Morrow et al v. Weinerman & Associates, LLC et al

Filing 41

ORDER granting in part 31 Motion for Attorney Fees. (Written Opinion). Signed by Judge Richard H. Kyle on 05/07/12. (kll)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Debbie Morrow and Tina King,
Plaintiffs,
Civ. No. 11-104 (RHK/LIB)
ORDER
v.
Weinerman & Associates, LLC, and
Dan Steinberg,
Defendants.

This matter is before the Court on Plaintiffs’ Motion for Attorneys’ Fees and Costs
(Doc. No. 31). For the reasons that follow, their Motion will be granted in part.
This action arises under the Fair Debt Collection Practices Act (“FDCPA”), 15
U.S.C. § 1692 et seq. Plaintiffs Debbie Morrow and Tina King (Morrow’s daughter)
alleged in their Complaint that Defendant Weinerman & Associates LLC (“Weinerman”),
a debt collector, and its agent, Dan Steinberg, violated the FDCPA when attempting to
collect a debt Morrow allegedly owed. Plaintiffs filed their Complaint in January 2011,
and Defendants answered in March 2011, denying liability. The parties then participated
in a scheduling conference before the Magistrate Judge and, thereafter, undertook
discovery.
On August 10, 2011, Plaintiffs moved for partial summary judgment as to
Weinerman’s liability. (Doc. No. 12.) In support, they filed a 12-page Memorandum
(Doc. No. 14), along with several supporting Affidavits, Weinerman’s responses to

Plaintiffs’ Interrogatories, and recordings of telephone calls made by Steinberg that
purportedly violated the FDCPA (Doc. Nos. 15-16). Weinerman responded on
September 1, 2011 (Doc. No. 19), and Plaintiffs filed a Reply Memorandum on
September 7, 2011 (Doc. No. 21). The Court heard oral argument on the Motion on
September 21, 2011.
By Order dated September 26, 2011 (Doc. No. 24), the Court granted in part and
denied in part Plaintiffs’ Motion. The Court found that at least some of the challenged
phone calls had violated the FDCPA as a matter of law, while certain other calls created
fact questions that required jury resolution. (See id. at 6-11.) The Court then set the
matter for trial in April 2012. Thereafter, the parties reached a settlement; Weinerman
agreed to pay $3,000 to settle Plaintiffs’ claims and further agreed to waive the preexisting debt giving rise to those claims. (Lyons Aff., Ex. 4 ¶¶ 1-2.) The issue of fees
and costs, however, was expressly reserved for the Court’s determination. (Id. ¶ 4.)
Plaintiffs have now filed the instant fee Motion, seeking an award of $14,466.23 in
attorneys’ fees and $891.69 in costs. Weinerman does not dispute that Plaintiffs are
entitled to a fee award. 1 See 15 U.S.C. § 1692k(a) (successful FDCPA plaintiff may
recover “the costs of the action, together with a reasonable attorney’s fee”). Rather, it
challenges the amount being sought.
Typically, a court should calculate the amount of fees to be awarded under the
FDCPA by using the “lodestar” method, multiplying the reasonable number of hours
1

Although not entirely clear, it appears that the response to the instant Motion was filed only on
behalf of Weinerman (not Steinberg), and Plaintiffs appear to seek a fee award only from the
corporate defendant.
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expended by a reasonable hourly rate. See Jerman v. Carlisle, McNellie, Rini, Kramer &
Ulrich LPA, __ U.S. __, 130 S. Ct. 1605, 1621 n.16 (2010). That amount may be
adjusted downward, however, in cases in which the recovery is small or the FDCPA
violation at issue is minor or technical. See id. (citing inter alia Schlacher v. Law Offices
of Phillip J. Rotche & Assocs., P.C., 574 F.3d 852, 854-55 (7th Cir. 2009) (reducing
lodestar for the “unnecessary use of multiple attorneys . . . in a straightforward, shortlived [FDCPA] case”), and Carroll v. Wolpoff & Abramson, 53 F.3d 626, 629-31 (4th
Cir. 1995) (no abuse of discretion in awarding only $500 in attorneys’ fees, rather than
the lodestar amount, where lawsuit recovered $50 in damages for “at most a technical
violation” of FDCPA)).
In this case, “small” is an inapt label for Plaintiffs’ recovery – indeed, they
received more than $4,000 between (1) the payment from Weinerman and (2) the waiver
of the pre-existing debt, hardly a paltry sum. Moreover, unlike in Carroll, where the debt
collector failed to disclose in a dunning letter that it was attempting to collect a debt, the
violations here were not “technical” in nature. Plaintiffs alleged not only that Weinerman
continued to contact them after being advised they were represented by an attorney
(perhaps a “technical” violation), but also that it engaged in abusive and berating
behavior in several phone calls. (See Compl. ¶¶ 12-15.) Indeed, there was sufficient
evidence in the record to create a jury question whether Weinerman violated the
FDCPA’s prohibition on “harass[ing], oppress[ive], or abus[ive]” conduct. Cf. Carroll,
53 F.3d at 630 (reducing lodestar because debt-collector’s conduct “was hardly morally
culpable or otherwise deserving of anything more than a very small award of damages”)
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(alteration deleted). Lastly, this case was not “short-lived” – it was commenced in
January 2011, proceeded with discovery, went through Motion practice, and was finally
set for an April 2012 trial before it settled. For these reasons, the Court concludes that
the lodestar amount should not be reduced and that a fee award equal to that amount is
appropriate. 2
The Court next must calculate the lodestar amount. Plaintiffs seek compensation
for 29.63 hours expended by attorneys Thomas J. Lyons, Trista M. Roy, and Thomas J.
Lyons, Jr. on this case. 3 The Court does not believe that the hours expended were
excessive or unreasonable given the nature of the claims in this case, the amount of time
the matter was pending, and the factual and procedural background (including discovery
and motion practice). The Court also finds the requested hourly rates for Trista M. Roy
($250) and Thomas J. Lyons, Jr. ($350) appropriate. See, e.g., Buzzell v. Citizens Auto
Fin., Inc., Civ. No. 10-2046, Doc. No. 53 (D. Minn. Feb. 17, 2011) (Noel, M.J.)
(approving $250 hourly rate for Roy); Bankey v. Phillips & Burns, LLC, Civ. No. 07-

