 328 miles in her rental car and ate dinner in Warsaw on August
18 and 19. LeForge’s hotel receipt does not show the city in which the hotel was
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located. 2 Nevertheless, it is clear that she only had enough miles on her rental car to
drive to Warsaw and back once. Thus, having had dinner there two nights in a row leads
the court to conclude that LeForge indeed stayed at the Holiday Inn located in Warsaw.
Finally, that receipt shows a group and conference number, which indicates that the travel
was likely work-related rather than related to this litigation.
The next trip LeForge requests travel expenses for occurred from July 26-29,
2011. There is nothing on the docket in this case to suggest a reason for this trip. F&H
suggests that this trip may have been for LeForge’s deposition in the related action
LeForge v. BAC Home Loan Servicing, 1:10-cv-00859-TWP-DKL. According to Filing
Number 47 in that action, her deposition was scheduled for July 29, 2011. Whatever the
reason may be, it was not travel required for this litigation, and thus F&H is not
responsible for those expenses. Additionally, there is no explanation for LeForge’s trip
to Indianapolis from July 29, 2013 to August 1, 2013. Thus, the court cannot find that
trip to have been required as part of this litigation and will not hold F&H responsible for
the expenses incurred as a result of that trip.
3.

Prior Attorney Fees

LeForge also requests $2,342.86 for attorney’s fees and costs incurred with her
prior counsel. In support of this request, LeForge includes a letter dated December 5,
2011, which states that “You are responsible for reimbursing the costs immediately, and

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The hotel receipt stated: “Thank you for staying at Holiday Inn Express,
Indiana. . .”
(Filing No. 156-5, at ECF p. 1). F&H alleges that the blank space where the city would be
located was redacted by LeForge. LeForge did not respond to that allegation.

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the attorney fees are to be paid out of any recovery that you might make in this case
subsequent to [the attorney’s] withdrawal.” (Filing No. 156-3, at ECF p. 5). F&H argues
that the fees should be disallowed because LeForge did not show the number of hours
billed, the proposed rate, or the reasonableness of the hours expended.
F&H is correct. As stated above, an award of attorney’s fees involves the use of
the lodestar method. See Tolentino, 46 F.3d at 651. The court cannot evaluate whether
the fees are reasonable under that method without knowing the hourly rate charged and
the number of hours expended on the case. As such, the court cannot award attorney’s
fees to LeForge’s prior counsel nor to LeForge to pay to her former counsel.
4.

Court Costs and Pacer Fees

Pacer fees that are incurred to obtain official records for use in this case are
recoverable costs. See Thomas v. City of Peoria, Ill., No. 06-cv-1018, 2009 WL
4591084, * 2 (C.D. Ill. Dec. 3, 2009). LeForge did not submit any receipts to show what
documents or cases she viewed on Pacer. LeForge, through her attorney, represented to
the court that her use of Pacer was to obtain records in this matter and for research. The
court has found numerous inconsistencies between the record and LeForge’s affidavit.
As such, it is skeptical of the Pacer costs as well. Without any documentation supporting
these charges, the court will not award the costs of the Pacer fees to LeForge. F&H does
not object to the recovery of the court filing fee of $350; thus, the court will award that to
LeForge.

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b.

Striking the Request

As stated above, F&H argues that the court should use its authority to strike the
requested fees due to an alleged lack of good faith in her affidavit. See Alexander v.
Caraustar Indus., Inc., 930 F. Supp. 2d 947, 949-950 (N.D. Ill. 2013) (court has inherent
authority to sanction a litigant that engages in conduct that abuses the judicial process).
F&H notes that the total for the documents submitted by LeForge is $19,182.98, rather
than $23,528.31. 3 There is no explanation given for the discrepancy. Additionally,
several of the charges were submitted twice, thus, after removing duplicates the total was
only $10,073.89. Furthermore, several of the documents submitted were for expenses
arising before this litigation despite LeForge’s affidavit stating the expenses were
incurred during the litigation. Finally, and perhaps most egregious are the four
unexplained trips to Indianapolis, including a business trip in Warsaw, Indiana.
The court cannot chalk all of this up to simple confusion, but rather must find a
lack of good faith on the part of LeForge. Her discrepancies are alarming. As such, the
court agrees that her recovery should be cut. The court will thus only allow LeForge to
recover her court costs of $350, the amount actually spent and submitted for her flights to
Indianapolis in June 2013 ($10), November 2014 ($267.20), and January 2015 ($494.20).
Additionally, she may recover the costs to park in Ft. Myers for those trips ($22.00,
$54.72, and $55.72 respectively) and her hotels in Indianapolis for those trips ($593.19) 4.

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Plaintiff did not file a reply addressing any of these allegations. As such, the court will accept
the numbers calculated by Defendant as true and accurate and admitted by Plaintiff.
4
LeForge did not submit a receipt for a hotel stay in January of 2015. Additionally, she used
points for her hotel stay in June 2013.

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IV.

Conclusion
In conclusion, the court did not find F&H’s objections to Mr. Murray’s fees to be

persuasive. As such, the court awards $37,415.00 in attorney’s fees and $576.72 in costs
to Mr. Murray. The court finds that Plaintiff has abused the system in seeking costs for
expenses incurred prior to this case and not in pursuit of this litigation. The court thus
limits her recovery to a total of $1,847.03. Therefore, the court GRANTS in part and
DENIES in part Plaintiff’s motion for attorney’s fees and costs (Filing No. 147) and
GRANTS Plaintiff’s supplemental motion for attorney’s fees (Filling No. 152).

SO ORDERED this 2nd day of June 2015.
_________________________________
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana

Distributed Electronically to Registered Counsel of Record.

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