Piontek v. ATM Systems Corporation
Filing
23
MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 2/14/2012. (kns, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT _---.lRI.ED -_ENTERED
FOR THE DISTRICT OF MARYLAND
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lOOG..CO _~P.ECEIVI:U
VICKI PIONTEK, individually and on
behalf of all others similarly situated
Plaintiff,
v.
ATM SYSTEMS CORP.
Defendant.
FEB I
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ClERK
:i 2012
ATGREENSElT
u.s. DISTRICT COURT
Dl8rm:n OF IIIlUM.Afm
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Civil No.: PJM 11-177
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MEMORANDUM
OPINION
Plaintiff Vicki Piontek has sued Defendant ATM Systems Corporation, alleging that she
was charged a terminal transaction fee without proper notice in violation of the Electronic Fund
Transfer Act ("EFTA"), 15 U.s.C. ~ 1693, ef seq. On September 14,2011, Defendant sent
Plaintiff a letter offering to consent to judgment being entered against it in the amount of
$1,375.00. Plaintiff subsequently accepted the offer. The only outstanding issue is the parties'
dispute over reasonable attorneys' fees. For the reasons that follow, the Court will ENTER
judgment in favor of Plaintiff in the total amount of $5,821.00.
I.
Plaintiff alleges in her Complaint that on December 15,2010 she withdrew $20.00 in
United States currency from an automated teller machine ("A TM") operated by Defendant at the
Renaissance Harborplace Hotel in Baltimore, Maryland. Defendant charged Plaintiff a terminal
fee of $3.25 for the transaction. At the time of the transaction, Plaintiff alleges, there was no
notice posted on or at the ATM advising customers that a fee would be charged for use of the
ATM. Because Defendant failed to provide such notice, it was not permitted to charge Plaintiff
or other members of the public who used the ATM any transaction fee. Plaintiff subsequently
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DiI'UTY
filed a Motion for Class Certification. On behalf of herself and all others similarly situated,
Plaintiff asked the Court to issue an order certifying the class and appointing her as class
representative and her attorney as counsel for the class.
Defendant timely filed a Motion to Dismiss Plaintiffs Complaint and an Opposition to
Plaintiff s Motion for Class Certification. After hearing oral argument on September 1, 2011,
the Court issued an Order denying Defendant's Motion to Dismiss and Plaintiffs Motion for
Class Certification.
Defendant then filed its Answer. On September 14, 2011, Defendant sent
Plaintiff its offer to consent to judgment beIng entered against it in the amount of $1 ,375.00,
"together with the costs of this action and a reasonable attorneys' fee, as determined by this
court, incurred by [Plaintiff] prior to the date of receipt of th[ e] offer."
On September 26, 2011, Plaintiff filed a Notice of Acceptance of Offer of Judgment and
Request for Entry of Judgment After Determination by the Court of a Reasonable Attorneys' Fee
and Expenses. Plaintiff asked the Court to award her $10,387.93-ealculated
as $1,375.00 in
damages based on Defendant's offer, $412.93 in costs, and $8,600.00 in attorneys' fees. Plaintiff
attached a declaration of counsel E. David Hoskins in support of the award of attorneys' fees and
costs. Mr. Hoskins stated that he spent 21.5 hours on the case, billed at $400.00 per hour, and
attached a time report documenting hours and expenses. Per the report, Mr. Hoskins spent: 5.00
hours on "[i]nvestigation, opening file and drafting complaint"; 3.06 hours drafting "motion for
class certification"; 2.00 hours "[d]rafting discovery"; 1.36 hours "[d]rafting memorandum in
opposition to motion to dismiss"; 3.06 hours "[ d]rafting opposition to motion to dismiss and
reply in support of class certification"; 0.18 hours "[d]rafting and filing reply memorandum in
support of motion for class certification"; 1.18 hours for [p]reparation for hearing on ATM
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motion to dismiss"; and 5.06 hours for "[p]reparation for and attending hearing and travel to and
from Courthouse."
On October 10, 2011, Defendant filed an Opposition to Plaintiff s request, arguing that
the attorneys' fees and costs she seeks are unreasonable, excessive, and unsupported.
maintains that her demand is not based on a reasonable number of hours expended.
Defendant
Defendant
also claims that $400.00 per hour is not a reasonable fee based on Mr. Hoskins's age, experience,
and background, as well as the locale and custom. In response, Plaintiff concedes that she
incurred $350.00, not $412.93, in costs, but argues that both the number of hours Mr. Hoskins
spent on the case and his hourly fee are reasonable.
II.
In determining the reasonableness of attorneys' fees in an EFTA case, a district court
considers several relevant factors:
(1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3)
the skill required to properly perform the legal services rendered; (4) the attorney's
opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6)
the attorney's expectations at the outset of the litigation; (7) the time limitations imposed
by the client or circumstances; (8) the amount in controversy and the results obtained; (9)
the experience, reputation and ability of the attorney; (10) the undesirability of the case
within the legal community in which the suit arose; (11) the nature and length of the
professional relationship between attorney and client; and (12) attorneys' fees awards in
similar cases.