2

Weinerman argues that the requested fees should be reduced because it was “ready, willing,
and able to settle this case early on.” (Doc. No. 37 at 1.) In support of that assertion, it has
attached correspondence between counsel containing various settlement demands and responses.
(See Doc. No. 38.) All of the correspondence, however, is from 2012 – that is, after the Court
granted (in part) summary judgment establishing Weinerman’s liability, and then set the matter
for trial. There is simply no indication in the record that Weinerman recognized its liability early
in this case and attempted to settle this matter quickly. (While there is some reference to
Weinerman having served an Offer of Judgment under Federal Rule of Civil Procedure 68 in
May 2011, that document is nowhere in the record.) Indeed, Defendants denied liability in their
Answer and continued to deny liability when responding to Plaintiffs’ summary-judgment
Motion in September 2011.
3

Thomas J. Lyons, Jr. was suspended from the practice of law for part of the time this case was
pending; during that time, he performed work on this case as a “legal assistant,” as discussed
separately below.
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2200, Doc. No. 42 (D. Minn. June 11, 2008) (Frank, J.) (approving $300 hourly rate for
Lyons, Jr.). However, the Court believes that the requested hourly rate for Thomas J.
Lyons ($450) is excessive and should be reduced to $400. See Warnock v. Archer, 397
F.3d 1024, 1027 (8th Cir. 2005) (“[District] courts may draw on their own experience and
knowledge of prevailing market rates.”). The lodestar amount for attorney work,
therefore, is calculated as follows: $2,428 for Lyons (6.07 hours times $400 per hour),
$4,230 for Roy (16.92 hours times $250 per hour), and $2,324 for Lyons, Jr. (6.64 hours
times $350 per hour), for a total of $8,982.00.
Plaintiffs also seek compensation for 27.82 hours of legal-assistant time devoted to
this case. Slightly more than five of those hours were expended by Andrea L. Weber, a
paralegal with over 18 years’ experience, and the remaining hours (nearly 23) were
expended by Thomas J. Lyons, Jr., while he was suspended from the practice of law.
Time expended by paralegals and legal assistants that is not purely clerical generally is
compensable. See, e.g., Missouri v. Jenkins, 491 U.S. 274, 284-89 (1989). That is true
here, as the time expended by Weber and Lyons, Jr., included preparing discovery
responses, revising settlement documents, and drafting the instant fee Motion. (See
Lyons Aff. Ex. 2.) Nevertheless, the Court believes that the numbers of hours expended
is excessive because the time records show multiple entries for duplicative work. (See
id.) Accordingly, the Court will reduce to 10 hours the amount of compensable legalassistant time. In addition, the Court concludes that an appropriate hourly rate for such
work is $125 (as sought by Weber). Although Lyons, Jr., was a suspended attorney when
he performed legal-assistant work on this case, the Court does not believe that his
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additional legal training should be taken into account when affixing the appropriate fee
for such work. See Ladd v. Pickering, 783 F. Supp. 2d 1079, 1093 (E.D. Mo. 2011)
(Kyle, J., sitting by designation). For these reasons, the Court will award $1,250 (10
hours times $125 per hour) for legal-assistant work.
Finally, the Court must address Plaintiffs’ request for $891.69 in expenses.
Weinerman has not objected to this request, and the Court finds that the amount sought –
which includes the filing fee, fees for service of process, photocopying costs, and other
similar charges – is proper and reasonable. See Pinkham v. Camex, Inc., 84 F.3d 292,
294-95 (8th Cir. 1996) (per curiam) (reasonable out-of-pocket expenses of the kind
normally charged to clients by attorneys may be included as part of a reasonable
attorney’s fee).
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Plaintiffs’ Motion for Attorneys’ Fees and Costs (Doc. No. 31) is
GRANTED IN PART. Plaintiffs shall recover of Defendant Weinerman & Associates,
LLC the sum of $11,123.69, comprising $10,232.00 in attorney (and legal-assistant) fees
and $891.69 in costs.
LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: May 7, 2012

s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge

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