Moore v. SoufhTrusf
Kimbrell's,
Corp., 392 F. Supp. 2d 724, 733 (E.D. Va. 2005) (citing Barber v.
Inc., 577 F.2d 216, 226 (4th Cir. 1978)). The district court evaluates these factors in
deciding what constitutes a reasonable number of hours and a reasonable rate. Daly v. Hill, 790
F.2d 1071, 1078 (4th Cir. 1986). The resulting lodestar figure-the
expended multiplied by a reasonable rate-is
number of reasonable hours
presumptively fair, but can be adjusted to account
for the quality of representation and the results. Id.
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III.
Turning
first to the question of attorney time and the points on which the parties agree,
the Court finds that it was reasonable
Memorandum
in Opposition
hearing on that Motion.
reasonably
expended
to Defendant's
for the
the amount of time her attorney
on other parts of the case.
argument,
Mr. Hoskins did not reasonably
opening the case, and drafting the Complaint.
matter, and the Complaint
district (and presumably
PJM 10-1202.
Motion to Dismiss and 1.18 hours preparing
Plaintiff, however, overstates
Contrary to Plaintiff's
investigating,
for Mr. Hoskins to spend 1.36 hours drafting a
spend 5.00 hours
This was not a complex or difficult
is nearly identical to many others Plaintiff has filed in this judicial
in other jurisdictions).
Much of the Complaint
See, e.g., Piontek v. CU Servo Network
sets forth the same applicable
legal standards;
LLC, No.
the only
part that had to be drafted for this specific case was the "facts" section, which is less than a
single page in length.
The Court therefore finds that Mr. Hoskins reasonably
spent 3.00 hours
initiating the suit.
Mr. Hoskins next avers that he spent 2.00 hours "(d]rafting
with Defendant
that it was not reasonable
matters when the discovery
for Plaintiff's
requests on Defendant.
requests.
Accordingly,
Nor did Defendant
Mr. Hoskins did not reasonably
Plaintiff argues that she is entitled to attorneys'
draft the Motion for Class Certification
the time he spent preparing
not reasonably
expended.
The Court agrees
counsel to spend time on discovery
process had not yet commenced.
discovery
discovery."
Plaintiff served no written
serve Plaintiff with any written discovery
spend any time "(d]rafting
discovery."
fees for the time it took Mr. Hoskins to
and the Reply in support of class certification,
for the hearing on that Motion.
Not only was Plaintiff's
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as well as
The Court finds that this time was
Motion for Class Certification
denied, but it
also closely tracks other motions for class certification that Plaintiff has filed in suits alleging
violation of the EFTA. See id. Mr. Hoskins's time report must be revised in several respects.
First, Plaintiff is not entitled to any fees for the time her attorney spent drafting the Motion for
Class Certification.
Second, Plaintiff cannot claim any fees for the time it took Mr. Hoskins to
draft and file the Reply memorandum in support of class certification. Third, for the 3.06 hours
Mr. Hoskins allegedly spent drafting the Opposition to Defendant's Motion to Dismiss and the
Reply in support of class certification, Plaintiff is entitled to fees for the former, not the latter.
Defendant concedes that Plaintiffs attorney expended more than half of that time on the
Opposition to the Motion to the Dismiss, and the Court agrees that 1.6 hours constitutes a
reasonable approximation.
Fourth, Plaintiff cannot claim fees for the full 5.06 hours her attorney
allegedly spent preparing for and attending the hearing on her Motion for Class Certification and
Defendant's Motion to Dismiss. Defendant once again concedes that Mr. Hoskins expended
more than half of that time in connection with the Motion to Dismiss, and the Court agrees that
3.1 hours is a reasonable approximation.
Finally, the Court rejects Plaintiffs contention that she is entitled to fees for the time Mr.
Hoskins spent drafting a response to Defendant's Opposition to her request for attorneys' fees
and costs. Defendant's Opposition highlighted several problems with the hours Plaintiff claimed
her attorney reasonably expended, which the Court has identified. In sum, Mr. Hoskins
reasonably spent a total of 10.24 hours on this case.
Turning to the issue of a reasonable rate, the Court finds that $400.00 per hour for Mr.
Hoskins's services is reasonable. Although that number is at the high end of the guidelines
provided by the Local Rules, see Local Rules App. B (D. Md.), Mr. Hoskins has been practicing
law for over 20 years, the normal rate he charges is $400.00 per hour, and he did obtain a
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••
favorable outcome for his client given the statutory cap on damages. See 15 U.S.c.
S
1693m(1 )(2)(A).
Multiplying the reasonable number of hours Mr. Hoskins spent on the case (10.24) by the
reasonable rate ($400.00 per hour) yields a lodestar fee of $4,096.00.
Under the circumstances,
the Court finds no reason to adjust this presumptively reasonable fee. Accordingly, the Court
awards Plaintiff $4,096 in attorneys' fees, as well as $350.00 in costs and $1,375.00 in damages,
for a total of $5,821.00.
IV.
For the foregoing reasons, the Court will ENTER judgment in favor of Plaintiff and
against Defendant in the amount of $5,821.00.
A separate Order will ISSUE.
lsi
UNIT
February 14, 2012
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P TER J. MESSITTE
TATES DISTRICT JUDGE
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